Merger cases, authorisations and clearances
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 three 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)
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Vodafone v ACCC Commenced: 24 May 2019 In progress |
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ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669 Mergers: Acquisition involving Queensland rail terminal (s 50 CCA) |
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ACCC 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. |
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Australian 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 Limited v TPC
(1990) ATPR para 41-061;
(1990) 97 ALR 555; (1990) 24 FCR 313
Merger
- market definition (different types of biscuits)
TPC v Australia Meat Holdings Pty Ltd
(1988) 83 ALR 299
Focus on market definition
QIW 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-2018 assessments see my separate informal merger clearance page.
For a list of current and completed ACCC merger reviews see the merger register.
Pending (alphabetical)
Please note that this is not a complete list of pending reviews; see the 
merger register for more.
See merger clearance page for a selection of concluded reviews.
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Industry: Bulk liquid storage |
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Industry: Mining |
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Industry: Cold storage facility |
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Completed acquisition: 'The ACCC is investigating Qantas’ acquisition of a 19.9 per cent stake in Alliance Airlines, to assess whether there has been a breach of section 50 of the Competition and Consumer Act.' Industry: Aviation |
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Industry: Dairy - specialty cheese |
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.
Following the Harper reforms in 2017 the ACCC regained the power to grant authorisations at first instance. The test for authorisation has also changed; the ACCC is now 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
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Authorisation applications since November 2017
(ACCC first instance decision-maker)
See also ACCC merger authorisation register
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AP Eagers Limited proposed acquisition of Automotive Holdings Group Limited Lodged: 29 April 2019 Authorisation number: MA1000018-01 Industry: Motor Vehicle retailing ACCC summary: 'A.P. Eagers Limited (AP Eagers) seeks merger authorisation for its proposed acquisition of Automotive Holdings Group Limited (AHG). AP Eagers and AHG both supply new and used cars, trucks and buses, as well as associated products and services such as car repair and servicing, authorised car parts, insurance and finance in various parts of Australia, including Brisbane, Melbourne, Sydney and the Newcastle/Hunter Valley region of New South Wales.' Submissions due: 17 May 2019 Market feedback letter released:24 June 2019 Submissions due on market feedback letter: 3 July 2019 Proposed announcement: July 2019 |
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
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Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017) 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: 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). |
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Application by Sea Swift Pty Ltd for Merger Authorisation (ACT 2 of 2016) |
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Application by
AGL Energy Ltd for Merger Authorisation (ACT 1 of 2014) |
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:
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Application by Murray Goulburn Co-Operative Co Limited for merger authorisation – ACT 4 of 2013 |
Authorisation applications prior to 2007
Authorisation applications considered by the ACCC or TPC prior to 2007 include:
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DuPont (Australia) Limited and Ors |
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Application for Authorisation by Davids Limited in Relation to the Proposed Acquisition of QIW Limited (1996, A30174, 28 March) |
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Qantas Airways Limited and British Airways Plc (1995) ATPR (Com) 50-184 |
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Re QIW Ltd (1995) 132 ALR 225 |
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Comalco Limited and Comalco Aluminium Limited (1994) ATPR (Com) 50-142 |
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TRW Australia Ltd (1989) ATPR (Com) 50-087 |
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Pasminco Limited Australian Mining & Smelting Limited (1988) ATPR (Com) 50-082 |
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Fletcher Challenge Ltd (1988) ATPR (Com) 50-077 |
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Ardmona, Letona and SPC (1988) ATPR (Com) 50-068 |
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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] |
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Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) ATPR 40-023 [TRIBUNAL] |
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Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481 |