Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2006] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2006] FCAFC 128 TRADE PRACTICES – supply of sterile fluids for State and Territory health purposes – bundling of products by supplier – not bound by Pt IV CROWN IMMUNITY – whether extending to protect conduct of third party with respective State and Territory executive governments from Pt IV of Trade Practices Act – Bradken applied Trade Practices Act 1974 (Cth), s 2B Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2005) ATPR 42-066; [2005] FCA 581 upheld Bradken Consolidated Ltd v Broken Hill Pty Co Ltd (1979) 145 CLR 107 discussed and applied Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212cited NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 discussed AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BAXTER HEALTHCARE PTY LTD, THE STATE OF WESTERN AUSTRALIA, THE STATE OF SOUTH AUSTRALIA AND THE STATE OF NEW SOUTH WALES NSD 1008OF 2005

MANSFIELD, DOWSETT AND GYLES JJ

24 august 2006

ADELAIDE (VIA VIDEO LINK TO SYDNEY; HEARD IN SYDNEY) IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1008 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Appellant

AND: BAXTER HEALTHCARE PTY LTD

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

THE STATE OF SOUTH AUSTRALIA

Third Respondent

THE STATE OF NEW SOUTH WALES

Fourth Respondent

JUDGES: MANSFIELD, DOWSETT AND GYLES JJ

DATE OF ORDER: 24 AUGUST 2006

WHERE MADE: ADELAIDE (VIA VIDEO LINK TO SYDNEY; HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondents' costs of the appeal.