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

Legislation: Competition and Consumer Act 2010 (Cth) ss 4G, 44ZZA, 102,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] ACompT 3
Decision Date: 19 April 2013

CaseChat Overview and Summary

The matter involved Co-operative Bulk Handling Limited (CBH) and the Australian Competition and Consumer Commission (ACCC). The ACCC had issued a notice under section 93 of the Competition and Consumer Act 2010, seeking to revoke a notification concerning CBH's conduct. The conduct in question involved the provision of transport services tied to the use of grain receival and storage services. CBH applied for a review of the ACCC’s notice, challenging the decision to revoke the notification.

The court was required to determine if the Tribunal was correct in concluding that the notified conduct did not and would not likely have the effect of substantially lessening competition in the grain transport market. Additionally, the court had to assess whether the Tribunal was right in concluding that the notified conduct had resulted or would likely result in benefits to the public that outweighed any detriment to the public caused by any lessening of competition.

The court found that the Tribunal was correct in its decision. It held that the Tribunal was satisfied that the notified conduct did not and would not likely have the effect of substantially lessening competition in the grain transport market. The court also found that the Tribunal had appropriately considered the evidence of potential competition in the grain transport market and the prospects of using alternative grain transport providers. The court noted the evidence provided by marketers about the interstate operation of grain transport and sales markets, which supported the Tribunal's findings. Furthermore, the court concluded that the Tribunal had properly weighed the public benefits against the public detriment caused by any lessening of competition, affirming the Tribunal's decision.

The court affirmed the Notice dated 29 June 2011 given by the ACCC to CBH, upholding the decision to revoke the notification concerning CBH's conduct.

Orders

Orders of the court

The Notice dated 29 June 2011 given by the Australian Competition and Consumer Commission to Co-operative Bulk Handling Limited pursuant to s 93(3) of the Competition and Consumer Act 2010 (Cth) in respect of Notification N 93439 is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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
Legislation:	Competition and Consumer Act 2010 (Cth) ss 4G, 44ZZA, 102,…