AUSTRALIAN COMPETITION TRIBUNAL

Applications by Insurance Australia Group Limited and RACWA Holdings Pty Ltd [2026] ACompT 3

IN THE AUSTRALIAN COMPETITION TRIBUNAL

DIRECTIONS

THE TRIBUNAL NOTES THAT:

A.    On 3 March 2026, Insurance Australia Group Limited (IAG) lodged a notification with the Australian Competition and Consumer Commission (Commission) in accordance with s 51ABX of the Competition and Consumer Act 2010 (Cth) (Act) in relation to its proposed acquisition of 100% of the issued share capital in RAC Insurance Pty Limited from RACI Pty Ltd (notified acquisition). RACI Pty Ltd is a wholly owned subsidiary of RACWA Holdings Pty Ltd (RACWA), which in turn is a wholly owned subsidiary of The Royal Automobile Club of WA Limited.

B.    The Commission has determined under s 51ABZE(1) of the Act that the notified acquisition must not be put into effect (competition determination). The determination and the statement of reasons for making the determination dated 22 September 2026 were included on the acquisitions register on 23 September 2026. Pursuant to s 51ABZE(5) of the Act, the competition determination is therefore taken to have been made on 23 September 2026.

C.    On 1 October 2026, IAG filed an application under s 100C of the Act with the Tribunal seeking a review of the competition determination (which has been allocated the proceeding number ACT 3 of 2026).

D.    On 5 October 2026, RACWA filed an application under s 100C of the Act with the Tribunal seeking a review of the competition determination (which has been allocated the proceeding number ACT 4 of 2026).

E.    IAG has informed the Tribunal that it intends to make a public benefit application in respect of the notified acquisition under s 51ABZP of the Act and will do so on or before 14 October 2026.

F.    RACWA has informed the Tribunal that it may make a public benefit application in respect of the notified acquisition under s 51ABZP of the Act and, if it does so, it will do so on or before 14 October 2026.

G.    On the filing of a public benefit application, s 100M(3) of the Act requires the Tribunal to cease proceedings for review of the competition determination until the Commission decides to cease considering the public benefit application under s 51ABZV of the Act or makes a determination under s 51ABZW(1) of the Act (public benefit determination). By s 100M(4) of the Act, days falling within that period are excluded from the calculation under s 100P.

H.    If the Commission makes a public benefit determination under s 51ABZW(1)(b) of the Act not to make the determination applied for, IAG and/or RACWA (as the case may be) may seek review of that determination by filing a separate application for review under s 100C of the Act.

I.    If the Commission makes a public benefit determination under s 51ABZW(1)(a) of the Act that the notified acquisition would be of public benefit, the applicants intend to discontinue this proceeding.

J.    These directions are being made in both ACT 3 of 2026 and ACT 4 of 2026.

THE TRIBUNAL DIRECTS THAT:

Applications for review

1.    Pursuant to s 100C(3) of the Act, the Tribunal allows RACWA to apply to the Tribunal for review of the competition determination.

2.    The applications for review in proceedings numbered ACT 3 of 2026 and ACT 4 of 2026 be case managed and heard together with evidence in respect of one application being evidence in the other application.

3.    In these directions, the applicant in ACT 3 of 2026 and the applicant in ACT 4 of 2026 are collectively referred to as the applicants.

4.    Pursuant to s 7-23(7) of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth), only one fee is payable in respect of the review application in ACT 3 of 2026 and the review application in ACT 4 of 2026.

Proposed public benefit application and Resumption Date

5.    If an applicant makes a public benefit application under s 51ABZP of the Act in respect of the notified acquisition:

(a)    within 1 business day after making the application, the applicant is to notify the Tribunal and the Commission in writing of the date on which the application was made;

(b)    within 1 business day after being notified by the Commission of the effective application date pursuant to s 51ABZP(7) of the Act, the applicant is to notify the Tribunal in writing of that date; and

(c)    no step directed below is required to be taken during the period in which the Tribunal must cease proceedings under s 100M(3) of the Act (save that this direction does not affect the applicants’ obligations to comply with s 100D of the Act).

6.    If the Commission decides under s 51ABZV of the Act to cease considering the public benefit application, or makes a public benefit determination under s 51ABZW(1)(b) of the Act in respect of it, within 1 business day of making the decision or the determination, the Commission is to notify the Tribunal and the applicants of that event and its date (the Resumption Date).

