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BarNet Jade jade.io ACCC v Pfizer Australia - [2018] FCAFC 78 BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous View this document in a browser Attribution Original court site URL: file://F180078.rtf Content received from May 28, 2018 court: Download/print date: March 10, 2020 FEDERAL COURT OF AUSTRALIA Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2018] FCAFC 78 Appeal from: Australian Competition and Consumer Commission v Pfizer Australia Pty Ltd [2015] FCA 113; (2015) 323 ALR 429 File number: NSD 242 of 2015 Judges: GREENWOOD, MIDDLETON AND FOSTER JJ Date of judgment: 25 May 2018 Catchwords: COMPETITION – appeal by the Australian Competition and Consumer Commission against an order of the Federal Court dismissing a proceeding against Pfizer in which the ACCC alleged that Pfizer had contravened s 46 and s 47(1) of the Competition and Consumer Act 2010 (Cth) w hen it took certain steps pursuant to a plan designed to enable Pfizer to compete in the market for the wholesale supply of a pharmaceutical (atorvastatin) to community pharmacies in Australia after the expiry of the Australian patent for atorvastatin held by Pfizer COMPETITION – misuse of market power – whether the primary judge erred in market definition – whether the BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous respondent had a substantial degree of market power in the relevant market – whether the respondent took advantage of its market power – whether the respondent had the purpose of “deterring” a person from engaging in competitive conduct in the atorvastatin market – whether the ACCC’s case as pleaded was legally incoherent COMPETITION – exclusive dealing – whether the respondent supplied upon “condition” – whether the respondent had the purpose of substantially “hindering” competition in the atorvastatin market – whether s 51(3) de fence was established Legislation: Competition and Consumer Act 2010 (Cth), ss 4A, 4E, 4F, 4G, 46, 46A, 47, 48, 51 and 76 National Health Act 1953 (Cth), s 90 Patents Act 1990 (Cth), ss 13, 117 and 144 Trade Practices Act 1974 (Cth), ss 45, 46 and 51 Cases cited: Air New Zealand Ltd v Australian Competition and Consumer Commission [2017] HCA 21; (2017) 344 ALR 377 ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1 990) 27 FCR 460 Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited (2015) 236 FCR 78 Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152 Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (No 2) (2008) 170 FCR 16 Australian Competition and Consumer Commission v Boral Ltd [1999] FCA 1318; (1999) 166 ALR 410 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2013] FCA 909; (2013) 310 ALR 165 BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd [2016] HCA 49; (2016) 339 ALR 242 Australian Competition and Consumer Commission v Liquorland (Australia) Pty Ltd [2006] FCA 826; (2006) ATPR ¶42-123 Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCA 967; (2011) 282 ALR 464 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73 Australian Gas Light Company v Australian Competition and Consumer Commission (No 3) (2003) 137 FCR 317 Australian Wool Innovation Ltd v Newkirk [2005] FCA 290; (2005) ATPR ¶42-053 Boral Besser Masonry Limited v Australian Competition and Consumer Commission (2003) 215 CLR 374 Browne v Dunn (1893) 6 R 67 Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1 982) 64 FLR 238 Eastern Express Pty Limited v General Newspapers Pty Limited (1992) 35 FCR 43 Fox v Percy (2003) 214 CLR 118 Interstate Parcel Express Co Proprietary Limited v Time-Life International (Nederlands) BV (1977) 138 CLR 534 Melway Publishing Pty Limited v Robert Hicks Pty Limited (20 01) 205 CLR 1 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110 News Limited v South Sydney District Rugby League Football Club Limited (2003) 215 CLR 563 NT Power Generation v Power and Water Authority (2002) 122 FCR 399 BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous Queensland Wire Industries Proprietary Limited v The Broken Hill Proprietary Company Limited (1989) 167 CLR 177 Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53 Seven Network Ltd v News Ltd (2009) 182 FCR 