Special leave refused in Pacific National case

The High Court has dismissed the ACCC’s application for special leave to appeal from the Full Federal Court’s decision that the PN acquisition of the Acacia Ridge terminal would not be likely to substantially lessen competition.

In response, ACCC Chair, Rod Sims, commented:

“… With the acquisition set to proceed, Australia will be left in the position where the dominant intermodal rail linehaul services provider will also own the critical infrastructure that potential competitors need to access in order to compete,”

“The ACCC faces challenges in contested merger cases where a forward looking merger test is applied. The nature of the test, and the inherent uncertainties in predicting the future, make it difficult to prove that a change in the market structure after the merger will substantially lessen competition in the future.”

“This task is further complicated by the need to prove that competition is likely to be substantially lessened compared to a hypothetical future in which the acquisition did not occur,” Mr Sims said.

“These challenges raise important issues for the consideration of whether Australia’s current merger laws are fit for purpose.”

See ACCC media release.

See case page.