Australian Competition and Consumer Commission v Australian Competition Tribunal

The Australian Competition and Consumer Commission (ACCC) brought an action against the Australian Competition Tribunal (Tribunal) in relation to the authorisation of a merger between Tabcorp and Tatts. The Tribunal had approved the merger, finding it would benefit the public. The ACCC argued that the Tribunal had misconstrued and misapplied the relevant section of the Competition and Consumer Act 2010 (Cth), failed to consider relevant factors, and did not properly weigh the benefits and detriments of the merger. The central issues for the court were whether the Tribunal properly interpreted the relevant statutory provisions, adequately considered the public benefits and detriments, and correctly applied the law in making its decision.

The court found that the Tribunal had indeed misconstrued and misapplied the statutory provisions by improperly importing elements from another section of the Act. The court noted that the Tribunal should have compared the likely future state of competition with and without the merger, and should have given lesser weight to benefits not widely shared. The court found the Tribunal's decision to be irrational and illogical, as it failed to properly weigh the relevant factors and did not adequately consider the detriments of the merger. The court concluded that the Tribunal's decision was unreasonable and should be set aside, and the matter should be referred back to the Tribunal for further consideration.

The court ordered that the Tribunal's decision be set aside and the matter referred back to it for reconsideration. Tabcorp and Tatts were ordered to pay the ACCC's costs, while the issue of costs for CrownBet was to be determined after further submissions and a hearing if necessary. The court also ordered that the parties confer to determine whether a similar substantive order should be made in relation to CrownBet's application. The court further ordered that the reasons for the decision be embargoed until the parties had an opportunity to review them for any confidential information.