Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152 Appeal from: Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 69

File number: SAD 63 of 2016

Judges: BESANKO, FOSTER AND YATES JJ

Date of judgment: 25 September 2017

Catchwords: COMPETITION – consideration of an appeal by the Australian Competition and Consumer Commission against an order of the Federal Court dismissing a proceeding alleging a contravention of s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) by an industry body and others – where the primary judge found evidence established conduct by at least two respondents which could constitute an attempt in the requisite sense – where the primary judge also found that the respondents intended that the attendees at a certain meeting should take action to address and correct an oversupply of eggs – where the primary judge was not persuaded "to the requisite degree of persuasion" that the respondents intended that this action should be pursuant to an agreement or understanding involving reciprocal obligations. PRACTICE AND PROCEDURE – where the Court on appeal is to consider an allegation that the primary judge erred in the inferences he drew or failed to draw from established primary facts – where the primary judge refused to draw an inference going to the intention of the respective respondents – where the ACCC's case was documentary and did not call any witnesses – where the primary judge did not wholly accept or reject the evidence of any respondent witness – where there were no challenges to the primary judge's findings as to credibility and reliability – where the matter under challenge is not a matter where there is only one right answer – whether, in the absence of a preponderance of view against that taken by the primary judge, the primary judge's refusal to draw an inference of intention should be disturbed.