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Citation
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Judgment date
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| January 2025 |
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16 January 2025 |
| October 2024 |
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The Competition Appeal Court may not, under section 173 or otherwise, transfer a Tribunal-commenced statutory review to itself.
Competition law – jurisdiction and procedure – whether the Competition Appeal Court may transfer a review initiated in the Competition Tribunal to itself; scope of section 173 inherent judicial powers; distinction between statutory reviews under section 27(1)(c) and PAJA/legality reviews; effect of Group Five decision on forum competence.
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7 October 2024 |
| April 2024 |
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Reported
Whether coordinated JV bids by a majority partner amounted to per se price‑fixing or collusive tendering — appeal dismissed.
Competition Act s 4(1)(b) – horizontal versus vertical relationships; definition and status of joint ventures/partnerships as 'firms'; characterization of per se prohibitions (price‑fixing and collusive tendering) under ANSAC; counterfactual analysis for horizontality; hub‑and‑spoke and intra‑enterprise conspiracy doctrines; role of disclosure, deception and demonstrable harm in distinguishing naked cartels from ancillary coordination in JV bidding contexts.
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26 April 2024 |
| March 2024 |
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Concurrent jurisdiction prevails: a NERSA maximum gas price does not preclude Competition Commission investigations into excessive pricing.
Competition law — concurrent jurisdiction — s 3(1A) Competition Act — sector regulator’s price determination under s 21(1)(p) Gas Act does not oust Commission’s jurisdiction — abuse of dominance (s 8(1)(a)) investigations valid despite NERSA maximum price — memorandum of agreement confirms cooperation.
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5 March 2024 |
| January 2024 |
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Reported
Commission’s SOC referral failed to plead jurisdictional and connecting facts for many foreign and non‑trading respondents.
Competition law – alleged cartel in USD/ZAR market – single overarching conspiracy (SOC) pleading requirements – need to plead common anti‑competitive objective, intentional contribution and knowledge/foreseeability – distinction between subject‑matter and personal jurisdiction for peregrini – limits on joinder of holding companies and on adding parties after referral – appealability of jurisdictional rulings in interests of justice.
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8 January 2024 |
| November 2023 |
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The Tribunal unconditionally approved four large mergers after finding no competition or public interest concerns.
* Competition law – merger control – unconditional approval where notified transactions do not substantially lessen competition or raise public interest concerns
* Sector-specific considerations – motor vehicle dealerships and premises acquisitions; real-estate development rights; pharmaceutical distribution rights; pension-fund investment in property joint ventures
* Merger assessment – vertical, horizontal and portfolio effects; assessment resulted in no required conditions
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14 November 2023 |
| October 2023 |
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Reported
Review dismissed: Tribunal correctly found crisis-induced market power and excessive pricing; condonation refused.
* Competition law – excessive pricing – s 8(1)(a) and s 8(3) test – application of Consumer Protection Regulations (Reg 4) during national disaster. * Dominance – s 6 turnover threshold distinct from s 7 market-power inquiry; crisis-induced market power can render multiple suppliers dominant. * Procedural – condonation for late review requires full explanation and prospects of success. * Administrative penalty – CAC narrow interference standard absent misdirection or fundamental error.
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13 October 2023 |
| August 2023 |
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Reported
Whether s49C(5) limits the Tribunal to a single six‑month extension and whether that limits access to courts under s34.
* Competition law – interim relief – s49C(5) – interpretation of "a further period"; whether limited to a single six-month extension or permits multiple six-month extensions.
* Constitutional law – right of access to courts (s34) – statutes capable of two meanings must be read in the least restrictive, constitutionally compatible way.
* Jurisdiction – Competition Appeal Court may decide constitutional issues arising under the Competition Act and grant just and equitable relief.
* Remedy – matter remitted to Tribunal; interim interdict to maintain status quo pending Tribunal decision.
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16 August 2023 |
| July 2023 |
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Parallel bank account closures alone do not establish a concerted refusal to deal or abuse of dominance without a pleaded theory of competitive harm.
Competition law – refusal to deal – whether parallel/sequential account closures amount to concerted practice (s 4(1)(a)) – need for pleaded theory of harm; Abuse of dominance (s 8(1)(c) and s 8(1)(d)(ii)) – requirement to show market power and vertical foreclosure or other anticompetitive effect; Interim relief – standard is prima facie case; appealability of interim Tribunal orders – final or irreversible effect and interests of justice; Lis alibi pendens – inapplicable where other forums consider different legal issues.