7.    If within 5 business days of the Resumption Date an applicant files with the Tribunal an application under s 100C(1) of the Act to review the public benefit determination referred to in paragraph 6 above and a concise statement in respect of that application under s 7-22 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth):

(a)    pursuant to s 7-23(7) of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth), only one determined fee is payable in respect of the applications for review of the competition determination and the public benefit determination relating to the notified acquisition;

(b)    the applications for review of the competition determination and the application(s) for review of the public benefit determination are to be case managed and heard together with evidence in respect of one application being evidence in the other applications; and

(c)    subject to a contrary indication, in the directions below:

(i)    a reference to the determination will be taken to be a reference to both the competition determination and the public benefit determination;

(ii)    a reference to the proceedings will be taken to be a reference to ACT 3 and 4 of 2026 and any proceeding that is commenced as a result of an application being filed with the Tribunal under s 100C(1) of the Act to review a public benefit determination referred to in paragraph 6 above; and

(iii)    a reference to the applicants will be taken to be a reference to the applicant in any of the proceedings referred to in sub-paragraph (ii) above.

Participants and service of documents

8.    Any application for permission to intervene in the proceedings under s 109(2) of the Act is to be made within 10 business days after the Resumption Date, or such other date as the Tribunal directs.

9.    Unless otherwise specified and subject to further direction, any document required to be served by these directions must be served on:

(a)    each of the applicants; and

(b)    any person who has been granted permission to intervene in the proceeding, (the participants) and the Commission.

Extended review period

10.    Pursuant to s 100P(3) of the Act, the period within which the Tribunal must make its determination on the reviews in proceedings ACT 3 and 4 of 2026, as specified in s 100P(2), is extended by a period of 60 days.

Confidentiality and provision of documents

11.    The confidentiality regime set out in the Annexure to these directions (Confidentiality Regime) applies to documents filed or served in the proceedings and identified as subject to a claim for confidentiality, until further direction.

12.    Pending further direction, and pursuant to s 106(2)(b) of the Act, access to the confidential versions of Attachment A (the Commission's statement of reasons dated 22 September 2026, including any annexure to it) and Attachment B (the notice of competition concerns dated 25 May 2026) to the applications is restricted to:

(a)    the Tribunal, Tribunal staff and any other person assisting the Tribunal;

(b)    barristers representing the applicants;

(c)    external solicitors and external experts of the applicants who have given a written confidentiality undertaking to the Commission;

(d)    the Commission, Commission staff and the Commission's barristers, external solicitors and external experts; and

(e)    Support Staff (as defined in the Confidentiality Regime) of the persons referred to above, and those documents are not to be made available for inspection by any other person.

13.    Subject to any further direction and paragraph 12 above, the Confidentiality Regime will apply to all documents filed and/or served by a participant or the Commission in the proceedings that are identified as being subject to a claim for confidentiality.

14.    Within 2 business days of the Resumption Date, each participant is to serve on each other participant and the Commission the names of each external solicitor retained by the participant and each internal solicitor employed by the participant whom the participant proposes be permitted to have unrestricted access to confidential information in accordance with paragraph 3(a) of the Confidentiality Regime (proposed permitted recipients).

15.    Within 10 business days of the Resumption Date, the Commission is to notify each non-participant who provided information, documents or evidence to the Commission in connection with the making of the determination on a confidential basis:

(a)    of the terms of the Confidentiality Regime and the names of each proposed permitted recipient for the purposes of paragraph 3(a) of the Confidentiality Regime; and

(b)    that the non-participant may apply to the Tribunal for further directions to be made with respect to the non-participant’s confidential information by filing a written application with the Tribunal on or before 15 business days after the Resumption Date identifying:

(i)    the confidential information to which the application relates; and

(ii)    the further directions sought by the non-participant.

16.    Within 15 business days of the Resumption Date, a participant may apply to the Tribunal for further directions to be made with respect to that participant’s confidential information by filing a written application with the Tribunal identifying:

(a)    the confidential information to which the application relates; and

(b)    the further directions sought by the participant.

17.    If an application is filed by a non-participant with the Tribunal in accordance with paragraph 15(b) or by a participant in accordance with paragraph 16:

(a)    the Tribunal will notify the non-participant (if applicable), each participant and the Commission of the time and date for the hearing of the application;

(b)    no later than 2 business days prior to the hearing date, the confidentiality applicant or participant (as applicable) seeking further directions must file and serve an outline submission of no more than 3 pages in support of the application; and

(c)    no later than 1 business day prior to the hearing date, each participant opposing the further directions must file and serve an outline submission of no more than 2 pages in response.

