Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38

Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38

Sections 46 and 47 of the Trade Practices Act 1974 (Cth) apply to the conduct of a trading corporation, such as Baxter, when dealing with State or Territory governments not carrying on a business; derivative immunity does not extend to preclude such application. The Act was intended to bind non-government parties in these circumstances, and the remedies available under the Act, including pecuniary penalties, may be imposed on corporations even when the Crown is itself exempt. The orders granted below were set aside and the matter remitted for further consideration consistently with these reasons.

Parties
Appellant: Australian Competition and Consumer Commission; First Respondent: Baxter Healthcare Pty Limited; Second Respondent: State of Western Australia; Third Respondent: State of South Australia; Fourth Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Appeal / High Court Determination on Appeal From the Full Court of the Federal Court of Australia
Outcome
Appeal allowed
Legal Topics
Crown Immunity, Derivative Immunity, Application of Competition Law to Government Contracts, Exclusive Dealing, Misuse of Market Power
Competition Law Constitutional Law Statutory Interpretation Crown Immunity Derivative Immunity Application of Competition Law to Government Contracts Exclusive Dealing Misuse of Market Power

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Parties

Australian Competition and Consumer Commission

Appellant

Baxter Healthcare Pty Limited

First Respondent

State of Western Australia

Second Respondent

State of South Australia

Third Respondent

State of New South Wales

Fourth Respondent

Procedural Posture

Appeal / High Court Determination on Appeal From the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Whether ss 46 and 47 of the Trade Practices Act 1974 (Cth) apply to conduct of a trading corporation negotiating contracts with State/Territory governments not carrying on a business
  2. 2 Whether derivative Crown immunity exempts corporations dealing with State or Territory governments from the operation of ss 46 and 47
  3. 3 The nature and scope of available relief under the Act in such circumstances

Ratio Decidendi

Sections 46 and 47 of the Trade Practices Act 1974 (Cth) apply to the conduct of a trading corporation, such as Baxter, when dealing with State or Territory governments not carrying on a business; derivative immunity does not extend to preclude such application. The Act was intended to bind non-government parties in these circumstances, and the remedies available under the Act, including pecuniary penalties, may be imposed on corporations even when the Crown is itself exempt. The orders granted below were set aside and the matter remitted for further consideration consistently with these reasons.

Court Disposition

Appeal allowed

Orders

  • Set aside the orders of the Full Court of the Federal Court of Australia made on 24 August 2006
  • Remit the matter to the Full Court of the Federal Court of Australia for further consideration in accordance with the reasons of this Court