FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 1033 Citation: Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 1033 Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v CEMENT AUSTRALIA PTY LTD ACN 104 053 474, CEMENT AUSTRALIA HOLDINGS PTY LTD ACN 001 085 561, CEMENT AUSTRALIA (QUEENSLAND) PTY LTD FORMERLY QUEENSLAND CEMENT LTD ACN 009 658 520, POZZOLANIC ENTERPRISES PTY LTD ACN 010 367 898, POZZOLANIC INDUSTRIES PTY LTD ACN 010 608 947, CHRISTOPHER GUY LEON and CHRISTOPHER STEPHEN WHITE File number(s): QUD 295 of 2008 Judge: GREENWOOD J Date of judgment: 21 September 2010 Catchwords: PRACTICE AND PROCEDURE – consideration of matters arising out of a directions hearing leading to trial TRADE PRACTICES – consideration of matters arising out of a directions hearing leading to trial Date of hearing: 21 September 2010 Date of last submissions: 21 September 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: Mr S Couper QC with Mr M Hodge Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Ms S Brown Solicitor for the Respondents: Gilbert & Tobin, Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 295 of 2008 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: CEMENT AUSTRALIA PTY LTD ACN 104 053 474 First Respondent CEMENT AUSTRALIA HOLDINGS PTY LTD ACN 001 085 561 Second Respondent CEMENT AUSTRALIA (QUEENSLAND) PTY LTD FORMERLY QUEENSLAND CEMENT LTD ACN 009 658 520 Third Respondent POZZOLANIC ENTERPRISES PTY LTD ACN 010 367 898 Fourth Respondent POZZOLANIC INDUSTRIES PTY LTD ACN 010 608 947 Fifth Respondent CHRISTOPHER GUY LEON Sixth Respondent CHRISTOPHER STEPHEN WHITE Seventh Respondent JUDGE: GREENWOOD J DATE OF ORDER: 21 SEPTEMBER 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Directions hearing adjourned generally. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 295 of 2008 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant AND: CEMENT AUSTRALIA PTY LTD ACN 104 053 474 First Respondent CEMENT AUSTRALIA HOLDINGS PTY LTD ACN 001 085 561 Second Respondent CEMENT AUSTRALIA (QUEENSLAND) PTY LTD FORMERLY QUEENSLAND CEMENT LTD ACN 009 658 520 Third Respondent POZZOLANIC ENTERPRISES PTY LTD ACN 010 367 898 Fourth Respondent POZZOLANIC INDUSTRIES PTY LTD ACN 010 608 947 Fifth Respondent CHRISTOPHER GUY LEON Sixth Respondent CHRISTOPHER STEPHEN WHITE Seventh Respondent JUDGE: GREENWOOD J DATE: 21 SEPTEMBER 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 One of the questions arising out of the directions hearing this morning convened to address outstanding issues prior to the trial commencing on Monday, 27 September 2010 concerns an application by the Australian Competition and Consumer Commission ("ACCC") for an order that the first to fifth respondents provide further particulars of para 40 of the Amended Defence (filed on Friday, 27 August 2010), in response to the ACCC's request served on Tuesday, 7 September 2010. The request was the subject of a response given on Monday, 13 September 2010 which is said to be inadequate. 2 The trial of the action is nigh (for the second time). Statements of evidence have been exchanged although issues concerning additional lay statements and supplementary experts' reports were also discussed this morning. By para 40 of the Amended Defence, the first to fifth respondents plead to allegations in para 40 of the Third Further Amended Statement of Claim that at all material times in the south east Queensland region ("SEQ region") there was a demand for the supply of concrete‑grade flyash ("cgf") or alternatively fine‑grade flyash ("fgf") to customers who used cgf or alternatively fgf in the production of pre‑mix concrete and concrete products (concrete producers); and to persons who on‑sell cgf or alternatively fgf to concrete producers (on‑sellers). 3 In answering those allegations as to demand, the first to fifth respondents seem to say, firstly, that from time to time there has been a demand for cgf or alternatively fgf and, secondly, included within that demand there are persons in the SEQ region who demand cgf or alternatively fgf for use in the production of pre‑mix concrete and concrete products but only insofar as either cgf or alternatively fgf also qualifies as commercial concrete‑grade flyash: para 40(a). The things that render cgf or alternatively fgf, commercial concrete‑grade flyash, are consistency with Australian Standard 3582.1 (including the Standard's prescriptions as to loss on ignition and chemical composition) and consistency of colour suitable for the "ultimate application" to which the concrete mix is to be put: s 40(b). 