Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd

[1995] FCA 1061

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )    No. NG773 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:           AUSTRALIAN COMPETITION AND
  CONSUMER COMMISSION
  Applicant

AND               PIONEER CONCRETE (OLD) PTY
  LIMITED
  First Respondent

BORAL RESOURCES (OLD) PTY
  LIMITED
  Second Respondent

CSR LIMITED
  Third Respondent

ROBIN TORRISI
  Fourth Respondent

GEOFFREY EDWARD STILES
  Fifth Respondent

JOHN BROWN
  Sixth Respondent

DENNIS RONALD SHELDON
  Seventh Respondent

RUSSELL REDENBACH
  Eighth Respondent

PETER KINSELLA
  Ninth Respondent

4 December 1995

REASONS FOR JUDGMENT

LOCKHART J

This is a proceeding instituted in the original jurisdiction of the Court by the Australian Competition and Consumer Commission ‑ previously known as the Trade Practices Commission ‑ for the imposition of pecuniary penalties
  -2-
pursuant to s. 76 of the Trade Practices Act 1974 ('the Act'), for other relief including injunctive relief pursuant to s. 80 of the Act, and for the acceptance of undertakings by certain of the respondents.

The conduct the subject of the proceeding, being certain price‑fixing and what are described as market‑rigging activities relating to the pre‑mixed concrete market in the Brisbane, Gold Coast and Toowoomba regions, has resulted in breaches of s. 45(2)(a)(ii) and s. 45(2)(b)(ii) of the Act, the alleged conduct having taken place between 1989 and 1994.

The parties have been enaaged for some time in discussions and those discussions have resulted in the parties reaching agreement as to the disposition of the proceeding. They realize, of course, that it is for the Court to determine whether contraventions of the Act have occurred, and in particular, what the appropriate penalties should be or what other relief should be granted. The parties have agreed, with the benefit of the legal advice they have received, that subject to the Court's concurrence they have contravened the Act; and they have agreed, again subject to the Court's concurrence, upon what the appropriate pecuniary penalty is and what the other relief should be.

The approach to be adopted in cases of this kind, which are delicate cases, has been considered by judges of the Court

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now on quite a large number of occasions. I collected the cases as they then were in the case of Trade Practises Commission v Hymix Industries Pty Limited (1995) ATPR 41‑369, and I need not repeat what I said there. There have been subsequent cases which have taken the same approach as the cases referred to in my reasons for judgment in the Hymix case.

Further, it is not necessary for me to set out the relevant facts; they have been the subject of extensive evidence by affidavits and are collected in the very helpful written submissions which have been prepared for the Court and which are joint submissions of the parties. They have been signed by their counsel or solicitors, as the case may be.

The contraventions of the Act are serious and that is reflected in the orders that are sought by consent, in so far as consent is relevant in this area of the law. And this is a delicate matter, because it is for the Court to reach its own conclusion on whether contraventions have occurred, and in particular, what the appropriate penalties and other sanctions should be. Nevertheless, one must take note of the fact that the parties have been in discussions; and the Trade Practices Commission as it was, and now the Australian Competition and Consumer Commission, has, with knowledge of all the relevant facts, reached a provisional agreement with the respondents as
to what should be done.

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We are in an area where contested proceedings could be protracted and expensive; and these matters are relevant to consideration, especially in the climate of 1995. I need not dwell on the seriousness of the contraventions, as there is no doubt the parties' legal advisers have brought that matter home to the businessmen concerned.

I am of the view that the agreement that has been reached, subject to the Court's concurrence, is broadly in accord with what the Court would have done itself based upon the facts as I have read them from the affidavits, and I think the result is a sensible one. I propose to endorse it.

Accordingly, the Court makes order 1 as sought in the short minutes of order, initialled by me, dated today and placed with the papers. The Court makes the findings referred to in paragraphs 2, 3, 4, 5 and 6 of those minutes, notes the matters referred to in paragraph 7, makes orders in accordance with paragraphs 8, 9 and 10, 11, 12, 13, 14 and 15, notes the
undertakings to the Court which it receives from the sixth and seventh respondents set out in paragraphs 16 and 17, and makes the order referred to in paragraph 18.

I certify that this and the
preceding three (3) pages are a
true copy of the reasons for
judgment herein of the
Honourable Justice Lockhart.

Associate                   Dated: 4 December 1995

Counsel for the Applicant         :    Mr R A Finkelstein QC
  Mr G H Brandis

Solicitors for the Applicant     :    Australian   Government
  Solicitor

Solicitors for the First Respondent:    Minter Ellison

Counsel for the Second, Fifth,
Eighth and Ninth Respondents      :    Mr M H Tobias QC

Solicitors for the Second, Fifth,
Eighth and Ninth Respondents      :    Blake Dawson Waldron

Counsel for the Third Respondent   :    Mr R M Smith

Solicitors for Third Respondent    :    Mallesons    Stephen
  Jaques

Solicitors for Fourth Respondent   :    Middletons   Moore   &
  Bevins

Counsel for Sixth and Seventh      :  Mr R I M Lilley
Respondents

Solicitors for Sixth and Seventh    : Deacons Graham & James
Respondents

Date of Hearing  : 4 December 1995

Date of Judgment                   : 4 December 1995