Australian Competition and Consumer Commission v Cement Australia Pty Ltd ACN 104 053 474

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondents: Mr N Hutley SC with Ms S Brown and Dr R Higgins

Solicitor for the Respondents: Gilbert & Tobin, Lawyers

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

CEMENT AUSTRALIA (QUEENSLAND) PTY LTD FORMERLY QUEENSLAND CEMENT LTD ACN 009 658 520

1. The ACCC shall formulate, file and serve within 7 days an amendment to the Further Amended Statement of Claim amended on 31 March 2010 pursuant to the order of Dowsett J made on 26 March 2010 so as to plead material facts which set out the foundation upon which the conclusion pleaded at para 142 of the Further Amended Statement of Claim is made.
2. The respondents are given leave to amend their respective defences having regard to the amendment made pursuant to Order 1.
3. The Notice of Motion of the respondents filed on 11 May 2010 is otherwise dismissed.
4. The costs of and incidental to the motion are reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

CEMENT AUSTRALIA (QUEENSLAND) PTY LTD FORMERLY QUEENSLAND CEMENT LTD ACN 009 658 520

Background 1 The applicants on the motion are the respondents in the principal proceeding (referred to in these reasons as the "Cement Australia parties" or the "respondents"). They seek an order that paras 78, 87, 103, 114, 128, 139, 140, 142 and 144 of the Second Further Amended Statement of Claim (the "SFASOC") of the applicant in the principal proceeding (the "ACCC") be struck out as "disclosing no reasonable cause of action and as having a tendency to cause prejudice, embarrassment and delay in the proceeding": O 11, r 15 Federal Court Rules. In the alternative, they seek an order that the ACCC provide further and better particulars of those paragraphs, in response to the respondents' letter dated 8 April 2010: O 12, r 5. Finally, they seek an order for further and better particulars of paras 31, 44, 45A.1, 45A.2, 45A.3, 59 and 61 of the SFASOC also in response to the letter of 8 April 2010: O 12, r 5. 2 The essential contention of the ACCC in the principal proceeding relevant on this application is that one of the Cement Australia parties, Pozzolanic Enterprises Pty Ltd ("PE") contravened s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) ("the Act") by entering into contracts described as the Original Millmerran Contract, the Tarong Contract, the Amended Millmerran Contract, the Swanbank Contracts (and Swanbank Arrangements) and the Millmerran Second Election to Proceed. PE is said to have contravened s 45(2)(b)(ii) by giving effect to those contracts and arrangements. Other Cement Australia parties are said to have contravened s 45(2)(b)(ii) of the Act by causing PE to make particular contracts or by giving effect to particular contracts; or to have been knowingly concerned in particular contraventions of s 45(2)(a)(ii) of the Act. 3 The general formulation of the contraventions (although it will be necessary to look at the pleading in detail) is that particular provisions of the relevant contract in question either taken alone or together with one or more of the provisions of the relevant contract (and in some cases together with provisions of other contracts) had the effect or likely effect of preventing any person other than PE from acquiring material described as unprocessed flyash from a particular coal‑fired electricity generator (as supplier); and hindering or preventing any other person from supplying a product called concrete‑grade flyash in the South‑East Queensland ("SEQ") concrete grade flyash market or alternatively from supplying fine‑grade flyash in the South‑East Queensland ("SEQ") fine‑grade flyash market. 4 By virtue of particular pleaded matters said to give rise to those effects or likely effects, the provisions taken alone or as otherwise contended are said to substantially lessen, hinder or prevent competition in the SEQ unprocessed flyash market and substantially lessen, hinder or prevent competition in the SEQ concrete‑grade flyash market or, alternatively, in the SEQ fine‑grade flyash market. 5 In summary, the Cement Australia parties seek to strikeout the paragraphs of the SFASOC that plead facts said to enliven causes of action based on contraventions of s 45(2)(a)(ii) and s 45(2)(b)(ii), on the following grounds. First, the ACCC, it is said, has failed to plead all the material facts necessary to constitute a complete cause of action under the Act and has simply pleaded conclusions. 6 Secondly, the pleading is said to operate at too high a level of generality. 7 Thirdly, the pleading, it is said, fails to come to grips with properly pleading the counter‑factual because it simply asserts the consequences of contended conduct and pleads a before and after inquiry, that is, it pleads the state of rivalry in the relevant market prior to each agreement and compares it with changes to the field of rivalry after the agreements (or the relevant provisions) take effect. Instead, the pleading should have adopted, it is said, a forward‑looking inquiry at the date of the relevant contract and assess whether the identified provisions would have the effect or likely effect of reducing rivalrous behaviour that would otherwise have existed in the relevant market but for the provisions. 8 Fourthly, the pleading fails to plead material facts demonstrating the contended counter‑factual: How would competition in the relevant market be different?; Who would have entered the relevant market?; On what terms?; What is the hypothetical postulation? The Cement Australia parties say that because of these failures to apply the right test in framing the counter‑factual analysis and the failure to plead the relevant material facts in any precisely focused way, the respondents do not know the true case they have to meet at the trial of the action or what will finally be put to them at trial. 9 Fifthly, it is said that the pleading fails to plead a causal link between the relevant provision[s] and the contended effect or likely effect, and in other respects fails to properly plead facts demonstrating PE's giving effect to the particular provision[s]. 10 Sixthly, particular separate matters are asserted in relation to arrangements concerning the Tarong North Power Station.

The Procedural Background 11 The procedural background to the present application is this. 12 The proceeding was listed before Dowsett J for trial commencing on 23 March 2010. When the case was called, the ACCC sought leave to amend its pleading which was unopposed resulting in a Further Amended Statement of Claim. In the course of preliminary matters, the respondents observed that their case, in part, was that the market for the supply of concrete-grade flyash to concrete manufacturers as pleaded by the ACCC was too broad as the market, on the evidence, was a market for fine‑grade flyash (defined by reference to the percentage by mass of flyash that will pass through a 45 micron sieve) and that coarser grade flyash was only used in exceptional circumstances. The ACCC said it was taken by surprise by the respondents' contention as to the product dimension of the contended market and sought leave to amend to plead a SEQ fine‑grade flyash market in the alternative to the pleaded SEQ coarse‑grade flyash market in which the conduct is said to have the effect or likely effect of substantially lessening competition. That application was opposed. 13 After examining the structure of the Further Amended Statement of Claim and the pleading in answer by the respondents (which was the defence delivered to the Amended Statement of Claim as the unopposed amendment was not relevant to this question) and notwithstanding the ACCC's contention that it could not have anticipated, on the face of the respondents' defence, that a finding of a market for fine‑grade flyash as a product rather than a product market for coarse‑grade flyash (as defined by the pleading) might result in the ACCC failing altogether to establish the pleaded market in which the competition effects are said to occur, Dowsett J concluded (Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2010] FCA 294) at [33]: 33. It seems to me, however, that the applicant ought to have recognised, in advance of the trial, the possibility that it would have to meet a case based upon the proposition that the relevant product was fine grade flyash, given that it was, on the evidence, by far the dominant product supplied to concrete producers. Quite apart from that matter, the respondents' denial of the alleged market for concrete‑grade flyash means that all aspects of the applicant's market definition are in issue. 14 At [34], Dowsett J said this: 34. Further, although I am not persuaded that the respondents were obliged to go further than they did in pleading their case, it may have been more helpful had they clearly asserted that not all flyash satisfying the Australian Standard is generally used in manufacturing cement. It may be that they were anxious to avoid asserting the existence of a particular market. Fairly clearly, they were careful to challenge the factual assertions in dispute, but they did so in a way which was a little opaque. Had they been somewhat more transparent in their pleadings, the present situation may not have arisen. Nonetheless the present problem is primarily attributable to the applicant's failure to accept the full consequences of the respondents' denial of the market as pleaded and to respond accordingly. Perhaps it was a case of seeing what it wanted to see. 15 By the time the hearing commenced on 23 March the parties had exchanged evidence in the case. The respondents had been provided with the ACCC's statements. Dowsett J notes at [22] that numerous witnesses on both sides had addressed the suitability of grades of flyash other than fine-grade flyash for use in concrete and presumably all aspects of the case sought to be advanced at trial against the respondents. Having regard to the detailed preparation required to resist a six week competition law case, the respondents must have descended into the bowels of the facts in the case. It is a little odd that it is now said on a pleading point that the respondents are taken by surprise and do not know the case to be made at trial by not only the amended pleading postulating the alternative fine-grade flyash market but also central aspects of the unamended case otherwise not challenged previously. 16 The contended implications for the respondents of the proposed amendment to plead an alternative product market (and the implications of other matters) are noted by Dowsett J at [23] in these terms: 23. The respondents submit that the proposed amendments may have a far-reaching effect on the case. In particular, they may wish to seek a detailed identification by the applicant of the basis of its allegations of anti-competitive effect or likely effect. Counsel concedes that the respondents did not pursue an earlier request for such particulars on the pleading as it stands, apparently for reasons for perceived forensic advantage. However, if the proposed amendments are allowed, they will seek such particulars in connexion with the amendments. 17 In the result, the ACCC was given leave on 26 March 2010 to amend by filing and serving the SFASOC (and that Order is now the subject of an appeal) and the respondents were given leave to amended their respective defences. The trial of the action was adjourned for further directions. The present motion then came forward. 18 If, for reasons for strategic advantage, the respondents chose not to press for particulars of the basis on which nominated provisions (either alone or in conjunction with others) of particular contracts had an anti-competitive effect or likely effect in the SEQ coarse-grade flyash market, or chose not to make either prior to the trial or at the time of the argument concerning the ACCC's application for leave to amend to plead the alternative market, an application to strike out the paragraphs of the statement of claim said to exhibit the vice now identified (upon which the respondents were about to embark upon the trial), it seems, prima facie, inappropriate to exercise the discretion to strike out the challenged paragraphs. The respondents have not simply been provided with a pleading framing material facts (said to be inadequate) early in the course of the action but have had the benefit of considering the relevant documents and the applicant's statements of evidence in the proceeding. They have the case to be made against them. However, the appropriate course is to examine the criticisms of the SFASOC which pleads both the unamended case and the alternative product market in which the anti-competitive effect or likely effect is said to arise and determine whether the contended deficiencies are made out.

