The High Court has granted special leave for the Australian Competition and Consumer Commission (ACCC) to appeal the Full Federal Court’s findings that Baxter Healthcare enjoyed Crown immunity from the Trade Practices Act (TPA).
The first instance decision of the Federal Court
On 16 May 2005, Justice Allsop in the Federal Court considered the ACCC’s allegation that Baxter entered into exclusive, bundled contracts which tied the supply of sterile fluids to the supply of certain dialysis products with various state health purchasing authorities. The judge dismissed the ACCC’s application on the ground that Baxter was entitled to Crown immunity or derivative Crown immunity (see July 2005 Competition Law Update). The ACCC appealed to the Full Federal Court.
The decision of the Full Federal Court
On 24 August 2006, the Full Federal Court dismissed the ACCC’s appeal, finding that Baxter would benefit from ‘derivative’ Crown immunity when dealing with state health purchasing authorities.
Implications
If the court rejects the ACCC’s appeal, it is likely to advocate that the TPA should be amended to level the playing field for government and non-governmental entities.
More information
For information regarding possible implications for your business, contact a member of the Competition & Market Regulation team.