Application by Medicines Australia Inc [2007] ACompT 4

FEDERAL COURT OF AUSTRALIA Application by Medicines Australia Inc [2007] ACompT 4

TRADE PRACTICES – applications for review of authorisation determinations under s 88 of the Trade Practices Act –proposed contract, arrangement, understanding or conduct involving exclusionary provisions – exclusive dealing arrangement – industry association – Code of Conduct – little anti-competitive detriment – sufficient public benefit to outweigh anti-competitive detriment and to allow authorisation of exclusionary provisions and third line forcing – public benefit limited by inefficiencies in enforcement of Code – nature of authorisation – nature of discretion to authorise where public benefit test satisfied – nature of power to impose conditions – where anti-competitive detriment low and public benefit case not strong – condition justified strengthening particular public benefit – Code of Conduct regulating promotion of pharmaceutical medicines by pharmaceutical companies to healthcare professionals – provisions relating to conferral of hospitality and other benefits on healthcare professionals – low level of complaint and enforcement of such provisions – whether conditions should be imposed to require Code to include public reporting of hospitality and sponsorship benefits – authorisation affirmed but varied as to terms of condition and period of authorisation

Trade Practices Act 1974 (Cth) s 88, s 90, s 91, s 101, s 102 Therapeutic Goods Act 1989 (Cth) Therapeutic Goods Amendment Act (No 1)2003 (Cth) National Health Act 1953 (Cth)

Jones v Australian Competition and Consumer Commission (2003) 200 ALR 234; 131 FCR 216 cited Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 8 ALR 481; 25 FLR 169 Re Howard Smith Industries Pty Ltd (1977) 28 FLR 385 Re Rural Traders Co-operative (WA) Ltd (1979) 37 FLR 244 Re 7-Eleven Stores Pty Ltd (1994) 16 ATPR 41-357 Re Southern Cross Beverages Pty Ltd (1981) 50 FLR 176 Qantas Airways Ltd [2004] ACompT 9 Re VFF Chicken Meat Growers Boycott Authorisation [2006] ACompT 2 Application by Michael Jools (2006) 233 ALR 115 Re QIW Ltd (1995) 132 ALR 225 Re Media Council of Australia Authorisation; Re Australian Consumers' Association's Application (1987) 88 FLR 1 Re Australian Competition and Consumer Commission by Australian Association of Pathology Practices Inc (2004) 206 ALR 271 Re EFTPOS Interchange Fees Agreement (2004) 26 ATPR 41-999 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 Oshlack v Richmond River Council (1998) 193 CLR 72 Re Herald and Weekly Times Ltd (1978) 17 ALR 281 Re Queensland Timber Board (1975) 24 FLR 205