Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd

In the case of Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd, Baxter, an Australian operating subsidiary of Baxter International Inc., was accused of contravening sections 46 and 47 of the Competition and Consumer Act 2010 (Cth). Baxter was alleged to have entered into contracts with various States and the Australian Capital Territory for the supply of sterile fluids, including intravenous and peritoneal dialysis fluids, under anti-competitive conditions. Baxter contested these allegations and appealed against the primary judge's findings. The primary judge had concluded that Baxter's conduct substantially lessened competition in the relevant markets, contrary to sections 46 and 47 of the Act.

The court was required to determine whether Baxter's conduct amounted to a contravention of sections 46 and 47 of the Competition and Consumer Act 2010 (Cth). Specifically, the court had to assess whether Baxter had engaged in anti-competitive practices by entering into contracts with States under conditions that substantially prevented, hindered, or lessened competition in the relevant markets. The court also needed to consider Baxter's arguments regarding the primary judge's findings on market definition, market power, and the effect of the conduct on competition.

The court found that Baxter's conduct constituted a contravention of sections 46 and 47 of the Act. The court upheld the primary judge's conclusions that Baxter's conduct had the effect of substantially lessening competition in the Australia-wide sterile fluids market and the Australia-wide PD fluids market. The court rejected Baxter's contentions that the primary judge had erred in his factual findings or in his interpretation of the law. The court held that Baxter's exclusive supply agreements and high 'cherry pick' prices were designed to entrench its market position and prevent or hinder competition from other suppliers. The court also found that the evidence supported the primary judge's conclusion that Baxter's conduct had the purpose, effect, or likely effect of substantially preventing, hindering, or lessening competition in the relevant markets.

The appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal.