ACCC v Cascade Coal (appeal)

Full Court of the Federal Court of Australia
[2019] FCAFC 154

Justices Jagot, Beach and Bromwich

Key words

Bid rigging - boycotts - exclusionary provisions - in competition- competitors

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.