Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2006] FCAFC 128

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2006] FCAFC 128

The Trade Practices Act 1974 (Cth) does not apply to or operate upon the conduct of Baxter alleged to contravene ss 46 and 47, including entry into and performance of government supply contracts, as the immunity of State and Territory governments extends to protect arrangements made in acquiring goods and services. Therefore, no relief (declarations, injunctions, penalties) can be granted in relation to such contracts as this would interfere with the legal rights and interests of the Crown, and the appeal must be dismissed.

Parties
Appellant: 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
24 August 2006
Procedural Posture
Appeal / Decision on Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal dismissed
Legal Topics
Trade Practices, Crown Immunity, Exclusive Dealing, Market Power, Bundling, Contract Law
Competition Law Government Immunity Trade Practices Crown Immunity Exclusive Dealing Market Power Bundling Contract Law

Case Brief

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Parties

Australian Competition and Consumer Commission

Appellant

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

Appeal / Decision on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether the Trade Practices Act 1974 (Cth) applies to conduct by a supplier in contractual arrangements with State and Territory governments (Crown immunity)
  2. 2 Whether Baxter Healthcare Pty Ltd contravened ss 46 and 47 of the Trade Practices Act 1974 (Cth) in its supply of sterile fluids and peritoneal dialysis products to governments by bundling products and allegedly abusing market power

Ratio Decidendi

The Trade Practices Act 1974 (Cth) does not apply to or operate upon the conduct of Baxter alleged to contravene ss 46 and 47, including entry into and performance of government supply contracts, as the immunity of State and Territory governments extends to protect arrangements made in acquiring goods and services. Therefore, no relief (declarations, injunctions, penalties) can be granted in relation to such contracts as this would interfere with the legal rights and interests of the Crown, and the appeal must be dismissed.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellant pay the respondents' costs of the appeal.