High Court allows Baxter Healthcare appeal
The ACCC has announced that the High Court of Australia has allowed their appeal in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ were the majority, with whom Kirby J agreed. Callinan J dissented.
The case involved allegedly anti-competitive conduct of Baxter Healthcare, in contracting with state government health departments. At first instance, the Allsop J held that Baxter's conduct would have contravened the Trade Practices Act, but because they were contracting with state government departments (who were not carrying on a business, which would explicitly bring them within the scope of the TPA), Baxter was entitled to derivative crown immunity and the relevant provisions of the TPA could not apply to their conduct.
Both Baxter and the ACCC appealed -- the ACCC on the basis there was no derivative crown immunity, and Baxter on the basis that their conduct would not have contravened the TPA in any case. The Full Federal Court dismissed the appeal, but only considered the crown immunity issue. Hence, the case will return to the Full Federal Court to reconsider the findings of Allsop J on whether Baxter's conduct, absent the crown immunity, contravened the TPA.
The case involved allegedly anti-competitive conduct of Baxter Healthcare, in contracting with state government health departments. At first instance, the Allsop J held that Baxter's conduct would have contravened the Trade Practices Act, but because they were contracting with state government departments (who were not carrying on a business, which would explicitly bring them within the scope of the TPA), Baxter was entitled to derivative crown immunity and the relevant provisions of the TPA could not apply to their conduct.
Both Baxter and the ACCC appealed -- the ACCC on the basis there was no derivative crown immunity, and Baxter on the basis that their conduct would not have contravened the TPA in any case. The Full Federal Court dismissed the appeal, but only considered the crown immunity issue. Hence, the case will return to the Full Federal Court to reconsider the findings of Allsop J on whether Baxter's conduct, absent the crown immunity, contravened the TPA.
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