Case: Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162
Outcome: cited
There are three distinct matters to which it is necessary to refer. The first relates to ss 45E and 45EA . The second, to accessorial liability and ss 76 and 75B of the TP Act. The third concerns the standard of proof in this matter and s 140(2) of the Evidence Act 1995 (Cth). The applicable principles in relation to each of these are not in dispute in these proceedings. They have been the subject of recent judicial consideration, notably in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ("CEPU") and Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162. 10 The concepts in these various provisions have not been defined. However, they have been the subject of judicial illumination. For present purposes I need refer only to the following, presently uncontroversial, propositions. First , for an "arrangement or understanding" to be found, there must be a "meeting of the minds" of the parties under which one or both of them committed to a particular course of action: CEPU at [15] and [175]; Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at [75]. As Smithers J observed in Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 24 FLR 286 at 291: Where the minds of the parties are at one that a proposed transaction between them proceeds on the basis of ... the adoption of a particular course of conduct, it would seem that there would be an understanding within the meaning of the Act. Secondly , a mere expectation, as a matter of fact, or a hope that something might be done or happen or that a party will act in a particular way, is not of itself sufficient to found an arrangement or understanding: see Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 at [45]; IPM Operation at [104]-[112]. Thirdly , the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligation: Amcor Printing Papers at [75]. Fourthly , as to the requirement that the provision be included in the arrangement or understanding for the proscribed purpose or for purposes which include that purpose, the test of purpose is a subjective one and the proscribed subjective purpose is to be had by each party to the arrangement or understanding: CEPU at [182]. Fifthly , the purpose of conduct for present purposes is the end sought to be accomplished by the conduct and is to be distinguished from the motive for such conduct which is the reason for seeking that end: CEPU at [181] and the cases there cited. Sixthly , the term "hindering" in s 45E(3) has been given a broad construction and encompasses conduct which in any way affects to an appreciable extent the ease of the usual way of supplying or acquiring an article or service: IPM Operations at [127]; Australian Builders' Labourers' Federated Union of Workers Western Australian Branch v J-Corp Pty Limited [1993] FCA 266 ; (1993) 42 FCR 452 at 459-460.