Myer Stores Limited

This matter concerned an appeal by Myer Stores Limited (the appellant) against a decision of the Australian Competition Tribunal (the Tribunal) which had affirmed the Australian Competition and Consumer Commission's (ACCC) decision to refuse to grant Myer authorisation for its proposed loyalty program. The dispute centred on whether the proposed program, which would have offered discounts and other benefits to customers who spent a certain amount with Myer, would result in a net public benefit.

The primary legal issue before the Federal Court was whether the Tribunal had erred in law in its assessment of the proposed loyalty program. Specifically, the Court was required to determine whether the Tribunal had correctly applied the public benefit test under section 90 of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). This involved considering whether the Tribunal had given sufficient weight to the potential for the program to enhance competition by encouraging consumer loyalty and whether it had adequately considered the potential for anti-competitive effects.

The Court found that the Tribunal had made an error of law by failing to properly consider the potential for the loyalty program to enhance competition. The Tribunal had focused too heavily on the potential for the program to disadvantage smaller competitors and had not adequately explored how the program might stimulate competition by encouraging consumers to engage with Myer's offerings. The Court reiterated the principle that a proposed arrangement should not be denied authorisation simply because it might have some negative effects, provided that the overall public benefit outweighs any detriments.

The Federal Court allowed the appeal, set aside the decision of the Australian Competition Tribunal, and remitted the matter back to the Tribunal for redetermination according to law.