Competition Law Reading Room
What is ‘likely’ in the Competition and Consumer Act 2010?
(2012) 20 Competition and Consumer Law Journal 28
Application of the Competition and Consumer Act 2010 in many respects hinges not on an assessment of what has happened, but on an assessment of what is or would be ‘likely’ to happen. This article considers the meaning of the word ‘likely’ in the principal contexts in which it appears in the Act, in light of varying judicial interpretations, most recently in ACCC v Metcash Trading Ltd.
The article considers the effect of a recent amendment to include a partially applicable definition of the word, and applies the relevant principles of statutory construction. It concludes that although the ‘real chance’ test remains the law, there is a good case to be made for a consistent higher threshold test more closely aligned to the ordinary common sense meaning of ‘likely’ at least throughout Pt IV, with the possible exceptions of s 45D and the core consumer protection provisions.