Justice Beach said he would have found in favour of the ACCC if it was not for undertakings Pacific National presented to court on the last day of the trial guaranteeing other operators access to the terminal and fair prices.
However the ACCC’s Mr Sims said those undertakings – presented to him in 2017 – were “virtually unenforceable”, and would not stop the company using its control of the terminal to frustrate other competitors and discourage them from entering the market.
We continue to believe that this acquisition is bad for competition in rail freight and therefore bad for Australia.
ACCC’s Rod Sims
“It’s not as if you say: no I won’t give you access. You leave them in a siding for a while, you move them slowly – you just frustrate them,” he said.
“We continue to believe that this acquisition is bad for competition in rail freight and therefore bad for Australia.”
Mr Sims said that just as another landmark competition court case in 2014 approving AGL Energy’s takeover of Macquarie Generation had resulted in higher electricity costs, this deal would result in higher freight costs that would flow through to goods like groceries.
The ACCC has another major case on its cards, after blocking a $15 billion merger between the telcos Vodafone and TPG last week. Mr Sims said Wednesday’s decision called the effectiveness of current competition laws into question.
“Australians have just got to think through whether we want to have the concentrated economy we’ve got or we rethink how we do merger approvals,” Mr Sims said.
“Because, for this decision to get through, I think we’ve got a problem.”
Pacific National said it welcomed the court’s decision and was pleased that the ACCC had withdrawn earlier claims relating to alleged collusion between individuals involved in the sale.
Since the ACCC first blocked the sale to Pacific National, Aurizon has sold its loss-making Queensland intermodal business, which was originally part of the deal, to the trucking giant Linfox rather than shut it down.
The ASX-listed Aurizon said it also welcomed the decision, which would allow it to complete the $205 million Acacia Ridge terminal sale. Aurizon’s shares closed up 1 per cent on Wednesday at $5.
Through the course of the case, some of Australia’s biggest companies including Coles, Woolworths and steelmaker Bluescope said they would not be able to use trucks to transport goods into northern Queensland if the Acacia Ridge sale hampered their access to rail.
Justice Beach’s has not yet released his full reasons for his decision.
Reporter for The Age