Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

AUSTRALIAN COMPETITION AND CONSUMER

COMMISSION APPELLANT

AND

BAXTER HEALTHCARE PTY LIMITED & ORS RESPONDENTS

Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited

[2007] HCA 38

29 August 2007

S56/2007

ORDER

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Federal Court of Australia made on 24 August 2006.

3. Remit the matter to the Full Court of the Federal Court of Australia for further consideration in accordance with the reasons of this Court.

4. Respondents to pay the appellant's costs of the appeal to this Court. The costs of the proceedings to date otherwise to be in the discretion of the Full Court of the Federal Court of Australia.

On appeal from the Federal Court of Australia

Representation

L G Foster SC with A I Tonking and J S Gleeson for the appellant (instructed by Australian Government Solicitor)

D M Yates SC with I S Wylie for the first respondent (instructed by Blake Dawson Waldron)

R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard for the second respondent (instructed by State Solicitor's Office (WA))

C J Kourakis QC, Solicitor-General for the State of South Australia with G F Cox and S A McDonald for the third respondent (instructed by Crown Solicitor's Office (SA))

M G Sexton SC, Solicitor-General for the State of New South Wales with S J Gageler SC and N L Sharp for the fourth respondent (instructed by Crown Solicitor for New South Wales)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited

Statutes – Interpretation – Trade Practices Act 1974 (Cth) ("the Act") – First respondent negotiated with and formed contracts with State and Territory governments for the supply of medical products in circumstances where State and Territory governments were not carrying on a business – Trial judge found that, but for the application of derivative Crown immunity, the first respondent had contravened ss 46 and 47 of the Act in relation to pre-contractual conduct – Whether the provisions of ss 46 and 47 applied to the conduct of the first respondent – Nature and extent of available relief.