ss. 46 and 47. Alleged misuse of market power, exclusive dealing
1 November 2002: Proceedings were instituted in the Federal Court, Sydney. Baxter Healthcare Pty Ltd allegedly misused its market power and engaged in exclusive dealing in the supply of medical products to certain Australian state and territory health purchasing authorities.
Hearing commenced on 18 May 2004 and finished on 6 July 2004; judgment was reserved.
21 October 2004: Parties to the litigation were granted leave to make submissions on the implications for these proceedings of the High Court decision in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48.
16 May 2005: The Federal Court held that despite conduct likely to hinder competition, Baxter Healthcare Pty Ltd had not contravened the Trade Practices Act 1974 because it was dealing with various state government departments which were not carrying on business. The Federal Court found that because Baxter was supplying state purchasing authorities which were not carrying on a business and therefore entitled to Crown immunity, the Crown immunity extended to protect Baxter from the proceedings brought by the ACCC.
24 August 2006: The Full Federal Court dismissed the ACCC appeal in which it sought findings that Baxter Healthcare Pty Ltd had breached the exclusive dealing and misuse of market power provisions of the Trade Practices Actwhen it entered long term contracts with state purchasing authorities bundling the supply of sterile fluids with peritoneal dialysis products used by people with kidney failure.
The Full Court confirmed the decision of Justice Allsop, who at trial found that Baxter was protected by derivative Crown immunity in dealing with various state government departments. Justice Allsop found that without that protection Baxter would have breached the exclusive dealing and misuse of market power provisions of the Act. The Full Federal Court did not consider Justice Allsop’s findings as to the breach of the Act.
20 September 2006: The ACCC sought special leave to appeal the decision of the Full Federal Court which was handed down on 24 August 2006 to the High Court of Australia.
9 February 2007: The High Court granted special leave for the ACCC to appeal findings by the Full Federal Court that Baxter Healthcare Pty Ltd was protected from the operation of the Trade Practices Act by Crown immunity.
29 August 2007: The High Court upheld the ACCC's appeal against findings by the Full Federal Court that Baxter Healthcare Pty Ltd was protected from the operation of the Trade Practices Act by Crown immunity. The matter was remitted to the Full Federal Court for further consideration on a date to be fixed.
Latest update: The matter was remitted to the Full Federal Court for further consideration. Full court to deliver judgment.