Provision of documents by the Commission

18.    Within 10 business days of the Resumption Date, the Commission is to file and serve a single chronological index (Documentary Index) of the following material, which identifies for each document whether any part of the document is subject to a claim for confidentiality and, if so, the person claiming confidentiality:

(a)    the information that was referred to in the Commission’s reasons for making the determination; and

(b)    any other information furnished, documents produced or evidence given to the Commission in connection with the making of the determination.

19.    Within 10 business days of the Resumption Date, the Commission is to serve on each participant an electronic bundle of the documents referred to in the Documentary Index that are not identified as being subject to a claim for confidentiality.

20.    Within 16 business days of the Resumption Date, the Commission is to serve on each participant an electronic bundle of the documents referred to in the Documentary Index that are identified as being subject to a claim for confidentiality and which are not the subject of an application for further directions under paragraphs 15(b) or 16. For the avoidance of doubt, the Confidentiality Regime will apply to those documents.

21.    The Commission is to serve on each participant an electronic bundle of the documents referred to in the Documentary Index that are identified as being subject to a claim for confidentiality and which are the subject of an application for further directions under paragraphs 15(b) or 16 in accordance with such directions as are made by the Tribunal upon the determination of the application for further directions.

Concise statement of contentions and disputed findings

22.    The concise statement required to be given to the Tribunal by the applicants in respect of each application to review a determination pursuant to s 7-22 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) must:

(a)    not exceed 20 pages; and

(b)    be served on each other participant and the Commission within 5 business days of the Resumption Date.

23.    Within 15 business days of the Resumption Date, each participant other than the applicants is to file and serve, in respect of each application to review a determination for which the participant has been given leave to intervene, a concise statement of contentions limited to 20 pages.

24.    Within 20 business days of the Resumption Date, the Commission is to file and serve a concise statement of contentions in respect of each application to review a determination limited to 20 pages.

Findings of fact and economics that are not contested

25.    Within 25 business days of the Resumption Date, the participants are to confer and file a joint document identifying all material findings of fact, economics and law set out in the Commission’s statement of reasons for determination that are not contested by any participant on the review.

Hearing

26.    The proceeding be listed for hearing on the following 12 days:

(a)    30 March to 2 April 2027;

(b)    5 to 8 April 2027; and

(c)    12 to 15 April 2027.

Constitution of the Tribunal

27.    Pursuant to ss 37 and 39(1) of the Act, for the purposes of hearing and determining the proceedings, the Tribunal is to be constituted by a Division comprising Justice Cameron Moore, Ms Diana Eilert and Professor Flavio Menezes.

Hearing Book

28.    By 25 business days of the Resumption Date, the applicants are to serve a draft index to a hearing book listing all documents proposed to be relied upon at the hearing.

29.    By 30 business days of the Resumption Date, each other participant and the Commission are to serve on the applicants a list of any documents to be included in the hearing book that are additional to the applicants’ list.

30.    By 32 business days of the Resumption Date, the applicants must file and serve a copy of the hearing book in electronic form which:

(a)    is produced in a text-recognised PDF format;

(b)    is paginated sequentially throughout;

(c)    is divided into separate volumes of documents such that each volume comprises a single PDF file and the file name of each PDF file is the volume number; and

(d)    contains, in each volume of documents (being a PDF file), electronic bookmarks to each document in that volume.

Submissions

31.    By 25 business days of the Resumption Date, each applicant must file and serve an outline submission in respect of each application to review a determination limited to 30 pages.

32.    By 30 business days of the Resumption Date, each participant other than the applicants is to file and serve an outline submission in respect of each application to review a determination for which the participant has been given leave to intervene limited to 20 pages.

33.    By 35 business days of the Resumption Date, the Commission must file and serve an outline submission in respect of each application to review a determination limited to 30 pages.

Other matters

34.    The participants and the Commission have liberty to apply on two business days’ notice, or earlier in a case of urgency.

