Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Pacific National Pty Limited [2020] FCAFC 77 Appeal from: Australian Competition and Consumer Commission v Pacific National Pty Limited (No 2) [2019] FCA 669 Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 3) [2019] FCA 866

File number(s): VID 695 of 2019

Judge(s): MIDDLETON, PERRAM AND O'BRYAN JJ

Date of judgment: 6 May 2020

Catchwords: COMPETITION – proposed acquisition of the Acacia Ridge Terminal in Brisbane – alleged contravention of s 50 of the Competition and Consumer Act 2010 (Cth) – market definition – economic tests for defining a price discrimination market – whether conduct likely to have the effect of substantially lessening competition in a market – meaning of "likely" – standard of proof to be applied to predictions about future facts and circumstances – vertical merger – ability and incentive to engage in price discrimination – whether raising barriers to entry sufficient to establish a substantial lessening of competition – likelihood of new entry – new entry a mere possibility UNDERTAKING – whether undertaking to the Court proffered by acquirer should be accepted – whether Court has power to accept the undertaking – whether power arises under the Federal Court of Australia Act 1976 (Cth) or only under s 80 of the Competition and Consumer Act 2010 (Cth) – whether acceptance of the undertaking would infringe Chapter III of the Constitution by attempting to confer a non-judicial power on the Federal Court – where undertaking is outside of the relief sought by the Australian Competition and Consumer Commission – whether undertaking is sufficiently certain as to be enforceable – whether primary judge erred in fact or principle in accepting undertaking