The Second Further Amended Statement of Claim 19 These are the pleaded facts, most of which are in controversy. 20 Coal-fired electricity generating power stations produce flyash as a by-product of burning coal. Flyash consists of particulate matter usually less than 100 microns in size suspended in exhaust gas (flue gas) liberated by combustion of coal. The flue gas is passed through electrostatic precipitators or filters (or both) to separate the particles, collected into hoppers, from the gas. The flyash particles so collected (as opposed to residue or bottom ash) is "unprocessed flyash". Depending upon the size of the particles, unprocessed flyash can be concrete-grade flyash or fine-grade flyash. Flyash of suitable quality or grade can be used as a partial substitute for cement in the making of concrete. Concrete-grade flyash or fine-grade flyash may replace between approximately 20‑30 % of cement by weight in the manufacture of concrete. 21 Australian Standard 3582.1 provides for 4 grades of flyash suitable for use as cementitious material in concrete: Fine Grade having a "fineness" quality of 75% (minimum); Medium Grade of 65-75% fineness; Coarse Grade of 55-65 % fineness and Special Grade of 75% fineness and a relative strength exceeding 105%. The Standard defines the quality of "fineness" as the percentage by mass of flyash particles that will pass through a 45 micron sieve. Fine-grade flyash under the Standard exhibits the characteristic that at least 75% by mass of the particles constituting that grade of flyash are less than 45 microns (or perhaps 45 microns or less). 22 Concrete-grade flyash (C-GF) is flyash that meets the elements of the Standard (that is, flyash that exhibits qualities bringing it within one of the four grades). Fine-grade flyash (F-GF) is flyash that exhibits a minimum fineness of 75%. 23 Unprocessed flyash can be passed into plant called a "classifier" that separates it into either C-GF or F-GF on the one hand and reject flyash on the other. Unprocessed flyash of suitable quality that is not either C-GF or F-GF may nevertheless be processed through a classifier to produce either product category of flyash. Flyash is produced at Swanbank Power Station (near Ipswich and therefore close to Brisbane); Tarong Power Station (180 kilometres north-west of Brisbane); Millmerran Power Station (200 kilometres west of Brisbane) and Tarong North Power Station (adjacent to Tarong). 24 In the time-frame relevant to these proceedings, suppliers of C-GF or F-GF operating in the defined south-east Queensland region (SEQ region) exert demand for the supply of unprocessed flyash so as to produce C-GF or F-GF. Unprocessed flyash from outside the geographic SEQ region is not an economic substitute. In the SEQ region there is market for unprocessed flyash called the "SEQ unprocessed flyash market". In the SEQ region those who use C-GF or F-GF (as a partial substitute for cement) in the production of concrete products (that is, "concrete producers") and those who on-sell C-GF or F-GF to concrete producers (called "on-sellers"), that is, intermediaries, exert demand for the supply of C-GF or F-GF. Although small quantities of each product have been transported from the Hunter Valley region to the SEQ region, C-GF or F-GF produced outside the SEQ region has not been an economic substitute for C-GF or F-GF produced in the SEQ region. Therefore, there is a market geographically bound by the SEQ region for the supply and acquisition of a product called C-GF (the "SEQ C-GF market"). There is also a narrower product market also geographically bound by the SEQ region for the supply and acquisition of a product called F-GF (the "SEQ F-GF market"). 25 However, a person seeking to carry on business as a supplier of C-GF in the SEQ C-FG market requires certain things and they are (as described at para 45.1-45.6 of the SFASOC) these: 45.1 an agreement with a power station operator for on-going and consistent access to quantities of suitable quality unprocessed flyash at the power station; 45.2 investment in plant, equipment and facilities at or proximate to the power stations site, which would usually include storage facilities, a weighbridge, and specialised truckloading and despatch management facility; 45.3 where the unprocessed flyash was not of suitable quality to be considered concrete-grade flyash, in addition to the equipment set out at paragraph 45.2, a classifier plant at or proximate to the power station site, which would require substantial capital expenditure; 45.4 alternatively to the requirements set out at paragraphs 45.1 - 45.3 above, a proximate source of on-going and consistent supply of quantities of concrete-grade flyash from another supplier of concrete-grade flyash; 45.5 supply agreements with potential purchasers of concrete-grade flyash, being concrete producers or on-sellers. 45.6 if supply is to be offered on a delivered basis, logistics and distribution networks for delivery to customers. 26 A person seeking to carry on business as a supplier of F-GF in the SEQ F-GF market has the same requirements (45A.1-45A.6). 27 Between 2001 and December 2006 PE was a party to contracts or arrangements for the acquisition of unprocessed flyash from SEQ region power stations (Swanbank, Tarong, Tarong North and Millmerran) by which PE was entitled to acquire all or virtually all or of the C-GF or F-GF that was available from time to time in the SEQ region (para 48) and during that period no other person had a contract to acquire unprocessed flyash from Swanbank, Tarong or Millmerran. In the case of Tarong North, PE and others had acquisition rights between 1 February 2005 and 20 January 2006 but otherwise in the period between 2001 and December 2006 no person other than PE had a contract to acquire unprocessed flyash (49 and 50). 28 By reason of these contracts for the acquisition and classification of unprocessed flyash, PE had the potential capacity until December 2006 to produce substantially more C-GF or F-GF than the demand for those products in the SEQ region.

The Swanbank Contract 29 In 1993 PE contracted with the owner and operator of Swanbank, (the Queensland Electricity Commission (QEC)) for the acquisition and removal of flyash for five years. In 1997, CS Energy (CSE) was substituted for QEC and on 30 September 1998 CSE and PE agreed to extend the contract until 31 December 2002 and vary the terms such that PE had the first option to purchase and remove flyash; volume rates per tonne per annum were agreed with rates decreasing at particular thresholds of volume and with a penalty of $4.00 per tonne for any shortfall below a minimum quantity of flyash of 48,000 tonnes; CSE would not supply flyash to third parties but would refer such requests to PE; PE would not unreasonably refuse supply to third parties; and PE had an option to extend the contract to 31 December 2004 on terms. 30 On 11 July 2002 PE exercised the option.

