Application by Sea Swift Pty Limited [2016] ACompT 9

AUSTRALIAN COMPETITION TRIBUNAL

Application by Sea Swift Pty Limited [2016] ACompT 9 File number: ACT 2 of 2016

Tribunal: FARRELL J, DEPUTY PRESIDENT MR R C DAVEY, MEMBER PROFESSOR D K ROUND, MEMBER

Interveners: Toll Holdings Limited Maritime Union of Australia

Date of Reasons for Determination: 28 July 2016

Catchwords: AUTHORISATION – Competition and Consumer Act 2010 (Cth) – application under s 95AU for a grant of authorisation under s 95AT – acquisition of shares in, and assets of, applicant's major competitor in the supply of scheduled marine freight services to remote communities in Far North Queensland and the Northern Territory – whether s 95AZH(3) applied to prevent the grant of authorisation – whether there are net public benefits COMPETITIVE DETRIMENT – consideration of the future "with" and "without" the proposed acquisition – where "with" or "without" the proposed acquisition the applicant's major competitor will exit the market in the short term – where "with" or "without" the proposed acquisition applicant likely to acquire its major competitors leased facilities at Gove – where future "with" the proposed acquisition includes a s 87B undertaking offered by applicant as a condition of authorisation addressing potential competitive detriment BENEFITS – where condition of authorisation preventing applicant from enforcing clauses in contracts novated to it by its major competitor relating to exclusivity, minimum volumes and rights of first refusal allows other service providers to compete for the contracts during their term – where conditions of authorisation mandate minimum frequency of services to specified remote disadvantaged communities and maximum prices that applicant may charge uncontracted customers in the communities – where condition of authorisation mandates applicant's leased facilities at Gove be subject to a s 87B undertaking providing for better prices and access than its major competitor's existing s 87B undertaking in relation to those facilities – where Tribunal satisfied that public benefits justify authorisation