Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3

AUSTRALIAN COMPETITION TRIBUNAL

Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3 Citation: Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3

Parties: APPLICATION BY CO-OPERATIVE BULK HANDLING LIMITED FOR A REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER SECTION 93(3) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93439

File number: ACT 8 of 2011

Tribunal: MANSFIELD J (PRESIDENT) GF LATTA (member) R STEINWALL (MEMBER)

Date of decision: 19 April 2013

Catchwords: NOTIFICATION – notification of conduct by wheat growers co-operative of conduct which may infringe s 47 Competition and Consumer Act 2010 (Cth) (previously Trade Practices Act 1974 (Cth)) – Australian Competition and Consumer Commission (ACCC) after investigation gave notice under s 93 to revoke Notification – application under s 101A to review notice of ACCC REVOCATION OF NOTIFICATION – Application to review Notice of ACCC revoking Notification of conduct which involved the provision of transport services to use of grain receival and storage services – whether Tribunal satisfied that notified conduct does not and would not be likely to have effect of substantially lessening competition in the grain transport market – whether Tribunal satisfied that notified conduct has resulted or would be likely to result in benefits to public that outweigh detriment to public constituted by any lessening of competition. EXCLUSIVE DEALING – grain growers' co-operative owned and operated all grain receival sites in Western Australia – co-operative also operated all grain export ports, subject to fixed access regime – co-operative required all grain received by it to be transported to ports by transport arranged by co-operative – most grain transported by rail – co-operative contracted with above rail service provider after competitive tender for provision to co-operative of above rail transport services – whether competition for grain transport market sufficient to indicate no substantial lessening of competition in grain transport market – evidence of potential competition in grain transport market – evidence of marketers about prospects of using alternative grain transport providers – evidence of why grain transport markets and grain sales markets operated interstate – consideration of whether tied provision of services or grain transport market to receival and handling of grain in grain storage market had effect of likely effect of substantially lessening competition in grain transport market PUBLIC BENEFIT – grain growers' co-operative owned and operated all grain receival sites in Western Australia – co-operative also operated all grain export ports, subject to fixed access regime – co-operative required all grain received by it to be transported to ports by transport arranged by co-operative – most grain transported by rail – co-operative contracted with above rail service provider after competitive tender for provision to co-operative of above rail transport services – identification of potential public benefits – consideration of public benefits of notified conduct – review of claimed public benefits – weighing against public detriment by lessening of competition