Australian Competition and Consumer Commission v IVF Finance Pty Limited [2021] FCA 1266

Australian Competition and Consumer Commission v IVF Finance Pty Limited [2021] FCA 1266

The ACCC established a prima facie case that the proposed acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth) by likely substantially lessening competition for fertility services in the pleaded markets. The balance of convenience favoured a short interim injunction because it would preserve the status quo for about one week, the respondents' evidence did not show any real risk that such a short restraint would prevent the transaction proceeding, there was no substantial delay by the ACCC, and the respondents' proposed undertaking and submissions about longer-term consequences were more appropriately considered on the interlocutory injunction application.

Jurisdiction
Australia
Judgment Date
14 October 2021
Procedural Posture
Application for Interim Injunction Under S 80(2) of the Competition and Consumer Act 2010 (cth) / Interim Injunction Pending Hearing and Determination of Application for Interlocutory Injunction
Outcome
Interim injunction granted; further hearing adjourned; costs reserved.
Legal Topics
['interim Injunction' 'acquisition Alleged to Contravene S 50 of the Competition and Consumer Act 2010 (cth)' 'substantial Lessening of Competition' 'prima Facie Case' 'balance of Convenience']
['practice and Procedure' 'competition and Consumer Law'] ['interim Injunction' 'acquisition Alleged to Contravene S 50 of the Competition and Consumer Act 2010 (cth)' 'substantial Lessening of Competition' 'prima Facie Case' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Interim Injunction Under S 80(2) of the Competition and Consumer Act 2010 (cth) / Interim Injunction Pending Hearing and Determination of Application for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the ACCC established a prima facie case that the proposed acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth).' 'Whether the balance of convenience favoured granting an interim injunction restraining completion of the proposed acquisition for about one week.']

Ratio Decidendi

The ACCC established a prima facie case that the proposed acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth) by likely substantially lessening competition for fertility services in the pleaded markets. The balance of convenience favoured a short interim injunction because it would preserve the status quo for about one week, the respondents' evidence did not show any real risk that such a short restraint would prevent the transaction proceeding, there was no substantial delay by the ACCC, and the respondents' proposed undertaking and submissions about longer-term consequences were more appropriately considered on the interlocutory injunction application.

Court Disposition

Interim injunction granted; further hearing adjourned; costs reserved.

Orders

  • ['Subject to further order, until 5.00 pm on 19 October 2021, the first respondent, whether by itself, its officers, servants, agents or otherwise howsoever, is restrained from acquiring directly or indirectly any shares in, or assets of, Adora Fertility Pty Ltd (ACN 616 422 818), Darlinghurst Day Hospital Pty Ltd...