Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4)

This case involved a dispute between the Australian Competition and Consumer Commission (ACCC) and the Construction, Forestry, Mining and Energy Union (CFMEU). The ACCC brought the action against the CFMEU for engaging in a secondary boycott, which is an anti-competitive practice under the Competition and Consumer Act 2010 (Cth). The court was required to determine the appropriate pecuniary penalties for the contravention, as well as whether to grant the ACCC's request for injunctions and declarations.

The legal issues before the court included the appropriate quantum of pecuniary penalties for the contravention, the relevance of the actual loss and damage that occurred in the secondary boycott, and the principles of course of conduct and totality in determining the penalty. The court also considered whether to grant the ACCC's request for injunctions and declarations, and if so, the appropriate form of the declarations.

In determining the appropriate penalty, the court considered the need to deter future contravening conduct, and found that an aggregate penalty of $1 million was appropriate. The court also found that the actual loss and damage that occurred in the secondary boycott was relevant to the penalty, but that the principles of course of conduct and totality meant that it was not necessary to quantify the actual loss and damage in order to determine the penalty. The court granted the ACCC's request for injunctions and declarations, and made the declarations in the form proposed by the ACCC after discussion with counsel for the CFMEU.

The court also considered the ACCC's request for costs, and found that the ACCC was entitled to 40% of its costs on a party/party basis. The court found that the regulator's role was a relevant factor in considering the ACCC's request for costs, and that special consideration was to be given to the regulator's role when considering a Calderbank offer. The court made orders for the CFMEU to pay 40% of the ACCC's costs of and in connection with the proceedings.