ANNEXURE

Confidentiality Regime

1.    The following defined terms apply for the purposes of this Confidentiality Regime:

(a)    ACCC means the Australian Competition and Consumer Commission;

(b)    Act means the Competition and Consumer Act 2010 (Cth);

(c)    Confidential Information means all information filed with the Tribunal, served or otherwise produced in the Proceedings:

(i)    in respect of which a claim of confidentiality has been made and has not been refused by the Tribunal;

(ii)    which has been marked ‘Confidential’; and

(iii)    which is not in the public domain or is only in the public domain by reason of a breach by any person of a confidentiality undertaking in the Proceedings;

(d)    Determination means the determination made by the ACCC on 23 September 2026 (file number MN-65005) under s 51ABZE(1) of the Act and any future determination made by the ACCC under s 51ABZW(1)(b) of the Act in respect of the same notified acquisition;

(e)    Directions means the directions made by the Tribunal on 9 October 2026 to which this Confidentiality Regime is attached;

(f)    Participant means:

(i)    the applicants for review of the Determination; and

(ii)    any person who has been granted permission to intervene in the Proceedings;

(g)    Proceedings means ACT 3 and 4 of 2026 being the applications made by Insurance Australia Group Limited and RACWA Holdings Pty Ltd for review of an acquisition determination made by the ACCC on 23 September 2026 (file number MN-65005) under s 51ABZE(1) of the Act and any future application for review of a determination made by the ACCC under s 51ABZW(1)(b) of the Act in respect of the same notified acquisition (including any appeals from a decision of the Tribunal in the applications);

(h)    Support Staff means persons providing administrative assistance and includes secretaries, administrative assistants, graduates, paralegals, IT staff, print room staff and staff of external printing or technology vendors based in Australia;

(i)    Third Party means a person, other than a Participant, who provided information, documents or evidence to the ACCC in connection with the Determination on a confidential basis;

(j)    Tribunal means the Australian Competition Tribunal.

2.    The following persons have unrestricted access to the Confidential Information, provided that such persons keep that material confidential and in accordance with this Confidentiality Regime:

(a)    the Tribunal, Tribunal staff and any other person assisting the Tribunal;

(b)    the ACCC, ACCC staff and any other person assisting the ACCC in relation to the Proceedings including the ACCC's barristers and external solicitors; and

(c)    Support Staff of the persons listed in paragraphs 2(a)-(b) and paragraphs 3(a)-(d) of this Confidentiality Regime.

3.    The following persons have unrestricted access to the Confidential Information, provided that such persons have signed the Confidentiality Undertaking in the form attached before receiving the Confidential Information and the Confidential Information is only used for the purpose of the Proceedings:

(a)    external solicitors retained by a Participant and internal solicitors employed by a Participant who are directly involved in the Proceedings provided that:

(i)    the name of the solicitor was notified to the other Participants and the ACCC in accordance with the Directions; and

(ii)    no objection was made by any Participant or Third Party in accordance with the Directions to the solicitor having access to the Confidential Information under this Confidentiality Regime, or any objection was dismissed by the Tribunal;

(b)    barristers retained by a Participant who are directly involved in the Proceedings;

(c)    independent experts retained for the purposes of the Proceedings on behalf of a Participant;

(d)    independent experts and external consultants engaged for the purposes of the Proceedings by the ACCC (but such experts and external consultants are only required to sign the confidentiality undertaking in the form attached and marked “Confidentiality Undertaking” to access Confidential Information not in their control prior to the commencement of the Proceedings);

(e)    any other external solicitor retained by a Participant who is directly involved in the Proceedings provided that:

(i)    the name of the person is first notified to each Participant or Third Party whose Confidential Information is proposed to be accessed by the person; and

(ii)    the notified Participant or Third Party does not object in writing within 4 business days of receiving notification; and

(f)    any other person with the prior written consent of each Participant or Third Party whose Confidential Information is proposed to be accessed by the person.

4.    If a Participant or Third Party objects to access in accordance with paragraph 3(e)(ii) above, the Participant seeking access may apply in writing to the Tribunal to have the access dispute determined.

5.    The Participants and the ACCC are each to keep a register of the persons within their organisation, or retained by their organisation, who have signed Confidentiality Undertakings pursuant to paragraph 3 above, and of the external printing or technology vendors based in Australia who have been provided with any Confidential Information, which register can be inspected on 3 business days’ notice.

6.    The Confidential Information must not be referred to orally during the hearing of the Proceedings unless the Tribunal has directed that the hearing is to take place in private pursuant to s 106(2) of the Act.

7.    Until further direction of the Tribunal, Confidential Information is not to appear in any transcript of the Proceedings before the Tribunal other than in a confidential copy of the transcript, which shall only be made available to the persons referenced in paragraphs 2 and 3 of this Confidentiality Regime and otherwise as permitted by this Confidentiality Regime.

