If the ACCC is granted special leave to appeal it would be the first time the High Court has considered Australia’s merger laws.

The ACCC has opposed the deal from the outset because it believed it would reduce competition, but was rebuffed in a decision from the Federal Court to wave the purchase through.

“We believe that the Full Federal Court’s decision does not recognise the full impact of the proposed acquisition on competition in this vitally important industry,” ACCC Chair Rod Sims said.

“Competition depends on rivals having the chance to compete. While no one can predict the future, we do know that, with this acquisition, the barriers to entry would become effectively insurmountable and Pacific National’s near monopoly as the dominant rail freight carrier on the east coast would be entrenched.”

“A lack of competition in rail freight would likely lead to increased prices, for businesses and consumers around the country,” Sims said.

The case centres on the interpretation of section 50 of the Competition and Consumer Act (CCA), which prohibits any acquisition that would be likely to have the effect of substantially lessening competition. The ACCC will also seek the High Court’s ruling on the scope of a court’s power to accept an undertaking as a remedy after finding that a proposed acquisition is anti-competitive.

“We are seeking special leave to appeal to the High Court because it is vital for Australian businesses and consumers that competition laws are effective in protecting the competitive process,” Sims said.