In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 Judge Gordon of the Federal Court of Australia decided that a bid rigging arrangement occurred between Bradken and Castle Harlan, whereby Castle Harlan agreed to bid for Norcast’s subsidary Norcast Wear Solutions, Inc (NWS), a Canadian mining consumables company and Bradken agreed not to bid for NWS in contravention of sections 44ZZRJ and 44ZZRK of the Competition and Consumer Act 2010 (Cth) (the cartel provisions). The cartel provisions were applied even though the bid was made in USA for a Canadian company.

In a lengthy and complex judgment Judge Gordon concluded that had Bradken and Castle Harlan not entered into the Bid Rigging Arrangement, Bradken would have made a bid for NWS in excess of the approximately US$190 million which it ultimately paid for NWS. She assessed damages at US$22.4 million (being the difference between the US$212.4 million including costs and expenses which Bradken did in fact pay to acquire NWS and the US$190 million Norcast received from Castle Harlan).

An interesting aspect was the attempted avoidance of the effect of a Non-Disclosure Agreement by Castle Harlan by appointing Bradken as its consultant.

An appeal is expected.