Australian Competition and Consumer Commission v Pacific National Pty Limited & Ors

The Australian Competition and Consumer Commission (ACCC) brought proceedings against Pacific National Pty Limited and its related entities (collectively, Pacific National) in the Federal Court of Australia. The dispute concerned allegations that Pacific National had engaged in anti-competitive conduct by misusing its substantial market power in the interstate rail freight market, specifically by entering into exclusive dealing arrangements with customers. The ACCC contended that these arrangements had the purpose or effect of substantially lessening competition in contravention of section 47 of the *Competition and Consumer Act 2010* (Cth).

The High Court of Australia was required to determine whether the Federal Court had erred in its interpretation and application of section 47 of the *Competition and Consumer Act 2010* (Cth) concerning exclusive dealing. Specifically, the court considered whether the Federal Court had correctly assessed whether Pacific National's conduct had the purpose or effect of substantially lessening competition in the relevant market. A key issue was the proper characterisation of the market and the assessment of the competitive impact of the exclusive arrangements.

The High Court found that the Federal Court had made errors in its assessment of the relevant market and the application of the "substantial lessening of competition" test. The High Court clarified that the assessment of whether competition has been substantially lessened requires a careful consideration of the actual or likely effects of the conduct on competition in the relevant market, not merely the intention of the parties. The court emphasised that the focus must be on the impact on competition, including the ability of other suppliers to compete and the range of choices available to consumers.

The High Court allowed the appeal, set aside the orders of the Federal Court, and remitted the proceedings to the Federal Court for re-hearing.