Australian Competition and Consumer Commission v BlueScope Steel Limited (No 2)

The Australian Competition and Consumer Commission (ACCC) sought leave to amend its originating application to include a new claim for declaratory relief and pecuniary penalty against BlueScope Steel Limited. The Federal Court considered the application, which raised questions about whether the new claim was time-barred and if the amendment was permissible under the Federal Court Rules 2011. The court also had to determine the effective date of the amendment and whether costs should be awarded.

The primary legal issues were whether the ACCC's claim for a pecuniary penalty was time-barred by s 77(2) of the Competition and Consumer Act 2010 (Cth), and if the new claim arose out of the same or substantially the same facts as the existing claims. The court had to apply rules 8.21 and 1.32 to 1.35 of the Federal Court Rules 2011 to decide if the amendment was appropriate. Given that BlueScope had already pleaded reliance on s 77(2) in its defence, the court found that BlueScope would not need to amend its defence in response to the ACCC’s amended originating application.

The court concluded that the ACCC's claim for a pecuniary penalty in respect of the OneSteel allegations was not time-barred by s 77(2) of the Competition and Consumer Act 2010 (Cth) and granted leave to the ACCC to amend its originating process. The amendment would take effect from 19 December 2019, the date on which the original claim was brought. The court decided not to make any order regarding the costs of the interlocutory application, noting that while BlueScope opposed the grant of leave and was unsuccessful, the application had been complicated by the ACCC's failure to apply for leave to amend in December 2019.

ORDERS:
1. The applicant be granted leave to file and serve an amended originating application, in the form provided to the respondents by email on 20 March 2020, on the basis that the amendments take effect on 19 December 2019.
2. There be no order as to the costs of the applicant’s interlocutory application dated 3 April 2020.