The Full Court of the Federal Court of Australia has dismissed an appeal by the Australian Competition and Consumer Commission against a decision of the Federal Court which dismissed the ACCC’s price fixing allegations against Australia and New Zealand Banking Group Ltd (ANZ).
These proceedings concerned allegations by the ACCC that ANZ had made and given effect to a price fixing agreement, in breach of the then Trade Practices Act 1974 (the Act), now called the Competition and Consumer Act 2010.
The ACCC alleged that in 2004 ANZ had required Mortgage Refunds Pty Ltd (Mortgage Refunds) to agree to limit the amount of the refund that it could provide to its customers when arranging ANZ home loans.
It was alleged that ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.
The ACCC alleged that this amounted to price fixing because ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services to customers.
On 18 November 2013, the Federal Court found that ANZ did not participate in a market for the provision of loan arrangement services and consequently that ANZ and Mortgage Refunds were not competitors in this market. As a result, ANZ’s conduct was found not to amount to a price fixing agreement and Justice Dowsett dismissed the ACCC’s application.
In the judgment handed down today, the Full Court dismissed the ACCC’s appeal, agreeing with the trial judge that ANZ branches did not supply loan arrangement services and that ANZ did not compete with independent mortgage brokers, including Mortgage Refunds.
In addition, the Full Court allowed ANZ’s cross appeal, finding that the Mortgage Refunds payment could not be considered to be a “rebate” for the purposes of the price fixing provisions in the Act.
“The ACCC brought these proceedings because of its concern that what should have been a competitive rivalry for new customers was undermined by ANZ’s decision to restrain the broker’s ability to compete on price,” ACCC Chairman Rod Sims said.
“Although the Full Court did not accept that ANZ was in competition with independent mortgage brokers, it is important to note the Full Court observed that it is possible for internal and external distribution channels to be in competition, and that each case needs to be considered on its own facts and circumstances.”
“Competition drives innovation and delivers lower prices and better products to consumers. Impeding competition is a serious matter that damages consumers, businesses, and the entire economy. For this reason, pursuing anti-competitive agreements and practices remains one of the ACCC’s enduring enforcement priorities.”
“The ACCC will carefully consider the judgment,” Mr Sims said.
Background
The ACCC alleged that in 2004 ANZ sought to limit the amount of a refund a mortgage broker, Mortgage Refunds Pty Ltd, could provide to its customers in respect of arranging ANZ home loans. The ACCC’s case was that this amounted to a price fixing agreement in breach of the Act.
The ACCC instituted proceedings against ANZ in August 2007. The trial took place in Brisbane between 26 March and 5 April 2012, and judgment at first instance was given on 18 November 2013.