Vodafone Hutchison Australia Pty Limited v Australian Competition and Consumer Commission [2020] FCA 117

FEDERAL COURT OF AUSTRALIA

Vodafone Hutchison Australia Pty Limited v Australian Competition and Consumer Commission [2020] FCA 117 File number: NSD 818 of 2019

Judge: MIDDLETON J

Date of judgment: 13 February 2020

Catchwords: COMPETITION – proposed merger – supply of retail mobile services in Australia – statutory question under s 50 of the Competition and Consumer Act 2010 (Cth) – what amounts to a 'substantial lessening of competition' – consideration of relevant markets – consideration of whether the proposed merger will have the likely effect of substantially lessening competition – burden of proof and onus – proposed merger not found to contravene s 50 of the Competition and Consumer Act 2010 (Cth) – application for declaration – consideration of relevant legal principles

Legislation: Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Telecommunications Act 1997 (Cth) Trade Practices Act 1974 (Cth)

Cases cited: Air New Zealand Ltd v Australian Competition and Consumer Commission (2017) 262 CLR 207 Australian Competition and Consumer Commission v Cascade Coal Pty Ltd [2019] FCAFC 154 Australian Competition and Consumer Commissions v Flight Centre Travel Group Limited (2016) 261 CLR 203 Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 Australian Competition and Consumer Commission v Metcash Trading Ltd and Another (2011) 282 ALR 464 Australian Competition and Consumer Commission v Pacific National Pty Limited (No 2) [2019] FCA 669 Australian Gas Light Company v Australian Competition and Consumer Commission and Others (2003) 137 FCR 317 Boral Besser Masonry Limited v Australian Competition and Consumer Commission (2003) 215 CLR 374 Briginshaw v Briginshaw and Another (1938) 60 CLR 336 Global Sportsman Pty v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 Jones and Another v Sutherland Shire Council [1979] 2 NSWLR 206 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 News Ltd and Others v Australian Rugby Football League Ltd and Others (1996) 64 FCR 410 Queensland Wire Industries Proprietary Limited v The Broken Hill Proprietary Company Limited and Another (1989) 167 CLR 177 Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481 Rural Press Limited and Others v Australian Competition and Consumer Commission (2003) 216 CLR 53 Seven Network Ltd and Another v News Ltd and Others (2009) 182 FCR 160 Singapore Airlines Limited v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Others (1979) 42 FLR 331 Universal Music Australia Pty Ltd and Others v Australian Competition and Consumer Commission (2003) 131 FCR 529