Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd

In the Federal Court of Australia, the Australian Competition and Consumer Commission (ACCC) brought proceedings against Delta Building Automation Pty Ltd for civil contraventions under section 45AJ of the Competition and Consumer Act 2010 (Cth). The dispute centred on allegations of cartel conduct involving bid rigging, specifically whether the respondents attempted to make an arrangement or arrive at an understanding containing a cartel provision, or attempted to induce a competitor to do the same. The ACCC argued that such conduct contravened the Act and sought declarations of contravention.

The primary legal issue before the court was whether the evidence supported the ACCC's claims of attempted cartel conduct by the respondents. The court needed to determine whether the respondents had engaged in conduct that demonstrated an attempt to induce an agreement or understanding with the proscribed qualities of a cartel, as outlined in section 76(1)(b) and (d) of the Act. This involved examining the intention of the respondents and whether their conduct constituted an attempt to engage in cartel conduct, irrespective of the form or content of the proposed agreement.

The court found that the ACCC had established the contraventions on the evidence presented. It was satisfied that the respondents' conduct demonstrated an attempt to induce an agreement or understanding that would prevent a competitor from supplying services or agreeing to tender at a particular price. This conduct fixed, controlled, or maintained prices, aligning with established authorities. The court endorsed the principles from the Egg Corporation case, which emphasised that the absence of a concrete proposal did not negate the element of intention in cases of attempted cartel conduct. Therefore, the court concluded that declarations of contravention should be made, and the matter should proceed to a remedies hearing.

The court ordered that the parties confer and submit two sets of agreed or competing draft orders within 14 days or as otherwise allowed. These orders should address declarations of contravention and procedural orders for the conduct of the remedies phase of the proceeding, as per Rule 39.32 of the Federal Court Rules 2011.