Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v Metcash Trading Limited [2011] FCA 967 Citation: Australian Competition and Consumer Commission v Metcash Trading Limited [2011] FCA 967
Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v METCASH TRADING LIMITED ACN 000 031 569 and PICK N PAY RETAILERS (PTY) LIMITED
File number(s): NSD 1714 of 2010
Judge: EMMETT J
Date of judgment: 25 August 2011
Catchwords: TRADE PRACTICES – whether share acquisition in the grocery industry would contravene s 50 of the Competition and Consumer Act 2010 – market definition – whether the market pleaded was a market for goods or a market for services – whether a market exists for the supply of packaged groceries by wholesale to independent supermarket retailers in NSW and the ACT – whether pressure exerted by major supermarket chains downstream at retail level relevantly constrains dedicated wholesaler for purposes of market definition – whether hypothetical monopolist test applies to price charged by wholesaler or margin earned by wholesaler – whether pleaded counterfactuals were required to be established on the balance of probabilities or on the 'real chance' test – whether factors in s 50(3) made a substantial lessening of competition in a market likely
Legislation: Competition and Consumer Act 2010 (Cth) ss 4E, 46, 50, 76
Cases cited: Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317 Boral Besser Masonry Limited v Australian Competition and Consumer Commission (2003) 215 CLR 374 Davids Holdings Pty Limited v Attorney-General (Cth) (1994) 49 FCR 211 In re Tooth & Co Limited; in re Tooheys Limited (1979) 39 FLR 1 Queensland Wire Industries Pty Limited v Broken Hill Proprietary Company Limited (1989) 167 CLR 177 Re Queensland Independent Wholesalers Limited (1995) 132 ALR 225 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Seven Network Limited v News Limited (2009) 182 FCR 160 Singapore Airlines Limited v Taprobane Tours WA Pty Limited (1991) 33 FCR 158
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