Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd & Ors

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Baxter Healthcare Pty Ltd and Baxter Service Company Pty Ltd (Baxter) in the Federal Court of Australia. The dispute concerned allegations that Baxter had engaged in conduct that contravened section 47 of the *Competition and Consumer Act 2010* (Cth) (formerly section 47 of the *Trade Practices Act 1974* (Cth)), which prohibits exclusive dealing. Specifically, the ACCC alleged that Baxter had supplied or offered to supply goods on the condition that Baxter would not supply goods to a competitor of Baxter, or that Baxter had refused to supply goods to a customer because that customer had acquired or proposed to acquire goods from a competitor of Baxter.

The primary legal issue before the Full Federal Court was whether Baxter's conduct in relation to the supply of its intravenous (IV) solutions and administration sets constituted exclusive dealing under section 47 of the Act. This involved determining whether Baxter had imposed conditions on its customers that had the purpose or effect of substantially lessening competition in a market. The court was required to consider the nature of the agreements between Baxter and its customers, the relevant markets for the supply of these medical products, and the competitive impact of Baxter's practices.

The Full Federal Court, comprising Gummow, Hayne and Crennan JJ, overturned the primary judge's decision. Their Honours found that Baxter's conduct did not contravene section 47 of the Act. The court reasoned that the agreements in question did not contain the requisite conditions for exclusive dealing. Specifically, the court determined that the agreements did not prohibit customers from acquiring goods from competitors, nor did they demonstrate a refusal to supply based on such acquisitions. The court applied the principles of statutory interpretation to section 47, focusing on the precise wording of the prohibitions and the need to establish the existence of a condition that restricted dealings with competitors. The court concluded that the evidence did not establish that Baxter had engaged in conduct that fell within the scope of the exclusive dealing provisions.