Australian Competition & Consumer Commission Pioneer Concrete Pty Ltd & Ors [1995] FCA 1061

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG773 of 1995 ) GENERAL DIVISION ) BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND PIONEER CONCRETE (OLD) PTY LIMITED First Respondent BORAL RESOURCES (OLD) PTY LIMITED Second Respondent CSR LIMITED Third Respondent ROBIN TORRISI Fourth Respondent GEOFFREY EDWARD STILES Fifth Respondent JOHN BROWN Sixth Respondent DENNIS RONALD SHELDON Seventh Respondent RUSSELL REDENBACH Eighth Respondent PETER KINSELLA Ninth Respondent 4 December 1995 REASONS FOR JUDGMENT LOCKHART J This is a proceeding instituted in the original jurisdiction of the Court by the Australian Competition and Consumer Commission ‑ previously known as the Trade Practices Commission ‑ for the imposition of pecuniary penalties -2- pursuant to s. 76 of the Trade Practices Act 1974 ('the Act'), for other relief including injunctive relief pursuant to s. 80 of the Act, and for the acceptance of undertakings by certain of the respondents. The conduct the subject of the proceeding, being certain price‑fixing and what are described as market‑rigging activities relating to the pre‑mixed concrete market in the Brisbane, Gold Coast and Toowoomba regions, has resulted in breaches of s. 45(2)(a)(ii) and s. 45(2)(b)(ii) of the Act, the alleged conduct having taken place between 1989 and 1994. The parties have been enaaged for some time in discussions and those discussions have resulted in the parties reaching agreement as to the disposition of the proceeding. They realize, of course, that it is for the Court to determine whether contraventions of the Act have occurred, and in particular, what the appropriate penalties should be or what other relief should be granted. The parties have agreed, with the benefit of the legal advice they have received, that subject to the Court's concurrence they have contravened the Act; and they have agreed, again subject to the Court's concurrence, upon what the appropriate pecuniary penalty is and what the other relief should be. The approach to be adopted in cases of this kind, which are delicate cases, has been considered by judges of the Court