The competition watchdog is seeking special leave to appeal to the High Court after the Federal Court green light to Pacific National’s acquisition of the Acacia Ridge terminal in Queensland from rail freight operator Aurizon.
The Australian Competition and Consumer Commission had argued the Federal Court erred in approving the deal, after Pacific National offered an undertaking to prevent it discriminating against other rail operators accessing the rail terminal.
The court in May dismissed the ACCC’s appeal against the acquisition, on the grounds it would still substantially lessen competition.
But the ACCC said on Friday it would seek a High Court appeal, which if granted would be the first time the top court considers Australia’s merger laws.
“We believe that the Full Federal Court’s decision does not recognise the full impact of the proposed acquisition on competition in this vitally important industry,” ACCC chairman Rod Sims said in a statement.
He said the acquisition would result in the barriers to entry becoming effectively insurmountable and Pacific National’s near-monopoly as the dominant rail freight carrier on the east coast would be entrenched.
“A lack of competition in rail freight would likely lead to increased prices, for businesses and consumers around the country,” Mr Sims said.
The case centres on the interpretation of section 50 of the Competition and Consumer Act , which prohibits any acquisition that would likely have the effect of substantially lessening competition.
The ACCC also plans to seek the High Court’s ruling on the scope of a court’s power to accept an undertaking as a remedy after finding that a proposed acquisition is anti-competitive.