Australian Competition and Consumer Commission v BlueScope Steel Limited (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 12 May 2020
• Neutral Citation: [2020] FCA 625
• Court: Federal Court
• Date: 12 May 2020

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v BlueScope Steel Limited (No 2) [2020] FCA 625

File number(s):	VID 932 of 2019
Judge(s):	O'BRYAN J
Date of judgment:	12 May 2020
Catchwords:	PRACTICE AND PROCEDURE – application to amend originating application to add a new claim for declaratory relief and pecuniary penalty under s 76 of the Competition and Consumer Act 2010 (Cth) – whether claim for pecuniary penalty is time-barred under s 77(2) of the Competition and Consumer Act 2010 (Cth) – application of rr 8.21 and 1.32 to 1.35 of the Federal Court Rules 2011 –whether new claim for relief arises out of the same facts, or substantially the same facts, as those already pleaded to support an existing claim for relief – where conduct the subject of the new claim for relief allegedly occurred partly within and partly outside limitation period – leave granted for applicant to amend originating application – date from which amendment to take effect – no order made as to costs
Legislation:	Competition and Consumer Act 2010 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011
Cases cited:	Australian Competition and Consumer Commission v Australian Egg Corporation Limited (2016) 337 ALR 573 Australian Competition and Consumer Commission v Flight Centre Ltd (No 2) (2013) ALR 209 Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2002] ATPR 41-877 Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2015] FCA 1098 McGraw-Hill Financial Inc v Clurname Pty Ltd (2017) 123 ACSR 467; [2017] FCAFC 211 Voxson Pty Ltd v Telstra Corporation (No 7) (2017) 343 ALR 681 Wardley Australia Limited v State of Western Australia (1992) 175 CLR 514
Date of hearing:	Matter determined on the papers
Date of last submissions:	16 April 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Economic Regulator, Competition and Access
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Applicant:	Mr M Hodge QC with Ms S Zeleznikow and Ms S Chordia
Solicitor for the Applicant	Australian Government Solicitor
Counsel for the First Respondent:	Mr C A Moore SC with Mr P J Strickland
Solicitor for the First Respondent	Gilbert + Tobin
Counsel for the Second Respondent:	Ms R Higgins SC with Mr C Bannan
Solicitor for the Second Respondent	Norton Rose Fulbright

ORDERS

		VID 932 of 2019
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	BLUESCOPE STEEL LIMITED (ACN 000 011 058) First Respondent ; JASON THOMAS ELLIS Second Respondent

JUDGE:	O'BRYAN J
DATE OF ORDER:	12 May 2020

THE COURT ORDERS THAT:

1. The applicant be granted leave to file and serve an amended originating application, in the form provided to the respondents by email on 20 March 2020, on the basis that the amendments take effect on 19 December 2019.

2. There be no order as to the costs of the applicant’s interlocutory application dated 3 April 2020.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1. By interlocutory application dated 3 April 2020, the applicant (ACCC) seeks leave pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) (FCR) to file and serve an amended originating application in the form provided to the Court and the respondents on 20 March 2020. The first respondent (BlueScope) opposes the grant of leave. The second respondent (Mr Ellis) neither opposes nor consents to the grant of leave.

2. The ACCC’s application was supported by written submissions filed on 3 April 2020. BlueScope filed written submissions in opposition on 15 April 2020 and Mr Ellis filed written submissions on 16 April 2020. The parties agreed that the Court should determine the application on the papers without the need for a hearing.

3. For the following reasons, leave is granted subject to the condition that the amendment takes effect from the date of filing the statement of claim on 19 December 2019, and not from the date of commencement of the proceeding.

The proceeding

4. The ACCC commenced the proceeding on 29 August 2019 by filing an originating application and concise statement.

5. On 1 November 2019, the Court made orders for the ACCC to file and serve a statement of claim, which the ACCC did on 19 December 2019. On 20 March 2020, BlueScope filed its defence to the ACCC’s statement of claim.

6. On 23 March 2020, the Court gave the ACCC leave to file and serve an amended statement of claim which had been served on 19 March 2020.

7. The proceeding concerns BlueScope’s business in Australia manufacturing and supplying various flat steel products. In general terms, the ACCC alleges that each of BlueScope and Mr Ellis attempted to induce various suppliers of flat steel products in Australia to make or arrive at an understanding that contained a cartel provision in contravention of s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) (CC Act). At the time of the alleged conduct, s 44ZZRJ prohibited a corporation from making a contract or arrangement or arriving at an understanding that contains a cartel provision. Relevantly, a provision of a contract, arrangement or understanding is a cartel provision if the provision has the purpose or likely effect of fixing, controlling or maintaining the price of goods supplied by any or all of the parties to the contract, arrangement or understanding, and two or more of the parties to the contract, arrangement or understanding are in competition with each other in relation to the supply of those goods.

8. The ACCC alleges that BlueScope and Mr Ellis attempted to make or arrive at a separate understanding with each of the following 12 suppliers of flat steel products in Australia, each such understanding containing a provision that had the purpose or likely effect of fixing, controlling or maintaining the price for flat steel products supplied, or likely to be supplied, by BlueScope or the supplier concerned:

1. Southern Steel Group Pty Limited, OneSteel Pty Ltd, CMC Steel Distribution Pty Ltd, Apex Steel Pty Ltd, Selection Steel Trading Pty Ltd, Celhurst Pty Ltd trading as Selwood Steel and Vulcan Steel Pty Ltd, which were Australian distributors that acquired flat steel products from BlueScope;

2. Wright Steel (Sales) Pty Ltd, which was an Australian distributor that acquired flat steel products from overseas steel manufacturers; and

3. Shang Chen Steel Co Ltd and Shang Shing Industrial Co Ltd (which are related companies), Yieh Phui Enterprise Co Ltd, China Steel Trading Corporation and JSW Steel Ltd, which were overseas steel manufacturers that supplied flat steel products to Australian distributors.

9. The ACCC alleges that the conduct constituting the unlawful attempts began in around September 2013. The conduct continued for different periods for each of the suppliers referred to above. Relevantly for the present application, in respect of OneSteel Pty Ltd (OneSteel), the ACCC alleges that the unlawful attempts continued until June 2014.

10. In respect of the foregoing conduct, the ACCC seeks declaratory relief under s 21...