Australian Competition and Consumer Commission v Metcash Trading Ltd

The Background Facts 9 The share sale agreement between Metcash and Pick n Pay was executed on 1 July 2010. The consideration was $215 million, subject to certain adjustments. The completion date stated in the agreement was 30 September 2010. 10 On 29 July 2010 Metcash and Pick n Pay sought review of the proposed acquisition by the ACCC pursuant to the ACCC's Merger Review Process Guidelines (2006). The ACCC's review process lasted for almost four months and it was not until 17 November 2010 that the ACCC announced that it had decided to oppose the acquisition on the ground that it would, or would be likely to, have the effect of substantially lessening competition in one or more relevant markets in contravention of s 50 of the Trade Practices Act as then in force. 11 On or about 24 November 2010, the ACCC indicated to Pick n Pay that it intended to commence proceedings in the Federal Court seeking declaratory and injunctive relief. 12 At about the same time, on 23 November 2010, Metcash and Pick n Pay agreed to extend the completion date of the share sale agreement to 30 June 2011. 13 Also at around the same time, on 26 November 2010, Metcash and Pick n Pay agreed with the ACCC that certain steps would be taken as a means of securing an urgent final hearing of the proceeding. These steps included an undertaking to be given by Metcash to the ACCC that it would not waive any condition precedent to the proposed acquisition without giving five clear business days' notice. 14 It was this undertaking which had the effect of preventing completion of the share sale agreement because one of the conditions precedent was that the ACCC give the necessary approval to the acquisition agreement. 15 The ACCC commenced its proceeding for declaratory and injunctive relief on 8 December 2010. The final hearing occupied 21 sitting days. Twenty witnesses, including two experts, gave evidence. The hearing concluded on 16 May 2011. 16 On 10 June 2011, Metcash announced that it had reached agreement with Pick n Pay to further extend the completion date of the share sale agreement to 31 July 2011. 17 On 31 July 2011, the parties to the share sale agreement again extended the completion date to 30 September 2011. 18 The judgment of the primary judge was handed down on 25 August 2011 and his Honour made orders dismissing the ACCC's application on that date. His Honour's reasons run to 140 pages containing 461 paragraphs. 19 The Commission's Notice of Appeal was filed on 9 September 2011. Two days later, Metcash, through its solicitors, gave notice that it would consider itself free, in effect, to complete the acquisition of Franklins as at the close of business on 16 September 2011. The notice was given in accordance with the undertaking to the ACCC that the parties would not complete without giving five business days' notice. 20 It was this notice which gave rise to the present application for injunctive relief. During the course of the hearing on 15 September 2011, Pick n Pay agreed to extend the undertaking to 5 pm on Tuesday, 20 September 2011.

Franklins 21 The primary judge described the business of Franklins commencing at [13]. Franklins operates a grocery business in New South Wales involving both wholesale and retail activities. Franklins' assets include an interest in 80 retail stores and ten franchise agreements with the operators of ten retail stores. 22 Franklins is a wholly owned subsidiary of Pick n Pay which is incorporated in the Republic of South Africa. Pick n Pay is a subsidiary of a large South African company which is listed on the Johannesburg Stock Exchange.

Metcash 23 The primary judge described the business of Metcash at [21]ff. Metcash operates several business units or divisions including the IGA-Distribution Division which is Australia's largest grocery wholesale distribution and marketing company. Through its business divisions, Metcash supplies by wholesale, various grocery products to independent retailers. These retailers are independent of self-supplying supermarket chains such as Woolworths, Coles, Aldi and Franklins. 24 As well as supplying grocery products, Metcash provides branding and other support services to independent grocery retailers who operate under the IGA banner.

The ACCC's pleaded case 25 In the proceeding before the primary judge, the ACCC alleged that there is a market for the wholesale supply of packaged groceries to independent supermarkets. It alleged that the principal suppliers are Metcash and Franklins and that the acquirers are independent supermarket retailers. 26 The ACCC alleged that the product supplied to the market is a range of packaged groceries, which are distinct from fresh produce and pre-prepared food. 27 The ACCC went on to allege that if the acquisition proceeded, it would be likely to result in a substantial lessening of competition in the independent wholesale grocery market. In this respect, the ACCC pointed to a number of alleged effects of the acquisition. They included: Franklins would cease to operate under agreements by which it acquires and supplies packaged groceries by wholesale. Most of Franklins' 80 retail stores would be sold to independent persons who would operate them under the IGA banner supplied by Metcash. The operators of these stores would acquire packaged groceries from Metcash. Franklins, which is Metcash's closest competitor for the wholesale supply of packaged groceries to independent supermarkets, would be shut down. 28 The ACCC also alleged that if the acquisition by Metcash does not proceed, it is likely that Franklins' 80 stores will be acquired by a third party who would continue to operate Franklins' business assets and who would procure the wholesale supply of packaged groceries in competition with Metcash in the independent wholesale grocery market. 29 Thus, the ACCC's case was that if the acquisition of Franklins by Metcash does not proceed, competition in the alleged independent wholesale grocery market would not be likely to be lessened.

