Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; (2004) ATPR 41-996
Outcome: cited
The ACCC says its pleading exhibits none of these contended failings. It says the pleading of the contravention of s 45 in reliance upon s 45A is in truth a simple and straightforward matter. It says the adoption of a definitional device does not assume any or a collection of matters but rather asserts as facts that the content of terms are comprehended by the elements of the definition. The subsequent use of those terms in the pleading, although they encapsulate more than one element, makes the contention of contravening conduct plain and clear. As to the obfuscation of the services and whether they are the same, similar or substitutable services provided in competition in a market between ANZ and the relevant participant, the ACCC says that because it relies upon ss 45(2)(a)(ii) and 45 (2)(b)(ii) in conjunction with s 45A , it is simply not necessary to plead all of the various layered onion rings of contestable conduct within the relevant market. What is necessary is to plead, at the centre, whether ANZ and the relevant participant are engaged in an identified market in the provision of identified services in competition. Whether others are in competition with those participants and isolating the composition and characteristics of the outer ring of contestable substitution is neither here nor there nor relevant. Pleading the full structural elements of the market and the boundaries of substitution is thus not required in order to establish the cause of action. Such a proposition is said to be supported by the observations of Heerey J in Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd &amp; Ors (1997) ATPR 41-570 at 43, 920 and consistent with Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; (2004) ATPR 41-996 per Selway J at 48, 671. 46 Similarly, in Australian Competition and Consumer Commission v McMahon Services Pty Ltd (supra) Selway J at 48, 671 noted the precise limitations in the scope of the conduct alleged in that case. The conduct concerned a contended arrangement in relation to a tender price for a specific contract to be let by the Department of Defence arising out of the tender process. The ACCC relied upon s 45A of the Act . Selway J noted: [It] relates only to the price of a particular contract let by the Department of Defence and particularised in the statement of claim. The competitors involved in that tender process are specified by name in the statement of claim. So too are those said to be parties to the arrangement or understanding. The price said to be fixed has not been particularised, but is either the price contained in the offer by the fifth respondent (which seems to be the case that the ACCC intends to put) or the price obtained by the Department of Defence. Plainly enough, it is not the price of services generally available in the marketplace. 47 His Honour also noted at 48, 671: ... If the allegation related to the effect of an agreement or understanding on the overall operation of the market then it may be necessary for the ACCC to provide quite detailed particulars of that market in order to identify the relevant effect. However, in this case the relevant anti-competitive purpose or effect is strictly limited in scope. 48 Because the conduct involved a quite specific price fixing allegation between particular parties in respect of a particular tender (and consequential contract) let by the Department of Defence in respect of the supply and acquisition of construction services, his Honour concluded that the pleading of those elements, that is, the market, the contract, the participants, the identical services in the context of that transactional arrangement, did not require any greater or more detailed pleading of the market. However, the issue was not whether the applicant was required to plead material facts going to the market for the services and competition between the participants to the contract, arrangement or understanding in respect of those services but whether the material facts pleaded by the statement of claim, in the context of the transaction in question, adequately put the respondent on notice of the case to be met. His Honour concluded that it did. Again, there was no controversy that the service in question was precisely the same service provided in an uncontroversial market for the provision of construction services and the conduct related to a single party, the Department of Defence, in respect of a particular tender transaction. With respect, his Honour was plainly correct in concluding that it was not necessary to plead the market in any broader sense. 49 In simple terms, there is no great leap of pleading faith in either of these cases that the participants to the arrangement containing the s 45A provision were in competition in the supply of the relevant service in a market. 50 The distinction between these authorities and the present case is that here, the very question in controversy, is whether there is a separate market or markets as asserted in which close competition between MRPL and ANZ takes place. The pleader can not simply say there is such a market unless that contention is made good as a logical conclusion drawing together and drawn from material facts that plead the subsistence of the contended markets and contestable participation by MRPL and ANZ in each market. That is not to say that a pedantic or prolix and detailed pleading of the boundary of the entire field of rivalry need be scoped in the pleading or that the outer boundary of contestability between all participants in the market need be framed. It is however important to start at the centre and work outwards by identifying the services which are the subject of one or more markets, the core or emblematic participants in the contended markets for those services (i.e., the core or essential suppliers of the identified services; and the class of acquirers of the service (potential residential home loan borrowers seeking the relevant related services)), the services in fact provided by MRPL and those services in fact supplied by ANZ and the material facts which demonstrate that those services are strong substitutes thus falling within a separate market. Having done so, the pleading, in principle, need do no more so far as the market is concerned. In order to make good the remaining elements of s 45A , the applicant must plead that the provision of the contract, arrangement or understanding has the purpose or effect or likely effect of, put in abbreviated terms, fixing a price for the contestable supply of these services.