Australian Competition and Consumer Commission v Little Company of Mary Health Care Limited

In the case of Australian Competition and Consumer Commission v Little Company of Mary Health Care Limited, the Australian Competition and Consumer Commission (ACCC) brought proceedings against the respondents, Little Company of Mary Health Care Limited, alleging that they contravened section 47 of the Competition and Consumer Act 2010 (Cth). The respondents were accused of acquiring and offering to acquire services from medical practitioners who had been granted, and held, access and clinical privileges to perform procedures at day surgery facilities operated by the respondents. This was done on the condition that a provision in the Private Hospital By-Laws applying to the Calvary Riverina Day Surgery Facilities gave the respondents the qualified ability to refuse to grant accreditation to a medical practitioner, or to revoke the accreditation of an accredited medical practitioner, who owned or controlled an entity that was in competition with the services offered by the respondents. The conduct of the respondents was alleged to have had the likely effect of substantially lessening competition in the market in which day surgery services in Wagga Wagga, New South Wales were supplied.

The primary legal issue before the court was whether to exercise its discretionary power under section 21 of the Federal Court of Australia Act 1976 (Cth) to grant declaratory relief. The respondents had admitted to contravening section 47 of the Competition and Consumer Act, and as such, the ACCC did not press the remaining allegations in the Amended Application and Amended Statement of Claim. The parties sought to have the proceeding otherwise dismissed on the terms set out in the short minutes of order annexed to the parties’ joint submissions. The court found that the proposed declaration related to conduct that contravened section 47 of the Competition and Consumer Act, and that the matters in issue had been identified and particularised by the parties with precision. The court also found that it was in the public interest for the ACCC to seek to have the declarations made and for the declarations to be made, as it would inform the public of the contravening conduct, give effect to the purposes of the Competition and Consumer Act, and tend to deter other corporations from contravening the Competition and Consumer Act.

In light of the admissions by the respondents that they contravened section 47(1) in the manner alleged, the court decided to exercise its discretion to grant declaratory relief. The declaration would serve to record the Court’s disapproval of the conduct engaged in by the respondents in contravention of the Competition and Consumer Act. The declaration would also serve the public interest in defining and publicising the type of conduct that constitutes a contravention of section 47 of the Competition and Consumer Act. The court found that the declaration sought was appropriate, and it made the declaration and orders sought by the parties.