The primary judge's judgment 30 The primary judge did not consider that the delineation of the market should be limited by reference to packaged groceries: see at [203]. Thus, the ACCC's contention that there is a separate market for the wholesale supply of a particular class of product, namely packaged groceries, was rejected. 31 His Honour went on to say at [342] that he was not persuaded that there is a separate market for the wholesale supply to independent supermarket retailers of packaged groceries, as the ACCC defined those terms in its claim. Accordingly, he found that the ACCC's pleaded case as to the defined market was not made out. 32 The primary judge then turned to the counterfactual analysis, that is to say, the likely state of market competition both with and without the proposed acquisition. 33 His Honour pointed out at [344] that ordinarily this involves an analysis which includes the continuation of the status quo. However, he observed that in the present case the circumstances are out of the ordinary because it was common ground that if the acquisition by Metcash does not proceed, Pick n Pay will sell the Franklins' business and assets to the acquirer which makes the best offer and has the capacity to complete. 34 The ACCC's case was that if Metcash does not acquire Franklins, there is "a real chance" that a consortium of retailers operated by the Koundouris, Karellas, Krnc and Lionis families (described in argument by the ACCC as the KKK consortium) will purchase the business and will use the assets as a continuing competitive constraint on Metcash. 35 However, his Honour found at [396] that there were a number of reasons why the consortium could not succeed. He said that it was difficult to conclude that the proposed consortium was a credible alternative purchaser. He gave seven detailed reasons, commencing at [397] for reaching that conclusion. His final reason, at [419], was that the proposed consortium's interest was, at best, speculative. 36 His Honour went on to find at [425] that on the basis of the evidence before the Court, he was not persuaded that "it is more likely than not" that the consortium propounded by the ACCC would make an offer for Franklins. 37 The primary judge therefore applied a balance of probabilities test to the counterfactual but he went on to refer to the ACCC's proposed "real chance" test. He said at [426] that even if the ACCC's contention is correct: I am not persuaded that there is a real chance that the counterfactual contended for by the Commission would come to pass. 38 Finally, it is pertinent to note that the primary judge considered that it is quite likely that the acquisition of Franklins by Metcash will strengthen the capacity of independent retailers operating under the IGA banner to compete more vigorously with Coles and Woolworths. That is to say, his Honour's view was that the proposed acquisition by Metcash of Franklins, is pro-competitive, rather than anti-competitive: see at [460].

The ACCC's evidence in support of the injunction 39 The ACCC relied on an affidavit affirmed by Mr David Gwilyn Jones, who is a Director in the ACCC's Merger Investigations Branch. He is one of two Directors charged with the carriage of the ACCC's assessment of the proposed acquisition. 40 Mr Jones' evidence is that if Metcash and Pick n Pay complete the acquisition pending resolution of the appeal, Metcash will have the ability and incentive to make changes to the Franklins business which would be likely to harm competition and which are not likely to be remedied by disposal orders. 41 Mr Jones sets out his reasons for this in some detail at paras 25 to 35 of his affidavit. 42 In particular, Mr Jones states that upon completion of the agreement, Metcash will control Franklins, thereby giving Metcash control, inter alia, of Franklins' wholesale assets, as identified in the affidavit. 43 Mr Jones goes on to state that if at the time of determination of the appeal, Metcash has closed or taken steps to close the wholesale assets, any subsequent purchase of Franklins (following a divestiture order) would acquire a business with a diminished capacity to wholesale packaged groceries to independent retailers. 44 Mr Jones goes on to set out the large number of hurdles that an alternative purchaser of Franklins would need to overcome before it could begin to wholesale packaged groceries to independent retailers. He also points to the possibility of an alternative purchaser having to deal with an "uncooperative" Metcash during the start up phase after acquisition. 45 Mr Jones points out that upon completion by Metcash prior to the determination of the appeal, Metcash will be in a position to enter into sale contracts for the 80 Franklins stores. He refers to Metcash's stated intention to follow that course. He goes on to state that depending upon the time taken to hear and determine the appeal, Metcash may reach a stage in its dealings with third party acquirers where those persons have entered into financial and other undertakings, or taken other steps in the establishment of the business which may make it impossible to reverse "some or all of these arrangements". 46 Moreover, Mr Jones states that if Metcash proceeds with the acquisition, it will have access to commercially sensitive information about Franklins' assets which could prejudice the ability of a subsequent purchaser to compete against Metcash in the independent wholesale grocery market if the ACCC succeeds in the appeal. 47 Mr Jones also asserts that Metcash will have an incentive to ensure that the Franklins business is not able to be used by a commercial acquirer to compete vigorously against Metcash in the independent wholesale grocery market. He asserts that this may involve poaching key staff and using information about the business to the disadvantage of any alternative purchaser. 48 Finally, Mr Jones states his belief that if the agreement with Metcash does not proceed, it is likely that the 80 Franklins stores will be acquired by a third party who will acquire and continue to operate in competition with Metcash in the independent wholesale grocery market.