8.    For the avoidance of doubt, nothing in this regime prevents:

(a)    one or more of the Participants and the ACCC from having access to or otherwise dealing with their own Confidential Information;

(b)    the ACCC having access to or otherwise dealing with Confidential Information of any Participant that was in its control prior to the commencement of the Proceedings.

ATTACHMENT TO CONFIDENTIALITY REGIME

Confidentiality Undertaking

I, [name], [occupation], of [address], on [date] hereby undertake as follows:

1.    In this undertaking:

(a)    ACCC means the Australian Competition and Consumer Commission;

(b)    Confidential Information means all information filed with the Tribunal, served or otherwise produced in the Proceedings:

(i)    in respect of which a claim of confidentiality has been made and has not been refused by the Tribunal;

(ii)    which has been marked ‘Confidential’; and

(iii)    which is not in the public domain or is only in the public domain by reason of a breach by any person of a confidentiality undertaking in the Proceedings;

(c)    Confidentiality Regime means the confidentiality regime annexed to the directions of the Tribunal made in the Proceedings on 9 October 2026;

(d)    Proceedings means ACT 3 and 4 of 2026 being the applications made by Insurance Australia Group Limited and RACWA Holdings Pty Ltd for review of an acquisition determination made by the ACCC on 23 September 2026 (file number MN-65005) under s 51ABZE(1) of the Act and any future application for review of a determination made by the ACCC under s 51ABZW(1)(b) of the Act in respect of the same notified acquisition (including any appeals from a decision of the Tribunal in the applications);

(e)    Support Staff means persons providing administrative assistance and includes secretaries, administrative assistants, graduates, paralegals, IT staff, print room staff and staff of external printing or technology vendors based in Australia.

(f)    Tribunal means the Australian Competition Tribunal.

2.    I will not use the Confidential Information for any purpose other than my work in respect of the Proceedings.

3.    I will keep the Confidential Information confidential and will not disclose the Confidential Information directly or indirectly to any person, other than persons who have signed this undertaking, or any other persons permitted to access such information pursuant to the Confidentiality Regime or any directions of the Tribunal in the proceedings related to confidentiality.

4.    To the extent that I possess the Confidential Information, I will:

(a)    establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access or use;

(b)    keep the Confidential Information under my effective control; and

(c)    immediately notify the ACCC and the party who made the claim of confidentiality in writing of any suspected or actual unauthorised use, copying or disclosure of the Confidential Information, of which I become aware.

5.    To the extent that I cause, or permit, any Support Staff to have access to the Confidential Information:

(a)    that will occur on the basis that the Confidential Information is treated in accordance with clause 4 above; and

(b)    I will ensure that any access given to external printing or technology vendors based in Australia is on the basis that those vendors do not retain any of the Confidential Information after completion of their services.

6.    Following the final determination of the Proceedings, subject to any professional obligations I have to retain any of the Confidential Information, I will:

(a)    use reasonable efforts to destroy the Confidential Information in my possession, custody or control; or

(b)    otherwise, in respect of any Confidential Information under my effective control and not destroyed in accordance with subparagraph (a), deal with it only in accordance with this undertaking.

7.    I acknowledge that my obligations in this undertaking will continue after the final determination of the Proceedings (or such other period as the Tribunal determines is appropriate) and the destruction of the Confidential Information.

8.    I acknowledge that damages may not be an adequate remedy for the breach of my obligations in this undertaking and that the person who made a claim of confidentiality in respect of that information may be entitled to equitable relief (including, without limitation, injunctive relief) in respect of any threatened or actual breach of my obligations in this undertaking.

9.    Nothing in this undertaking shall impose an obligation upon me in respect of information:

(a)    which is in the public domain; or

(b)    which has been obtained by me otherwise than in relation to the Proceedings, provided that the information is not in the public domain and/or has not been obtained by me by reason of, or in circumstances which involve, any breach of confidentiality undertaking or a breach of any other obligation of confidence in favour of a person who made a claim of confidentiality in respect of that information or by any other unlawful means, of which I am aware.

10.    I irrevocably submit to the jurisdiction of the Tribunal for the purposes of enforcing the terms of this undertaking.

