The competition watchdog has appealed against the Federal Court's decision to allow rail operator Pacific National's acquisition of Aurizon's Acacia Ridge Terminal.
The Australian Competition and Consumer Commission is appealing against last month's dismissal of its attempt to block the deal on the grounds it would substantially lessen competition in regional rail haulage.
The Federal Court had dismissed the ACCC's concerns in May because Pacific National had offered a court-enforceable undertaking that it said would prevent it from discriminating against other rail operators accessing the Acacia Ridge Terminal.
"Our appeal will focus on the ability of courts to accept undertakings in these circumstances," ACCC chairman Rod Sims said.
"Among other things, we will argue that the Court made an error by accepting the undertaking, and then using it as a relevant fact when determining whether there was likely to be a substantial lessening of competition."
"This appeal is crucial to Australia's merger regime because acceptance of undertakings of this kind by the court means that anti-competitive mergers could be approved, and this has the potential to damage the Australian economy," Mr Sims said.
Mr Sims said there were "many subtle ways" that Pacific National could discriminate against competitors if it were allowed to acquire Acacia Ridge Terminal, regardless of any commitments it had made in an undertaking.
"Potential new entrants will be well aware of this risk, and, in our opinion, this may mean companies are less likely to enter what is already a highly concentrated market," Mr Sims said.
"It's important to remember the undertakings we've committed to did not previously exist at Acacia Ridge Terminal and any assertion that we would somehow subtly work to discriminate against other users is simply wrong," a Pacific National spokesman said in an email.
He said the ACCC's court action "has been an expensive and reputationally damaging exercise" and that the Federal Court judgment "created a pro-competitive outcome for freight in Australia by guaranteeing access for new entrants to get freight from road to rail".
"We'll continue to argue our case in court but look forward to getting on with moving goods for the benefit of all Australians," he said.
Aurizon said in a statement it would continue operating the Acacia Ridge Terminal, which it is making a small profit on, as per current arrangements until the matter can be heard.
Aurizon said the ACCC was asserting the court made an error by accepting the access undertaking in relation to use of the terminal.
"Aurizon does not accept this assertion and is of the view this matter was fully considered by the Federal Court and the decision handed down in May 2019 was clear and comprehensive," the company said.
