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Merger cases, authorisations and clearances

Chronological Current cases Merger cases Link to High Court cases

Australian Merger Cases

There have been very few merger cases to reach the courts in Australia. In relation to the current (substantial lesscening of competition) test there have been only two cases and none have gone to the High Court. The merger tests in Australia have applied as follows:

1974-1977: effect of substantial lessening of competition

1977-1992: result in or substantially strengthen a 'position to control or dominate a market'

1993- current: effect (or likely effect) of substantially lessening competition

For more detail on the history of the merger law see merger page.

For clearance decisions before current year see separate merger clearances page.

 

Cases relating to current (competition test) provision (1993 - current)

Supermarket trollyACCC v Metcash Trading Limited
[2011] FCA 967; [2011] FCAFC 151 (appeal)

ACCC alleged proposed Metcash acquisition of Franklins stores would contravene the Act. They failed at first instance and again on appeal to the full Federal Court; no further appeal was made.

GasAustralian Gas Light Company v ACCC (No 3)
[2003] FCA 1525

AGL sought (and obtained) declaration proposed merger would not contravene Act.

 

Cases relating to previous (dominance) merger provision (1977-1992)

Arnotts bisucuit tin
Arnotts Limited v TPC
(1990) ATPR para 41-061; (1990) 97 ALR 555; (1990) 24 FCR 313

Merger - market definition (different types of biscuits)

Supermarket trollyQIW Retailers Ltd v Davids Holdings (1993) ATPR 41-226
Mergers; Trade Practices Economics

Davids Holdings v Attorney-General (1994) 49 FCR 211
The unsuccessful appeal from QIW v Davids

 

Informal merger clearance decisions

There is no mandatory notification regime for mergers in Australia. However, parties frequently notify the ACCC on a voluntary basis of any proposal to merge and the ACCC will advise parties whether or not it proposes to to challenge the merger. In some cases this involves public consultation following the release of a 'Statement of Issues'.

In significant cases the ACCC will also issue a Public Competition Assessment, detailing its reasons for clearing, opposing or clearing a merger subject to conditions. Details of all mergers reviewed are contained in a public register. The following lists some of the more significant 'informal' merger assessments conducted by the ACCC this year - it is not intended to be exhaustive. For pre-2017 assessments see my separate informal merger clearance page.

For a list of current and completed ACCC merger reviews see the merger register.

 

Pending

Please note that this is not a complete list of pending reviews; see the External linkmerger register for more.

Petrol pumps

External linkBP - proposed acquisition of Woolworths' petrol retail sites
Pending: Closing date for submissions from interested parties: 14 April 2017. Former provision date of 13 July 2017 delayed by agreement (to allow parties to provide additional information). SOI published 10 August 2017. Proposed announcement of findings: 30 November (original proposed date of 26 October 2017 extended on 4 October)
Commenced: 15 March 2017
Industry: Petrol stations
Media: Sue Mitchell, 'Woolworths, BP brace for ACCC decision on $1.8 billion fuel deal' (AFR, 10 July 2017); Sue Mitchell, 'BP, Woolworths fuel deal under spotlight' (AFR, 19 September 2017)

 

Filming sport

External linkMerger of Foxtel and Fox Sports
Pending: Market inquiries letter sent 12 October. Closing date for submissions is 27 October 2017. Provision date for announcement of ACCC decision: 7 December 2017
Commenced: 12 October 2017
ACCC summary: Foxtel is a partnership between Sky Cable Pty Ltd and Telstra Media Pty Ltd, which are wholly owned subsidiaries of News Corporation (News) and Telstra Corporation Limited (Telstra) respectively. Telstra and News each have a 50% economic interest in the Foxtel partnership. Fox Sports Australia Pty Ltd (Fox Sports) is a wholly owned subsidiary of News.Telstra and News propose to enter into a transaction that will result in Foxtel and Fox Sports being under common ownership with the head company of the combined group provisionally referred to as Fox Co (the Proposed Merger). Upon completion of the Proposed Merger, News will have a 65% share of Fox Co, with Telstra owning the other 35%
Industry: Media and Communications

 