Mr Perlov's evidence 49 I will refer to so much of Mr Perlov's evidence as is necessary to address the present application, bearing in mind the confidentiality of considerable parts of his affidavit. 50 Three key points are made by Mr Perlov. First, the Franklins business is performing poorly. Its financial performance is worsening as the delay in completing the agreement continues. He says the delay and uncertainty in completion occasioned by the litigation has contributed significantly to the poor and worsening performance of the Franklins business. 51 Second, Mr Perlov says that the uncertainty and delay to date is making it increasingly difficult to operate the Franklins business, particularly dealing with staff, bankers, suppliers and landlords. 52 Third, given the continued deterioration in the performance of the business, the continued existence of Franklins in its current form depends upon the proposed acquisition by Metcash being completed within a short period. 53 Mr Perlov goes on to set out in some detail the facts and matters which support the three key points referred to above. He refers in some detail to Franklins' capital and funding arrangements including negotiations with bankers for funding to extend the availability of, and increase the funds available to allow the business of Franklins to meet its financial obligations and fund ongoing losses pending completion of the agreement. 54 Although Westpac Banking Corporation has agreed to extend the Franklins' facility to 31 January 2012 for an amount which represents an increase in the credit limit, it is clear enough that the amount of the facility is based upon current cash flow forecasts. 55 Mr Perlov addresses the options available to Franklins if an interlocutory injunction is granted pending determination of the appeal. He says that Franklins will need to make a choice as to how to proceed given the losses being incurred (and likely continuing losses) and consequent financial and other concerns. 56 The options identified by Mr Perlov include not extending the share sale agreement with Metcash and proceeding with a break up of the business or selling some of the stores to generate sufficient cash to continue the operation of the business. Whilst he says that these options are not attractive, certain other options to which he refers could, or would, bring about a result that would not allow the business to operate in its present form. 57 The most likely course, if I were to grant the injunction, would be for Franklins to pursue an option in terms which remain confidential but which, in Mr Perlov's opinion, would reduce the losses and best preserve the business to the extent possible during the period of the injunction. 58 Mr Perlov goes on to refer to Franklins' financial performance during 2010 and 2011 and to the forecast performance to February 2012. He refers to the continued poor performance in the six months to 31 August 2011 with declining total sales and increasing operating losses. 59 He says that in his view the performance of the Franklins' business is likely to continue to deteriorate in the six months to 29 February 2012. 60 Mr Perlov also refers to the operational difficulties caused by the uncertainties surrounding the future of the Franklins' business from the time when the share sale agreement was announced in July 2010. The difficulties include inability to retain key staff and actions taken by, as well as the attitude of, suppliers of goods and services to the business. 61 Mr Perlov addresses the various difficulties and states that the negative impact will continue to adversely affect the business if completion of the share sale agreement is further delayed. 62 Mr Perlov also states that the decline in the Franklins' business is being exacerbated by difficult economic and trading conditions in New South Wales. He lists a number of factors which illustrate the conditions.