SIGNED by [insert name] in the presence of:

REASONS FOR DIRECTIONS

O’BRYAN J:

Background

1 On 3 March 2026, Insurance Australia Group Limited (IAG) lodged a notification with the Australian Competition and Consumer Commission (ACCC) in accordance with s 51ABX of the Competition and Consumer Act 2010 (Cth) (Act) in relation to its proposed acquisition of 100% of the issued share capital in RAC Insurance Pty Limited from RACI Pty Ltd (the notified  acquisition). RACI Pty Ltd is a wholly owned subsidiary of RACWA Holdings Pty Ltd (RACWA), which in turn is a wholly owned subsidiary of The Royal Automobile Club of WA Limited.

2 The ACCC has determined under s 51ABZE(1) of the Act that the notified acquisition must not be put into effect because the ACCC is satisfied that the notified acquisition, if put into effect, would in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in a market (competition determination). The competition determination and the statement of reasons for making the determination dated 22 September 2026 were included on the acquisitions register on 23 September 2026. Pursuant to s 51ABZE(5) of the Act, the competition determination is therefore taken to have been made on 23 September 2026.

3 On 1 October 2026, IAG filed an application under s 100C of the Act with the Tribunal seeking a review of the competition determination (which has been allocated the proceeding number ACT 3 of 2026).

4 On 5 October 2026, RACWA filed an application under s 100C of the Act with the Tribunal seeking a review of the competition determination (which has been allocated the proceeding number ACT 4 of 2026).

5 An initial directions hearing was held on 8 October 2026 in respect of the applications for review. At the directions hearing, IAG informed the Tribunal that it intends to make a public benefit application to the ACCC in respect of the notified acquisition under s 51ABZP of the Act and will do so on or before 14 October 2026. RACWA informed the Tribunal that it may also make a public benefit application in respect of the notified acquisition.

6 On the filing of a public benefit application, s 100M(3) of the Act requires the Tribunal to cease proceedings for review of the competition determination until the Commission:

(a)    decides under s 51ABZV to cease considering the public benefit application; or

(b)    makes a determination under s 51ABZW(1) of the Act in respect of the public benefit application, which is either that the acquisition would be of public benefit or not to make the determination applied for (public benefit determination).

7 By s 100M(4) of the Act, days falling within the period in which the Tribunal must cease the proceedings for review are excluded from the calculation of the applicable time limit for the review under s 100P.

8 IAG and RACWA also informed the Tribunal that, if the Commission makes a public benefit determination under s 51ABZW(1)(a) that the notified acquisition would be of public benefit, they intend to discontinue these proceedings (as they would then be permitted to put the notified acquisition into effect). However, if the Commission makes a public benefit determination under s 51ABZW(1)(b) not to make the determination applied for, IAG and or RACWA (as the case may be) may seek review of the public benefit determination by filing a separate application for review in respect of that determination under s 100C of the Act.

9 IAG and RACWA seek timetabling directions to enable both of the current proceedings, and any future application for review of a public benefit determination to be heard and determined by the Tribunal concurrently and at the earliest time that can be accommodated by the Tribunal. IAG and RACWA also seek an order from the Tribunal under s 7-23(7) of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) that only one fee be payable in respect of the applications for review of the competition determination and a future public benefit determination.

10 As the present applications have been made under the merger regime introduced into the Act relatively recently by the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth), the Tribunal is publishing these short reasons to explain its approach to the hearing of multiple applications to review a competition determination and multiple applications to review related competition and public benefit determinations.

Multiple applications to review a competition determination

11 The present proceedings concern a proposed acquisition by IAG of all of the issued share capital in RAC Insurance Pty Limited, which is a wholly owned subsidiary of RACWA. IAG notified the acquisition to the ACCC in accordance with s 51ABX, and the ACCC has determined under s 51ABZE(1) of the Act that the notified acquisition must not be put into effect.

12 IAG filed an application under s 100C with the Tribunal seeking a review of the ACCC’s competition determination. As IAG was the notifying party of the acquisition to the ACCC, IAG is permitted to bring its application under s 100C as of right.

13 RACWA also filed an application under s 100C with the Tribunal seeking a review of the ACCC’s competition determination. As RACWA was not the notifying party of the acquisition to the ACCC, RACWA is only permitted to bring its application if allowed by the Tribunal under s 100C(3). Subsection 100C(4) stipulates that, in considering whether to allow a person to apply to the Tribunal under subsection (3), the Tribunal must have regard to:

(a)    the person’s interest in the matter; and

(b)    the efficient administration of the acquisitions provisions; and

(c)    whether the application has any reasonable prospects of success; and

(d)    any other matter that the Tribunal considers relevant.

