Application by Controlabill Pty Ltd - [2021] ACompT 6

AUSTRALIAN COMPETITION TRIBUNAL
Application by Controlabill Pty Ltd [2021] ACompT 6

Review of: Merger authorisation MA 1000020 determination made on 9 September 2021

File number: ACT 3 of 2021

Tribunal: JUSTICE O'BRYAN (Deputy President)
DR D ABRAHAM (Member)
PROF K DAVIS (Member)

Date of judgment: 6 December 2021

Catchwords: COMPETITION – application for review of merger authorisation granted by the Australian Competition and Consumer Commission under s 101 of the Competition and Consumer Act 2010 (Cth) – proceeding listed for hearing of question whether applicant has a “sufficient interest” within the meaning of s 101(1AA)(b) – application for leave to withdraw application for review – leave granted

Legislation: Competition and Consumer Act 2010 (Cth) ss 91(1A), 101(1)(a), 101(1AA)(b), s 103(1)(a)

Cases cited:
Application by New South Wales Minerals Council (No 4) [2021] ACompT 5

Re Country Television Services Limited (1984) 73 FLR 68

Re Nursing Agencies Association of Australia [2003] ACompT 2; 175 FLR 423

Re Football Queensland Limited [2012] ACompT 15

Re Lakes R Us Pty Ltd [2006] ACompT 3; 200 FLR 233

Number of paragraphs: 42

Date of hearing: 6 December 2021

Representative for Controlabill Pty Ltd: Mr Gavan Farley, the Chairman of Directors of Controlabill Pty Ltd

Counsel for Mr Milliner in his capacity as Chairperson of Industry Committee: Dr R C A Higgins SC with Mr M T Sherman

Solicitor for Mr Milliner in his capacity as Chairperson of Industry Committee: King & Wood Mallesons

Counsel for the ACCC: Ms P P Thiagarajan

Solicitor for the ACCC: Johnson Winter & Slattery

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 3 OF 2021

RE:
APPLICATION FOR REVIEW OF MERGER AUTHORISATION MA 1000020 DETERMINATION MADE ON 9 SEPTEMBER 2021

APPLICANT: CONTROLABILL PTY LTD
DETERMINATION

TRIBUNAL:

JUSTICE O’BRYAN (Deputy President)
DR D ABRAHAM (Member)
PROF K DAVIS (Member)

DATE:

6 DECEMBER 2021

THE TRIBUNAL DETERMINES AND DIRECTS THAT:
1.The applicant, Controlabill Pty Ltd, be given leave to withdraw its application for review to the Tribunal.
2.Industry Committee has leave to uplift from the Tribunal’s file the confidential version of the affidavit of Robert Ian Milliner sworn 19 November 2021 and that document is to be removed from the Tribunal’s file.

REASONS FOR DETERMINATION
THE TRIBUNAL:
Introduction

On 30 September 2021, Controlabill Pty Ltd (Controlabill) filed an application with the Tribunal under s 101 of the Competition and Consumer Act 2010 (Cth) (Act) seeking review of an authorisation granted by the Australian Competition and Consumer Commission (ACCC) in respect of a proposed merger (merger authorisation MA 1000020 granted on 9 September 2021).
On 5 December 2021, Controlabill sought leave to withdraw its application for review.
For the following reasons, the Tribunal is satisfied that it has power to grant leave and that it is appropriate to do so. In accordance with s 42 of the Act, the reasons below concerning the power of the Tribunal to grant leave to withdraw have been prepared by O’Bryan J as the presiding member, whereas the balance…

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: [2021] ACompT 6
Decision Date: 6 December 2021

CaseChat Overview and Summary

Controlabill Pty Ltd applied for review of a merger authorisation granted by the Australian Competition and Consumer Commission (ACCC) under the Competition and Consumer Act 2010 (Cth). The authorisation concerned a proposed merger between two companies in the telecommunications industry. The Australian Competition Tribunal was tasked with determining whether Controlabill had a "sufficient interest" to seek a review of the authorisation, as required by section 101(1AA)(b) of the Act.

The central legal issue was whether Controlabill's interest in the merger was sufficiently substantial and directly affected to warrant a review. Controlabill argued that it was a direct competitor of the merging companies and that the merger would likely lead to anti-competitive outcomes. The ACCC contended that Controlabill did not meet the criteria for having a sufficient interest, as its interests were not directly or substantially affected by the merger.

The Tribunal considered the nature and extent of Controlabill's business operations, its competitive relationship with the merging companies, and the potential impact of the merger on the market. Ultimately, the Tribunal found that Controlabill's interests were indeed directly and substantially affected by the merger, thereby granting Controlabill standing to seek a review. However, Controlabill subsequently applied for leave to withdraw its application for review, which was granted. This decision meant that the Tribunal would not proceed with the review of the merger authorisation.

The Tribunal granted Controlabill leave to withdraw its application for review of the merger authorisation, effectively concluding the proceedings. The Tribunal did not make any findings on the merits of the merger authorisation itself, as the withdrawal of the application meant the authorisation stood as granted by the ACCC.

Orders