Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 581

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2005] FCA 581

Crown (derivative) immunity applies: The Trade Practices Act does not apply to, nor operate in respect of, the impugned conduct of Baxter in negotiating, entering into, and supplying pursuant to the contracts with State and Territory authorities, as doing so would impermissibly impair the contractual and legal rights of the States and Territories. Application of Part IV of the Act is excluded by s 2B and the common law principle of construction. Were it otherwise, Baxter would have contravened s 46 (only re Offer 1A in South Australia) and s 47 through the structure and purpose of its exclusive bundled supply offers, but no relief is available against Baxter in this context. The...

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: Baxter Healthcare Pty Ltd; Second Respondent: The State of Western Australia; Third Respondent: The State of South Australia; Fourth Respondent: The State of New South Wales
Jurisdiction
Australia
Judgment Date
16 May 2005
Procedural Posture
Civil / First Instance – Judgment
Outcome
Application dismissed
Legal Topics
Crown Immunity, Exclusive Dealing, Misuse of Market Power, Effect of Statutory Construction on Third Parties, Bundle Contracts, Public Procurement
Competition Law Statutory Interpretation Administrative Law Crown Immunity Exclusive Dealing Misuse of Market Power Effect of Statutory Construction on Third Parties Bundle Contracts +1 more

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Parties

Australian Competition and Consumer Commission

Applicant

Baxter Healthcare Pty Ltd

First Respondent

The State of Western Australia

Second Respondent

The State of South Australia

Third Respondent

The State of New South Wales

Fourth Respondent

Procedural Posture

Civil / First Instance – Judgment

Legal Issues

  1. 1 Whether Baxter Healthcare contravened ss 46 or 47 of the Trade Practices Act 1974 (Cth) in supplying sterile fluids and peritoneal dialysis (PD) products to State authorities;
  2. 2 Whether Crown immunity/derivative Crown immunity applied to protect Baxter's conduct;
  3. 3 Whether Baxter took advantage of a substantial degree of market power for a proscribed purpose;

Ratio Decidendi

Crown (derivative) immunity applies: The Trade Practices Act does not apply to, nor operate in respect of, the impugned conduct of Baxter in negotiating, entering into, and supplying pursuant to the contracts with State and Territory authorities, as doing so would impermissibly impair the contractual and legal rights of the States and Territories. Application of Part IV of the Act is excluded by s 2B and the common law principle of construction. Were it otherwise, Baxter would have contravened s 46 (only re Offer 1A in South Australia) and s 47 through the structure and purpose of its exclusive bundled supply offers, but no relief is available against Baxter in this context. The...

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • Confidentiality orders made as to parts of judgment, with directions for identification of truly confidential aspects.