In Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited  HCA 38 the High Court upheld the ACCC’s appeal against findings by
the Full Federal Court that Baxter Healthcare Pty Ltd was protected
from the operation of the Trade Practices Act 1974 by Crown
The ACCC alleged that Baxter breached section 46 of the Trade Pravctices Act by entering into long term, exclusive,
bundled contracts of between three and five years which tied the supply
of sterile fluids to the supply of peritoneal dialysis products, with
each of the purchasing authorities in New South Wales, the Australian
Capital Territory, Western Australia, South Australia and Queensland.
Each State and Territory purchasing authority acquires these products
for supply to publicly funded health facilities, including public
At trial and on appeal, the Federal Court held that if the State
health purchasing authorities with which Baxter was dealing were
entitled to Crown immunity, Baxter was entitled to ‘derivative’ Crown
immunity and was protected from the proceedings brought by the ACCC.
With the High Court deciding that Crown immunity does not
apply to Baxter the matter has been remitted to the Full Federal Court to
consider the underlying issue; whether Baxter’s conduct did constitute
a misuse of market power or had the purpose, effect or likely effect of
substantially lessening competition.