Australian Competition & Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954

Australian Competition & Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954

At a meeting between representatives of major construction tenderers for the 'Commonwealth Offices – Haymarket' project, those tenderers arrived at an arrangement or understanding obliging the successful tenderer to pay an 'unsuccessful tenderer's fee' (UTF) of $750,000 to each unsuccessful tenderer. This understanding was likely to have the effect—by promoting the passing-on of these costs in tender prices—of controlling the price to be charged to the client (ACS), thereby contravening s 45 read with s 45A of the Trade Practices Act. However, no contravention in respect of the 'Special Fee' paid to the AFCC was found, as there was no relevant arrangement or understanding, but rather,...

Jurisdiction
Australia
Judgment Date
14 July 1999
Procedural Posture
Civil; Penalty Application / Liability Judgment (contravention Only); Further Hearing to Be Listed on Penalty
Outcome
The Court finds that the respondent (Concretes) contravened s 45 (via s 45A) of the Trade Practices Act in relation to the UTF understanding. Contravention as to the Special Fee and misleading conduct not established. Further directions on penalty to be listed.
Legal Topics
['restrictive Trade Practices' 'price Fixing' 'tendering and Construction Industry Collusion' 'misleading or Deceptive Conduct (trade Practices Act S 52)' 'evidence – Tendency Evidence Under Evidence Act 1995 (cth) S 97']
['competition Law'] ['restrictive Trade Practices' 'price Fixing' 'tendering and Construction Industry Collusion' 'misleading or Deceptive Conduct (trade Practices Act S 52)' 'evidence – Tendency Evidence Under Evidence Act 1995 (cth) S 97']

Case Brief

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Procedural Posture

Civil; Penalty Application / Liability Judgment (contravention Only); Further Hearing to Be Listed on Penalty

Legal Issues

  1. 1 ["Whether CC (NSW) Pty Ltd participated in an arrangement or understanding with competitors to pay unsuccessful tenderers' fees (UTFs) in contravention of Trade Practices Act ss 45, 45A;" "Whether any understanding as to 'Special Fee' paid to AFCC contravened Trade Practices Act;" 'Whether CC (NSW) Pty Ltd engaged in misleading or deceptive conduct by failing to disclose to the client the existence of the understanding;' "Whether documentary and testimonial evidence including 'tendency evidence' was admissible and probative under Evidence Act ss 55, 97"]

Ratio Decidendi

At a meeting between representatives of major construction tenderers for the 'Commonwealth Offices – Haymarket' project, those tenderers arrived at an arrangement or understanding obliging the successful tenderer to pay an 'unsuccessful tenderer's fee' (UTF) of $750,000 to each unsuccessful tenderer. This understanding was likely to have the effect—by promoting the passing-on of these costs in tender prices—of controlling the price to be charged to the client (ACS), thereby contravening s 45 read with s 45A of the Trade Practices Act. However, no contravention in respect of the 'Special Fee' paid to the AFCC was found, as there was no relevant arrangement or understanding, but rather,...

Court Disposition

The Court finds that the respondent (Concretes) contravened s 45 (via s 45A) of the Trade Practices Act in relation to the UTF understanding. Contravention as to the Special Fee and misleading conduct not established. Further directions on penalty to be listed.

Orders

  • ['The proceeding be stood over to the 22nd day of July 1999 for the making of directions for the further conduct of the proceeding.']