Competition and consumer law enforcement experience

Over 20 years competition and consumer law enforcement experience, both on the enforcement side with the former Trade Practices Commission (TPC) and Australian Competition and Consumer Commission (ACCC), and in private practice.

As a partner in Gilbert + Tobin, specific responsibility for responding to numerous ACCC investigations and the conduct of several immunity applications under the ACCC and NZCC cartel immunity policies, including the immunity applicants in the international paper cartel and international wood chemicals cartel.

Successfully represented a range of clients under investigation by the ACCC – with no follow on proceedings, including:

  • Leading building product manufacturer and supplier international agricultural equipment supplier
  • International whitegoods manufacturer
  • Leading hotel chain
  • Waste service operator.

Defence of ACCC cases, including:

  • ACCC v Malaysia Airlines – proceedings successfully settled.
  • ACCC v Wizard: mortgage products – proceedings successfully settled.
  • ACCC v NTG: telephone products – proceedings successfully settled.
  • ACCC v DES: – heating, ventilation and air-conditioning services (HVAC) – proceedings successfully settled.
  • ACCC v ACN: telephone services – proceedings successfully defended, ACCC claim dismissed (leave to appeal to the High Court refused).
  • ACCC v Patrick, P&O and AAT: port terminal services – proceedings successfully defended, ACCC claim dismissed.
  • ACCC v Clear Telecoms: – telephone services – proceedings successfully defended, ACCC claim dismissed against all but one represented party, with non-pecuniary orders for the remaining client.
  • ACCC v Cement Australia and individual executives: hearing concluded – decision reserved.

Private trade practices proceedings, including:

  • Acting for DFO (Direct Factory Outlet) against each of the major regional shopping centre managers (eg Westfield, Centro and GPT) – successful commercial resolution.
  • NSW Waste Services in defending damages claim from competitors – successful commercial resolution.
  • Acting for PETA (the international animal rights organisation) in the successful defence of proceedings brought by Australian Wool Innovation – proceedings dismissed.
  • HVAC supplier in successful defence of damages claim – proceedings withdrawn.

Also appointed by NZCC to advise and represent it in the first use of its cease and desist enforcement powers in respect of alleged misuse of market power in the port services industry.

As General Counsel and Executive General Manager ACCC Enforcement and Compliance Division responsible for the ACCC’s investigation and enforcement program, including the regional offices (including managing the work program of the ACCC Enforcement Committee). In these roles, leading cases with supervisory responsibility, included:

  • ACCC v Maritime Union of Australia (MUA) – national waterfront dispute union boycott conduct.
  • ACCC v Safeway – grocery retailing misuse of market power.
  • ACCC v Boral – building products misuse of market power.
  • ACCC v ABB, Alstom, Schneider, Wilson Transformers – power transformers cartel conduct.
  • ACCC v ABB, Alstom, Schneider, Wilson Transformers, Tyree – distribution transformers cartel conduct.
  • ACCC v Rhone Poulenc, Hoffman La Roche and BASF – vitamins cartel investigation.

In this role responsible also for establishing the international liaison relationships with the US Department of Justice in the area of cartel enforcement, attending as the ACCC representative to the landmark 1998 Washington meeting of international anti-trust agencies to establish practical working arrangements for cooperation in international anti-cartel enforcement.

As principal solicitor (trade practices unit) with the Australian Government Solicitor the conduct of prosecutions and legal advice on investigations acting on various cases, including:

  • TPC v ICI – vertical price restraints and collusion, agricultural chemicals.
  • TPC v Service Stations Association – petrol retail collusion (responsible for investigation only).
  • TPC v Pioneer Concrete – building products misuse of market power. O’Keeffe Nominees v BP (TPC intervening) – petrol retailing misuse of market power.
  • TPC v Tasmanian Private Hospitals Association – hospital services collusion.

A full list of cases can be provided.

Merger clearance experience

20 years experience in the area of merger clearance and merger enforcement, including contested merger litigation.

In private practice, ACCC clearance and authorisation matters, including:

  • Successful court defence of the AGL proposed acquisition of 35% interest in Loy Yang A power station – one of only two fully determined court challenges under Australia’s merger law since 1993.
  • Dairy Farm International divestiture of the Franklins retail chain.
  • Various Woolworths acquisitions including the acquisition of 20 Action food stores as part of the FAL demerger, Woolworths acquisition of the Danks hardware business.
  • Merger of FreightCorp and National Rail – clearance of the integration of the National and NSW rail freight businesses.
  • NSW Government sale of Waste Services business to SITA.
  • Westpac/St George – clearance of Australia’s largest banking merger.
  • Virgin Australia alliances with Delta, Air New Zealand, Singapore Airlines, Skywest Airlines and Etihad and acquisition of 60% of Tiger Australia and Skywest Airlines.
  • Salmat/HPAL – clearance for merger of number one and two Australian bulk essential and direct mail processing businesses.
  • Qube Logistics – various transactions for leading Australian landside container freight logistics operator.
  • Engaged by the New Zealand Commerce Commission to assist it in relation to a number of significant merger investigations in New Zealand.

