While I agree that the ACCC should not be deterred from running hard cases, they have to ensure that they run the hard cases better. As noted by Wigney J:
24 Regrettably, the Commission’s “hub and spoke” case also lacked clarity and particularity. As events transpired, it also lacked merit.26 Somewhat peculiarly, though, the Commission elected not to cross-examine the rival expert witness called by Cussons.
44 There can be no doubt that the Commission’s loss at first instance in this case was emphatic. The Commission’s case failed at virtually every hurdle.
46 The apparent inability of the Commission to identify, let alone prove, precisely when and by whom the arrangement was made, or the understanding reached, may not have been fatal to the Commission’s case; but properly considered, it should have at least rung alarm bells.
48 It is difficult to avoid the conclusion that the Commission approached its case with a degree of tunnel vision; starting with the parallel conduct in March 2009 and then working backwards...
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