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Competition and Consumer Act 2010 (Cth)

Section 75B
Interpretation [see note 2*]

 

The provision

(1) A reference in this Part to a person involved in a contravention of a provision of Part IV, IVA, IVB, V or VC, or of section 55B, 60C, 60K or 95AZN, shall be read as a reference to a person who:

(a) has aided, abetted, counselled or procured the contravention;

(b) has induced, whether by threats or promises or otherwise, the contravention;

(c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or

(d) has conspired with others to effect the contravention.

(2) In this Part, unless the contrary intention appears:

(a) a reference to the Court in relation to a matter is a reference to any court having jurisdiction in the matter;

(b) a reference to the Federal Court is a reference to the Federal Court of Australia; and

(c) a reference to a judgment is a reference to a judgment, decree or order, whether final or interlocutory..

Note 2

Note 2 provides, relevantly:

Subsection ... 75B(1), - Schedule 5 (items 36, 50, 54 (Note), 65, 71, 74, 90 and 96) of the Trade Practices Amendment
(Australian Consumer Law) Act (No. 2) 2010
(No. 103, 2010) provide as follows:

Schedule 5

...

50 Subsection 75B(1)

Omit "Part IV, IVA, IVB, V or VC, or of section 95AZN or of the Australian Consumer Law", substitute "Part IV or IVB, or of section 95AZN".

 

Legislative history

Amended by Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Act 9 of 2016)

More forthcoming

 

Commentary

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235, involving claims of bid rigging, Justice Gordon noted that there can be no accessorial liability under s 75B were the primary contravention is not established. Once this is established, a 'person [including a body corporate] will only be regarded as involved in a contravention within the meaning of s 75B if the person intentionally participated in the contravention' and this includes 'actual, not constructive, knowledge of the essential matters that make up the contravention' (para 289). However:

[para 289] 'It is unnecessary to prove that the respondent knew that his or her actual participation was a breach of the CCA and ... where there is a combination of suspicious circumstances and a failure to make enquiry, it may be possible to infer knowledge ... Constructive knowledge is not sufficient ...'