Australian Competition & Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 RESTRICTIVE TRADE PRACTICES – Price fixing – meeting of representatives of four tenderers (construction contractors) and of their Association representative prior to submission of tenders – alleged arrangement or understanding that successful tenderer pay "Special Fee" of $1,000,000 to Association and "Unsuccessful Tenderer's Fee" of $750,000 to each of the three unsuccessful tenderers – whether alleged arrangement or understanding likely to have effect of fixing, controlling or maintaining price – meaning of "arrangement or understanding" – meaning of "likely" – meaning of "controlling" – whether arrangement or understanding included terms that Fees be paid from proceeds of job, be taken into account in preparation of tenders and not be disclosed to client – requirement of undertaking of obligations rather than mere factual expectations for "arrangement or understanding" to be established – whether arrangement or understanding had likely effect of controlling price – whether degree of specificity required – whether degree of proximity between agreement or understanding and price required – whether price competition must be affected. MISLEADING CONDUCT – silence – failure by tenderer to disclose to client understanding arrived at with other tenderers – whether misleading and deceptive – absence of positive representation – no "duty" or "reasonable expectation" of disclosure. EVIDENCE – tendency evidence – allegation of price-fixing by tenderers – whether evidence relating to other projects could be used to help establish the existence of the pleaded price-fixing arrangement or understanding on particular project – need to identify relevant "facts in issue" – requirement that tendency evidence have "significant probative value". Trade Practices Act 1974 (Cth) ss 45(2), 45A(1), 52 Evidence Act 1995 (Cth) ss 55, 97 Jones v Dunkel (1959) 101 CLR 298, referred to Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, followed Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500, referred to D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 referred to Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437, distinguished Newton v Federal Commissioner of Taxation (1958) (PC) 98 CLR 1, referred to British Slag Ltd v Registrar of Restrictive Trading Agreements [1963] 1 WLR 727, referred to Top Performance Motors Pty Ltd v Ira Berk (Qld) (1975) 24 FLR 286 (FC), followed Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 40 FLR 83 referred to Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10, referred to Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88 (FCA/FC), referred to Trade Practices Commission v Service Station Association Limited (1992) ATPR 41-179, distinguished Trade Practices Commission v Service Station Association Limited (1993) 44 FCR 206 (FC), distinguished Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 (FC), considered Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 68 FLR 70 (FC), distinguished United States v Socony-Vacuum Oil Co (1940) 310 US 150, referred to Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 (FC), considered Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477(FC), applied Lam v Ausintel Investments Pty Ltd (1989) 97 FLR 458 (CA), followed Fraser v NRMA Holdings Ltd (1995) 55 FCR 452 (FC), referred to Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd [1999] FCA 898 (FC), referred to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 (FC), referred to RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 (FC), referred to Briginshaw v Briginshaw (1938) 60 CLR 336, referred to Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, referred to AUSTRALIAN COMPETITION & CONSUMER COMMISSION (formerly called "TRADE PRACTICES COMMISSION") v CC (NEW SOUTH WALES) PTY LIMITED (formerly called "CONCRETE CONSTRUCTIONS (NSW) PTY LIMITED")