ACCC v The Australian Medical Association Western Australia Branch Inc [2003] FCA 686

FEDERAL COURT OF AUSTRALIA

ACCC v The Australian Medical Association Western Australia Branch Inc

[2003] FCA 686

TRADE PRACTICES – State sold public hospital and surrounding grounds to corporation pursuant to re-development contract – corporation agreed to operate public hospital during and after re-development under lease and sub-lease arrangement – corporation undertook to provide all medical services required by public patients and not to charge them fees – corporation agreed to employ or engage services of doctors currently employed at public hospital – State agreed to pay corporation for its services to public patients – State was party to an award and enterprise bargaining agreement governing terms and conditions of doctors providing medical services in public hospitals – corporation always willing to engage or employ on those terms and contracted with State on that basis – corporation negotiated with AMA (WA) in relation to terms and conditions of engagement of employment of doctors to provide medical services to public patients during and after re-development – whether arrangement made or understandings reached containing price fixing provision – whether any medical practitioners assumed obligation not to charge below State agreement rates – whether corporation undertook obligation to employ or engage doctors on that basis – whether any relevant provisions of arrangement or understandings had purpose effect or likely effect of substantially lessening competition in a relevant market – market definition – whether corporation entitled to derivative Crown immunity. CROWN IMMUNITY - whether application of Trade Practices Act to arrangement or understandings entered into by corporation in relation to employment or engagement of doctors (including their remuneration) attracted liability under Trade Practices Act - whether in providing medical services free of charge to public patients in public hospitals State carrying on business – whether Trade Practices Act applied to those activities of the State – whether corporation providing those services under contract to the State entitled to derivative Crown immunity. Trade Practices Act 1974 (Cth), ss 2B, 4, 4E, 4F, 4G, 45(2)(a)(ii), (b)(ii), 45A Hospitals & Health Services Act 1927 (WA), ss 5A, 34 Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 referred to Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 applied Briginshaw v Briginshaw (1938) 60 CLR 336 applied Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) ATPR 40-157 applied ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 applied Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 1586 referred to Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 applied Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375 referred to Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299 referred to Stirling Harbour Services Pty Ltd v Port of Bunbury Authority (2000) ATPR 41-783 referred to Australian Competition and Consumer Commission v Pauls Ltd [2002] FCA 1586 referred to Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 referred to Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169 referred to Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 applied Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) HCA 5 referred to Saitta Pty Ltd v Commonwealth of Australia (2001) 162 FLR 35 referred to Corrections Corporation of Australia Pty Ltd v Commonwealth of Australia (2000) 104 FCR 448 referred to JS McMillan Pty Ltd v Commonwealth of Australia (1997) 77 FCR 337 referred to Bradken Consolidated Ltd v The Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 applied Sharkey v Fisher (No 2) (1980) 33 ALR 184 applied Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 9) [2000] FCA 23 referred to Australian Competition and Consumer Commission v CC (NSW) Pty Ltd [1999] FCA 954 referred to NT Power Generation v Power & Water Authority [2002] FCAFC 302 referred to Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 384 referred to Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446 distinguished Hughes v Western Australian Cricket Association Inc (1986) 19 FCR 10 distinguished AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v THE AUSTRALIAN MEDICAL ASSOCIATION WESTERN AUSTRALIA BRANCH INC,