Australian Competition and Consumer Commission v Pacific National Pty Limited (No 2) [2020] FCAFC 98

Australian Competition and Consumer Commission v Pacific National Pty Limited (No 2) [2020] FCAFC 98

Respondents/cross-appellants were wholly successful on the ultimate contested issue—whether the acquisition would contravene s 50 of the Competition and Consumer Act—therefore they are entitled to their costs of appeal and trial without discount, notwithstanding partial success or failure on subordinate issues such as market definition and the interpretation of 'likely'.

Parties
Appellant and Cross Respondent: Australian Competition and Consumer Commission; First Respondent and First Cross Appellant: Pacific National Pty Limited; Second Respondent and Second Cross Appellant: HV Rail Pty Ltd; Third Respondent and Third Cross Appellant: Queensland LH Co Pty Ltd; Fourth Respondent and Fourth Cross Appellant: Queensland PUD Co Pty Ltd; Fifth Respondent and Fifth Cross Appellant: Aurizon Holdings Limited; Sixth Respondent and Sixth Cross Appellant: Aurizon Operations Ltd; Seventh Respondent and Seventh Cross Appellant: Aurizon Terminal Pty Ltd; Eighth Respondent and Eighth Cross Appellant: Aurizon Property Pty Ltd
Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Appeal and Cross Appeals in Civil Proceedings / Final Judgment and Orders
Outcome
Appeal dismissed; cross-appeals allowed; respondents/cross-appellants awarded costs without discount; release of undertaking; directions for assessment of lump sum costs.
Legal Topics
Acquisition and Merger Control, Section 50 Competition and Consumer Act, Costs Orders, Undertakings, Market Definition
Competition Law Commercial Law Litigation Procedure Acquisition and Merger Control Section 50 Competition and Consumer Act Costs Orders Undertakings Market Definition

Case Brief

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Parties

Australian Competition and Consumer Commission

Appellant and Cross Respondent

Pacific National Pty Limited

First Respondent and First Cross Appellant

HV Rail Pty Ltd

Second Respondent and Second Cross Appellant

Queensland LH Co Pty Ltd

Third Respondent and Third Cross Appellant

Queensland PUD Co Pty Ltd

Fourth Respondent and Fourth Cross Appellant

Aurizon Holdings Limited

Fifth Respondent and Fifth Cross Appellant

Aurizon Operations Ltd

Sixth Respondent and Sixth Cross Appellant

Aurizon Terminal Pty Ltd

Seventh Respondent and Seventh Cross Appellant

Aurizon Property Pty Ltd

Eighth Respondent and Eighth Cross Appellant

Procedural Posture

Appeal and Cross Appeals in Civil Proceedings / Final Judgment and Orders

Legal Issues

  1. 1 Whether the proposed acquisition of Acacia Ridge Terminal by Pacific National would contravene s 50 of the Competition and Consumer Act 2010 (Cth)
  2. 2 Whether the primary judge erred in accepting and taking into account an Undertaking given by Pacific National
  3. 3 Whether costs should be awarded comprehensively or discounted by reason of partial success/failure on particular issues

Ratio Decidendi

Respondents/cross-appellants were wholly successful on the ultimate contested issue—whether the acquisition would contravene s 50 of the Competition and Consumer Act—therefore they are entitled to their costs of appeal and trial without discount, notwithstanding partial success or failure on subordinate issues such as market definition and the interpretation of 'likely'.

Court Disposition

Appeal dismissed; cross-appeals allowed; respondents/cross-appellants awarded costs without discount; release of undertaking; directions for assessment of lump sum costs.

Orders

  • The appeal be dismissed.
  • The cross-appeals be allowed.