Competition and Consumer Act - Australia

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the application of a person (in this subsection referred to as the applicant) other than the Minister or the Commission, made a declaration under subsection 50A(1) in relation to the acquisition by a person of a controlling interest in a corporation, the applicant is entitled to make an application under subsection (1) for an injunction by reason that the corporation has contravened or attempted to contravene or is proposing to contravene subsection 50A(6) in relation to that declaration.

      (2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

      (3) The Court may rescind or vary an injunction granted under subsection (1) or (2).

      (4) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

      (a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;

      (b) whether or not the person has previously engaged in conduct of that kind; and

      (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

      (5) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

      (a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;

      (b) whether or not the person has previously refused or failed to do that act or thing; and

      (c) whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

      (6) Where the Minister or the Commission makes an application to the Court for the grant of an injunction under this section, the Court shall not require the applicant or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

      (6A) Subsection (6) does not apply to an application by the Minister for an injunction relating to Part IV.

      (7) Where:

      (a) in a case to which subsection (6) does not apply the Court would, but for this subsection, require a person to give an undertaking as to damages or costs; and

      (b) the Minister gives the undertaking;

      the Court shall accept the undertaking by the Minister and shall not require a further undertaking from any other person.

      (8) Subsection (7) does not apply in relation to an application for an injunction relating to Part IV.

      (9) If the Director of Public Prosecutions makes an application to the Court for the grant of an injunction under this section in relation to:

      (a) a person’s contravention, or proposed contravention, of section 44ZZRF or 44ZZRG; or

      (b) a person’s involvement, or proposed involvement, in a contravention of section 44ZZRF or 44ZZRG;

      the Court must not require the Director of Public Prosecutions or any other person, as a condition of granting an interim injunction, to give any undertakings as to damages.

      80AB Stay of injunctions

      (1) The Court may stay the operation of an injunction granted under section 80 if:

      (a) the injunction is in respect of conduct that constitutes or would constitute a contravention of subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA or an associated contravention; and

      (b) there is a proceeding in respect of a dispute relating to the conduct pending before a court, tribunal or authority of a State or Territory under a prescribed provision of a law of the State or Territory; and

      (c) the conduct relates to the supply of goods or services to, or the acquisition of goods or services from, a person who is or becomes a party to the proceeding referred to in paragraph (b); and

      (d) any of the following has applied for the stay:

      (i) a Minister of the Commonwealth;

      (ii) if subparagraph (b)(ii) applies — a Minister of the State or Territory concerned;

      (iii) a party to the proceeding for the injunction; and

      (e) the Court considers that granting the stay:

      (i) would be likely to facilitate the settlement of the dispute by conciliation; and

      (ii) would, in all the circumstances, be just.

      (2) An order staying the operation of the injunction may be expressed to have effect for a specified period and may be varied or rescinded by the Court at any time.

      (3) If the proceeding referred to in paragraph (1)(b) is terminated because the State or Territory court, tribunal or authority has settled the dispute to which the conduct relates by conciliation, the Court must not make any order in relation to the costs of the proceedings in respect of the granting of the injunction or in relation to the costs of any proceedings for the rescission of the injunction.

      (4) Nothing in this section affects other powers of the Court.

      (5) In this section:

      associated contravention means:

      (a) attempting to contravene subsection 45D(1), 45DA(1), 45DB(1), 45E(2) or 45E(3) or section 45EA; or

      (b) aiding, abetting, counselling or procuring a person to contravene any of those provisions; or

      (c) inducing, or attempting to induce, a person (whether by threats, promises or otherwise) to contravene any of those provisions; or

      (d) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of any of those provisions; or

      (e) conspiring with others to contravene any of those provisions.

      injunction includes an interim injunction.

      80AC Injunctions to prevent mergers if clearance or authorisation granted on the basis of false or misleading information

      (1) If, on the application of the Commission, the Court is satisfied that:

      (a) a person is proposing to acquire shares in the capital of a body corporate or assets of a person; and

      (b) the person was granted, under Division 3 of Part VII (mergers), a clearance or an authorisation for the proposed acquisition on the basis of information that was false or misleading in a material particular; and

      (c) that information was given by the person or a body corporate that was related to the person; and

      (d) if that information had not been given, the clearance or authorisation would not have been granted; and

      (e) apart from the clearance or authorisation, the acquisition would contravene section 50 if it occurred;

      then the Court may grant an injunction in such terms as the Court determines to be appropriate.

      (2) However, the Court must not grant the injunction if:

      (a) the person was granted both a clearance and an authorisation for the acquisition under Division 3 of Part VII; and

      (b) the Court could not grant an injunction under this section in relation to both the clearance and the authorisation.

      Example: If a clearance for an acquisition was granted by the Commission on the basis of false or misleading information, and an authorisation for the acquisition was granted by the Tribunal on the basis of true information, then the Court cannot grant an injunction under this section because it would not be able to grant the injunction in relation to the authorisation.

      81 Divestiture where merger contravenes section 50 or 50A

      (1)

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