Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors [1997] FCA 469

Australian Competition & Consumer Commission v J McPhee & Son (Australia) Pty Ltd & Ors [1997] FCA 469

Pleadings were sufficient for strikeout purposes with respect to intention and conduct. Section 76(1)(c) does not proscribe aiding, abetting, counselling, or procuring an attempted contravention of Part IV; such allegations must be struck out. The applicant may replead market particulars. Directions made for further progress.

Parties
Applicant: Australian Competition & Consumer Commission; First Respondent: J McPhee & Son (Australia) Pty Ltd; Second Respondent: Richard Forde; Third Respondent: Douglas Morton; Fourth Respondent: David Clarke; Fifth Respondent: Craig Holland; Sixth Respondent: Guy Webb
Jurisdiction
Australia
Judgment Date
19 May 1997
Procedural Posture
Strikeout Application / Interlocutory Judgment and Orders
Outcome
Partial strikeout application granted; further progress ordered
Legal Topics
Strikeout Application, Collusive Tendering, Market Definition, Aiding and Abetting, Intention, Pleading Requirements
Trade Practices Competition Law Practice and Procedure Strikeout Application Collusive Tendering Market Definition Aiding and Abetting Intention +1 more

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Parties

Australian Competition & Consumer Commission

Applicant

J McPhee & Son (Australia) Pty Ltd

First Respondent

Richard Forde

Second Respondent

Douglas Morton

Third Respondent

David Clarke

Fourth Respondent

Craig Holland

Fifth Respondent

Guy Webb

Sixth Respondent

Procedural Posture

Strikeout Application / Interlocutory Judgment and Orders

Legal Issues

  1. 1 Whether pleading sufficiently alleges intention for attempted contravention
  2. 2 Whether market definition is adequately pleaded
  3. 3 Whether individuals aiding and abetting is proscribed under Trade Practices Act

Ratio Decidendi

Pleadings were sufficient for strikeout purposes with respect to intention and conduct. Section 76(1)(c) does not proscribe aiding, abetting, counselling, or procuring an attempted contravention of Part IV; such allegations must be struck out. The applicant may replead market particulars. Directions made for further progress.

Court Disposition

Partial strikeout application granted; further progress ordered

Orders

  • Paragraphs 9, 10, 25(a), 27(a), 29(a) and 31(a) of the further amended statement of claim struck out.
  • Applicant has liberty to replead paragraphs 9 and 10 with consequential amendments within seven days.