Priceline Pty Ltd

Priceline Pty Ltd and others (the applicants) sought judicial review of a decision by the Australian Competition and Consumer Commission (ACCC) to refuse their application for authorisation of a proposed conduct. The applicants, who operate pharmacies and a pharmacy wholesale business, sought authorisation to implement a new pricing and supply model for certain prescription medicines. The ACCC had refused authorisation on the grounds that the proposed conduct would likely substantially lessen competition in contravention of section 47 of the *Competition and Consumer Act 2010* (Cth). The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the ACCC's decision to refuse authorisation was affected by an error of law. This involved determining whether the ACCC had properly considered the relevant statutory provisions, particularly section 90 of the *Competition and Consumer Act 2010* (Cth), which governs the ACCC's assessment of authorisation applications. Specifically, the Court had to consider whether the ACCC had erred in its assessment of the likely public benefit and the likely detriment arising from the proposed conduct, and whether it had given sufficient weight to the statutory objects of the Act.

The Court found that the ACCC had made a jurisdictional error in its assessment of the proposed conduct. It held that the ACCC had failed to properly consider the potential public benefits that could arise from the proposed pricing and supply model, including increased efficiency and innovation within the pharmacy sector. Furthermore, the Court determined that the ACCC had placed undue emphasis on potential detriments without adequately balancing them against the identified benefits, as required by section 90(7) of the Act. The ACCC's reasoning was found to be flawed in its approach to the balancing exercise mandated by the legislation.

The Court ordered that the ACCC's decision to refuse authorisation be set aside and remitted the application back to the ACCC for reconsideration according to law.