Australian Competition and Consumer Commission v Metcash Trading Ltd

The Australian Competition and Consumer Commission (ACCC) sought an interlocutory injunction against Metcash Trading Ltd to prevent the completion of a share sale agreement between Metcash and Pick n Pay for the acquisition of Franklins, a supermarket chain. The ACCC argued that the acquisition would substantially lessen competition in the independent wholesale grocery market, contravening the Competition and Consumer Act 2010 (Cth). The Federal Court was required to consider whether to grant an interim injunction pending the determination of the appeal against the primary judge's decision dismissing the ACCC's application for declaratory and injunctive relief.

The court examined whether a serious question was being tried and considered the balance of convenience. The primary judge had found that the acquisition was pro-competitive and dismissed the ACCC's application. The ACCC argued that if the acquisition proceeded, Metcash would have the ability and incentive to make changes to Franklins that would harm competition and be difficult to remedy. The court noted that the primary judge considered it unlikely that the proposed consortium of retailers would purchase Franklins, thereby removing a potential competitive constraint on Metcash.

The court held that the ACCC had not established a serious question to be tried, as the primary judge's findings were not clearly wrong. The balance of convenience also did not favour granting the injunction, given the uncertain future of Franklins' business operations and the primary judge's pro-competitive view of the acquisition. The court dismissed the interlocutory application and ordered that the hearing of the appeal be expedited.