160 Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381; (2000) ATPR ¶41-783 SWB Family Credit Union Ltd v Parramatta Tourist Services Pty Ltd (1980) 48 FLR 445 Trade Practices Commission v Australia Meat Holdings Pty Ltd (1988) 83 ALR 299 Transfield Proprietary Limited v Arlo International Limited (19 80) 144 CLR 83 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 Warren v Coombes (1979) 142 CLR 531 Eagles I and Longdin L, “Competition in Information and Computer Technology Markets: Intellectual Property Licensing and Section 51(3) of the Trade Practices Act 1974 ” (2003) Vol 3 No 1 QUTLJJ 31 Gummow WMC, “Abuse of Monopoly: Industrial Property and Trade Practices Control” (1976) 7 Sydney Law Review 339 Harper I, Anderson P, McCluskey S and O’Bryan M, Comp etition Policy Review, Parkes, 2015 Hilmer FG, Rayner MR and Taperell GQ, National Competition Policy, Canberra, 1993 Intellectual Property and Competition Review Committee (Ergas H, McKeough J, Stonier J), Review of BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous intellectual property legislation under the Competition Principles Agreement, 2000 National Competition Council, Review of Sections 51(2) and 51(3) of the Trade Practices Act 1974 , Melbourne, 1999 Date of hearing: 23–27 November 2015 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Category: Catchwords Number of paragraphs: 609 Counsel for the Appellant: Mr JA Halley SC and Ms VE Whittaker Solicitor for the Appellant: Webb Henderson Counsel for the Respondent: Mr NC Hutley SC and Mr SA Lawrance Solicitor for the Respondent: Allens ORDERS NSD 242 of 2015 BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Appellant AND: PFIZER AUSTRALIA PTY LTD (ACN 008 422 348) Respondent BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous GREENWOOD, MIDDLETON AND FOSTER JJ JUDGES: 25 MAY 2018 DATE OF ORDER: THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The question of the costs of the appeal be reserved. 3. Within fourteen (14) days after the date hereof, each party file and serve a Written Submission of no more than six (6) pages in length in which each party sets out the order or orders for costs which that party seeks and its submissions in support of that order or those orders. 4. Thereafter the question of the costs of the appeal be decided on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. TABLE OF CONTENTS INTRODUCTION [1] THE ACCC’S CASE, PFIZER’S DEFENCE AND THE ISSUES AT TRIAL [22] Some Matters of Context (Paragraph 1 to Paragraph 41 of the ASC) [24] The Impugned Conduct (Paragraph 42 to Paragraph 60 of the ASC) [62] The Alleged Section 46 Contraventions (Paragraph 61 to Paragraph 67 of the ASC) [74] BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433 - - User: anonymous The Alleged Section 47 Contraventions (Paragraph 68 to Paragraph 73C of the [79] ASC) The Section 51(3) Defence (Paragraph 73D of the Defence) [84] THE JUDGMENT OF THE PRIMARY JUDGE—A SYNOPSIS [85] Section 46 and Section 47 of the CCA (The Law) [88] The Sale of Pharmaceutical Products in Australia [123] The Application of the Law to the Facts (Section 46 and Section 47) [136] The Market [138] Pfizer’s Power in the Atorvastatin Market [148] Taking Advantage [151] Purpose [152] Paragraph 67 and Paragraph 67A of the ASC [158] Section 47 [161] Section 51(3) of the CCA [164] PFIZER’S CONDUCT [166] THE RELEVANT STATUTORY PROVISIONS [169] THE ISSUES ON APPEAL [176] The Pleading Point (Appeal Ground 17) [178] The Primary Judge’s Reasons [179] The ACCC’s Submissions [186] Pfizer’s Submissions [191] Consideration [200] Market Definition (Contention Ground 1) [222] The Primary Judge’s Reasons [225] Pfizer’s Submissions [233] The ACCC’s Submissions [246] Consideration [263] The Relevant Principles [263] Decision [282] Pfizer’s Market Power in the Atorvastatin Market (Section 46(1)(c) of the CCA) (Appeal Grounds 1, 2 and 3) [310] The Primary Judge’s Reasons [313] The ACCC’s Submissions [319] Pfizer’s Submissions [326] Consideration [331] The Relevant Legal Principles [331] Decision [340] Taking Advantage of the Relevant Market Power and Proscribed Purpose BarNet publication information - Date: Tuesday, 10.03.2020 - - Publication number: 6705433