The Original Millmerran Contract 31 On 30 September 2002, PE, its immediate 100% parent Pozzolanic Industries Pty Ltd (PI) and the Millmerran owner, "MPP", entered into a contract called the "Original Millmerran Contract" for PE to take flyash from the power station. At para 70, the ACCC pleads the relevant terms it relies upon, namely: 70 The relevant terms of the Original Millmerran Contract were: 70.1 pursuant to clause 10.1, the contract had a term of seven years from 30 September 2002; 70.2 pursuant to clauses 6.1, 6.2 and 7, Pozzolanic would pay MPP a minimum of $1,323,500 per annum indexed to CPI ("guaranteed minimum payment"); 70.3 pursuant to clause 5.1, MPP was obliged to make available to Pozzolanic a minimum of 135,000 tonnes of concrete-grade flyash per annum ("guaranteed minimum quantity"); 70.4 pursuant to clause 6.3, Pozzolanic would pay MPP $10.10 per tonne for every tonne of concrete-grade flyash it took in excess of 135,000 tonnes; 70.5 pursuant to clause 2.1, Pozzolanic was obliged to undertake testing of the quality of flyash produced by Millmerran Power Station; 70.6 pursuant to clause 2.1, Pozzolanic was obliged to determine whether flyash produced by Millmerran Power Station met the requirements of AS3582.1 for concrete-grade flyash and met the "Fly Ash Critical Limits" defined in Schedule 2 of the contract ("Acceptable Range"); 70.7 pursuant to clause 2.2, Pozzolanic was obliged to notify MPP within a certain period of time as to whether flyash produced by Millmerran Power Station met the requirements of Acceptable Range; 70.8 pursuant to clause 2.3, if Pozzolanic notified MPP that flyash produced by Millmerran Power Station did not meet the requirements of Acceptable Range, MPP was entitled to have the flyash produced by Millmerran Power Station independently tested to determine whether it met the requirements of Acceptable Range; 70.9 pursuant to clause 2.6, if MPP accepted Pozzolanic's determination that flyash produced by Millmerran Power Station did not meet the requirements of Acceptable Range or independent verification demonstrated that flyash produced by Millmerran Power Station did not meet the requirements of Acceptable Range, either party was entitled to terminate the contract within 14 days of the acceptance of the determination or independent verification; 70.10 subject to the determination that the flyash met the requirements of Acceptable Range, pursuant to clause 3, Pozzolanic was obliged to construct facilities capable of enabling it to take delivery of flyash (flyash facilities") at Millmerran Power Station that would be ready for operation by 1 May 2004 in performance of the contract; 70.11 pursuant to clause 40.12(b), Pozzolanic had the right to assign its rights under the contract with the written consent of MPP, which could not be unreasonably withheld; 70.12 pursuant to clause 26.4, Pozzolanic could terminate the contract after 31 December 2006 upon 60 days notice and payment of a termination payment; 70.13 pursuant to clause 35.1, Pozzolanic Industries was guarantor for Pozzolanic.

The Tarong Contract 32 On 6 December 2000 Tarong Energy Corporation (TEC) and PE entered into a contract conferring on PE a "first right" to the acquisition of Tarong Power Station flyash. PE had installed on-site a classifier and other infrastructure to process and take flyash. On 26 February 2003, PE and TEC entered into the "Tarong Contract" commencing on 1 March 2003. The relevant terms are pleaded at para 84 as: 84. The relevant terms of the Tarong Contract were: 84.1 pursuant to clause 2, the contract had a commencement date of 1 March 2003; 84.2 pursuant to clause 2, the contract had a term of five years from 1 March 2003; 84.3 pursuant to clause 3.1, TEC agreed to sell to Pozzolanic and Pozzolanic agreed to buy all concrete-grade flyash extracted by Pozzolanic from Tarong Power Station; 84.4 pursuant to clause 12, Pozzolanic would pay: 84.4.1 $2,600,000 per annum on a quarterly basis, indexed to CPI, if it removed less than 50,000 tonnes of flyash per annum; 84.4.2 $2,500,000 per annum on a quarterly basis, indexed to CPI, if it removed 50,000 tonnes or more but less than 150,000 tonnes of flyash per annum; 84.4.3 $2,400,000 per annum on a quarterly basis, indexed to CPI, if it removed 150,000 tonnes or more but less than 300,000 tonnes of flyash per annum; 84.4.4 $2,200,000 per annum on a quarterly basis, indexed to CPI, if it removed 350,000 tonnes or more but less than 450,000 tonnes of flyash per annum; 84.4.5 $2,100,000 per annum on a quarterly basis, indexed to CPI, if it removed 450,000 tonnes or more of flyash per annum; 33 The Tarong Contract also entitled PE to take flyash produced by Tarong North Power Station. The relevant terms are pleaded at para 84 as: 84.5 Pozzolanic would also be entitled to take the flyash produced by Tarong North power station, which flyash was also owned by TEC, as follows: 84.5.1 pursuant to clause 4.4, as soon as possible after 1 March 2003, Pozzolanic was to determine whether flyash from Tarong North Power Station was "suitable for use [with] portland cement"; 84.5.2 pursuant to clause 4.4, if the flyash from Tarong North Power Station was "suitable for use [with] portland cement", the contract provided for Pozzolanic to establish a classifier at Tarong North Power Station; 84.5.3 pursuant to clause 8.3, Pozzolanic was not entitled to any reduction in the amounts payable to TEC for flyash if the flyash from Tarong North power station was not suitable for use with cement, or if Pozzolanic did not establish a classifier at Tarong North power station; 84.5.4 pursuant to clause 4.4, TEC would approve a point at Tarong North Power Station for Pozzolanic to take possession of flyash; 84.5.5 pursuant to clause 3.1, and clause 1.1 defining the "Ash Disposal System" and "Ash Transfer Points", TEC agreed to sell to Pozzolanic and Pozzolanic agreed to buy all concrete-grade flyash extracted by Pozzolanic from Tarong North Power Station. 34 At para 84.6 the ACCC pleads that PE had the right (cl 17.1) to terminate the contract on giving twelve months' written notice to TEC after September 2004.

The Amended Millmerran Contract 35 On 28 July 2004 the Original Millmerran Contract was varied relevantly to provide, as pleaded at para 94, that: 94. Pursuant to the 28 July 2004 Letter, the Original Millmerran Contract was varied to relevantly provide that: 94.1 pursuant to clause 2.2, Pozzolanic was required to notify MPP by 31 July 2004 as to whether the flyash produced by Millmerran Power Station fell within the Acceptable Range for concrete-grade flyash and could practically and economically be converted into concrete-grade flyash; 94.2 pursuant to clause 3.3, Pozzolanic was required to construct plant on site at Millmerran Power Station by 1 May 2005 rather than 1 May 2004; 94.3 pursuant to clause 4, after construction of the plant on site at Millmerran Power Station, Pozzolanic and MPP would have a right to terminate the contract if: 94.3.1 Pozzolanic determined that the flyash produced at Millmerran Power Station did not fall within the Acceptable Range and could not practically and economically be converted into concrete-grade flyash; 94.3.2 Pozzolanic gave notice of that determination to MPP; 94.3.3 MPP accepted the determination or an independent verification concluded that flyash produced at Millmerran Power Station did not fall within the Acceptable Range and could not practically and economically be converted into concrete-grade flyash; 94.3.4 Pozzolanic gave notice of termination within 14 days of MPP's acceptance of Pozzolanic's determination or the independent verification's determination was made; 94.4 pursuant to clause 4, termination pursuant to the right pleaded in the preceding sub-paragraph would take effect six months after the date of the notice of termination and Pozzolanic would only have to pay the lump sum payment pro-rata to the date of termination unless the date of termination was in the 2005 year in which case Pozzolanic would be obliged to pay the entire lump sum amount for 2005; 94.5 pursuant to clause 42.1, the term of the contract was eight years; 94.6 pursuant to clause 26.4, Pozzolanic could terminate the contract after 31 December 2007 rather than 31 December 2006 upon 60 days notice; ("the Amended Millmerran Contract"). 36 Those terms are said to be affected by events that occurred on 30 July 2004 giving rise to an election (called the "first election to proceed") by PE to proceed with the Amended Millmerran Contract. It is put this way: 95. On or about 30 July 2004, Sandra Collins, on behalf of Pozzolanic, wrote to MPP and stated: 95.1 the flyash produced by Millmerran Power Station did not fall within the Acceptable Range; 95.2 Pozzolanic had not determined whether the flyash available from Millmerran Power Station could be practically and economically converted into concrete-grade flyash; 95.3 Pozzolanic was prepared to proceed with the Amended Millmerran Contract as if the flyash available from Millmerran Power Station fell within the Acceptable Range; 95.4 Pozzolanic was prepared to proceed with the Amended Millmerran Contract as if the flyash available from the Millmerran Power Station could be practically and economically converted into concrete-grade flyash; ("30 July 2004 Letter"). 96. As a consequence of the 30 July 2004 Letter: 96.1 Pozzolanic waived its right to terminate the Amended Millmerran Contract on the basis that the flyash did not meet the Acceptable Range criterion; 96.2 Pozzolanic was bound by the Amended Millmerran Contract to install a classifier at Millmerran Power Station by 1 May 2005; 96.3 Pozzolanic was obliged pursuant to the Amended Millmerran Contract, .to pay $1,323,500 per annum indexed to CPI until 30 September 2010 unless: 96.3.1 pursuant to amended clause 4(a) it installed a classifier at Millmerran Power Station; 96.3.2 pursuant to amended clause 4(a) it determined that the flyash from Millmerran Power Station did not fall within the Acceptable Range and could not be practically and economically converted into concrete-grade flyash; 96.3.3 pursuant to amended clause 4(b) it gave notice to Millmerran Power Station of the determination that flyash from Millmerran Power Station did not fall within the Acceptable Range and could not practically and economically be converted into concrete-grade flyash; 96.3.4 pursuant to amended clause 4(c) MPP accepted the determination of Pozzolanic or an independent verification determined that flyash from Millmerran Power Station did not fall within the Acceptable Range or could not be practically and economically converted into concrete-grade flyash; 96.3.5 pursuant to amended clause 4(c) Pozzolanic gave notice to Millmerran to terminate within 14 days of MPP accepting the determination or the independent verification determining that flyash from Millmerran Power Station did not fall within the Acceptable Range and could not be practically and economically converted into concrete-grade flyash; in which case the Amended Millmerran Contract would terminate six months after Pozzolanic gave notice to terminate and Pozzolanic would only have to pay the lump sum per annum pro-rata to the date of termination unless the termination date was in the 2005 year, in which case Pozzolanic would have to pay the lump sum per annum for the entire 2005 year. 96.4 Pozzolanic could terminate after 31 December 2007, upon 60 days notice and payment of a termination payment. 97. The 30 July 2004 Letter by itself or together with the amending of the Original Millmerran Contract in accordance with the 28 July 2004 Letter constituted an election by Pozzolanic to proceed with the Amended Millmerran Contract rather than terminate the Amended Millmerran Contract or the Original Millmerran Contract ("the first election to proceed").