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17 July 2023 |
| May 2023 |
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Court transfers Part B of Tribunal application to its roll, schedules procedural directions, and makes no costs order.
Competition law — inter-institutional case management — transfer of a part of a Tribunal-launched application to the Competition Appeal Court roll; procedural directions under section 38(2A)(e); timing contingent on Tribunal’s reserved determination; no order as to costs.
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5 May 2023 |
| March 2023 |
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Reported
A review of a Commission referral was stayed until Tribunal discovery completes to prevent circumvention of disclosure rules.
* Competition law – judicial review – stay of review proceedings – inherent power of Competition Appeal Court under s 173 – interests of justice, prospects of success and balance of convenience. * Disclosure and discovery – Tribunal rules govern access to Commission investigatory records; disclosure generally at close of pleadings. * Stay justified to prevent circumvention of Tribunal procedural rules and unfair advantage to a respondent.
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24 March 2023 |
| November 2022 |
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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.
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22 November 2022 |
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4 November 2022 |
| September 2022 |
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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.
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5 September 2022 |
| August 2022 |
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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.
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3 August 2022 |
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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.
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1 August 2022 |
| July 2022 |
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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.
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19 July 2022 |
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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.
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8 July 2022 |
| June 2022 |
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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.
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30 June 2022 |
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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.
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17 June 2022 |
| April 2022 |
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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.
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8 April 2022 |
| March 2022 |
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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.
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25 March 2022 |
| February 2022 |
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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.
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10 February 2022 |
| December 2021 |
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Reported
Inferential circumstantial evidence cannot establish a per se cartel without proven primary facts and proper characterisation.
Competition law – Cartels and collusive tendering – Role and limits of inferential reasoning and circumstantial evidence in per se prohibitions; Characterisation – necessity of assessing horizontal versus vertical relationships before finding a s 4(1)(b) contravention; Burden of proof – Commission must prove primary facts and exclude plausible alternatives; Economic evidence – importance of expert analysis when relying on pricing patterns.
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17 December 2021 |
| November 2020 |
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Reported
Crisis‑induced temporary market power can establish dominance; excessive pandemic price increases found but penalty avoided as de minimis.
Competition law — Excessive pricing (s 8(1)(a)) — Dominance and market power in crisis conditions — ‘Lucky monopolist’ concept — Prima facie case and onus under s 8(2) — Reasonableness factors under s 8(3) — Detriment to consumers — Penalty assessment and de minimis considerations.
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18 November 2020 |
| October 2020 |
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27 October 2020 |
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Mentioning prices at an industry meeting without consensus does not establish a binding price‑fixing agreement under section 4(1)(b)(i).
Competition law – s 4(1)(b)(i) – agreement/price‑fixing – consensus required that parties regard arrangement as binding; mere mention/price signalling insufficient; reliance on draft minutes and minute‑takers’ notes; proof delimited by pleadings; limitation/s 67(1) – prescription; evidentiary value of subsequent conduct.
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21 October 2020 |
| August 2020 |
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Commission failed to prove the respondent’s continued participation in a cartel after change of ownership; appeal dismissed.
Competition law – s 4(1)(b) – alleged cartel and market allocation – whether attendance at pre‑Act meeting and subsequent information exchanges establish ongoing cartel membership; change of ownership and duty to speak; evidentiary standard: awareness and intent to contribute to cartel’s objectives; aggregated industry data insufficient to prove cartel participation.
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7 August 2020 |
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Reported
Withdrawal of a Tribunal referral completes proceedings under s 67(2), barring re-referral or reinstatement for the same conduct.
Competition law – Withdrawal of Tribunal referral – Meaning of 'completed' in s 67(2) – Jeopardy attaches on referral – Withdrawal completes proceedings and bars re-referral/reinstatement – Double jeopardy and abuse of process concerns.
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3 August 2020 |
| July 2020 |
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Reported
A respondent may only appeal a Tribunal interim order if it has a final or irreversible effect on market competition.
