ACCC v Pfizer (Full Federal Court)

greenwoodmiddletonfoster
Written By Julie Clarke

Federal Court of Australia (Full Court)
[2018] FCAFC 78

Justices Greenwood, Middleton and Foster

See also

  • ACCC v Pfizer Australia Pty Ltd [2018] HCATrans 218 (special leave refused)

  • ACCC v Pfizer Australia Pty Ltd [2015] FCA 113 (trial judgment)

The ACCC alleged misuse of market power and exclusive dealing in relation to Pfizer's supply of atorvastatin to pharmacies in the lead up to the expiry of its exclusive patent.

Trial

At trial, Justice Flick dismissed the ACCC's application:

  • Misuse of Market Power
    Justice Flick held that ACCC had failed to establish that Pfizer pursued its course of conduct "for the purpose of deterring or preventing a person from engaging in competitive conduct" (and further that, in relation to post-2012 conduct Pfizer did not have 'substantial' market power)

  • Exclusive dealing
    Justice Flick held that the ACCC failed to establish that Pfizer pursued its course of conduct for the purpose of 'substantially lessening competition'. Justice Flick further held that some of the conduct alleged to fall within the scope of s 47 did not involve supply 'on a condition', as required by the relevant sub-sections.

Appeal

The ACCC appealed the Federal Court decision. On 25 May 2018 (almost 2.5 years after the hearing was conducted) the Full Court dismissed the appeal. In their joint judgment, the Full Court held that the trial judge did not err when he found that Pfizer did not have the requisite prohibited purpose for either the s 46 or 47 claims or when he found that the requirements contracts did not contain a relevant condition for purposes of s 47. However, the Full Court did uphold several grounds of appeal - in particular:

  • Pfizer did have substantial market power at the relevant time in January - February 2012

  • Pfizer did take advantage of its substantial market power in making bundled offers in early 2012

  • the ACCC's pleadings were not 'legally incoherent' as had been found by Flick J in respect of the take advantage pleadings

Special leave to appeal

Refused October 2018

Julie Clarke
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