The Swanbank Contracts and Arrangements 37 From 1 January 2005 to 15 March 2005 PE acquired flyash at Swanbank from CSE on the terms of the 2003/2004 extension. The parties agreed to apply those terms to the acquisition of flyash for the period 15 March 2005 to 30 June 2005; 1 July 2005 to 1 January 2006; and 1 January 2006 to at least 31 December 2006.

The Millmerran Second Election to Proceed 38 On 26 April 2005 PE and Cement Australia Pty Ltd (Cement Australia) told the Millmerran owner MPP that capital expenditure of $2.52M had been approved by the ultimate holding company for PE, Cement Australia Holdings Pty Ltd (CAH) to install a classifier at the Millmerran Power Station. Cement Australia was from 31 May 2003 the manager of PE, PI and 23 companies related to CAH having regard to, so far as is relevant, the following ownership tree: 39 The approval of the capital expenditure by CAH is said to be the "second election" by PE to proceed with the Amended Millmerran Contract, that is, to implement and give effect to it.

Additional factors relating to the effect or likely effect of those contracts 40 Some further features of pleaded market or behavioural arrangements are these. 41 On 31 May 2003, Cement Australia and CAH entered into the Cementitious Products Acquisition Agreement (CPA agreement) under which Cement Australia (as agent of a partnership) would purchase all of the flyash or cement produced by all entities related to CAH including PE and QCL, and the supply-side entities would not sell flyash or cement to any other person without Cement Australia's written consent. From June 2003 Cement Australia managed the day-to-day operations of CAH and its subsidiaries including PE and QCL. 42 Prior to June 2003, QCL carried on the business of supplying C-GF or F-GF into the C-GF and F-GF product markets in the SEQ region and also supplied cement. It was the only supplier in each product market of C-GF or F-GF sourced from power stations in the SEQ region. 43 After June 2003, Cement Australia under the CPA Agreement carried on the business of supplying C-GF or F-GF in the defined product markets and acquired C-GF or F-GF for re-supply from PE under the CPA Agreement. From June 2003, PE and Cement Australia were the only suppliers of C-GF or F-GF in those defined product markets. PE acquired C‑GF or F-GF produced directly by power stations or produced each product by classifying unprocessed flyash acquired from the power stations and supplied each product to QCL (or its customers) until June 2003 and thereafter to Cement Australia. 44 At para 46, the ACCC pleads: During the period from 2002 to December 2006, operators of power stations in the SEQ region prefer to have a single entity engaging in on-site classification of flyash at their power station. 45 At para 56, the ACCC pleads the features of the distribution and storage arrangements operated by PE, QCL (until June 2003), and Cement Australia for daily collection and delivery of C-GF or F-GF to end-users at batching plants. 46 At para 57, the ACCC pleads that PE's daily requirements of unprocessed flyash were potentially significantly higher than its average daily needs calculated over a year and that the amount of the remaining unprocessed flyash potentially available to an alternative purchaser would vary substantially from day-to-day. 47 Paragraphs 46, 56 and 57 are cross-referenced in those paragraphs pleading the effect or likely effect of the provisions of each of the agreements in question.