4 Further, for "certain concrete producers" commercial concrete‑grade flyash is required to have consistent characteristics as to source, fineness, chemical composition, loss on ignition and colour, "over time". The characteristics of fineness, loss on ignition and chemical composition seem to derive from the Australian Standard. Consistency of colour and source are different matters. All of them are said to be, for certain concrete producers within the field of demand, characteristics required to be consistent over time. 5 As to those matters, the ACCC sought particulars of each "ultimate application" which required commercial concrete‑grade flyash to be of a consistent colour to any extent and with respect to each such application, the first to fifth respondents were called upon to state the range of colour variability said to be permissible; the means and criteria by which such variability is determined; and the material facts relied upon to demonstrate that consistency of colour is required. 6 As to the contentions concerning certain concrete producers that require commercial concrete‑grade flyash to exhibit consistent characteristics as to source, fineness, chemical composition, loss on ignition and colour over time, the ACCC called upon the first to fifth respondents to identify each concrete producer falling within that description and to say with respect to each such producer, in relation to source, fineness, chemical composition, loss on ignition and colour, (A) the consistent characteristics which the flyash was required to have, including inter alia, the permissible degree of variability and the means and criteria by which such variability was determined; and, (B) the time period over which such consistency was required. The first to fifth respondents were called upon to state the facts upon which such consistency was required. 7 As to the request directed to the "ultimate applications" which require commercial concrete‑grade flyash to be of a consistent colour, the first to fifth respondents responded by saying that the applications include exposed aggregate concrete applications and any concrete application that exhibits an aesthetic aspect such as swimming pools, driveways and the exterior of residential and commercial buildings. Presumably structural concrete is not such an application. The first to fifth respondents gave particulars of the degree of colour variability permitted with respect to these aesthetic applications as one aspect of demand by reference to a series of affidavits and paragraphs within those affidavits (13 affidavits in all). Particulars of the range of colour variability are given by saying that variability is determined by visual inspection having regard to the degree of variance in batch sequences giving rise to the overall visual effect in particular aesthetic applications. 8 Having regard to the state of the proceedings and the exchange of evidence, I do not propose to make any orders for further particulars of these matters. 9 As to the request directed to the demand of "certain concrete producers" in relation to those matters of consistency previously mentioned, the first to fifth respondents identified three corporations and two "larger independents" emblematic of operators of concrete batching plants that have only one flyash silo or that operate in areas in which the same project is serviced by more than one concrete batching plant. The particulars given are simply put on an inclusive basis rather than an exhaustive statement of the producers comprising the field described as "certain concrete producers". However, the ACCC has been provided with the statements of the first to fifth respondents on this topic and I take the three corporations and two "independents" mentioned in the particulars to be examples of the class of demand pleaded at para 40(c) of the Amended Defence. The characteristics of consistency of fineness, chemical composition and loss on ignition are particularised by reference to the Australian Standard and the evidence of Dr Baksh Baweja at paras 305 to 312 of a report called the "Cementitious Materials Report". As to the time period, the first to fifth respondents say that the time period is not constant but rather varies according to the particular producer making that class of demand and the time frame is influenced by the nature of the ultimate application, the customer's requirements, the timing of the project and the location of batching plants. The first to fifth respondents say the question of timing is the subject of evidence contained in 11 affidavits by reference to particular paragraphs. As to consistency of source and colour by reference to a time frame, the first to fifth respondents say that such consistency was again dependent upon the application, the customer, the job and the location of batching plants and those matters are further particularised by reference to 11 affidavits (substantially the same deponents as earlier referred to) by reference to the relevant paragraphs. 10 Again, having regard to the state of the proceedings, the provision of evidence and the particulars provided, I do not propose to make any orders for further particulars of these matters going to a subset of demand within the field of demand addressed by para 40 of the Amended Defence. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 21 September 2010