ACCC v Cascade Coal

Snapshot

Federal Court
(Full Court)

Year
2019

Citation
[2019] FCAFC 154

Date of judgment
4 September 2019

Judges
Jagot J
Beach J
Bromwich J

File
NSD 1382 of 2018

Issue
Bid Rigging
Boycotts
(Exclusionary provisions)

Appellant
ACCC

Respondents
Cascade Coal Pty Ltd
Mincorp Investments Pty Ltd
Locaway Pty Ltd
Coal & Minerals Group Pty Ltd
Southeast Investment Group Pty Ltd
Moses Edward Obeid
Paul Edward Obeid
Richard Jonathan Poole
John Vern McGuigan
James William McGuigan

Federal Court

Year
2018

Citation
[2018] FCA 1019

Date of judgment
6 July 2018

Judges
Foster J

File
NSD 584 of 2015

Applicant
ACCC

Respondents
Cascade Coal Pty Ltd
Mincorp Investments Pty Ltd
Loyal Coal Pty Ltd
Locaway Pty Ltd
Coal & Minerals Group Pty Ltd
Southeast Investment Group Pty Ltd
Moses Edward Obeid
Paul Edward Obeid
Richard Jonathan Poole
John Vern McGuigan
James William McGuigan

Copyright

Facts and summary

Concerned an alleged understanding in connection with a competitive expression of interest relating to exploration licences for coal areas in NSW.

Primary judge found the EOI understanding contained a provision where by Buffalo Resources Pty Ltd would procure withdrawal of expressions of interest made by another party, but that this did not contravene s 4D and 45(2)(a)(i) (primary boycotts) because:

• Cascade was not competitive with the relevant parties as required;

• the withdrawal provision did not have the purpose of ‘preventing, restricting or limiting the supply or acquisition of services from particular persons or classes of persons by parties to the relevant contract, arrangement or understanding as required by the then s 4D’;

• the joint venture defence under s 76C would have been made out in any event.

As a result, even if primary liability was established the respondents would have had a defence under s 76C for any s 45(2)(a)(i) contravention.

The ACCC’s appeal was dismissed.

One of the respondents, Loyal Coal Pty Ltd, admitted liability: see ACCC Media Release 4 April 2016.

Catchwords (official) (appeal)

COMPETITION – arrangement or understanding restricting dealings in respect of the application process for exploration licences for coal in the Mount Penny and Glendon Brook areas of New South Wales – whether arrangement or understanding contained an exclusionary provision – whether corporate respondents were competitors or likely competitors – whether the relevant provision was entered into for the purposes of preventing, restricting or limiting the supply or acquisition of specified services – joint venture defence – whether alleged exclusionary provision was for the purposes of a joint venture – whether other elements of s 76C defence made out

Catchwords (official) (primary judgment)

COMPETITION – cartel conduct – whether the corporate respondents made a contract or arrangement or arrived at an understanding containing a cartel provision in respect of the application process for exploration licences for coal in the Mt Penny and Glendon Brook areas of NSW – whether, in the circumstances, the corporate respondents were competitors or likely competitors – whether the corporate respondents had the proscribed anti-competitive purpose – whether any of the respondents gave effect to the alleged cartel provision. 

COMPETITION – contracts, arrangements or understandings that restrict dealings or affect competition – whether the corporate respondents made a contract or arrangement or arrived at an understanding containing an exclusionary provision – whether the provision was entered into for the purposes of preventing, restricting or limiting the supply or acquisition of specified services – whether any of the respondents gave effect to the alleged exclusionary provision

COMPETITION – joint venture defences – whether the alleged exclusionary provision is for the purposes of a joint venture – whether other elements of s 76C defence established – whether the alleged cartel provision was for the purposes of a joint venture – whether the elements of s 44ZZRP defence to the making of the alleged cartel provision were made out

Legislative provisions (select)

Competition and Consumer Act 2010 (Cth), ss 4A, 4D, 4F, 4J, 44ZZRB, 44ZZRC, 44ZZRD, 44ZZRK, 44ZZRP, 45, 76C, 84

Trade Practices Act 1974 (Cth) ss 4D, 4F, 45(2)(a)(i), 45(2)(b)(i), 76C

Case links

Appeal

• Australian Competition and Consumer Commission v Cascade Coal Pty Ltd [2019] FCAFC 154

Trial judgment

• Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 (Revised on 15 August 2018) (Jade)

• Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 (6 July 2018) (AustLII)