Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 9)

The case between the Australian Competition and Consumer Commission and CC (NSW) Pty Ltd (No 9) dealt with allegations of anti-competitive practices in the construction industry, specifically concerning the imposition of special fees and the tendering process. The dispute was heard and determined by Justice Lindgren in the Federal Court of Australia. The central legal issues revolved around whether the conduct of the parties, including the imposition of Special Fees and the tendering process, substantially lessened competition in contravention of section 45 of the Trade Practices Act 1974 (Cth).

The court was required to determine whether the arrangement and understanding among the Tenderers, including Concretes, had the purpose or effect of substantially lessening competition. The court examined whether the Special Fee and the understandings regarding UTFs constituted an arrangement or understanding that was likely to fix, control, or maintain prices, thereby contravening section 45 of the Trade Practices Act. Justice Lindgren concluded that the Special Fee was unilaterally imposed by the AFCC, not the result of a mutual understanding among the Tenderers. However, there was an understanding among the Tenderers that if one was the successful Tenderer, it would pay a UTF to the unsuccessful Tenderers. The court found that while the Tenderers did not explicitly agree to consider these commitments in their tender prices, they independently expected that these commitments would be honored.

Justice Lindgren ruled that the understanding, even if limited, satisfied the criteria of section 45(2) of the Trade Practices Act as it was likely to have the effect of fixing, controlling, or maintaining the price for services in competition with each other. The court found that the Tenderers were indeed competitive with each other in relation to the supply of construction services in New South Wales. Consequently, the court found that the actions of the Tenderers, including Concretes, contravened the Trade Practices Act.

The final orders of the court included standing the proceeding over to a later date for the making of further orders, including those regarding costs. The parties were required to submit agreed short minutes of the orders or, if they could not agree, copies of the minutes and submissions in support, to the Associate to Lindgren J by a specified date.