J Hutchinson Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 18

FEDERAL COURT OF AUSTRALIA

J Hutchinson Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 18 Appeals from: Australian Competition and Consumer Commission v J Hutchinson Pty Ltd [2022] FCA 98 Australian Competition and Consumer Commission v J Hutchinson Pty Ltd (No 2) [2022] FCA 1007

File numbers: QUD 335 of 2022 QUD 340 of 2022

Judgment of: WIGNEY, BROMWICH AND ANDERSON JJ

Date of judgment: 29 February 2024

Catchwords: COMPETITION LAW – industrial law – appeals from orders made as to liability and penalty for making, and giving effect to, an arrangement, or arriving at an understanding, containing a provision preventing or hindering the appellant from acquiring services from a subcontractor, contravening ss 45E(3) and 45EA of the Competition and Consumer Act 2010 (Cth) – where primary judge found that there was an arrangement or understanding containing a provision preventing or hindering the appellant from acquiring services from a subcontractor – whether it was open to the primary judge to infer that the appellants made an arrangement, or arrived at an understanding, which contained a provision preventing or hindering the appellant from acquiring services from a subcontractor – where the facts as found also equally supported the inference that the appellant's decision to cancel the subcontract was a unilateral commercial decision to avoid an industrial dispute – whether it was open to the primary judge to conclude that the making of an arrangement, or arriving an understanding, was the more probable inference – whether challenging the admission of certain evidence and key findings of fact and credit vitiate the conclusions reached by the primary judge because of removing part of the primary factual substratum for inferring the existence of the arrangement or understanding – appeals allowed