Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Australian Competition Tribunal [2017] FCAFC 150 File numbers: VID 751 of 2017 VID 762 of 2017

Judges: BESANKO, PERRAM & ROBERTSON JJ

Date of judgment: 20 September 2017

Catchwords: COMPETITION – merger clearances and authorisations – authorisation granted by Australian Competition Tribunal for merger – Tribunal satisfied that proposed acquisition would result, or be likely to result, in such a benefit to public that acquisition should be allowed to occur – proper construction of s 95AZH of Competition and Consumer Act 2010 (Cth) – consideration of relationship between test in s 95AZH and concept of 'substantial lessening of competition' in s 50 ADMINISTRATIVE LAW – whether Tribunal misconstrued and misapplied s 95AZH by importing test from s 50 – whether failure to take into account relevant considerations – whether Tribunal erred in law by failing to deal with a central issue raised by party to application – whether Tribunal required to compare likely future state of competition with and without proposed acquisition – whether Tribunal required to assign lesser weight to benefits flowing from proposed acquisition not likely to be widely shared – whether Tribunal made irrational and illogical findings

Legislation: Constitution s 92 Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c), 5(1)(d), 5(1)(e), 5(1)(f), 5(1)(j), 5(2)(b), 5(2)(g), 16(1)(a) Competition and Consumer Act 2010 (Cth) ss 50, 95AT, 95AT(2), 95AZH, 95AZH(1) Judiciary Act 1903 (Cth) s 39B