The effects or likely effects of the relevant provisions 48 The material facts pleaded to support the effect or likely effect of the relevant provisions of the Original Millmerran Contract are reflected, in essence, in the pleading of the effect or likely effect of the relevant provisions of the other contracts or arrangements. As to the Original Millmerran Contract, the ACCC pleads this. 49 The first effect or likely effect of the provision pleaded at para 70.3 (that is, cl 5.1, by which MPP was obliged to make available to PE a minimum quantity of 135,000 tonnes of concrete-grade flyash) either by itself or in conjunction with one or more of the provisions pleaded at 70 [31] was: 78.1 to prevent any other person from acquiring unprocessed flyash from Millmerran Power Station. 50 That effect or likely effect is referable to three factors cross-referenced to paras 45.1 and 45.4; 45A.1 and 45A.4; and 46, 56 and 57. 51 First, a person who wants to carry on the business of supplying C-GF requires an agreement with a power station operator for ongoing and consistent access to quantities of suitable quality unprocessed flyash at the power station. In order to enter the downstream SEQ C-GF market as a product supplier, an entrant needs access to the relevant upstream raw production input for classification or access to a proximate source of ongoing and consistent supply of quantities of C-GF from another supplier of C-GF. Similarly, a new entrant to the business of supplying F-GF has the same commercial requirements (para 78.1.1). 52 Secondly, because power station operators in the SEQ region prefer a single on-site operator of a classifier (para 46) and PE and QCL (and no other) had an established distribution network for C‑GF or F‑GF (among other para 56 features), MPP would be unlikely to be practically able or willing to enter into an agreement with any person allowing ongoing access to unprocessed flyash as a consequence of the requirement to provide PE with the guaranteed minimum quantity provided for by the provision of the contract (para 78.1.2). 53 Thirdly, piecemeal transactional access to unprocessed flyash from MPP would be an uncommercial basis for access to the raw production input for a person wishing to carry on business as a supplier of C-GF or F-GF (para 78.1.3). 54 The second effect or likely effect (as pleaded at 78.2) of the provision (cl 5.1) taken alone or together with the para 70 provisions is to hinder or prevent any other person from supplying C-GF in the SEQ C-GF market or F-GF in the SEQ F-GF market due to, firstly, the three factors at para 78.1.1, 78.1.2 and 78.1.3 and, secondly, at para 78.2.2, the unavailability of alternative sources of unprocessed flyash in the SEQ region as a consequence of the 2003/2004 Swanbank Extension (arising out of PE's exercise of the option contained in the 30 September 1998 variation). 55 The ACCC pleads that by virtue of the provision[s] of the contract preventing any person other than PE acquiring unprocessed flyash from Millmerran Power Station due to the three identified factors, the effect or likely effect of the contract was to substantially lessen, hinder or prevent competition in the SEQ Unprocessed Flyash Market (78.3) and by virtue of the three factors and the unavailability of alternative sources of unprocessed flyash, the effect or likely effect of the provision[s] was to substantially lessen, hinder or prevent competition in the SEQ C-GF Market or alternatively in the SEQ F-GF Market. 56 The ACCC pleads that from 30 September 2002 until the making of the Amended Millmerran Contract in July 2004, PE did not take flyash from Millmerran Power Station for commercial sale or install any flyash facilities under the Original Millmerran Contract. It pleads that PE did make the annual guaranteed minimum payment referred at 70.2([31]). 57 The anti-competitive effect or likely effect of the provision[s] is pleaded at para 78 in these terms: 78. The effect or likely effect of the provision of the Original Millmerran Contract pleaded in paragraph 70.3 above, by itself or together with one or more of the provisions of the Original Millmerran Contract pleaded in paragraph 70 above, was: 78.1 to prevent any other person from acquiring unprocessed flyash from Millmerran Power Station in that: 78.1.1 as pleaded in paragraph 45.1 and 45.4 above, a person wishing to carry on business as a concrete-grade flyash supplier required an agreement for ongoing access to unprocessed flyash for classification, alternatively a proximate source of ongoing quantities of concrete-grade flyash from another supplier of concrete-grade flyash or, alternatively, as pleaded in paragraph 45A.1 and 45A.4 above, a person wishing to carry on business as a fine grade flyash supplier required an agreement for ongoing access to unprocessed flyash for classification or alternatively, a proximate source of ongoing quantities of fine grade flyash from another supplier of fine grade flyash; 78.1.2 for the reasons pleaded in paragraphs 46, 56 and 57 above, MPP would be unlikely to be practically able or willing to enter into an agreement with any other person allowing ongoing access to unprocessed flyash as a consequence of the requirement to provide Pozzolanic with the guaranteed minimum quantity; 78.1.3 it would be uncommercial for any person wishing to carry on business as a concrete-grade flyash supplier or, alternatively, as a fine grade flyash supplier to enter into an agreement or arrangement with MPP for access to unprocessed flyash from Millmerran Power Station on a piecemeal or irregular basis; 78.2 further or alternatively, to hinder or prevent any other person from supplying concrete-grade flyash in the SEQ Concrete-grade Flyash Market or, alternatively, from supplying fine grade flyash in the SEQ Fine Grade Flyash Market as a consequence of: 78.2.1 .the matters pleaded in paragraph 78.1 above; 78.2.2 the unavailability of alternative sources of unprocessed flyash in the SEQ Region as a consequence of the 2003/2004 Swanbank Extension and the likely contract between TEC and Pozzolanic in respect of Tarong Power Station; 78.3 by virtue of the matters pleaded in paragraph 78.1 above, to substantially lessen, hinder or prevent competition in the SEQ Unprocessed Flyash Market; 78.4 by virtue of the matters pleaded in paragraph78.2 above, to substantially lessen, hinder or prevent competition in the SEQ Concrete-grade Flyash Market or, alternatively, the SEQ Fine Grade Flyash Market. 58 At para 87, the ACCC pleads that the first effect or likely effect of the provisions of the Tarong Contract pleaded at para 84.2, 84.3, 84.4 and 84.6 ([32] - [34] above) either by themselves or together with one or more of the provisions pleaded at 84 and/or together with one or more of the provisions of the 2003-2204 Swanbank Extension and one or more of the provisions of the Original Millmerran Contract at para 70, was to prevent any other person from acquiring unprocessed flyash from Tarong Power Station having regard to the same three factors discussed earlier (para 87.4.1, 87.4.2 and 87.4.3). The second effect or likely effect was to hinder or prevent any other person from supplying C-GF or F-GF into the relevant product markets due to the three factors (para 87.4) and the unavailability of unprocessed flyash in the SEQ region as a consequence of the 2003-04 Swanbank Extension and the Original Millmerran Contract (para 87.5). 59 At para 87.6 and para 87.7, the third effect or likely effect was: 87.6 By virtue of the matters pleaded in paragraph 87.4 above, to substantially lessen, hinder or prevent competition in the SEQ Unprocessed Flyash Market; 87.7 By virtue of the matters pleaded in paragraphs 87.4 and/or 87.5 above, to substantially lessen, hinder or prevent competition in the SEQ Concrete-Grade Flyash Market or alternatively, in the SEQ Fine Grade Flyash Market. 60 From March 2003, PE acquired flyash from Tarong Power Station pursuant to the terms of the contract including the provisions pleaded at para 84 (para 88). 61 At para 103, the ACCC pleads that the effect or likely effect of the provisions of the Amended Millmerran Contract pleaded at 70.1, 70.2, 70.3, 70.4, 70.10, 70.12; and para 94 together other pleaded provisions of that contract; provisions of the 2003/2004 Swanbank Extension and the provisions of the Tarong Contract (at para 84) was that no other person was practically able to obtain unprocessed flyash from Millmerran Power Station for the three reasons earlier discussed (para 103.5). The second effect attributable to those three factors and the unavailability of unprocessed flyash due to the Swanbank Extension and the Tarong Contract provisions (para 103.6) was to hinder or prevent any person other than PE supplying C-GF or F-GF in either of the relevant product markets with the pleaded anti-competitive effect or likely effect in each of the markets as earlier described. At para 104, the ACCC pleads that from 30 July 2004 until 31 December 2007, PE did not take any flyash from Millmerran Power Station or install any flyash facilities pursuant to the Amended Millmerran Contract (para 104.1) but did make the annual guaranteed minimum payment referred to at para 70.2 and para 96.3 (that is, an obligation assumed by PE under the Amended Millmerran Contract to pay MPP 1.3M (approx) per annum CPI indexed until 30 September 2010) (para 104.2). 62 At para 114 the ACCC pleads the effect or likely effect of the provisions of the 1998 Swanbank Contract as extended by the Swanbank Contracts and Arrangements (that is, the four subsequent periods ([37]) and/or together with the provisions of the Amended Millmerran Contract (as pleaded) and one or more of the provisions of the Tarong Contract (as pleaded). The two effects or likely effects of those provisions are in the same operative terms as earlier pleaded due to the same factors (adjusted to reflect the cumulative impact of the contracts). The third effect, by reason of the earlier pleaded matters, is the anti-competitive effect or likely effect in each of the three pleaded markets. 63 As to the Capex decision of April 2005 to install a classifier at Millmerran Power Station and the pleaded "second election to proceed" with the Amended Millmerran Contract, the ACCC pleads at para 128:` 128 The decision of the Cement Australia Holdings Board of Directors, including Leon, to make the Millmerran second election to proceed gave effect to the provision of the Amended Millmerran Contract pleaded in paragraph 0 above, which: 128.1 had the purpose; and 128.2 further or alternatively, together with the provision of the Amended Millmerran Contract pleaded in paragraph 0 above, had the effect or were likely to have the effect, 128.2A further or alternatively, together with the provisions of the contracts pleaded in paragraphs 84, 103.1, 103.2, and 109, had the effect or were likely to have the effect; of substantially lessening, hindering or preventing competition in: 128.3 the SEQ Unprocessed Flyash Market; 128.4 the SEQ Concrete-grade Flyash Market or, alternatively, in the SEQ Fine Grade Flyash Market.

Tarong North Conduct 64 Between 12 February 2005 and 20 January 2006 unprocessed flyash was made available by PE to five firms from the flyash silo at Tarong North Power Station (Taring North) subject to PE's first right to all flyash. On 2 November 2005 PE notified TEC (Tarong North's owner) that it proposed to establish a classifier plant at Tarong North to extract C-GF. In November 2005 PE notified TEC that it was seeking to consolidate its flyash operations at a few major preferred sources (sites) and that Tarong and Tarong North would be a preferred source subject to PE obtaining permission to install a classifier at Tarong North; reaching agreement as to the volumes of flyash be made available from Tarong and Tarong North; satisfactory terms of renegotiation or renewal of the Tarong Contract; and if satisfactory supply terms could not be agreed, PE's next best alternative would be to move the entirety of its existing demand for flyash to an alternative power station source: paras 83, 84.5, 129‑132. 65 On 15 February 2006 PE and Cement Australia notified TEC that PE proposed to install a classifier on site at Tarong North. A plan was submitted to TEC which provided for the installation of a classifier in close proximity to the Tarong North generating plant, hoppers and flyash silo; the movement by conveyor of unprocessed flyash to either the Tarong North Flyash Silo (the "Silo") or the proposed classifier; and reject flyash from the classifier to be moved by conveyor to the Silo: para 135. 66 On 29 May 2006 TEC approved the plan and in October 2006 PE completed the installation of the classifier in accordance with the plan: para 136‑137. From October 2006 PE operated the classifier and acquired C-GF or F-GF from the Tarong North pursuant to the terms of the Tarong Contract referred to in para 84 of the pleading ([32] - [34] above): para 138. As a result of the operation of the classifier by PE, unprocessed flyash produced by Tarong North that PE did not process was deposited into the Silo, and reject flyash produced from the classifier was also deposited into the Silo. At any particular time, the silo could contain unprocessed flyash, reject flyash or a mixture of both with the result that the "fineness" of the flyash in the Silo was variable and lower (by volume) when the silo contained a mixture of unprocessed flyash and reject flyash as compared with when it simply contained unprocessed flyash: para 139. 67 The variable and lower fineness of flyash contained in the Silo made it uncommercial for competitors of Cement Australia (or PE's competitors) to take flyash from the Silo for the purpose of processing it into C-GF or alternatively F-GF as the variability meant that a potential acquirer could not know or predict the likely fineness of the flyash in the Silo; the presence of variable amounts of reject flyash in the Silo rendered the properties of the flyash in the Silo inconsistent; and there was no site available for any other person to install a classifier at Tarong North: para 140. 68 Cement Australia is said to have brought about the conduct by reason of the CPA Agreement. 69 At para 142, it said that by the conduct of proposing the plan for installation of the classifier, securing the terms and installing the classifier in accordance with the plan, Cement Australia or alternatively PE gave effect to the provisions of the Tarong Contract referred to in para 84 ([32] - [34] above) which had the effect or likely effect of substantially lessening, hindering or preventing competition in the SEQ Unprocessed Flyash Market or (or as well as) substantially lessening, hindering or preventing competition in the SEQ C-GF market or alternatively on the SEQ F-GF market. 70 Mr Leon, the Chief Executive Officer of Cement Australia and Mr White, the "Ash Manager" employed by PE are said to have been knowingly concerned in these contraventions concerning Tarong North: para 158.6 and para 159.3. 71 At para 144, the effect or likely effect of the provision of the Tarong Contract at para 84.5 ([33] above) either by itself or together with the provisions pleaded at para 84; the provision of the Swanbank Contract at para 66.3 (namely, that CSE would not supply flyash to third parties but would refer such requests to PE); the provision of the Original Millmerran Contract at para 70.3 (namely, the operator's obligation to make a minimum quantity of 135,000 tonnes of C-GF per annum available to PE); the other provisions of the Swanbank Contract and the Original Millmerran Contract together with the para 84 provisions of the Tarong Contract, the Amended Millmerran Contract and the Swanbank Arrangements, was to prevent any person other than PE acquiring unprocessed flyash from Tarong North: para 144.5. 72 The three factors earlier discussed are the factors that inform that conclusion: para 144.5.1, .2, .3. The second effect or likely effect was to hinder or prevent any person other than PE supplying C-GF or F-GF in those two product markets by reason of the three factors and the unavailability of alternative sources of unprocessed flyash in the SEQ region as a consequence of the Swanbank Contracts and Arrangements and the Original Millmerran Contract: para 144.6. 73 By virtue of the matters pleaded at para 144.5 and para 144.6 the effect or likely effect of the provision of the Tarong Contract either by itself or in conjunction with the other provisions as described, was to substantially lessen, hinder or prevent competition in the SEQ Unprocessed Flyash Market and in the SEQ C-GF market or alternatively in the F-GF market: para 144.7 and 144.8. 74 By funding PE's installation of a classifier at Tarong North, Cement Australia gave effect to the provision of the Tarong Contract at para 84.5 which provision had the effect or likely effect pleaded at para 144: para 145.