Also represented the Japanese steel industry in relation to the opposition to BHP/Rio merger and joint venture proposals.

As head of TPC/ACCC Merger and Asset Sales Branch, on the introduction of the substantial lessening of competition standard for mergers (replacing the old dominance standard), appointed to head up the newly established Mergers and Asset Sales Branch of the ACCC (then the TPC). Establishing and implementing the ACCC’s merger clearance process and analytical framework.

Responsible for representing the ACCC in its dealings with business, including in relation to highly contested and difficult reviews of transactions, such as:

  • Ampol/Caltex
  • Foxtel/Australis
  • Coles Myer/FAL
  • AWB/Graincorp
  • AGL/Moomba Sydney Pipeline
  • Davids/IHL, Davids/QIW
  • Wattyl/Taubman
  • Westpac/Challenge Bank.

As a principal solicitor in the Australian Government Solicitor, responsible for:

  • The conduct of landmark proceedings on behalf of the Trade Practices Commission against The Gillette Corporation in relation to its acquisition of the international Wilkinson Sword business.
  • Responsible for Queensland market evidence in the TPC proceedings against Santos in relation to the acquisition of SAGASCO, being responsible for the conduct of the Queensland market aspects of that case.

Access and other regulatory and policy experience

Since involvement in 1993 as head of the Mergers and Asset Sales Branch in the development of the access regime in the Moomba Sydney Pipeline System Sale Act, the first third party access regime introduced in Australia, has had close involvement in nearly every major area of economic regulation in Australia, including in electricity, gas, rail, ports, airports, and water, to build a reputation as one of Australia’s leading economic regulatory experts.

Regulatory experience includes advising infrastructure owners, access seekers, governments departments, regulators, and private parties across a range of regulated infrastructure, including telecommunications, electricity, gas, water and sewerage, rail, sea ports, and air ports.

Government clients have included: the AER, ACCC, ESC, IPART, QCA and ESCOSA, NSW Government, Tasmanian Government and the New Zealand Commerce Commission.

Corporate clients include: Virgin Australia, Caltex, Rio Tinto, Coal Australia, Ausgrid, AGL, Telstra, QCA, Rail Infrastructure Corp of NSW and TransGrid.

Conduct of numerous regulatory reviews, arbitrations and Court and Tribunal challenges, including:

  • 2001 Victorian Electricity Distribution Pricing Reviews – Appeal Panel reviews on behalf of Office of the Regulator General (Victoria) (ORG) by TXU, AGLE, Citipower and Powercor.
  • TXU v ORG – Victorian electricity distribution – Victorian Supreme Court and Full Court proceedings regarding implementation of rate of return regulation.
  • Part IIIA Declaration of Sydney Airport airside service on behalf of Virgin Blue, including Tribunal and Federal Court reviews and follow on arbitration. Part IIIA Declaration of Sydney Water sewerage infrastructure on behalf of Services Sydney, including Tribunal review.
  • Essential Services Commission (Victoria) (ESC) rail access arbitrations in relation to access to the Victorian freight rail network by GrainCorp – Appeal Panel reviews.
  • Alinta Asset Management (AAM) v ESC – Victorian Supreme Court and Full Court proceedings in relation to the regulation of AAM under the National Gas Code and Victorian regulatory framework.
  • Multinet/UED v ESC – Victorian Supreme Court proceedings re regulatory accounting framework.
  • 2008 Gas Distribution Pricing Reviews – Appeal Panel reviews by Multinet, Envestra and SP AUSNet.
  • 2009 Electricity Distribution and Transmission Pricing Reviews – Tribunal reviews on behalf of Transgrid, EnergyAustralia, Integral and Country Energy.
  • Part IIIA Application for declaration of the Caltex Sydney Airport Jet Fuel Pipeline.
  • QR National v Queensland Competition Authority (QCA) – defence of Supreme Court proceedings on behalf of the QCA.

A full list of the regulatory reviews, arbitrations and administrative and judicial review proceedings worked on can be provided.