14 The Tribunal is satisfied that RACWA’s interest in the matter is sufficient to allow it to bring its application. The counter party to an acquisition that has been notified to the ACCC has a clear interest in reviewing a determination made by the ACCC in respect of the notification, as its commercial interests are directly affected by the determination. Where both a notifying party and a counter party to the acquisition have filed applications for review of an ACCC determination in respect of the notified acquisition, the Tribunal will ordinarily make directions for the two applications to be case managed and heard and determined together. The Tribunal would expect that the two applicants would cooperate in the conduct of the hearing and avoid duplication, to ensure that the applications are conducted efficiently.

15 The Tribunal notes that, in circumstances where a notifying party has filed an application under s 100C with the Tribunal seeking a review of the ACCC’s determination in respect of the notified acquisition, it is not necessary for a counter party to the notified acquisition to file a further application under s 100C in order to be heard in the Tribunal proceeding. The Tribunal is empowered by s 109(2) to permit a person to intervene in a proceeding before the Tribunal upon such conditions as it thinks fit. The discretion conferred by s 109(2) is not confined by statutory criteria such as a ‘sufficient’ or ‘real and substantial’ interest, and an intervenor need only establish some connection or interest in the subject matter of the proceeding: Application by Fortescue Metals Group Ltd [2006] ACompT 6 (also reported as Re Fortescue Metals Group Ltd (2006) 203 FLR 28) (at [30], [35] and [43]).  Ordinarily, the Tribunal will consider how the intervenor may be affected by the determination being reviewed and whether the intervenor is able to usefully or relevantly add to, or supplement, the evidence or submissions proposed to be made on the application: Application by Independent Contractors Australia [2015] ACompT 1 (also reported as Re Independent Contractors Australia (2015) 292 FLR 80 at [28]). In an ordinary case, where a notifying party has filed an application under s 100C with the Tribunal seeking a review of the ACCC’s determination in respect of the notified acquisition, a counter party to the notified acquisition would be considered by the Tribunal to have a direct interest in the subject matter of the proceeding sufficient to be permitted to intervene, with the Tribunal able to make directions to avoid duplication in the presentation of evidence or submissions.

16 Under s 112 of the Act and s 7-23 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth), a fee is payable in respect of each application made under s 100C of the Act. The applicable fee is determined in accordance with s 7-23(3) which provides as follows:

The fee in respect of an application to the Tribunal for review of an acquisition determination under Division 1B of Part IX of the Act is the lesser of:

(a)     0.12% of the amount that is the greater of the following (on the contract date, or where there is no contract date, the effective notification date):

(i)     the sum of the market values of all the shares and assets being acquired as part of the contract, arrangement or understanding, pursuant to which the acquisition is to take place;

(ii)    the consideration received or receivable for all of the shares and assets being acquired as part of the contract, arrangement or understanding, pursuant to which the acquisition is to take place; and

(b)     $2,950,000.

17 IAG paid the required fee when it filed its application under s 100C. A consequence of RACWA filing a second application under s 100C with the Tribunal is that a second fee became payable in respect of the same determination being reviewed. The Tribunal notes that a second fee would not become payable if RACWA had elected to intervene in the proceeding commenced by IAG rather than file a second application for review.

18 Under s 7-22(7), the Tribunal is given a discretion to order that only one fee is payable in respect of 2 or more applications. Section 7-23(7) provides as follows:

The Tribunal may order that only one fee determined under subsection (2) or (3) (the determined fee) fee is payable in respect of 2 or more applications if:

(a)     apart from this subsection, the same determined fee would be payable in respect of each of the applications; and

(b)     the applications relate to:

(i)     the same applicant; or

(ii)     different applicants, and the Tribunal considers that, having regard to the relationship between the applicants, it is reasonable to treat the applications as relating to the same applicant; and

(c)     in the opinion of the Tribunal, the applications may be conveniently heard before the Tribunal at the same time.

19 In the present matter, RACWA has applied to the Tribunal for an order under s 7-23(7) that only one fee be payable in respect of the two applications to review the ACCC’s acquisition determination. I consider that it is appropriate to make that order because:

(a)    apart from the order, the same determined fee would be payable in respect of each of the applications;

(b)    having regard to the relationship between the applicants, being the acquirer and the parent company of the seller in respect of the notified acquisition, I consider it reasonable to treat the applications as relating to the same applicant; and

(c)    in my view, the applications can be conveniently heard before the Tribunal at the same time.

