Australian Competition and Consumer Commission v NQCranes Pty Ltd [2022] FCA 1383

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v NQCranes Pty Ltd [2022] FCA 1383 File number(s): NSD 1144 of 2020

Judgment of: ABRAHAM J

Date of judgment: 23 November 2022

Catchwords: COMPETITION – proceeding for civil contraventions of cartel provisions in Div 1 in Pt IV of the Competition and Consumer Act 2010 (Cth) – whether appropriate for court to make declarations of contraventions, impose civil penalties and order respondent to implement a compliance plan – where conduct serious – where mitigating factors present, including that conduct was isolated, that senior management did not know that conduct was illegal and respondent has not previously contravened the Act – where pecuniary penalty has sufficient sting to achieve deterrence – where desirable to make agreed penalty when court satisfied that agreed penalty is an appropriate remedy

Legislation: Competition and Consumer Act 2010 (Cth) ss 4E, 44ZZRD, 44ZZRJ, 45AD, 45AJ, 76 and 86C Competition and Consumer Amendment (Competition Policy Review) Act 2017 (Cth) Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) ss 21 and 23

Cases cited: ACCC v Anglo Estates Pty Ltd [2005] FCA 20; (2005) ATPR 42-044 ACCC v B & K Holdings (Qld) Pty Ltd [2021] FCA 260 ACCC v Cryosite [2019] FCA 116; (2019) 135 ACSR 231 ACCC v Virgin Mobile Australia Pty Ltd (No 2) [2002] FCA 1548 ACCC v Z-Tek Computer Pty Ltd [1997] FCA 871; (1997) 78 FCR 197 ASIC v Pegasus Leverages Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 ASIC v Westpac Banking Corporation (No 3) [2018] FCA 1701; (2018) 131 ACSR 585 Australian Building and Construction Commission v Pattinson [2022] HCA 13; (2022) 399 ALR 599 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 Australian Competition and Consumer Commission v Sontax Australia Pty Ltd [2011] FCA 1202 Australian Securities and Investments Commission v Commonwealth Securities Limited [2022] FCA 1253 Australian Securities and Investments Commission v Monarch FX Group Pty Ltd [2014] FCA 1387; 103 ACSR 453 Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; (2018) 260 FCR 68 Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; (2004) ATPR 41-993 NW Frozen Foods Pty Ltd v Australian Competition Commission [1996] FCA 1134; (1996) 71 FCR 285 Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; (2012) 287 ALR 249 Thomson Australian Holdings Pty Ltd v TPC [1981] HCA 48; (1981) 148 CLR 150 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; (2021) 284 FCR 24