Australian Competition and Consumer Commission v McMahon Services Pty Ltd (ACN 008 274 020) (No 1) [2004] FCA 1171

Australian Competition and Consumer Commission v McMahon Services Pty Ltd (ACN 008 274 020) (No 1) [2004] FCA 1171

The fifth, sixth and seventh respondents aided and abetted a collusive tendering arrangement between McMahon Services and SA Demolition, contrary to ss 45 and 45A of the Trade Practices Act 1974 (Cth) and thereby contravened s 76. Their conduct was serious but, given their lesser role and level of cooperation (albeit late), the agreed penalties (subject to a 20% discount) were appropriate and within the permissible range. The penalties were intended to serve as deterrence but not to be crushing, reflecting their directorial responsibility and benefit obtained as subcontractors.

Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Civil Penalty Proceeding / Judgment and Orders on Penalty Following Settlement and Admissions
Outcome
Pecuniary penalties ordered against the fifth, sixth and seventh respondents; undertakings given by these respondents noted.
Legal Topics
['price Fixing' 'collusive Tendering' 'aiding and Abetting Contraventions' 'penalties' 'trade Practices Act 1974 (cth)' 's 45' 's 45 A' 's 76']
['competition Law'] ['price Fixing' 'collusive Tendering' 'aiding and Abetting Contraventions' 'penalties' 'trade Practices Act 1974 (cth)' 's 45' 's 45 A' 's 76']

Case Brief

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Procedural Posture

Civil Penalty Proceeding / Judgment and Orders on Penalty Following Settlement and Admissions

Legal Issues

  1. 1 ['Whether the conduct of the fifth, sixth and seventh respondents contravened ss 45, 45A and 76 of the Trade Practices Act 1974 (Cth) by aiding and abetting a price fixing arrangement.' 'What penalty is appropriate for the admitted contraventions under s 76 of the Act.']

Ratio Decidendi

The fifth, sixth and seventh respondents aided and abetted a collusive tendering arrangement between McMahon Services and SA Demolition, contrary to ss 45 and 45A of the Trade Practices Act 1974 (Cth) and thereby contravened s 76. Their conduct was serious but, given their lesser role and level of cooperation (albeit late), the agreed penalties (subject to a 20% discount) were appropriate and within the permissible range. The penalties were intended to serve as deterrence but not to be crushing, reflecting their directorial responsibility and benefit obtained as subcontractors.

Court Disposition

Pecuniary penalties ordered against the fifth, sixth and seventh respondents; undertakings given by these respondents noted.

Orders

  • ['The fifth respondent (DCD Enterprises Pty Ltd) is to pay a pecuniary penalty of $52,000 to the Commonwealth of Australia.' "The sixth respondent (Fernando Daniel D'Apollonio) is to pay a pecuniary penalty of $24,000 to the Commonwealth of Australia." 'The seventh respondent (Vlado Turic) is to pay a pecuniary...