On 22 January 1996 the Australian Competition and Consumer Commission sought an urgent interim injunction in the Federal Court Sydney before Whitlam J. to prevent the only two harbour towage providers in the Sydney ports from combining their operations. The injunction was sought until the substantive competition case could be fully argued.
On 23 January 1996 his Honour refused to grant the interim injunction, reserving his reasons. His Honour also refused to injunct the transactions, pending either an appeal or the handing down of his reasons for decision. In the circumstances, it was not possible for the Commission to appeal against the decision before the transactions proceeded to finality later that afternoon.
The Commission has considered the reasons for judgement handed down on 25 January 1996, two days after the transactions were completed.
In the Commission's view, the effect of the transactions is that an operating business has ceased operation, its staff have been transferred to, and its customers will become customers of, its only competitor and its operational infrastructure, including wharf licences, has been dismantled. In these circumstances there is now no practical point in appealing the decision of Whitlam J.
The Commission has considered pursuing orders for divestiture of the assets acquired or setting aside the transactions but believes in the circumstances that this will do little to permit or enhance future competition in the Sydney ports or to restore the price constraint that each competitor previously exerted on the other, as neither of these remedies will create or re-establish a viable and operating competitor.
Accordingly the Commission has decided not to pursue its claims and will not be further proceeding against the parties in respect of the acquisitions and associated transactions.
The parties have agreed to bear their own costs.
