The Australian Competition and Consumer Commission (ACCC) has received a
double setback today with the Full Court of the Federal Court of Australia
ruling against the regulator in two important cases.
The Full Federal Court has allowed an appeal by Flight Centre Travel Group
Ltd against a decision of the Federal Court where Flight Centre was found to
have attempted to induce anti-competitive arrangements with three international
airlines and ordered to pay A$11 million in penalties.
In addition, the Full Federal Court disallowed an appeal by the ACCC against
a decision which dismissed allegations of price fixing by Australia and New
Zealand Banking Group Ltd (ANZ).
Both cases concerned novel claims of price fixing. In the Flight Centre case
a principal and its agent were argued to be ‘in competition’ with each other. In
the ANZ case internal (bank) and external (mortgage broker) distribution
channels were argued to be ‘in competition’ with each other. The ACCC had
alleged certain discussions about customer pricing by the parties had led to
price fixing conduct, in breach of Australian competition law. New Zealand’s
price fixing prohibition also contains an ‘in competition’ test and therefore
the cases are likely to be persuasive in applying New Zealand competition law.
The judgments are likely to give greater certainty to commercial parties in
principal and agent or broker relationships in the application of competition
law to arrangements between those parties. However, the Full Federal Court
observed that the existence of an agency relationship, or a broker relationship,
between two parties does not always mean that those parties cannot be in
competition with each other. Each case must be considered on its own facts.
We will provide an update on the Courts reasoning when the detail is
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.