Australian Federal Court rules in flyash case

By Justin Oliver and Kathryn Finlayson

In a recent Federal Court decision, Justice Greenwood dismissed allegations that Cement Australia (Queensland) Propriety and Pozzolanic Enterprises Propriety, subsidiaries of Cement Australia Propriety, had misused their market power in acquiring flyash from power stations in south-east Queensland between 2002 and 2006, but found that several contracts for the acquisition of flyash over this period had the purpose and/or effect of substantially lessening competition.

The decision is consistent with earlier judgments on section 46 of the act (relating to misuse of market power), which have found that conduct that targets a rival can be excused if the conduct has a business rationale, such that it might be engaged in even in a competitive market.

What is perhaps more interesting are the findings under section 45 of the act…

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