Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38

In Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] 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 immunity.

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 hospitals.

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.