Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78 Appeal from: Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113; (2015) 323 ALR 429

File number: NSD 242 of 2015

Judges: GREENWOOD, MIDDLETON AND FOSTER JJ

Date of judgment: 25 May 2018

Catchwords: COMPETITION – appeal by the Australian Competition and Consumer Commission against an order of the Federal Court dismissing a proceeding against Pfizer in which the ACCC alleged that Pfizer had contravened s 46 and s 47(1) of the Competition and Consumer Act 2010 (Cth) when it took certain steps pursuant to a plan designed to enable Pfizer to compete in the market for the wholesale supply of a pharmaceutical (atorvastatin) to community pharmacies in Australia after the expiry of the Australian patent for atorvastatin held by Pfizer COMPETITION – misuse of market power – whether the primary judge erred in market definition – whether the respondent had a substantial degree of market power in the relevant market – whether the respondent took advantage of its market power – whether the respondent had the purpose of "deterring" a person from engaging in competitive conduct in the atorvastatin market – whether the ACCC's case as pleaded was legally incoherent COMPETITION – exclusive dealing – whether the respondent supplied upon "condition" – whether the respondent had the purpose of substantially "hindering" competition in the atorvastatin market – whether s 51(3) defence was established

Legislation: Competition and Consumer Act 2010 (Cth), ss 4A, 4E, 4F, 4G, 46, 46A, 47, 48, 51 and 76 National Health Act 1953 (Cth), s 90 Patents Act 1990 (Cth), ss 13, 117 and 144 Trade Practices Act 1974 (Cth), ss 45, 46 and 51