Image of pens

External linkPlatinum Equity - proposed acquisition of OfficeMax Australia
Pending: SOI issued 24 August 2017; final decision expected 30 November (originally 16 November 2017)
ACCC summary: Platinum Equity, which recently acquired the Staples business in Australia and New Zealand, announced on 18 April 2017 that it proposes to acquire OfficeMax in Australia and New Zealand.
Commenced: 15 May 2017
Industry: Office supplies

 

 

Not opposed (2017)

Image of tv

External linkBirketu Pty Ltd and Illyria Nominees Television Pty Limited - proposed joint bid for interests in Ten Network Holdings Limited
Not opposed: 24 August 2017

ACCC summary: Proposed joint bid for acquisition of interests in Ten Network Holdings by Birketu Pty Ltd and Illyria Nominees Television Pty Ltd (as trustee of Illyria Investment Trust No. 4).
Commenced: 4 July 2017
Industry: Television channels
Media: see, eg, Max Mason, 'ACCC to look at Lachlan Murdoch and Bruce Gordon's Ten bid' (AFR, 4 July 2017), Andrew White and John Durie, 'ACCC reviews proposed joint bid for Ten Network' (The Australian, 4 July 2017), Christian Edwards, ''Outflanked': 'Outflanked': Murdoch and Gordon face a race for control of Ten, analyst says' (SMH, 5 July 2017), and AAP, 'ACCC confirms takeover bid for Network Ten by Lachlan Murdoch and Bruce Gordon' (news.com.au, 5 July 2017).

 

Taxi

External linkCabcharge Australia Ltd - Proposed Acquisition of Yellow Cabs Qld
Not opposed: 22 June 2017.
ACCC summary: Cabcharge proposes to acquire the business and related assets of Yellow Cabs Queensland to enable it to expand its taxi networks business into Queensland.
Commenced:
27 April 2017
Industry: Taxi Network Services
Media: John Durie, 'ACCC to provide a timely test of Uber's market power' (The Australian, 1 May 2017)

 

Petrol

External linkCaltex Australia Petroleum Pty Ltd - proposed acquisition of assets from Milemaker Petroleum
Not opposed: 4 May 2017
SoI released 16 March 2017 (preliminary SLC concerns indicated); proposed announcement 20 April 2017
Commenced: 17 November 2016
ACCC summary: Caltex proposes to acquire 45 retail service stations and 1 site under development in Victoria from Milemaker Petroleum
Industry: Fuel service stations

 

Paint chemicals

External linkDowDuPont Inc - proposed acquisition of EI du Pont de Nemours and Company and The Dow Chemical Company
Not opposed: 8 June 2017
SoI released 3 November 2016; proposed announcement on 2 February postponed
Commenced: 18 July 2016
ACCC summary: The Dow Chemical Company (Dow) and E.I. Du Pont de Nemours and Company (DuPont) propose to merge their two companies and spin the merged entity off into three separate companies focusing on Agriculture, Material Science and Speciality Products.
Industry: Agriculture products

 

Oil rig

External linkGeneral Electric Company - proposed acquisition of Baker Hughes Incorporated
Not opposed: 13 June 2017
Commenced: 22 February 2017
ACCC summary: General Electric Company (GE) and Baker Hughes Incorporated (Baker Hughes) have agreed to combine GE's oil and gas business (GE Oil & Gas) and Baker Hughes. Both companies provide products and services to the oil and natural gas industries in many countries, including Australia.
Industry: Oilfield services, technology and systems

 

Image of printer

External linkPMP - proposed acquisition
Not opposed: 17 February 2017 (Statement of Issues 22 November 2016) (PCA 28 March 2017)
Commenced: 2 November 2016
Industry: Printing

 

 

Withdrawn/discontinued/suspended (2017)

Billboard

External linkAPN Outdoor Group Limited - proposed merger with oOh!media Limited
Pending: SoI issued on 4 May 2017. Proposed merger terminated; review discontinued 19 May 2017
Commenced: 16 December 2016
Industry: Advertising

 

