Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd (No 2) [2024] FCA 580

Federal Court of Australia

Australian Competition and Consumer Commission v Delta Building Automation Pty Ltd (No 2) [2024] FCA 580 File number: ACD 32 of 2021

Judgment of: BROMWICH J

Date of judgment: 4 June 2024

Catchwords: COMPETITION – pecuniary penalties – determination of civil penalties for breaches of s 45AJ of the Competition and Consumer Act 2010 (Cth) (CCA) for attempted bid rigging – where liability already determined in previous judgment – where size of appropriate penalty in dispute – whether potential benefits other than profit are relevant considerations for the purpose of determining civil penalties under s 76(1) of the CCA – whether prestige, revenue and market share can be considered as potential benefits of contravening conduct relevant for determination of civil penalty – whether the Court can infer that a tender bid actually made by first respondent would be less than the tender bid that likely would have been made by the contravenor had big rigging been successful – to what extent the short period of conduct should be taken into account where the brevity of the conduct is not due to the respondents' action – matters to take into consideration in determination of civil penalties – whether an injunction should be granted preventing the respondents from communicating tender details with others – DECISION: that declarations sought by the ACCC be made in substance – injunctions to be made preventing respondents communicating tender prices or terms to others without permission of the regulator– first respondent to pay a penalty of $1.5 million – second respondent to pay a penalty of $120,000 – leave to seek to pay by instalments

Legislation: Competition and Consumer Act 2010 (Cth) ss 45F, AG, 45AJ, 76(1), (1A) Federal Court of Australia Act 1976 (Cth) ss 37M, 37N Federal Court Rules 2011 (Cth)