Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079

Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 1079

The application for interlocutory injunction was refused because (1) the ACCC's appeal did not demonstrate prospects sufficient to displace the comprehensive findings of the primary judge; (2) the balance of convenience favoured Metcash and Pick n Pay due to significant private interest harms and the deterioration of Franklins' business, and public interest considerations were outweighed; (3) the status quo could not be preserved even if an injunction were granted; (4) there was insufficient evidence that granting relief would prevent irreparable harm to competition or render the appeal effective; and (5) commercial realities and uncertain alternative purchaser outcomes militated against...

Jurisdiction
Australia
Judgment Date
20 September 2011
Procedural Posture
Interlocutory Application for Injunction Pending Appeal / Post Trial, Pre Appeal Determination
Outcome
application for interlocutory injunction dismissed
Legal Topics
['interlocutory Injunction' 'mergers and Acquisitions' 'balance of Convenience' 'undertaking as to Damages']
['competition Law' 'practice and Procedure'] ['interlocutory Injunction' 'mergers and Acquisitions' 'balance of Convenience' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Interlocutory Application for Injunction Pending Appeal / Post Trial, Pre Appeal Determination

Legal Issues

  1. 1 ['Whether an interlocutory injunction should be granted pending appeal to restrain completion of a share sale agreement in alleged contravention of s 50 of the Competition and Consumer Act 2010 (Cth)' 'Whether the Court should require an undertaking as to damages from the ACCC in granting interlocutory relief' 'Significance of the balance of convenience and preservation of status quo in light of the primary judge’s findings']

Ratio Decidendi

The application for interlocutory injunction was refused because (1) the ACCC's appeal did not demonstrate prospects sufficient to displace the comprehensive findings of the primary judge; (2) the balance of convenience favoured Metcash and Pick n Pay due to significant private interest harms and the deterioration of Franklins' business, and public interest considerations were outweighed; (3) the status quo could not be preserved even if an injunction were granted; (4) there was insufficient evidence that granting relief would prevent irreparable harm to competition or render the appeal effective; and (5) commercial realities and uncertain alternative purchaser outcomes militated against...

Court Disposition

application for interlocutory injunction dismissed

Orders

  • ['The Interlocutory Application brought by the Australian Competition and Consumer Commission be dismissed.' 'The hearing of the appeal be expedited.']