The particulars 75 On 4 May 2010, the ACCC provided a Further Response to the respondents' Request for Further and Better Particulars of the SFASOC dated 8 April 2010. That part of the request directed to particulars of the manner in which competition in each of the relevant markets is or is likely to have been lessened, was sought "without derogating" from the respondents' contention that the pleading fails to apply the correct test in isolating facts said to be material to that issue. The request, and particulars given on that issue in relation to the SEQ Unprocessed Flyash market, in the context of the Original Millmerran Contract (set out below) is emblematic of the particulars given and the approach taken concerning each of the contracts (and arrangements) said to have the anti‑competitive effect or likely effect in each of the pleaded markets (apart from two references to potential entrants not given as later particulars). 76 The request and particulars are these: Paragraph 78.3 69 Please specify the manner in which it is alleged that competition in the SEQ Unprocessed Flyash Market is, or is likely to have been, lessened. In particular, please specify: (a) the time period over which it is alleged that the substantial lessening of competition was likely to occur; As to request 69(a), the time period over which it is alleged that the substantial lessening of competition was likely to occur was: (a) from 30 September 2002 to approximately 12 to 18 months after 30 September 2009; (b) further, or alternatively, from approximately 12 to 18 months after 30 September 2002 to approximately 12 to 18 months after 30 September 2009. (b) all of the material facts, matters and circumstances that comprise the counterfactual circumstances which are alleged would or would have been likely to occur had the factual circumstances not occurred, including by reference to: i. the events it is alleged were likely to occur but for the alleged conduct; ii. the effects it is alleged these events were likely to have; iii. the alleged likely enhancement of competition arising from these events and effects when compared with the events which in fact occurred in the factual circumstances; and iv. the time at which each event was likely to occur; (c) all the material facts, matters and circumstances relied on to support that allegation that competition in the SEQ Unprocessed Flyash Market is, or is likely to have been, lessened. As to requests 69(b) and 69(c), that competition in the SEQ Unprocessed Flyash Market was, or was likely to have been, lessened is to be inferred from the facts that: (a) other entities wanted to purchase would have purchased unprocessed flyash for the purpose of supplying concrete‑grade flyash in the SEQ Concrete‑grade Flyash Market alternatively fine grade flyash in the SEQ Fine Grade Flyash Market; The applicant is not required to give further particulars of the allegation that competition in the SEQ Unprocessed Flyash Market was or was likely to have been substantially lessened by the pleaded provision as it would necessitate the applicant particularising a hypothetical. However, the applicant can identify the range of potential entrants that were or were likely to have been hindered or prevented from entering the SEQ Unprocessed Flyash Market by the pleaded provision. Those potential entrants are one or more of: (a) Uncon Pty Ltd/Nucrush Pty Ltd; (b) Flyash Australia; (c) Transpacific Industries; (d) Wagner Investments Pty Ltd; (e) Independent Flyash Brokers Pty Ltd (from in or about November 2005); (f) Alan Forbes; (g) Global Cement; (h) Sunstate; (i) Boral; (j) ACH (before in or about June 2003); (k) Adelaide Brighton; (l) Hyrock; (m) Rocla; (n) another entity with sufficient resources to make the necessary capital investment and which recognised that profit could be made by supplying in the SEQ Concrete‑grade Flyash Market or, in the alternative, SEQ Fine Grade Flyash Market. If Pozzolanic had not entered into the Original Millmerran Contract, one or more of the potential entrants particularised above would have been likely to purchase unprocessed flyash in the SEQ Unprocessed Flyash Market and supply concrete‑grade flyash in the SEQ Concrete‑grade Flyash Market or, in the alternative, supply fine grade flyash in the SEQ Fine Grade Flyash Market, in competition with the relevant respondents.

