Competition Law Cases

ACCC v Cascade Coal Pty Ltd [2019] FCAFC 154 (4 September 2019)
(Justices Jagot, Beach and Bromwich)
Cartel conduct - meaning of ‘in competition’

The Court dismissed the ACCC’s appeal; focus was on whether the parties were ‘in competition’ at the relevant time. The Court concluded the trial judge did not err in finding that they were not.

Appeal from: ACCC v Cascade Coal Pty Ltd (No 3) [2018] FCA 1019 ➤ (6 July 2018)

CDPP v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170(2 August 2019)
(Justice Wigney)
Criminal cartel - sentencing

Guilty plea. Related to the previous NYK cartel and subsequent WWO cartel. The charges alleged cartel conduct relating to the international shipping of cars, trucks, and buses to Australia between July 2009 and September 2012. A fine of $34.5 million was imposed for giving effect to a cartel provision (ACCC media release on K-line).

ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)
(Justice Perram)
Penalties (cartels - price fixing)

Penalty judgment in relation to Garuda: $19m imposed. The ACCC claimed that Air NZ and Garuda had been involved in price fixing in relation to certain fuel surcharges. The trial judge held that there was no 'market in Australia' and dismissed the case. The ACCC appealed (press release). On 21 March 2016, the Full Federal Court, by majority, upheld the appeals. Air NZ and Garuda applied for, and were granted, special leave to appeal. The High Court unanimously dismissed both appeals.

High Court (appeal dismissed): Air New Zealand Ltd v ACCC; PT Garuda Indonesia Ltd v ACCC [2017] HCA 21 (14 June 2017)
Full Court (appeal upheld): ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42 (21 March 2016)
Trial: ACCC v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

Penalty (Air NZ): ACCC v Air New Zealand Limited (No 15) [2018] FCA 1166 (27 June 2018)
Penalty (Garuda): ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)

ACCC v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 ➤ (24 May 2019)
(Justices Middleton, Perram and Bromwich)
Cartels (price fixing)

The ACCC alleged an arrangement or understanding with other suppliers of ultra concentrated laundry detergent containing exclusionary provisions or provisions having the purpose or likely effect of lessening competition in the market for laundry detergent in Australia. Consideration of whether agreement or mere oligopolistic behaviour. This was an appeal from the contested proceedings against Cussons in which the trial judge held that the applicant had not demonstrated that the respondent had entered into the alleged arrangement or understanding. The appeal was dismissed.

Appeal from: ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 ➤ (22 December 2017)

See also: ACCC v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676 ➤ (3 June 2016) (Woolworths admission and pecuniary penalties of $9m)
See also: ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 ➤ (16 May 2026) (Colgate admission and penalties of $18m)

ACCC v Pacific National Pty Limited (No 2) [2019] FCA 669 (15 May 2019)
(Justice Beach) 
Mergers - anti-competitive agreements

Vertical acquisition involving Queensland rail terminal (s 50 CCA). The ACCC alleged Pacific National’s acquisition of the Acacia Ridge terminal from Aurizon would substantially lessen competition in breach of s 50 and further that a ‘terminal services subcontract’ between Pacific National and Aurizon would substantially lessen competition in contravention of s 45. No breach found in relation to s 45 or s 50, but Justice Beach observed that if Pacific National had not provided undertakings he would have found a breach.

Appeal to FCAFC (dismissed): ACCC v Pacific National Pty Ltd [2020] FCAFC 77‍
Special leave to the High Court: refused

ACCC v Cryosite Ltd [2019] FCA 116 (9 March 2017)
(Justice Beach)
Cartels (gun jumping) - penalties

The ACCC instituted proceedings against Cryosite alleging cartel conduct relating to an asset sale agreement with Cell Care Australia which 'required Cryosite to refer all customer enquiries to Cell Care after the agreement was signed but before the acquisition was completed'. The ACCC alleged this constituted 'gun jumping' and amounted to 'cartel conduct because it restricted or limited Cryosite’s supply of cord blood and tissue banking services and allocated potential customers from Cryosite to Cell Care'. Cryosite admitted the contravention. Penalties for $1.05m imposed (by consent) (ACCC media release).

