Australian Competition & Consumer Commission v Boral Ltd

The Australian Competition & Consumer Commission (ACCC) initiated proceedings against Boral Limited, a major manufacturer of concrete masonry products, alleging contravention of the Australian Consumer Law. The case involved complex arguments that covered both factual and legal aspects. The trial judge provided detailed findings regarding the key participants in the concrete masonry products market, their operations, pricing strategies, and the overall market conditions in Melbourne between 1992 and 1996.

The primary legal issues revolved around the interpretation and application of the Australian Consumer Law, specifically focusing on the concept of "avoidable" or "variable" costs and how these should be considered in pricing strategies. The court was tasked with determining whether Boral Limited's pricing practices constituted anti-competitive behaviour. This involved assessing whether Boral Limited's pricing decisions were made in a manner that contravened the provisions of the Australian Consumer Law, particularly sections related to misleading or deceptive conduct and price discrimination.

The court meticulously examined the evidence and arguments presented by both parties. It found that Boral Limited's approach to calculating its "variable" costs was not in line with the principles outlined in the law. Specifically, the court rejected Boral Limited's argument that adjustments should be made to the transfer prices of raw materials to exclude the seller's profit, holding that such adjustments were inappropriate given that the transfer prices were generally at market levels. The court also concluded that a retrospective rewriting of costs to levels not actually considered at the time was impermissible. Consequently, the court found that Boral Limited's pricing strategies contravened the Australian Consumer Law.

The court ordered the appeal against the dismissal of the application against the second respondent be allowed and the orders of the trial judge, in relation to the second respondent, be set aside. The proceedings were remitted to the trial judge for further hearing and determination in relation to the relief sought by the appellant. The second respondent was ordered to pay the appellant's costs of the appeal and of the hearing below. The appeal against the dismissal of the application against the first respondent was dismissed, with the appellant ordered to pay the first respondent's costs of the appeal.