The Federal Court has made interim declarations in the matter of ACCC v Cement Australia Pty Ltd & Ors, which involved numerous alleged breaches of the competition provisions of the then Trade Practices Act 1974 (the Act), now Competition and Consumer Act 2010.
Justice Greenwood found a number of contraventions of s45 of the Act proved. Section 45 prohibits entering into, and giving effect to, contracts and arrangements that have the purpose or effect of substantially lessening competition. The ACCC had also alleged this conduct contravened s46 of the Act, which relates to the misuse of market power. His Honour did not find the alleged contraventions of section 46 to be established.
At this stage the judgment has been made available to the parties only, on a restricted basis, pending resolution of confidentiality issues. Accordingly, the ACCC cannot yet discuss the findings.
The matter relates to contracts which were entered into with four power stations located in South East Queensland between 2002 and 2006 to acquire flyash, and which the ACCC alleged were entered into for the purpose, and with the effect, of preventing competition in the relevant market. The power stations were Millmerran, Tarong, Tarong North and Swanbank.
Flyash is a by-product of burning black coal at electricity generating power stations, and can be used as a cheap partial substitute for cement in ready-mix concrete.
“This is an important judgment for the ACCC on a significant competition case. We are particularly pleased with the interim declarations concerning the making of, and giving effect to, anticompetitive agreements which had the purpose and effect of substantially lessening competition.”
“The ACCC is still considering the judgment, and we will be able to comment further when the confidentiality issues are resolved, and the judgment becomes public”, ACCC Chairman Rod Sims said.