Competition law — interim relief (s49C) — appealability — "final effect" and "irreversible effect" defined; interim order appealable only if it prevents final adjudication or causes irreversible competitive harm; costs order in interim proceedings constrained by s57 and Tribunal rules.
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15 July 2020 |
| February 2020 |
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Whether the Competition Commission may assert jurisdiction over foreign banks for extraterritorial cartel conduct affecting South Africa.
Competition law – extraterritorial application – s 3(1) applies to conduct outside Republic with direct, immediate and substantial foreseeable effects in South Africa; Personal jurisdiction – common‑law development to recognise adequate connecting factors, appropriateness and convenience for assuming jurisdiction over peregrini; Declaratory relief – Tribunal may only grant orders where it has jurisdiction; Pleading – Commission required to file comprehensive new referral affidavit specifying facts to establish subject‑matter and personal jurisdiction; Joinder – deferred pending proper referral; Cross‑appeal – inclusion of non‑appealing respondent not an irregular step.
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26 February 2020 |
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Long-term tying arrangements were not proven to have foreclosed competition or caused higher prices.
Competition law – Exclusive dealing/tying – Foreclosure (actual and potential) – Burden of proof and role of market-share and machine-sales data – Counterfactual evidence – Pricing analysis – Insufficient proof of anti-competitive effect – Complaint dismissed.
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25 February 2020 |
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Reported
Whether the proposed hospital merger would substantially lessen local competition or be unjustifiable on public interest grounds.
Competition — Merger control: market definition — private multidisciplinary acute inpatient hospital services; exclusion of day-case services. Geographic market — local markets may be narrowly drawn; Potchefstroom and Klerksdorp are separate local markets. SSNIP and patient travel patterns — limited substitution across towns. Public interest (s12A(1)(b), s12A(3)) — price effects on insured/uninsured patients may justify conditions even absent SLC. NHN procurement exemption — material counterfactual reducing procurement-based harm. Actuarial evidence — admissible and capable of showing merger efficiencies. Remedies — behavioural remedies must be practicable, proportionate and enforceable.
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6 February 2020 |
| October 2019 |
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Applicant's broad long‑term exclusivity contracts constituted exclusionary abuse of dominance without sufficient efficiency justification.
Competition — Abuse of dominance — Section 8(d)(i) — Long‑term, broad exclusivity in standard contracts — Exclusionary act; effects‑based inquiry — substantial/likely foreclosure sufficient; two‑sided platform dynamics; efficiency defence must show relationship‑specific, non‑contractible gains and less restrictive means.
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19 October 2019 |
| July 2019 |
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Identical bids by closely related firms do not equal collusive tendering absent an agreement or independent controllers.
Competition law – section 4(1)(b) – price-fixing and collusive tendering – characterisation required; section 4(5)(b) exemption – 'single economic entity similar in structure' to holding company/wholly-owned subsidiary – interpretive weight to Companies Act 2008 control-test; identical bids by commonly administered firms do not automatically establish collusion without an agreement or concerted practice.
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2 July 2019 |
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The applicant failed to prove post‑Act implementation of a pre‑Act market‑allocation agreement; appeal dismissed.
* Competition Act s 4(1)(b)(ii) – market allocation – requirement to establish existence and implementation/continuing conduct after commencement of the Act.* Characterisation – horizontal versus vertical relationship – objective assessment of economic substance.* "Agreement" in competition law – consensus suffices; implementation evidence often central to proof of continuing contravention.* Economic successor liability – requires pleaded and proven evidentiary basis for transfer of liability.* Pre‑Act regulation (GN 801) proscribing market sharing – raised but not decided as unnecessary to outcome.
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2 July 2019 |
| May 2019 |
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Whether the Tribunal properly balanced s12A(3) public‑interest employment concerns when approving a major mining merger.
Competition law – Mergers – Public interest under s12A(3) – Employment impact – Distinction between merger‑specific and operational retrenchments – Rationality and counterfactual inquiries – Conditions on merger approval – Locus standi to appeal Tribunal merger decisions (s17) – Admission of new evidence on appeal.
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17 May 2019 |
| April 2019 |
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Reported
Section 67(1) is a three‑year limitation from cessation of the prohibited practice and is not subject to condonation.
