In August 2010, the Federal Court handed down its interlocutory judgment in ACCC v Link Solutions, a case that dealt with allegations of third line forcing. The Court ordered that the proceedings against two of the finance companies be dismissed, but gave the Commission leave to re-plead its case and file a second amended statement of claim in respect of the other respondents.
At the directions hearing on 31 August 2011, the ACCC indicated that it was close to settlement with entities of the World Tel and Clear groups (telecommunications companies), and that Australian Integrated Finance, the only remaining finance company attached to the proceedings, was in liquidation. The matter was stood over pending expected settlement against those parties.
It appears that the only entity against which proceedings are progressing towards the scheduled March 2012 hearing date is Axis Telecoms P/L. More will become apparent after the next directions hearing in December 2011.
Should the matter settle, it will be a lost opportunity for Court to clarify the operation of section 47. The previous judgment had clarified the meaning of “another person” whom the customer must be “forced” to acquire goods or services from, finding that:
- the reference to “another person” includes the plural; that is, means “another person or persons”;
- to amount to third line forcing, the other person must be specified; that is, “another person” cannot be merely any other person; and
- the reference to “another person” can include a panel and is not restricted to a single person. However, it does not extend to any other, unknown or unspecified, third party. The question of what constitutes a panel was not explored.
The Federal Court had also found that in order to be accessorily liable for the third line forcing conduct of another, a finance company would have had to know that the customer was directed to by the telecommunications company it as a condition of receiving call credits and the customer had not been given the choice of any finance company. Mere knowledge that the customer made an application to the finance company and that there was a link between accepting that application and the giving of call credits by the telecommunications company was not sufficient.