Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union

The Australian Competition and Consumer Commission (ACCC) sought to enforce a contravention of section 45E of the Trade Practices Act against the Construction, Forestry, Mining and Energy Union (CFMEU), Bernmar Pty Ltd, and two individuals, Luketic and Sutton. The proceedings arose from allegations that Bernmar was engaging in "body hire" or "pyramid subcontracting" to avoid award or legislative obligations. The case was defended strictly on the basis of the pleaded case, with no suggestion of a different approach.

The court had to determine whether the answers given to the ACCC by Sutton and Lancsar, which contained admissions of a party to the proceedings, were admissible. The court found that the answers were given in relation to one of the limited matters specified in section 155(1) of the Trade Practices Act and in furtherance of the ACCC's functions. The use of the information fell within the scope of the purpose for which the answers were given, and the information was not the subject of any privilege. The court concluded that the answers were admissible against the party in accordance with the provisions of the Evidence Act.

The court was not satisfied that the ACCC had established any of the contraventions of section 45E which it had alleged. As a result, the court ordered that the application be dismissed as it related to the first, third, and fourth respondents. The court also ordered that the ACCC pay the costs of those respondents.