Preliminary principles 77 The respondents contend that the challenged paragraphs of the SFASOC ought to be struck out on the footing that those paragraphs fail to plead, as O 11, r 2(a) requires, "a statement in a summary form of the material facts" upon which the ACCC relies in making out the causes of action giving rise to the claimed relief under the Act. 78 As the pleading fails, it is said, to identify the material facts consistent with the jurisprudence of this Court which demonstrate that the relevant provisions would have or be likely to have the effect of substantially lessening competition, the causes of action reliant on s 45(2)(a)(ii) and s 45(2)(b)(ii) are not made out and the respondents do not know the shape or content of the effects case to be made against them at trial. The question of whether a pleading contains a statement in summary form of the material facts upon which a party relies in setting up the integers of the cause of action is normally an anterior question. It is often anterior to a respondent filing a defence and more commonly anterior to discovery and the preparation of statements as until the material facts central to the cause of action are properly pleaded, and doubts about that resolved by an appropriate application, the issues are not likely to be affirmatively joined and the scope of discovery will be unclear. Where however a respondent has elected to plead to the applicant's statement of the material facts, disclosure has occurred and statements have been put on and exchanged directed to issues framed by the pleading (and the parties have prepared for a lengthy trial), the question of whether the Statement of Claim, as a document, pleads in an adequate way a summary of the material facts ought to be assessed recognising that the respondent has not only a statement of the contended material facts but all of the facts‑in‑chief upon which the applicant relies in making out the claim. 79 The position is, of course, different where the applicant, in effect, seeks to set up a further cause of action or further contraventions of statutory provisions by asserting that conduct occurred in a separate market where the identified provisions of a contract would have or be likely to have the relevant effect. The present challenge goes to the effects case pleaded in relation to the SEQ Unprocessed Flyash market and the SEQ C‑GF market (the trial markets) and the new SEQ F‑GF market. Fine grade flyash is pleaded as one of the grades of coarse‑grade flyash and facts relevant to the supply and acquisition of flyash exhibiting minimum qualities of fineness have no doubt been extensively examined and deconstructed albeit in the context of the role F‑GF plays as part of an SEQ C‑GF market rather than a separate F‑GF market. That must be so because the respondents contended at the commencement of the trial that the evidence suggested an entirely separate F‑GF market rather than the pleaded SEQ C‑GF market. 80 The point is that a challenge to a pleading at this point on the continuum of the proceeding said to leave a party in a position where it does not know the case to be made against it because facts material to the cause of action are not pleaded, must be considered within the contextual events giving rise to the challenge. 81 Nevertheless, a wholly inadequate pleading of an effects case cannot be made good by filing and serving statements with an implicit invitation to the respondents to distil the material facts demonstrating the relevant statutory effect or likely effect. Plainly, the material facts must be pleaded and the facts said to establish the cause of action must not be pleaded at too great a level of generality or at too high a level of abstraction (HECEC Australia Pty Ltd v Hydro, Electric Corp [1999] FCA 822; State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] ATPR 41‑691 at 42, 828‑9; Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413; and Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557). The authorities governing the exercise of the discretion to strike out a pleading are usefully assembled by Weinberg J in McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 415‑421; adopted by Tracey J in Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 and applied in Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [14]‑[17]; Australian Wool Innovation Ltd v Newkirk [2005] ATPR 42‑053 at 42, 669 - 42,670. It is not necessary to restate those well understood principles. 82 Therefore, the question is whether the facts material to a contravention of each section have been pleaded with a sufficient degree of specificity, applying the correct test central to the cause of action, in a way which reveals a cause of action with a chance of success on those facts (if proved) together with other facts established by evidence made admissible having regard to the controversy on the case framed by the pleaded facts (and denied), ensuring that the fundamental function of the pleading serves the objective of putting the respondents on notice of the case to be made against them at trial. 83 In order to plead a contravention of s 45(2)(a)(ii) of the Act reliant upon the contended competition effect of the relevant provision, the ACCC must plead material facts that establish the making of a contract or arrangement or an understanding arrived at by the relevant corporation; isolate a provision of that contract, arrangement or understanding which would have or be likely to have the effect of substantially lessening competition; plead material facts that establish the relevant market (having regard to s 4E and the contended area of close competition exhibiting strong substitution) in which competition would be (or would be likely to be) substantially lessened; and isolate material facts from which it might be proved that at the time at which the contract, arrangement or understanding was made, the relevant provisions would or would be likely to substantially lessen competition in the relevant market. 84 Competition, in relation to the identified provisions, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding supplies or acquires or is likely to supply or acquire goods or services or would but for the provision, supply or acquire or be likely to supply or acquire goods or services: s 45(3). 85 Competition is a very rich concept which expresses itself as rivalrous market behaviour. It is a dynamic process generated by market pressure from alternative sources of supply: Re Queensland Co‑operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169. 86 At 188 of that decision, the Tribunal endorsed the view that: The basic characteristic of effective competition in the economic sense is that no one seller, and no group of sellers acting in concert, has the power to choose its level of profits by giving less and charging more. Where there is workable competition, rival sellers, whether existing competitors or new potential entrants into the field, would keep this power in check by offering or threatening to offer effective inducements. Or again, … the antithesis of competition is undue market power, in the sense of the power to raise price and exclude entry. Further, at 188 the Tribunal said this: … where there is significant market power the firm (or group of firms acting in concert) is sufficiently free from market pressures to "administer" its own production and selling policies at its discretion. ... if their business [firm's] conduct is not subject to severe market constraints this is not competition. 87 At 188 and 189 the Tribunal said this: Competition expresses itself as rivalrous market behaviour … In our view effective competition requires both that prices should be flexible reflecting the forces of demand and supply and that there should be independent rivalry in all dimensions of the price‑product‑service packages offered to consumers and customers. Competition is a process rather than a situation. Nevertheless, whether firms compete is very much a matter of the structure of the markets in which they operate. The elements of market structure which we would stress as needing to be scanned in any case are these: (1) the number and size distribution of independent sellers, especially the degree of market concentration; (2) the height of barriers to entry, that is the ease with which new firms may enter and secure a viable market; (3) the extent to which the products of the industry are characterised by extreme product differentiation and sales promotion; (4) the character of "vertical relationships" with customers and with suppliers and the extent of vertical integration; and (5) the nature of any formal, stable and fundamental arrangements between firms which restrict their ability to function as independent entities. Of all these elements of market structure, no doubt the most important is (2), the condition of entry. For it is the ease with which firms may enter which establishes the possibilities of market concentration over time; and it is the threat of the entry of a new firm or a new plant into a market which operates as the ultimate regulator of competitive conduct. 88 Although these considerations in determining the process of competition within a market are regarded as "structural considerations", it is clear that the most important element in determining whether firms compete in a market or whether existing firms are likely to face rivalry in the future is "the condition of entry". The threat of entry of a new firm or new plant into a market operates as the ultimate regulator of competitive conduct. It follows that facts directed to constraints upon future entry of a new firm or new plant into a market and thus the potential such constraints might exert upon future rivalry, address the future scope or shape of the competitive process in the relevant market. 89 Constraints upon entry are not merely structural. They may be strategic or behavioural: ACCC v Boral Ltd (2000) 106 FCR 328 at [340] and [341]; Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374 per McHugh J at [295] and [312]. 90 Whilst it is true that the question of whether the provisions of a particular contract have the effect or likely effect of substantially lessening competition in a market is not a structural test (although structure remains relevant), the likelihood of firms engaging in rivalrous behaviour is a function of the competitive constraints exercised by actual or potential competitors, suppliers or buyers. 91 The correct test to apply in determining whether the relevant provision[s] would have or would be likely to have the effect of substantially lessening competition is a forward‑looking test that asks: with these provisions of this agreement in place from this date what would competition in the relevant market over a reasonable horizon, put simply, look like? It invites comparison with an assessment of the state of competition in that market over the same horizon that would exist on a reasonable hypothesis without the provision[s] of the relevant agreement in place. Having undertaken that future with or without comparison, it invites an assessment of whether the forward‑looking field of rivalry with the agreement is substantially constrained compared with that which would have been, without the agreement (that is, what is the degree of lessening by reason of the relevant provision[s]). The test is often simply called the "but for" test which sometimes has resulted in asking: how has the present field of rivalry been diminished by operation of the relevant provisions of the agreement? The correct approach however, consistent with the test is: how have these provisions constrained the state of future rivalry which would have emerged in the relevant market but for the agreement having been made? That question invites the comparison previously mentioned: Outboard Marine Australia Pty Ltd v Hecar Investments (No. 6) Pty Ltd (1982) 66 FLR 120 at 123‑124; Stirling Harbour Pty Ltd v Bunbury Port Authority (2000) ATPR 41‑783 at 41,267 [12]; Dandy Power Equipment Pty Ltd & Anor v Mercury Marine Pty Ltd (1982) 44 ALR 173 at 191‑192. 92 The likelihood of a substantial lessening of competition is measured by whether there is, on all of the evidence, a "real chance" that the provision[s] would have that effect: Seven Network Ltd v News Ltd (2010) 262 ALR 160 per Dowsett and Lander JJ at [751]. 93 It remains relevant however to identify the existing state of competition as it may "throw some light on the likely state of competition in the market absent the impugned conduct": Stirling Harbour Pty Ltd v Bunbury Port Authority (2000) ATPR 41‑783 at 41,267 [12]. 94 The ACCC has pleaded the anti‑competitive effects case in relation to the Original Millmerran Contract in this way. It pleads the seven year contract and a range of terms or provisions (para 70.1 to 70.13). It isolates cl 5.1 (70.3) as a provision of particular emphasis which concerns MPP's obligation to make 135,000 tonnes of concrete‑grade flyash available to PE per annum. It says that the provision either by itself or in conjunction with one or more of the other 12 provisions pleaded at para 70 had the effect of preventing any other person from acquiring unprocessed flyash from the Millmerran Power Station. The pleading therefore is looking to the future supply and acquisition position for unprocessed flyash. That is, with the agreement in place with those provisions, the effect or likely effect is to prevent any person, after the date of the agreement, other than PE, from acquiring unprocessed flyash from that supplier. 