The applicable principles 63 What is sought in the present case is an injunction pending an appeal. The approach to be followed in such a case was stated by French J in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13]-[15] ("Stirling Harbour"). 64 His Honour observed that the decision whether to grant an interlocutory injunction pending an appeal will be informed by general principles governing the grant of interlocutory injunctions, namely the demonstration of a serious question and the balance of convenience. 65 The general principles were stated by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] as including an enquiry as to whether the inconvenience which the plaintiff would be likely to suffer if an injunction were refused outweighs the injury the defendant will suffer if the injunction is granted. Their Honours went on to say that: it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. 66 In Stirling Harbour, French J said at [15] that where an applicant's case has been tried and found wanting, there may nevertheless be a serious question to be tried on appeal but the court's assessment of the strength of the case will be influenced by the fact that there has been an adverse judgment at first instance. His Honour observed that it is relevant to the balance of convenience that the appeal may be rendered nugatory if restraint is not granted, but it is also relevant that the successful party will be prejudiced if it is impeded in the exercise of its judicially vindicated rights. 67 It is evident that in making these observations French J was of the view that the Court's power to grant an injunction pending appeal has its source in s 23 of the Federal Court Act and that the factors guiding the exercise of the discretion are informed by s 29 of that Act. 68 However, Mr Myers QC who appeared for the ACCC, pointed out that in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 162, the High Court stated that s 80 is a complete and comprehensive statement of the circumstances in which injunctions may be granted in respect of relief sought under the Trade Practices Act. 69 In Thomson at 161, the majority also said that the provisions of the Federal Court Act do not empower the Court to grant injunctions restraining or relating to contraventions of the Trade Practices Act in situations falling outside the boundaries drawn by s 80 of that Act. 70 However, in my opinion, the better view is that these observations are confined to the exercise of the jurisdiction to grant an interlocutory injunction pending a trial. This is because s 80(2) of the Competition and Consumer Act confers jurisdiction to grant interim relief pending determination of an application under s 80(1) and the exercise of the jurisdiction under that section is conditioned upon the Court being satisfied, relevantly, that: a person has engaged or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of: (i) Part IV. 71 It would follow that the provisions of s 80(6) of the Competition and Consumer Act are not engaged so that I would not need to address the effect of that subsection under which the Court is not to require the ACCC to give an undertaking as to damages. 72 Nevertheless, in case I should be wrong, I will address the present application on the footing that s 80(6) is engaged. 73 If it is, then the effect of that subsection is itself not without doubt. In Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 at 389 ("Santos"), Davies J said that the intention of s 80(6) is the grant of an interim injunction will be considered as if the applicant has given an undertaking as to damages but that in formulating its orders the Court shall not actually require an undertaking. Thus, if detriment results from the grant of an injunction on the application of the ACCC, that is a consequence of the legislation. 74 The doubt which arises from that expression of principle is that Santos was a decision of a Full Court. Hill J (with whom Sweeney J agreed) said at 396 that the issue was not argued and he expressed no view about it. 75 The approach to the exercise of the jurisdiction to grant interlocutory injunctive relief under s 80(2) stated by Hill J in Santos at 397 provides an appropriate basis on which to consider the present application. His Honour said that the Court must weigh up the real consequences to each party taking in mind not only the public interest but also the private interests involved. There is no presumption that an injunction should be granted or refused as [t]he matter is one for a judicial exercise of discretion taking into account all relevant factors.

