When “Giving In” Isn’t an Agreement: Evidence, Assumptions, and the High Court’s Course in ACCC v Hutchinson

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Published: 19 November 2025 | Reviewed: 19 November 2025

(3-minute read)

Case Summary

This case is now a leading authority on what counts as an arrangement or understanding under competition law. The ACCC alleged that Hutchinson and the CFMEU had reached an unlawful understanding: that Hutchinson would only use union-approved subcontractors. The alleged “commitment” arose from Hutchinson altering its subcontracting decision after threats of industrial action.

The primary judge held no unlawful understanding existed. The Full Court reversed that decision. The High Court, by majority, reinstated the primary ruling. Its key line is:

“A person who succumbs to a threat of industrial action by doing what is demanded, without express or tacit communication of a commitment to do so, does not arrive at an understanding.”

The Court reaffirmed that an understanding under the Competition and Consumer Act requires:

• communication between the parties;

• reciprocity in that communication; and

• a mutual commitment to act in a particular way.

Compliance under pressure, even capitulation, is not enough.

This matters because regulators cannot infer a prohibited understanding simply because one party changes behaviour in response to industrial threats. Something more than “unilateral giving in” is required.

Why It Still Matters

Many clients encounter a similar pattern in their own disputes: a threat or pressure point emerges, they adjust their position to keep the project moving, and suddenly those adjustments are described by the other side as a “deal”, “agreement”, or “binding commitment”. The High Court rejected that logic.

The judgment demonstrates that:

• the legal consequences of a decision may differ significantly from what the client thought was happening;

• reactions under pressure can be misconstrued as cooperative engagement;

• regulators or opponents may frame events in ways that carry severe cost, penalty or reputational consequences.

The deeper lesson is about clarity. Assumptions, informal conversations, and reactive decisions can quickly turn into complex legal disputes where the cost risks escalate before clients fully understand what they are stepping into.

This is the very point where structured, independent early advice becomes critical.

How to Avoid the Same Trap:
Cost Safety and Pre-Commitment Clarity

This case shows how easily misunderstandings harden into allegations with significant financial consequences. The practical risk for clients is entering litigation, or defending regulatory proceedings, without a clear sense of:

• the real strategy options,

• the risk profile,

• the likely cost pathway, and

• whether committing funds is proportionate to exposure.

Clean Law’s one-path funding safeguard is built to address this. Instead of clients paying for multiple parallel strategies or confronting mid-stream cost shocks, the structure ensures that only one clear strategy is funded at a time.

Two lawyers often cost less than one - because you fund one path, not both.

To support that clarity, Clean Law uses a tender-consolidation process drawn from your homepage files:

• we prepare one neutral case summary;

• it is sent to multiple independent barristers or experts;

• each provides their view on strategy, risk and likely cost;

• those opinions are consolidated for the client in plain language.

This creates a transparent foundation before the client commits funds or enters litigation. It reduces the risk of later discovering that the case is stronger, weaker, or more costly than first expected, the very kind of mismatch that often escalates disputes like the one in Hutchinson.

Because this judgment shows how consequences can turn on mistaken assumptions about what was or wasn’t agreed, many clients ask how to gain accurate cost and strategy clarity before acting. Our cost-alignment explainer walks through that structure.

Learn more → Cost Alignment & One-Path Funding

ACCC v Hutchinson illustrates that the law demands clear evidence of a commitment, not assumptions based on pressure or silence. Clients navigating disputes face similar risks when entering proceedings without complete visibility of strategy and cost. Structured independence and one-path funding help stabilise that early stage, giving clients an informed foundation rather than reactive decision-making.

If you are considering litigation or facing regulatory pressure and want a confidential, structured assessment before taking any step, a private conversation can help clarify your safest options.

Book a confidential discussion → Secure a Private Consultation

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.