ACCC v ANZ Ltd
[2015] FCAFC 103 (31 July 2015) (Appeal)
[2013] FCA 1206 (18 November 2013) (Trial)
Snapshot
Federal Court of Australia
APPEAL
Year
2015
(appeal lodged 10 Dec 2013)
(decision 31 July 2015)
Citation
[2015] FCAFC 103
Judges
Chief Justice Allsop
Justice Davies
Justice Wigney
Issues
Price fixing
Hearing
14-15 August 2014
File number and registry
QUD818/2013
Legal rep for ANZ
Herbert Smith Freehills
Legal rep for ACCC
Australian Government Solicitor
TRIAL
Year
2013
Citation
[2013] FCA 1206
Judge
Justice Dowsett
Issues
Price fixing
Counsel for Applicant
Mr S Couper QC
Ms M Brennan
Solicitor for Applicant
Australian Government Solicitor
Counsel for Respondent
Mr A Archibald QC
Dr M Collins SC
Solicitor for Respondent
Herbert Smith Freehills
Summary
The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then Trade Practices Act 1974 (now Competition and Consumer Act 2010), because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release)
The Federal Court dismissed this claim, finding that ANZ and Mortgage Refunds were not competitors and, as a result, the conduct did not constitute price fixing.
Note: compare the decision in ACCC v Flight Centre.
Case links
Appeal
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015) (AustLII)
ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 (31 July 2015) (Jade)
Decision at first instance
ACCC v ANZ Ltd [2013] FCA 1206 (AustLII)
ACCC v ANZ Ltd [2013] FCA 1206 (Jade)
Judgment
Full Federal Court
Dismissed appeal
Federal Court
Dismissed cartel claim as a result of finding ANZ and Mortgage Refunds were not competitors.
Media and commentary
Text
Journal articles
Andrew Christopher and Thea Fabricius, 'In competition with each other? Implications of the apparently divergent outcomes in Flight Centre and ANZ' (2015) 23(1) Australian Journal of Competition and Consumer Law 6
Paul McLachlan, 'Not All Benefits are Services - Case Note; Australian Competition and Consumer Commission (ACCC) v Australia and New Zealand Banking Group Ltd' (2014) 22(1) AJCCL 61
ACCC media releases
ACCC, ACCC appeals ANZ Bank decision (ACCC Media Release, 10 December 2013)
ACCC, ANZ found not to have breached price fixing provisions (ACCC Media Release (18 November 2013))
Law firm commentary
On appeal decision
Gilbert + Tobin
On decision at first instance
Clayton Utz
Alexia Smyth-Kirk and Michael Corrigan, 'Court dismisses ACCC's price fixing case against ANZ' (Clayton Utz Insights, 5 December 2013)
Gilbert + Tobin
Other media
On appeal decision
Last updated: 8 August 2020