Australian Competition and Consumer Commission v The Adelaide Steamship Company Ltd & Ors

The case involved the Australian Competition and Consumer Commission (ACCC) seeking an interim injunction against The Adelaide Steamship Company Limited, Howard Smith Industries Pty Limited, Waratah Towage Pty Limited, and J. Fenwick & Co. Pty Limited. The ACCC argued that the respondents' proposed acquisition of assets would substantially lessen competition in the provision of towage services in Sydney Harbour and Botany Bay, contravening sections 45 and 50 of the Trade Practices Act 1974. The court was required to determine whether the balance of convenience favoured the grant of interim injunctions and if the public interest necessitated such relief.

Whitlam J declined to speculate on the outcome of the ACCC's trial but found a serious question to be tried regarding the contravention of the Act. The court considered the strength of the ACCC's case against the potential consequences of granting the injunctions, including the industrial relations concerns raised by the respondents. The judge concluded that the grant of interim injunctions could not be justified to protect the public interest, as the potential for competition in the Sydney ports was already limited according to the ACCC's own report. The court also noted that if the acquisition proceeded and a contravention of the Act was found, the remedy of divestiture remained available under section 81 of the Act.

The court found that the assets involved were discrete and capable of being divested if necessary, and the respondents had agreed to provide undertakings regarding the disposal of these assets if required. Therefore, the balance of convenience did not favour the grant of interim injunctions. The court's decision left open the possibility that the ACCC could seek divestiture as a remedy if it succeeded in establishing a contravention of the Act at trial.