Image of grain

External linkAustralian Grain Technologies Pty Ltd - proposed acquitiion of InterGrain Pty Ltd
Pending: SoI issued on 31 March 2017. Review suspended following announcement of cessation of negotiations
Commenced: 10 January 2017
ACCC summary: 'Australian Grain Technologies Pty Ltd (AGT) intends to purchase all of the shares in InterGrain, from the Western Australian Government (through the Western Australian Agricultural Authority) and Grains Research and Development Corporation.'
Industry: Agriculture

 

Image of building blocks spelling word 'child'

External linkCamp Australia Pty Ltd and Junior Adventures Group Pty Ltd
Withdrawn: 27 September 2017
Significant dates:
Market inquiries letter sent 1 June; submissions due 22 June; further information requested from parties (10 July) and original provisional announcement date (27 July 2017) pushed back. SOI issued 10 August 2017. Parties requested more time to provide further information. Revised proposed decision date to be announced in due course. Submissions on SOI due 25 August 2017.
ACCC summary: Camp Australia Pty Ltd proposes to merge with Junior Adventures Group Pty Ltd.
Commenced:
1 June 2017
Industry: Child care services

 

Image of coal

External linkSouth32 Limited - proposed acquisition of Metropolitan Collieries Pty Ltd
Discontinued: 18 April 2017 after South32 announced it would not proceed with proposed acquisition (followed SoI which was issued on 8 February 2017)
Commenced: 2 December 2016
Industry: Coal mining

 

Image of horse race

External linkTabcorp Holdings and Tatts Group - proposed merger

Withdrawn:
Following release of SoI request for informal review withdrawn and application made to Tribunal for authorisation
ACCC consideration:
SoI released 9 March 2017 (submissions due 24 March; proposed decision 4 May)
Commenced: 25 November 2016
ACCC summary: Tabcorp Holdings Limited (Tabcorp) and Tatts Group Limited (Tatts) propose to merge. Tabcorp and Tatts both operate off-course totalisators and retail wagering networks (in different states and territories) and online wagering businesses. Tabcorp and Tatts both supply gaming and promotional management systems and services to gaming venues and gaming monitoring services to state governments.
Industry:
Gaming and wagering

 

 

Merger authorisations

In Australia it is possible for parties to apply to have a merger 'authorised' on public benefit grounds, notwithstanding it might otherwise contravene the prohibition in s 50 of the Act.

Before 2007 parties applied to the ACCC for authorisation with the possibility of appeal to the Australian Competition Tribunal.

In 2007 the power to hear merger authorisations was removed from the ACCC and parties were required to directly to the Tribunal, with no opportunity for merits appeal.

In 2018 the ACCC will regain the power to grant authorisations at first instance. The test for authorisation will also change; the ACCC will be able to grant authorisation either on public benefit grounds or if it does not believe the merger will substantially lessen competition.

 

Authorisation related judicial review

Image of horse raceACCC v Australian Competition Tribunal [2017] FCAFC 150 (22 Sept 2017)
ACCC's application for judicial review regarding process for determining merger authorisation

 

Authorisation applications between 2007-2017
(Tribunal first instance decision-maker)

Three mergers were granted authorisation during the ten year period during which the Tribunal had first instance decision-making power in merger authorisation cases (between 2007 - 5 November 2017). There were no instances in which the Tribunal denied authorisation.

See also the Tribunal's Merger Authorisation Register.

Tribunal determinations

Image of horse race

Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017)
Tribunal determination (second): authorisation granted

Judicial Review: The ACCC applied for judicial review of the Tribunal's decision on 10 July 2017. CrownBet separately applied for judicial review. The ACCC succeeded on one ground and the matter has been referred back to the Tribunal.

Tribunal determination (original): Authorised subject to condition that Tabcorp divest Odyssey Gaming business in Queensland (20 June 2017)

ACCC consideration: External linkTabcorp Holdings and Tatts Group - proposed merger

Commenced 25 November 2016. Following release of SoI on 9 March 2017, Tabcorp withdrew its request for informal review and made application to the Tribunal for authorisation. See Tabcorp media release (13 March 2017).
SoI released 9 March 2017 (submissions due 24 March; proposed decision 4 May)

ACCC summary: Tabcorp Holdings Limited (Tabcorp) and Tatts Group Limited (Tatts) propose to merge. Tabcorp and Tatts both operate off-course totalisators and retail wagering networks (in different states and territories) and online wagering businesses. Tabcorp and Tatts both supply gaming and promotional management systems and services to gaming venues and gaming monitoring services to state governments.

