Australian Competition and Consumer Commission v Ramsay Health Care Australia Pty Limited [2020] FCA 308

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Ramsay Health Care Australia Pty Limited [2020] FCA 308 File number: NSD 628 of 2017

Judge: GRIFFITHS J

Date of judgment: 12 March 2020

Catchwords: COMPETITION – proposal to establish rival day surgery to existing day surgery and private hospital in Coffs Harbour – alleged misuse of market power and exclusive dealing in contravention of ss 46 and 47 respectively of the Competition and Consumer Act 2010 (Cth) – failure to establish to the requisite standard that the pleaded conduct, which related to certain conversations, involved contravening conduct EVIDENCE – application under ss 135 and 136 of the Evidence Act 1995 (Cth) to exclude or restrict parts of evidence given prior to retrieval of a sound recording – unfair prejudice not established in circumstances where relevant witnesses could be recalled and cross-examined on the basis of the sound recording

Legislation: Competition and Consumer Act 2010 (Cth), ss 46, 47 Evidence Act 1995 (Cth), ss 135, 136, 140

Cases cited: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1991) 27 FCR 460 Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 2) [2018] FCA 1459 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149; 129 FCR 339 Australian Competition and Consumer Commission v Boral Ltd [1999] FCA 1318; 166 ALR 410 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2013] FCA 909; 310 ALR 165 Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49; 261 CLR 203 Australian Competition and Consumer Commission v Little Company of Mary Health Care Limited [2015] FCA 1144 Australian Competition and Consumer Commission v Pfizer Australia Pty Limited [2018] FCAFC 78; 356 ALR 582 Boral Besser Masonry v Australian Competition and Consumer Commission [2003] HCA 5; 215 CLR 374 Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 64 FLR 238 Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13; 205 CLR 1 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; 122 FCR 110 News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45;215 CLR 563 NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 98; 219 CLR 90 Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 Queensland Wire Industries Pty Limited v Broken Hill Pty Co Ltd [1989] HCA 6; 167 CLR 177 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; 216 CLR 53 Seven Network Ltd v News Limited (No 8) [2005] FCA 1348; 224 ALR 317 Seven Network Ltd v News Ltd (2009) [2009] FCAFC 166; 182 FCR 160 Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 1381; ATPR 41-783 SWB Family Credit Union Ltd v Parramatta Tourist Services Pty Ltd [1980] FCA 125; 48 FLR 445 Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193; 131 FCR 529 Watson v Foxman (1995) 49 NSWLR 315