High Court refuses ACCC’s application for special leave from the Full Court’s decision in ACCC v Pacific National

On 8 December 2020, the High Court of Australia dismissed the ACCC’s application for special leave to appeal the decision of the Full Court of the Federal Court that Pacific National’s (PN) acquisition of the Acacia Ridge terminal (Terminal) from Aurizon would not be likely to substantially lessen competition.

This means that the decision of the Full Court stands and PN can proceed with its acquisition of the Terminal.

The Full Court (Middleton, Perram and O’Bryan JJ) dismissed the ACCC’s appeal from, and allowed the respondents’ cross-appeals in relation to, Beach J’s decision to dismiss the ACCC’s claim that PN’s proposed acquisition of the Terminal would contravene s 50 of the Competition and Consumer Act 2010 (Cth) (CCA).[1]  The Full Court’s decision considered important issues about market definition, the meaning of “likely” under s 50, and the Court’s powers to accept undertakings in s 50 proceedings.  A note on the key findings from the Full Court’s decision can be found here. Also a note summarising the decision at trial is here.

The ACCC applied for special leave on 3 grounds:

1. That the Full Court erred in concluding that the proposed acquisition of the Terminal by PN was not likely to have the effect of substantially lessening competition within the meaning of s 50(1) of the CCA.
2. That the Full Court erred in concluding that, had a threatened contravention of s 50 of the CCA been proved, then the Federal Court had power under s 80 to accept an undertaking, opposed by the ACCC, so as to permit the otherwise contravening acquisition to proceed in the form modified by the undertaking.
3. That the majority of the Full Court erred in concluding that, had there been power to accept the undertaking under s 80 of the CCA, then it was appropriate to do so having regard to the efficacy of future contempt proceedings as a means of enforcing its terms.

The High Court (Gageler, Keane and Edelman JJ) determined that there were insufficient prospects of success on appeal ground 1 for granting special leave to appeal the decision of the Full Court.[2] Given the insufficient prospects on ground 1, the High Court considered that the case would be an inappropriate vehicle to explore the issues of principle raised in grounds 2 and 3 (concerning the Court’s powers to accept undertakings in s 50 proceedings).

[1]           Australian Competition and Consumer Commission v Pacific National Pty Ltd [2020] FCAFC 77; the decision appealed from was Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2) [2019] FCA 669.

[2]              Australian Competition and Consumer Commission v Pacific National Pty Ltd [2020] HCATrans 213.