Conduct of applications to review related competition and public benefit determinations

20 As noted above, IAG has informed the Tribunal that it intends to make a public benefit application to the ACCC in respect of the notified acquisition under s 51ABZP of the Act. RACWA may also make such an application. On the filing of a public benefit application, s 100M(3) of the Act requires the Tribunal to cease proceedings for review of the competition determination until the Commission:

(a)    decides under s 51ABZV to cease considering the public benefit application; or

(b)    makes a public benefit determination under s 51ABZW(1).

21 IAG and RACWA also informed the Tribunal that, if the Commission makes a public benefit determination under s 51ABZW(1)(b) not to make the determination applied for, IAG and/or RACWA (as the case may be) may seek review of the public benefit determination by filing a separate application for review in respect of that determination under s 100C of the Act.

22 IAG and RACWA seek timetabling directions to enable both of the current proceedings, and any future application for review of a public benefit determination to be heard and determined by the Tribunal concurrently. The Tribunal agrees that, ordinarily, the most efficient course is for the Tribunal to hear and determine an application to review a competition determination and an application to review a public benefit determination that relate to the same notified acquisition at the same time. The underlying determinations will have a common substratum of relevant facts and the assessment of the likely competitive effects of the proposed acquisition required by s 51ABZE(2)(c) will be relevant to the net public benefit assessment required by s 51ABZW(2).

23 However, it must be recognised that the joint hearing of an application to review a competition determination and an application to review a public benefit determination increases the complexity, and therefore the likely duration, of the hearing. Inevitably, this affects the time required by the applicants and the ACCC to prepare the applications for hearing.

24 The Tribunal agrees with the applicants that, although one or both of the applicants will shortly file a public benefit application with the ACCC, and as a consequence the current proceedings must be ceased by the Tribunal until that application is determined by the ACCC, the most efficient course is for the Tribunal to timetable a hearing of both the application to review the competition determination and any future application to review the public benefit determination (once it is made). This will provide certainty for the applicants with respect to the timeframe for determining the applications.

25 However, the Tribunal considers that the timetable proposed by the applicants for preparing the various applications for hearing, and for the conduct of the hearing, was not realistic. The Tribunal is conscious of the legislative objective of providing an efficient merger review procedure for parties to proposed acquisitions, but the reviews must still be conducted in a manner that enables the Tribunal to hear and assess the issues in a considered manner. Where the review involves both competition and public benefit considerations, some allowance must be made for the additional issues that will need to be considered.

26 As noted above, when a public benefit application is filed in respect of the notified acquisition, the Tribunal must cease the current proceedings, and the time for the Tribunal’s review of the competition determination will also be suspended. The proceedings will effectively recommence when the ACCC makes a public benefit determination. Assuming that, by that time, the applicants have given the Tribunal the information and documents required to be given under s 100D, the time period for the Tribunal to make a determination in respect of the applications to review the competition determination will recommence. The time period for the Tribunal to make a determination in respect of any future application to review the public benefit determination will commence upon the filing of the application and the information and documents required to be given under s 100D in respect of that application.

27 Overall, the Tribunal considers that the necessary preparation of both applications for hearing will require at least 35 business days, and that the hearing may require 12 days. As the applicants currently estimate that the last date by which the ACCC is likely to make a public benefit determination is the beginning of February 2027, it will not be practicable to conduct a hearing before the end of March 2027. The Tribunal will make suitable directions to that end.

28 A consequence of the timetabling directions is that it is unlikely that the Tribunal will be able to make a determination on the current applications to review the ACCC’s competition determination and a future application to review a public benefit determination within the 90 day period specified in s 100P(2). In the circumstances, the Tribunal will extend the period for the current applications to review the ACCC’s competition determination by 60 days under s 100P(3). If and when an application is made to review a public benefit determination, a similar extension will be required in respect of the application.

29 Finally, IAG and RACWA also seek an order from the Tribunal under s 7-23(7) of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) that only one fee be payable in respect of the applications for review of the competition determination and a future public benefit determination. I consider that it is appropriate to make that order, for substantially the same reasons as stated earlier. Apart from the order, the same determined fee would be payable in respect of each of the applications. The applications to review the competition determination and the public benefit determination will be made by the same applicants and, in so far as separate applications are made by IAG and RACWA, having regard to the relationship between them, I consider it reasonable to treat the applications as relating to the same applicant.  In my view, the applications can be conveniently heard before the Tribunal at the same time.

Associate:

Dated:    9 October 2026