Boral Besser Masonry Ltd (now Boral Masonry Ltd) v Australian Competition and Consumer Commission

Boral Besser Masonry Ltd (now Boral Masonry Ltd) appealed to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned allegations that Boral Besser Masonry had engaged in anti-competitive conduct in contravention of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)). The Australian Competition and Consumer Commission (ACCC) had brought proceedings against Boral Besser Masonry, alleging that it had engaged in price fixing and other anti-competitive practices in the concrete masonry market.

The High Court was required to determine whether Boral Besser Masonry had engaged in conduct that amounted to a contravention of section 45 of the Trade Practices Act, specifically concerning agreements or understandings in restraint of trade. A key issue was whether the conduct of Boral Besser Masonry, in its dealings with competitors, constituted a "contract, arrangement or understanding" that had the purpose or effect of substantially lessening competition in the relevant market. The court also considered the interpretation of "arrangement" and "understanding" in the context of the Act.

Gaudron and Kirby JJ found that the evidence did not establish the existence of a contract, arrangement, or understanding between Boral Besser Masonry and its competitors that had the purpose or effect of substantially lessening competition. Their Honours applied the principles of statutory interpretation to the relevant provisions of the Trade Practices Act, focusing on the need for a consensus or meeting of minds to establish an arrangement or understanding. They concluded that the conduct relied upon by the ACCC did not reach the threshold required to establish a contravention of section 45.

The appeal was allowed, and the orders of the Full Federal Court were set aside.