ACCC v Ramsay Health Care (FCA)

Federal Court of Australia
Justice Griffiths

ACCC v Ramsay Health Care Australia Pty Limited [2020] FCA 308 (12 March 2020)

Issues: Misuse of market power - exclusive dealing

Catchwords

COMPETITION – proposal to establish rival day surgery to existing day surgery and private hospital in Coffs Harbour – alleged misuse of market power and exclusive dealing in contravention of ss 46 and 47 respectively of the Competition and Consumer Act 2010 (Cth) – failure to establish to the requisite standard that the pleaded conduct, which related to certain conversations, involved contravening conduct

EVIDENCE – application under ss 135 and 136 of the Evidence Act 1995 (Cth) to exclude or restrict parts of evidence given prior to retrieval of a sound recording – unfair prejudice not established in circumstances where relevant witnesses could be recalled and cross-examined on the basis of the sound recording

Legislation

Competition and Consumer Act 2010 (Cth) - s 46 - s 47

File number

NSD 628 of 2017

Overview

The ACCC alleged a proposal to establish rival day surgery. The Court dismissed the proceedings, finding no contravention.

In its media release announcing the proceedings, the ACCC provides the following details:

Ramsay operates Baringa Private Hospital and the Coffs Harbour Day Surgery, the only private hospital and private day surgery facilities in the Coffs Harbour region. Coffs Harbour surgeons use operating theatres at Ramsay’s facilities to perform surgical procedures on private patients.

The ACCC alleges Ramsay became aware that a group of Coffs Harbour surgeons were planning to establish a competing private day surgery facility in Coffs Harbour. In response to this competitive threat, the ACCC alleges senior Ramsay executives told these surgeons that if they were involved with the proposed new day surgery they would have their access to operating theatre time at Baringa Hospital substantially reduced or withdrawn.

The ACCC alleges that Ramsay engaged in this conduct for the purpose of deterring or preventing a new entrant in the day surgery market in Coffs Harbour, or substantially lessening competition in that market.

“The ACCC alleges that Ramsay sought to preserve its position in day surgery services in the Coffs Harbour region by making threats to reduce or withdraw individual surgeons’ access to operating theatres at Baringa Hospital if they were involved in a competing day surgery facility. It is alleged that the surgeons suspended their plans to establish a competing day surgery facility as a result of these threats,” ACCC Chairman Rod Sims said.

“New independent day surgeries in other areas have increased competition, reduced waiting lists and costs, delivered greater choice, and improved access to surgical procedures. It is vital to ensure such competition is not stamped out by established operators.”  

“Misuse of market power and other anti-competitive practices can cause significant harm to consumers, other businesses, and the competitive process more generally, which is why we believe this is an important case for us to take,” Mr Sims said.

The ACCC is seeking pecuniary penalties, declarations, compliance program orders, and costs.

On 12 March 2020 Justice Griffiths ordered that the application be dismissed.