Competition Act s.67(1) – limitation/expiry period measured from cessation of prohibited practice – no knowledge requirement – no scope for Tribunal condonation; initiation/amendment of complaints – whether later initiation extends earlier initiation; pleaded discrete bilateral agreements may be treated as separate practices for limitation analysis.
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3 April 2019 |
| October 2018 |
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s13A(3) bars implementation of control pending approval; voting of acquired shares is only restricted if those shares confer control.
Competition law – Merger control – s13A(3) prohibits implementation of an intermediate or large merger pending approval but does not, without evidence of control, prohibit voting shares acquired after a firm intention – De facto control under s12(2)(g) is fact‑specific – Goldfields distinguished.
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29 October 2018 |
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Commission failed to prove privilege; respondents entitled to transcripts and specified correspondence disclosure.
Competition law – disclosure and discovery – litigation privilege – privilege requires factual averments showing documents were created for contemplated or pending litigation; leniency materials not automatically privileged; Commission Rule 14/15 are public‑access provisions and cannot be used to deny respondents in referral proceedings discovery absent proof; Tribunal erred in withholding interrogation transcripts and correspondence.
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17 October 2018 |
| September 2018 |
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An agreement extending a referral deadline under the Act governs filing time; Tribunal rules cannot render a valid, in‑time referral invalid.
Competition law — referral of complaints under section 50(2) and extensions under section 50(4)(a) — interaction with Tribunal Rules (rules 4(1), 4(2), 6(4), 8(2), 14(3)) — registrar's out‑of‑hours acceptance — rules cannot override statutory referral periods — condonation of technical non‑compliance.
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17 September 2018 |
| May 2018 |
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Rule 15(1) grants any person public access to the Commission's investigation record; litigant status does not affect reasonable-time assessment.
Competition law — Access to Commission records — Interpretation of Competition Commission Rule 15(1) — Public right of access irrespective of requester’s litigant status — Rule 14(1)(e) and PAIA s.7 not operative to exclude access — Tribunal misdirected by factoring litigant status into "reasonable time" assessment — abuse of process not established.
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17 May 2018 |
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Reported
An ancillary non‑compete in a shareholders agreement, reasonably required to protect confidential information, did not contravene s 4(1)(b)(ii).
Competition law – Section 4(1)(b)(ii) – Non‑compete in shareholders agreement – Characterisation of restraint – Ancillary restraints test: main transaction unobjectionable; restraint reasonably required and proportionate – Horizontal relationship (potential competitor) – Evidentiary standard for motion proceedings (Plascon‑Evans) – Burden of proof on referring party.
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4 May 2018 |
| April 2018 |
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Tribunal has jurisdiction to hear abuse-of-dominance and essential-facility claims even when arising from statutory port decisions.
* Competition law – Jurisdiction – concurrent jurisdiction of competition authorities and other regulators – s 3(1A)(a) – Competition Act applies to all economic activity.
* Competition law – Abuse of dominance – refusal of access to essential facility – s 8 – exclusionary acts.
* Administrative/public law – statutory exercise of powers under National Ports Act does not automatically oust competition jurisdiction.
* Procedural law – Tribunal’s exception for lack of jurisdiction dismissed; Tribunal should adjudicate Chapter 2 complaints.
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25 April 2018 |
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Reported
Subpoenas for ITAC/DTI‑related documents were set aside for lack of demonstrated relevance and improper circumvention of ITA confidentiality.
Competition law – subpoena duces tecum – relevance and necessity for pending referral – abuse of Tribunal process; Confidentiality – International Trade Administration Act (ITA Act) – ITAC and High Court role in confidentiality determinations – Tribunal cannot bypass statutory regime; Civil procedure – scope of affidavits and settlement undertakings; Costs – appellate review of Tribunal's discretion.
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3 April 2018 |
| March 2018 |
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Reported
AAC, not ATC-plus-intent, governs s 8(c) predatory-pricing claims; the respondent failed to prove predation.
Competition law – Predatory pricing – s 8(d)(iv) adopts marginal/average variable cost (AVC) benchmarks – s 8(c) is an objective exclusionary provision – ATC-plus-intent test inconsistent with s 8(c) – AAC is the appropriate benchmark for s 8(c) predation claims – opportunity costs/foregone profits not to be included in AAC – inclusion of redeployment, allocated common, printing and distribution overheads must be proven avoidable.
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19 March 2018 |