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Wednesday, 2 November 2011
Page: 8085

Australian Competition and Consumer Commission

(Question No. 1263)

Senator Boswell ask the Minister representing the Treasurer, upon notice, on 26 September 2011:

In regard to the Australian Competition and Consumer Commission (ACCC) and its legal action against the acquisition of Franklins by Metcash:

(1) What are the costs associated with the ACCC's Federal Court action and its request for an injunction pending the appeal.

(2) What are the estimated costs of the appeal against Justice Emmett's judgment, including the potential awarding of costs to Metcash.

(3) What is the estimated exposure to a damages payout should the struggling Franklins business suffer unsustainable and irreparable losses during the appeal process.

Senator Wong: The Treasurer has provided the following answer to the honourable senator's question:

(1) Federal Court action: The ACCC's legal and related costs in the matter of ACCC v Metcash & Ors in the first instance before Emmett J were around $3.4 million.

Interlocutory application for an interim injunction: The ACCC's estimated legal and related costs of the interlocutory application for an interim injunction are expected to be around $85,000 - $90,000 (GST excl). Total actual costs incurred are not known at this time as the ACCC has not received all relevant invoices.

(2) Estimated costs of appeal to Full Federal Court: At this time, the ACCC has allocated around $850,000 (GST excl) for legal and related costs of its appeal of Emmett J's judgment in ACCC v Metcash & Ors before the Full Federal Court (excluding costs associated with interlocutory application for interim injunction). This allocation may need to be revised as the matter progresses.

Regarding potential awarding of costs to Metcash, it is not possible to quantify any such costs at this time. The ACCC does not have information on Metcash's costs incurred in relation to the proceeding below or in the appeal. In any event, if the ACCC is successful in the appeal, the ACCC has sought orders that costs be paid by the respondents.

(3) Estimated exposure to damages payout: On 30 September 2011, 21 days after the ACCC filed its Notice of Appeal, Metcash Trading Limited announced to the ASX that it had proceeded with its acquisition of all the issued capital in Interfrank Group Holdings Pty Limited, the owner and operator of the Franklins business in Australia. Accordingly, the ACCC is unlikely to be exposed to any damages payout relating to the appeal process.