Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 2) [2017] FCA 1191 File number: VID 698 of 2014

Judge: MIDDLETON J

Date of judgment: 5 October 2017

Catchwords: COMPETITION – secondary boycott – attempted secondary boycott – meaning of conduct "in concert" – meaning of "substantial loss or damage" – rebuttable presumption in s 45DC of the Competition and Consumer Act 2010 (Cth) – whether an instruction was given – whether an instruction was implemented EVIDENCE – admissibility of representations made in furtherance of a common purpose under s 87(1)(c) of the Evidence Act 1995 (Cth) – reliance on coincidence reasoning to prove a fact – application of s 98 of the Evidence Act 1995 (Cth) – inferences where a party fails to call a witness

Legislation: Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth)

Cases cited: Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) (2012) 207 FCR 448 Ahern v R (1988) 165 CLR 87 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) FCA 1495 ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 97 ALR 513 Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union [2016] FCA 504 Barneys Blu-Crete Pty Ltd v Australian Workers' Union [1979] ATPR 40-139 Briginshaw v Briginshaw (1938) 60 CLR 336 Building Workers' Industrial Union Of Australia And Others V Odco Pty Ltd (1991) 29 FCR 104 Hughes v The Queen [2017] HCA 20 James Hardie Industries NV v Australian Securities and Investments Commission (2010) 274 ALR 85 Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Assn Inc (1989) 24 FCR 127 Jones v Dunkel (1959) 101 CLR 298 Leon Laidely Pty Ltd v Transport Workers Union of Australia (1980) 28 ALR 129 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWSC 231 R v Associated Northern Collieries (1911) 14 CLR 387 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 TPC v TNT Management Pty Ltd (1985) 6 FCR 1 Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 Trade Practices Commission v Parkfield Operations Pty Ltd (1985) 7 FCR 534 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719 Willis v The Commonwealth (1946) 73 CLR 105