Discussion 76 I have come to the view that in the exercise of my discretion, I should refuse to grant interim injunctive relief. There are seven reasons why I have reached this view. 77 First, although I am prepared to proceed on the basis that the matters to which Mr Myers referred in argument raise some prospects of success, it is relevant to take into account the fact that the ACCC's case at trial was dismissed by the primary judge. 78 Senior counsel for Metcash and Pick n Pay urged upon me what they described as the comprehensive and detailed rejection of the ACCC's case but it is not necessary or appropriate for me to embark upon a consideration of that submission. 79 However, it seems to me that a relevant factor which I can take into account is that Mr Myers did not point to any glaring error or obvious oversight in the primary judgment. The issues which Mr Myers raised cannot be said to be anything other than debateable and it will be necessary in the hearing of the appeal for him to point to error within the principles expressed by Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [21]-[25]. 80 In addressing the prospects of success on appeal, it is relevant to bear in mind that one of the principal issues which the ACCC wishes to raise is the question of whether the primary judge applied the correct test in rejecting the counterfactual. 81 Whilst it is true that his Honour applied the balance of probabilities test which the ACCC considers to be erroneous, the primary judge was not persuaded that the "real chance" counterfactual for which the ACCC contended would come to pass. 82 Second, I do not consider that the appeal would be rendered nugatory if the injunction is refused. 83 This is because the ACCC announced in a news release that it was appealing for two reasons. The second of these reasons was that, if left unchallenged, the primary judge's interpretation of some fundamental principles of merger analysis could have serious implications for the ACCC's ability to block anti-competitive mergers. 84 This challenge to legal principles can be undertaken without the need for injunctive relief. 85 Third, and perhaps most importantly, I have weighed the public interest considerations raised by Mr Jones against the private interest considerations referred to by Mr Perlov. In carrying out that exercise, I have come to the view that the factors to which Mr Perlov refers strongly outweigh the considerations stated in Mr Jones' affidavit. 86 This is not to understate the importance of the public interest to which Mr Jones refers but instead to recognise the commercial realities painted in graphic terms in Mr Perlov's unchallenged evidence. 87 There may be, as Mr Jones contends, real risks of anti-competitive behaviour in the period between completion of the sale agreement and determination of the appeal. But they are more than offset by the matters to which Mr Perlov refers. They may also be ameliorated by the fact that I propose to make an order expediting the hearing of the appeal. 88 In coming to the view that the key factors identified by Mr Perlov outweigh the considerations raised by Mr Jones, it seems to me that there is no escape from the proposition that if I were to grant injunctive relief, Pick n Pay would be likely to pursue one or another of the options stated by Mr Perlov. On any of those options, the composition of the assets of the business of Franklins, and the way in which it is conducted, would be altered. 89 Thus, even if I were to grant interim relief, the status quo is unlikely to be preserved until the determination of the appeal. That is a strong factor to be weighed in the balance against the grant of interim relief. 90 The negative factors affecting the Franklins' business set out in graphic terms in Mr Perlov's affidavit point clearly in favour of the view that the status quo cannot be preserved. As Hill J said in Santos, the public interest and the private interests are to be taken into account. Here the private interests prevail even without considering the possible effect of s 80(6) of the Competition and Consumer Act. 91 Of course, if I were to proceed on the basis that the jurisdiction to grant interim relief rests on s 23 of the Federal Court Act rather than s 80(2) of the Competition and Consumer Act, the absence of an undertaking as to damages would be a relevant factor. Indeed in the present case, it would be an important one: see APM Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475 at 485; see Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2010] FCA 1478 at [26]. 92 Fourth, although Mr Jones believes that a third party will purchase the Franklins' shares and operate the wholesale assets if the share sale agreement does not proceed, there is no evidence to support this assumption. 93 Mr Jones states no source for his belief and it is contrary to the primary judge's detailed factual finding. 94 The ACCC does not point to any changed circumstances to support the belief that a third party will take the steps envisaged by Mr Jones to enable a potential competitor to enter the alleged independent wholesale grocery market in competition with Metcash. 95 Fifth, I have taken into account the difficulties to which Mr Jones refers of reversing the arrangements which may well ensue if Metcash sells the Franklins' shares to independent purchasers. 96 The complexities which may be involved in the working out of a divestiture order and the attendant difficulties are a relevant factor to take into account: Attorney-General (Cth) v Davids Holdings Pty Ltd (No 1) (1993) ATPR 41-210 at page 40, 910. 97 However, in the present case, the difficulties should be ameliorated to some extent by the expedited hearing of the appeal. It seems to me that all parties concerned including Metcash and potential buyers of the stores are sufficiently apprised of the appeal process in this Court so that the difficulties to which Mr Jones refers, whilst of some weight, should not be given such weight in the exercise of my discretion as to support the grant of interim relief. 98 Similar considerations apply to the other matters which I have described as being harmful to competition. Indeed, Mr Perlov's evidence suggests that many of Franklin's wholesale assets may not be available to third parties even if the injunction were granted. 99 Sixth, I have taken into account Mr Myers' submission that the probabilities are that if I were to grant injunctive relief, Metcash and Pick n Pay would extend the deadline for completion. He supported that submission by pointing to the extensions that have already been given. 100 It is true that Metcash has sought expedition of the appeal which might imply that a short extension of the deadline cannot be ruled out. 101 But even though I will order expedition of the appeal, I cannot act upon the assumption that Metcash and Pick n Pay will again extend the deadline. There is nothing apart from speculation to suggest that they would do so. 102 Seventh, Pick n Pay has made it clear that it intends to complete the agreement and cease to carry on business in Australia. This has been its stated intention for some time but it has been delayed by the processes involved in the ACCC's determination and the trial process. 103 The sale agreement provides Pick n Pay with the ability to make a certain exit from the business which is of considerable commercial benefit to it. In light of the matters referred to above, I do not see why it should be further delayed in its ability to complete the agreement. Although the matter is under appeal, some weight should be given to the primary judge's finding that the transaction is pro-competitive. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.