95 There are three pleaded reasons (or facts) supporting that allegation. First, C‑GF or F‑GF are products supplied to concrete producers or intermediaries (on‑sellers) made and produced from unprocessed flyash. A new entrant to the C‑GF market or the F‑GF market (thus seeking to expand rivalry in those product markets) needs a supply and acquisition agreement for unprocessed flyash so as to produce, by classification, either of the products. Alternatively, such an entrant needs access to a proximate source of ongoing and consistent supply of each product itself. Both matters contemplate the effect of the constraint upon future new entrant engagement. 96 The second factor is said to be that power station operators in the SEQ region have a disposition towards a single on‑site operator of production plant called a classifier and further, since PE and QCL (and no other persons) had an established distribution network for each product produced out of such a plant, MPP would be unlikely to be practically able or willing to enter into an agreement with any person other than PE, "allowing on‑going access to unprocessed flyash, as a consequence of the provision of the annual minimum guaranteed quantity". 97 The second factor asserts facts that look to the future state of acquisition and supply of unprocessed flyash with the agreement in place. 98 The third factor relates to the first and is said to be that piecemeal or transactional access to unprocessed flyash does not provide a commercial basis for entry into the business of supplying C‑GF or F‑GF. This factor also looks to the future likelihood of entry if all that might be acquired from MPP is individual supply contracts from time to time rather than a supply agreement. 99 The second effect or likely effect either separately or together with the first is said to be to hinder or prevent any person other than PE supplying C‑GF or F‑GF into each of the SEQ C‑GF and SEQ F‑GF markets. Therefore, with the agreement in place with the particular provision expressly pleaded (together with the other pleaded provisions) future rivalry in each product market will be constrained or diminished because new entrants will be hindered or prevented from engaging in supplying either product and thus engaging in contestable supply. That is said to flow from each of the earlier three factors and a further fact, namely, that alternative sources of supply of unprocessed flyash were not available in the SEQ region by reason firstly, of the 2003‑2004 Swanbank Extension (by reason of PE's exercise of the option on 11 July 2002) conferring on PE the first option to take flyash and secondly, the "likely contract" between PE and TEC in respect of Tarong Power Station flyash. 100 In other words, future supply‑side rivalry in each product would be or be likely to be constrained - hindered or prevented - for the three earlier reasons and lack of alternative upstream supply of unprocessed flyash. 101 What follows as a conclusion is that the three factors supporting the first contended effect or likely effect result in the identified provision[s] having the effect or likely effect of substantially lessening competition in the Unprocessed Flyash Market. That conclusion arises "by virtue of the [earlier pleaded matters]". Therefore, but for the provisions of the agreement, the future field of rivalry in the market for the supply and acquisition of unprocessed flyash would have, or be likely to have seen, a real chance of new entrant rivalry with the incumbent for supply of each product to concrete producers and/or intermediaries. 102 Accordingly, the ACCC has framed the counter‑factual future rivalry in each market, had the fact not been that PE and MPP made the original Millmerran Contract, by contending that the provision[s] of the agreement have foreclosed, constrained or discouraged the possibility of entry and future broader rivalry because the provisions have the consequence that it is uncommercial for any person other than PE to acquire unprocessed flyash for classification, and supply C‑GF or F‑GF in the defined market for each of those products. That effect is said to arise in respect of each contract because at each point in time that a particular contract and its provisions fall to be considered, no other source of supply of unprocessed flyash is available having regard to PE's contractual position. The structure and methodology adopted by the ACCC in seeking to demonstrate the effect or likely effect of the pleaded provisions is applied throughout the pleading as already indicated. 103 The pleading properly pleads material facts which go to the contention that the provisions of the relevant contracts have the effect or likely effect contemplated by the relevant sections of the Act. Those paragraphs approach that matter by adopting a with and without comparison. The material facts have been pleaded consistent with the tests required. 104 The ACCC contends that in order to demonstrate that the relevant provisions of the particular agreements would have or be likely to have the effect of substantially lessening competition having regard to the matters pleaded, it is not necessary to plead facts or provide particulars of those corporations or participants who would have entered the market and engaged in rivalrous conduct and nor is it necessary to identify the content of the terms or conditions of entry. Rather, the methodological approach is that the contracts contain provisions which prevent any person other than PE from acquiring unprocessed flyash from the relevant power station (that is, the deprivation of a necessary upstream production input) which has the effect of preventing an entrant to the market for the supply of C‑GF or F‑GF from engaging in contestable supply. The question of entry and the face of future competition in each pleaded market with and without the provisions might be addressed as a theoretical matter having regard to all the evidence concerning the structure of the market and a postulation of that which is likely or not. If that is to be the case put against the respondents, it will either stand or fall as a prediction of a possible real chance of the provisions having the contended effect. Apart from the notion that future rivalry is diminished by hindering or preventing upstream supply to new entrants, the ACCC says by its particulars that between 11 and 13 persons or entities (and other unidentified participants) were, in fact, potential entrants into the relevant markets. 105 The ACCC says that if PE had not entered into the relevant contracts exhibiting the particular provisions, one or more of these persons or entities would have been likely to purchase unprocessed flyash and supply C‑GF or F‑GF in the defined markets in competition with the incumbents. The particular matter relied upon is the fact of entry or likely entry itself and consequent rivalry or potential rivalry. The material matter seems to be the possibility of new entry and the capacity of rivals to engage in the process of constraining the capacity of incumbents to exercise power in the market to give less and charge more. On the pleading, the operation of the relevant provisions of each agreement renders acquisition of unprocessed flyash uncommercial and results in a substantial lessening of the future field of market engagement in each of the three markets compared with what would have been likely to emerge without the provisions. 106 I am not satisfied that an obligation falls upon the ACCC to provide particulars of the terms and conditions upon which any one or more of the contended entrants would have contracted with one or more of the power stations. The pleading together with the existing particulars properly frame contended contraventions of s 45(2)(a)(ii) and s 45(2)(b)(ii) of the Act for the purpose of receiving admissible evidence as to whether the contentions can be made out or not. 107 Accordingly, I am not satisfied that it is appropriate to strike out the challenged paragraphs of the SFASOC or order the provision of further particulars apart from the matter mentioned at [113]. 108 Although at para 79 of the SFASOC, the applicant pleads that PE made the annual guaranteed minimum payment to MPP of $1,323,500, the respondents say that the pleading fails to assert that PE gave effect to the particular provision of the contract emphasised at para 70.3, namely cl 5.1 which casts an obligation upon MPP to make available a minimum quantity of 135,000 tonnes of concrete‑grade flyash per annum. The respondents say that if particular reliance is to be placed on that clause, it needs to be given contextual significance by identifying the total annual production of concrete‑grade flyash and the relativity between that volume and the contractual minimum quantity. The respondents also say that the pleading ought to assert that PE gave effect to the contract by taking the minimum quantity. The ACCC says that what is important about the Original Millmerran Contract is that, like the other contracts, it gives PE effectively exclusive or first rights to flyash and the existence of the right to take flyash is the instrument of preventing or hindering a competitor entering and taking flyash. 109 On the face of the pleading however there is some force in what the respondents say. The immediate impression from the pleading is that the provision conferring a right to the minimum threshold is regarded by the pleader as particularly significant. It is true, of course, that the identified provision is relied upon either by itself or in conjunction with one or more of the provisions of the contract. Those other provisions which are all fully pleaded are said to be the provisions which, having regard to the three identified factors, together with the unavailability of unprocessed flyash otherwise, give rise to the contended effect. 110 It seems to me inappropriate to order further particulars of that matter. The contention of the applicant is that cl 5.1 together with the other clauses pleaded at para 70 have the effect as pleaded at para 78. The applicant does not contend that the minimum quantity of concrete‑grade flyash actually taken by PE had the effect of absorbing either all or substantially all of the flyash production of Millmerran Power Station leaving very little to be taken up by a potential entrant, but rather, the ACCC contends that the right or entitlement to the minimum quantity necessarily reserved under the contract to PE (having regard to the provisions pleaded at para 70) had the effect that Millmerran Power Station was unlikely or unable to enter into contracts for the supply of unprocessed flyash to anyone else. 111 That is said to be by the applicant the footing upon which the contention proceeds. 112 The applicant concedes, in relation to Tarong North, that the pleading does not contain the same level of detail as that contained in pleading other allegations of an effect or likely effect under the Act. The applicant says that the particulars provided in relation to para 142 cure any defect in failing to fully plead the material facts upon which the effect or likely effect is said to be either made out or which might provide a framework for the admission of evidence which could, if it were accepted, rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding going to the effect or likely effect of the conduct: s 55 Evidence Act 1995 (Cth). 113 However, I accept that para 142 is a truly conclusionary pleading in the sense that although it recites conduct set out at paras 131 to 137 of the pleading, it does not expressly rely upon any earlier assertions of fact which rely upon constraints upon future rivalry with the relevant conduct in place as compared with the shape of future rivalry without the constraints. Accordingly, I propose to direct the applicant formulate an amendment which pleads facts material to the conclusions recited at para 142. 114 Questions have also arisen in relation to the particularisation of the terms "suitable quality" and "uncommercial". The ACCC says by its particulars that the term "uncommercial" means "not likely to be commercially successful". The content of that notion in the context of all of the evidence remains to be seen but the term bears the meaning it is given by the ACCC in its particulars and in this application. The ACCC adopts the position that the term "suitable quality" refers to a quality "suitable for the proposed use" which, one assumes, takes its context from that part of the pleading so far as it relates to a possible substitute for cement, as suitable for use as a substitute for cement, whether characterised as concrete‑grade flyash or fine‑grade flyash and so far as it relates to unprocessed flyash, being other than C‑GF or F‑GF and thus residue unprocessed flyash which might be capable of being further processed in a classifier, as suitable for further processing in a classifier. 115 Although I do not propose to make any order about the matter, the ACCC ought to make clear the "proposed use" contemplated by the phrase "suitable for the proposed use" in the meaning of the term "suitable quality" as pleaded. If the matter remains unclear, the question can be further raised in the course of a directions hearing. I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.