ACCC v Pacific National (2020)
Federal Court of Australia (Full Court) (Victorian Registry)
[2020] FCAFC 77 (6 May 2020)
Justices Middleton, Perram and O’Bryan
Keywords
mergers - anti-competitive agreements - enforceable undertaking - market definition
Legislation
Competition and Consumer Act 2010 - s 45 - s 50 - s 87B
Summary
Involved vertical merger - arrangements between Pacific National (and related bodies) and Aurizon (and related bodies) in relation to the 'supply of intermodal freight and bulk steel rail linehaul services to various end-users for whom transportation by road or sea was not an economically effective substitute.' (para 1).
The ACCC alleged:
'Pacific National’s acquisition of the Acacia Ridge Terminal from Aurizon would have the likely effect of substantially lessening competition in breach of section 50 of the Competition and Consumer Act 2010 (CCA).
The ACCC also alleged that a ‘terminal services subcontract’ between Pacific National and Aurizon that provided for Pacific National to conduct the day to day operations at the interstate side of the Acacia Ridge Terminal would substantially lessen competition in the interstate and Queensland intermodal rail markets in contravention of section 45 of the CCA.
The ACCC was concerned that the acquisition of the Acacia Ridge Terminal, or the existence of the long-term terminal services subcontract, would deter a new entrant from providing interstate linehaul services in competition with Pacific National.'
At trial
Justice Beach rejected the ACCC's case relating to s 45 and s 50 (subject to accepting undertakings). Justice Beach noted that, with some hesitation, he would have accepted the ACCC's case on s 50 'but for' the undertaking.
On appeal
The Court held that there was insufficient evidence to establish the acquisition would likely result in a substantial lessening of competition. See ACCC Media release.
External case link
ACCC v Pacific National Pty Limited [2020] FCAFC 77 (FCA page) ➤