Flight Centre v ACCC (FCAFC)
Federal Court of Australia (Full Court)
Chief Justice Allsop, Justices Davies and Wigney
Flight Centre Limited v ACCC [2015] FCAFC 104 (31 July 2015)
Related judgments
ACCC v Flight Centre Travel Group Limited [2016] HCA 49 (14 December 2016)
Flight Centre Limited v ACCC [2015] FCAFC 104 (31 July 2015)
ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 December 2013)
Issue: Price fixing
On 17 April 2014 Flight Centre lodged an appeal against the Federal Court's judgment in ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 and against the penalties subsequently imposed. The grounds for appeal related to the 'the primary judge’s characterisation of the services supplied by the airlines and Flight Centre, and the finding that the airlines and Flight Centre competed in a market for the supply of distribution and booking services. In relation to penalty, Flight Centre’s sole appeal ground is that the pecuniary penalty imposed by the primary judge is manifestly excessive.' [para 6 appeal]
On 8 May 2014 the ACCC lodged a cross-appeal in relation to penalties, claiming the $11m penalty imposed on Flight Centre did not provide adequate deterrence.
On 31 July 2015 the Full Federal Court upheld Flight Centre's appeal and dismissed the ACCC's cross-appeal.
The decision
The Full Federal Court concluded that Flight Centre and the airlines did not compete in a market for booking and distribution services and the 'primary judge was wrong to conclude otherwise' (para 168). The appeal was allowed.
Catchwords
COMPETITION – appeal – whether appellant travel agent attempted to induce specific airlines to make a contract, arrangement or arrive at an understanding which had the purpose or effect of substantially lessening competition in a market – consideration of relevant market – characterisation of relevant services supplied by airlines and travel agents – whether airlines and travel agents competed in a market for booking and distribution services, or whether the only relevant market was the market for international passenger air travel services – whether travel agents competed with airlines in that market given they were the agent of the airlines when supplying such services – application of ss 45 and 45A of the Trade Practices Act 1974 (Cth)