Industry: Gaming and wagering

Media: [see case page for more] John Durie, 'Tabcorp decision to switch regulators mid-race is being led by lawyers' (The Australian, 13 March 2017), James Thomson and John Stenshold, 'Tabcorp takes Tatts Group merger case straight to Competition Tribunal' (Australian Financial Review, 13 March 2017) and AAP, 'Tabcorp takes Tatts bid to tribunal' (SBS, 13 March 2017).

 

Image of cargo-port

Application by Sea Swift Pty Ltd for Merger Authorisation (ACT 2 of 2016)
See also ACCC authorisation page.
Commenced: 4 April 2016
Authorised: 1 July 2016
Hearing
: The hearing commenced in June 2016.
Sea Swift withdrew its original application (2015) and submitted a new merger authorisation application on 4 April 2016. Sea Swift proposes acquiring assets associated with Toll Marine Logistics in the Northern Territory and far north Qld.

 

Image of power line

Application by AGL Energy Ltd for Merger Authorisation (ACT 1 of 2014)
Tribunal determination: on 25 June 2014 the Tribunal granted authorisation for this proposed acqusition. This was the second application made to the Tribunal since 2007 and the first to involve a Tribunal determination.

 

Applications made but withdrawn

The first was an application to the Tribunal since 2007 was by Murray Goulburn; it was withdrawn before being heard on 23 January 2014:

Image of cargo-port

External linkApplication by Sea Swift Pty Ltd for Merger Authorisation - Act 9 of 2015
Commenced 21 September 2015
Withdrawn 17 November 2015 (new application made 2016)

 

Image of cows

Application by Murray Goulburn Co-Operative Co Limited for merger authorisation – ACT 4 of 2013
Commenced 29 November 2013 (Dairy Industry). Application withdrawn on 23 January 2014.

 

Authorisation applications prior to 2007

Authorisation applications considered by the ACCC or TPC prior to 2007 include:

Image of QANTAS plane

External linkQantas Airways Limited (2005) ATPR 42-065; [2004] ACompT 9 [TRIBUNAL]
ACCC declined authorisation; Tribunal set aside ACCC determination and authorised proposed conduct

 

Image of chemicals

DuPont (Australia) Limited and Ors
(1996) ATPR (Com) 50-231

Merger authorised (international competitiveness)

 

Supermarket trolly

Application for Authorisation by Davids Limited in Relation to the Proposed Acquisition of QIW Limited (1996, A30174, 28 March)

 

Image of QANTAS plane

Qantas Airways Limited and British Airways Plc (1995) ATPR (Com) 50-184

 

Supermarket trolly

Re QIW Ltd (1995) 132 ALR 225
Merger authorisation application

 

Image of aluminium

Comalco Limited and Comalco Aluminium Limited (1994) ATPR (Com) 50-142

 

Image of steering wheel

TRW Australia Ltd (1989) ATPR (Com) 50-087

 

Image of smelting

Pasminco Limited Australian Mining & Smelting Limited (1988) ATPR (Com) 50-082

 

Image of tree trunks

Fletcher Challenge Ltd (1988) ATPR (Com) 50-077

 

Image of tinned fruit

Ardmona, Letona and SPC (1988) ATPR (Com) 50-068

 

Image of cows

Application by Wylie Steel Pty Limited for review of grant of authorization to Broken Hill Proprietary Company Limited re acquisition of BHP/GKN Holdings Ltd. and John Lysaght (Australia) Ltd (1980) ATPR 40-170 [TRIBUNAL]
On the issue of 'sufficient interest' to challenge TPC authorization determination: (1980) 47 FLR 384

 

Image of Adelaide Steamship

Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) ATPR 40-023 [TRIBUNAL]
TPC refused authorisation. Tribunal affirmed TPC's determination.

 

Image of bread (flour)

Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481
Merger authorisation application