|
Citation
|
Judgment date
|
| November 2022 |
|
|
Reported
Prospective intervener entitled to meaningful participation and expert access where it can assist on merger competition and public interest issues.
Competition law – mergers – intervention in merger proceedings – scope of intervention and exercise of Tribunal's discretion – entitlement of prospective intervener to make submissions and lead evidence on merger-specific competition and public interest issues – access to confidential merger record by legal and economic advisors subject to confidentiality undertakings – balance between expedition of proceedings and assisting the Tribunal.
|
22 November 2022 |
|
|
4 November 2022 |
| September 2022 |
|
|
Reported
A s53 participant must have sufficient procedural rights to meaningfully assist the Tribunal’s inquisitorial merger inquiry.
Competition law – intervention under s53(c) – participant status and procedural entitlements; inquisitorial merger hearings (s52) – Tribunal's duty to investigate with an open mind; balancing assistance against expedition under Rule 46(2); access to Commission’s record subject to confidentiality; targeted applications for additional documents or witnesses permissible; blanket discovery/subpoena rights refused.
|
5 September 2022 |
| August 2022 |
|
|
A wide interpretation of s38(2A)(d) allows suspension of part of a Tribunal order pending appeal to protect participation rights.
Competition Act s38(2A)(d) – suspension of Tribunal orders pending appeal/review – scope to suspend parts of orders; intervention and participation rights – ancillary procedural rights (discovery, subpoenas, access to record); peremption – conduct required to waive appeal rights; prospects of success – prima facie threshold
|
3 August 2022 |
|
Reported
Whether a dominant broadcaster’s refusal to carry rival channels constitutes refusal to supply scarce services warranting interim relief.
Competition law — interim relief under s49C — abuse of dominance — s8(1)(d)(ii) refusal to supply scarce goods or services and s8(1)(c) exclusionary acts — whether a dominant pay-television platform constitutes a scarce broadcasting/distribution service — prima facie case, irreparable harm and balance of convenience — role of transformative objectives of Competition Act in interim assessments
|
1 August 2022 |
| July 2022 |
|
|
Reported
A written pre-hearing directive excluding expert evidence is appealable if final in effect and beyond a single member’s interlocutory power.
Competition law – pre-hearing directives – exclusion of expert evidence – whether written directive is final in effect and appealable under s37. Tribunal procedure – single-member powers under s31(5) – limitation to interlocutory orders; final decisions require a panel. Appealability – final vs interlocutory orders – application of Zweni, Metlika and SCAW principles; effect, irreparable prejudice and interests of justice.
|
19 July 2022 |
|
Reported
Tribunal’s refusal to allow intervention on a speculative new‑entry theory was upheld for lack of evidential basis.
Competition — merger intervention — section 53(c)(v) — admission of third‑party participants — new‑entry (potential competition) theory of harm — evidential threshold versus speculation — tribunal’s inquisitorial powers — commercial interest insufficient to justify intervention — undue delay.
|
8 July 2022 |
| June 2022 |
|
|
Reported
Horizontality under s 4(1)(b) must be assessed absent the impugned agreement; bidding alone does not establish collusive tendering.
Competition law — Characterisation under s 4(1)(b) — Horizontality must be assessed by counterfactual economic analysis (absence of the agreement) — Bidding alone or ‘holding out’ does not create a horizontal relationship — Collusive tendering requires conduct designed to avoid competition, not mere identical bids or disclosed collaboration.
|
30 June 2022 |
|
Reported
Tribunal has ordinary review powers; merging party bears burden to prove substantial compliance and merger-specific retrenchments require an objective nexus to merger incentives.
Competition law – review under s27(1)(c) and Rule 39(2)(b) – ordinary review powers; standard: lawfulness, reasonableness and procedural fairness – Rule 39(1) creates threshold of apparent breach; Rule 39(2)(b) places burden on merging party to prove substantial compliance – merger-specific retrenchments tested objectively by nexus to incentives of new controller (BB Investment test), not subjective causation/principal motivation
|
17 June 2022 |
| April 2022 |
|
|
Reported
Tribunal rightly refused to excise an admission from a consent order; customer cancellations are not exceptional circumstances.
Competition law – Consent agreements – Variation of Tribunal orders – Whether ‘exceptional circumstances’ can justify amendment – Predictable private consequences (contract cancellations) of admitted collusion do not qualify as exceptional – Role of section 27(1)(d) and res judicata in varying consent orders – Public‑interest and lack of representation insufficient to justify excising admissions.
|
8 April 2022 |
| March 2022 |
|
|
Reported
Tribunal erred by demanding premature, excessive particularity of cartel allegations; market effects and inferences are for hearing.
Competition law – cartel allegations under s 4(1)(b)(i) – pleading standards – Tribunal Rule 15(2) – agreement vs concerted practice – permissibility of alternative pleading – market definition and effects assessed at hearing, not required in granular detail at referral stage.
|
25 March 2022 |
| February 2022 |
|
|
Reported
Withdrawal from a sporadic bid‑rigging cartel need not be formally communicated; only the Tribunal may condone s67(1) delay.
Competition law – collusive tendering (bid‑rigging) – cessation of prohibited conduct; test for withdrawal from cartels in sporadic bid‑rigging contexts – no rigid requirement of formal/public distancing; statutory time‑limit s67(1) condonable under s58(1)(c) but condonation lies with the Competition Tribunal; appellate jurisdiction – CAC cannot grant condonation absent an application before the Tribunal; late condonation applications and litigation prejudice may warrant refusal.
|
10 February 2022 |