Australian Competition and Consumer Commission v IVF Finance Pty Limited (No 2) [2021] FCA 1295

Federal Court of Australia

Australian Competition and Consumer Commission v IVF Finance Pty Limited (No 2) [2021] FCA 1295 File number: VID 587 of 2021

Judgment of: O'BRYAN J

Date of judgment: 25 October 2021

Catchwords: COMPETITION – application by the Australian Competition and Consumer Commission for an urgent interlocutory injunction under s 80(2) of the Competition and Consumer Act 2010 (Cth) to restrain the first respondent from acquiring a fertility services business from the second respondent – where the Commission contends that the acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth) – injunction granted PRACTICE AND PROCEDURE – Interlocutory injunction – relationship between statutory and equitable injunctions – whether prima facie case of contravention established – whether balance of convenience favours the grant of an injunction – where respondents offered an undertaking to the Court to hold separate the acquired business until the final determination of the proceeding – whether an order for divestiture as final relief is equivalent to an injunction preventing the acquisition – statutory provision excluding undertaking as to damages

Legislation: Competition and Consumer Act 2010 (Cth), ss 50, 80

Cases cited: APM Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Australian Competition and Consumer Commission v Allphones Retail Pty Ltd [2009] FCA 17; 253 ALR 324 Australian Competition and Consumer Commission v IVF Finance Pty Limited [2021] FCA 1266 Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079 Australian Competition and Consumer Commission v Pacific National (2020) 277 FCR 49 Australian Competition and Consumer Commission v Pacific National Pty Ltd [2018] FCA 1221 Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18; 161 ALR 79 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Foster v Australian Competition and Consumer Commission (2006) 149 FCR 135 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 OD Transport Pty Ltd v WA Government Railways Commission (1987) 13 FCR 500 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 Trade Practices Commission v Rank Commercial Ltd (1994) ATPR 41-324 Trade Practices Commission v Santos (1992) 38 FCR 382 Trade Practices Commission v Santos Limited (1992) ATPR 41-194 Witham v Holloway (1995) 183 CLR 525