Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No. 2)

The Federal Court of Australia was called upon to decide on an interlocutory application filed by Cement Australia Pty Ltd and others concerning the admissibility of certain documents in a proceeding brought by the Australian Competition and Consumer Commission (ACCC). The primary issue was whether the four annexures to an affidavit were relevant and admissible for the purpose of assessing a pecuniary penalty in relation to the contraventions of the Trade Practices Act 1974 found in the primary judgment. The respondents argued that the documents were not relevant to the penalty determination and that admitting them would reopen the effects of the contraventions, which had already been determined by the Court. The Court found that the documents were relevant to understanding the respondents' assessment of the impact of new entrants on their market share and the competitive landscape, which was pertinent to the penalty determination.

Justice Greenwood dismissed the application to exclude the documents, holding that they were relevant to the penalty assessment and that their admission did not reopen the effects issue. The Court found that while the precise probative value of the documents would be subject to argument in the penalty hearing, it was not necessary for the respondents to conduct a large-scale forensic enquiry to respond to the contents of the documents. The Court also set a hearing date for the remaining questions, including the penalty assessment, for five days commencing on 15 December 2014, and directed the parties to submit a final draft timetable for the interlocutory steps leading to the hearing. The costs of the interlocutory application were reserved.