Michael Hodge KC (with R Nicholas and S J Chordia) appeared for the appellant in both matters, instructed by Australian Government Solicitor.
These cases concerned appeals from a decision of the Full Court of the Federal Court of Australia to allow an appeal concerning an issue as to the nature of an “understanding” as that term is used in Pt IV of the Competition and Consumer Act 2010 (Cth) including in ss 45E(3) and 45EA.
The ACCC’s appeal was on the basis that there is an “understanding” for the purposes of the Act if one person makes a threat and demand to a second person, and the second person capitulates to that threat and acts as demanded.
A majority of the High Court rejected the ACCC’s contention on the basis that arrival at an “understanding” for the purposes of s 45E(3) requires proof of express or tacit communication between the parties of a commitment on the part of one party to do that which the other party has demanded of it.
Accordingly, the appeals were dismissed.
The judgment can be read by clicking here
