Australian Association of Pathology Practices Incorporated [2004] ACompT 4

AUSTRALIAN COMPETITION TRIBUNAL Australian Association of Pathology Practices Incorporated [2004] ACompT 4 TRADE PRACTICES – exclusive dealing – conduct whereby private in-patients in NSW public hospitals restricted to receiving pathology services from public pathology providers – whether conduct should be authorised pursuant to s 90 of the Trade Practices Act 1974 (Cth) ('TPA') – whether conduct third line forcing – whether the tests in s 90(6) and s 90(8) of the TPA are the same – whether public benefits arising from conduct outweigh detriments – tests are different, s 90(8) test not limited to benefits and detriments arising from a lessening of competition – nevertheless benefits outweigh detriments in relation to the conduct – authorisation granted subject to a condition

Trade Practices Act 1974 (Cth) s 45, 47(2), 47(6), 47(10), 88(1), 88(8), 88(10), 88(13), 90(6), 90(8), 101, 101(2) ACCC v IMB Group Pty Ltd (in liq) [2002] FCA 402 considered Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd (1986) 162 CLR 395 discussed Jones v ACCC (2003) 200 ALR 234 distinguished Paul Dainty Corporation Pty Ltd v National Tennis Centre Trust (1990) 22 FCR 495 considered Re 7-Eleven Stores Pty Ltd (1994) ATPR 41-357 applied Re Media Council of Australia (No 2) (1987) ATPR 40-774 distinguished Re Queensland Independent Wholesalers (1995) ATPR 41-438 distinguished Re Queensland Co-operative Milling Association Limited (1976) ATPR 40-012 cited Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 considered Re Rural Traders Cooperative (WA) Limited (1979) ATPR 40-110 explained Re Obadiah Pty Ltd (The Locksmith's Case) (1980) ATPR 40-176 cited File No 2 of 2003 File No 3 of 2003 RE: APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 27 JUNE 2003 GRANTING AUTHORISATION IN RELATION TO APPLICATIONS A90754 AND A90755 (PATHOLOGY SERVICES FOR PRIVATE IN-PATIENTS IN NSW PUBLIC HOSPITALS) BY: AUSTRALIAN ASSOCIATION OF PATHOLOGY PRACTICES INCORPORATED BY: NEW SOUTH WALES DEPARTMENT OF HEALTH HELY J (Deputy President), MR G F LATTA and DR J E WALKER 7 APRIL 2004 SYDNEY