An ACCC appeal against a Federal Court judgment in relation to alleged bid rigging conduct involving Cascade Coal Pty Ltd (Cascade), Paul and Moses Obeid and others was dismissed today by the Full Federal Court.
The appeal focused on whether parties associated with Obeid family members and Cascade were “in competition” at the time they withdrew a bid for Mount Penny and Glendon Brook mining exploration licences. The Full Federal Court has concluded there was no error of law on that issue.
“We brought this case because it is important that public tender processes are not undermined by anti-competitive conduct,” ACCC Chair Rod Sims said.
“Cartel conduct damages competition, and disadvantages other businesses and consumers.”
“We will now carefully consider the Full Federal Court’s decision,” Mr Sims said.
The ACCC’s investigation followed the report by the NSW Independent Commission Against Corruption concerning the same tender process.
The proceedings related to alleged cartel conduct in a 2009 tender process conducted by the NSW Department of Trade and Investment (then the Department of Primary Industries) for exploration licences over the Mount Penny and Glendon Brook coal tenements areas in the Bylong Valley NSW.
The ACCC alleged that in early June 2009, Cascade entered into a contract, arrangement or understanding with Loyal Coal Pty Ltd (Loyal) and its affiliated companies Voope Pty Ltd (now Mincorp Investments), Locaway Pty Ltd, Buffalo Resources Pty Ltd and United Pastoral Group Pty Ltd (UPG).
As part of the arrangement, once Loyal agreed to withdraw, Cascade would then grant Buffalo Resources a 25 per cent interest in the Mount Penny coal release area and agree to buy the properties of some land owners who were represented by Paul and Moses Obeid at four times the land value, and to take over their mortgage obligations.
Loyal subsequently withdrew its bid and Cascade won the tender for the Mount Penny and Glendon Brook coal release areas.
On 25 May 2015, the ACCC instituted proceedings against Cascade Coal and ten other respondents.
On 5 April 2016, Loyal admitted to breaching cartel laws and agreed to resolve the ACCC’s proceedings brought against it by consent.
On 6 July 2018, the Federal Court dismissed the ACCC’s application.
On 3 August 2018, the ACCC lodged an appeal against the dismissal.
On 12 November 2018, the Federal Court refused an application by Moses Obeid for a suppression order over part of the Court’s reasons.
Anyone with information about cartel conduct is urged to call the ACCC Cartel Hotline on (02) 9230 3894.