ACCC v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 ➤ (22 December 2017)
(Justice Wigney)
Cartels (price fixing)

The ACCC alleged an arrangement or understanding with other suppliers of ultra concentrated laundry detergent containing exclusionary provisions or provisions having the purpose or likely effect of lessening competition in the market for laundry detergent in Australia. Consideration of whether agreement or mere oligopolistic behaviour. Note that this was the relevant contested proceedings against Cussons; earlier consent proceedings with Colgate and Woolworths resulted in penalties of approx $27m. Application dismissed: The trial judge held that the applicant had not demonstrated that the respondent had entered into the alleged arrangement or understanding.

Appeal to FCAFC (dismissed): ACCC v Colgate-Palmolive Pty Ltd [2019] FCAFC 83 (24 May 2019)

See also: ACCC v Colgate-Palmolive Pty Ltd (No 3) [2016] FCA 676 (3 June 2016) (Woolworths admission and pecuniary penalties of $9m)
See also: ACCC v Colgate-Palmolive Pty Ltd (No 2) [2016] FCA 528 (16 May 2026) (Colgate admission and penalties of $18m)

▲ ACCC v Cement Australia Pty Ltd [2017] FCAFC 159 (5 October 2017)
(Justices Middleton, Beach and Moshinsky)
Penalties (anti-competitive agreements)

Successful appeal from against penalty. Original total penalties for anti-competitive conduct (s 45) $17.1m increased to $20.6m. See ACCC media release summarising penalty breakdown.

Appeal from: ACCC v Cement Australia [2016] FCA 453 (29 April 2016) (penalty decision)
Liability decision: ACCC v Cement Australia [2013] FCA 909 (10 September 2013)
See also orders in: ACCC v Cement Australia Pty Ltd [2016] FCA 536 (16 May 2016) (variation of orders)

ACCC v Australian Egg Corporation Limited [2017] FCAFC 152 ➤ (25 September 2017)
(Justices Besanko, Foster and Yates)
Cartels (attempt)

The ACCC alleged that Australian Egg Corporation Limited (AECL) and two egg producing companies attempted to induce egg producers who were members of AECL 'to enter into an arrangement to cull hens or otherwise dispose of eggs, for the purpose of reducing the amount of eggs available for supply to consumers and businesses in Australia'. The trial judge dismissed the claim. The ACCC appealed and in 2017 the Full Federal Court unanimously (in a joint judgment) dismissed the appeal.

Appeal from: ACCC v Australian Egg Corporation Limited [2016] FCA 69 ➤ (10 February 2016)

ACCC v Australian Competition Tribunal [2017] FCAFC 150 ➤ (20 September 2017)
(Justices Besanko, Perram Robertson)
Merger authorisation - public benefits - judicial review

The ACCC applied for judicial review of the Tribunal’s decision to grant merger authorisation (Application by Tabcorp Holdings Limited [2017] ACompT 1) to Tabcorp for its proposed acquisition of Tatts, subject to a condition that Tabcorp sell its Odyssey gaming monitoring operations.  The public benefits justifying the merger were predominantly in the form of cost synergies and improved efficiencies; importantly, the Tribunal did not consider there would be a substantial lessening of competition in any market. The ACCC considered the Tribunal had made three reviewable errors; they succeeded on the first ground that the Tribunal was wrong to reason that it could only conclude the acquisition would result in a detriment if it found there was a substantial lessening of competition. See also related case: CrownBet Pty Ltd v Australian Competition Tribunal [2017] FCAFC 157 (27 September 2017) (CrownBet’s application for judicial review failed).

Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 ➤ (16 August 2017)
(Justices Dowsett, Besanko, Middleton, Foster and Griffiths)
Access - Judicial review of decision by Tribunal

▲ CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 ➤ (3 August 2017)
(Justice Wigney)
Cartels (criminal penalties)

First criminal cartel conviction (discount for guilty plea) - although conduct admitted, first discussion of penalties applicable in criminal context.

ACCC v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 ➤ (28 July 2017)
(Justice Besanko)
Penalties (cartel conduct)

Justice Besanko held that Prysmian had contravened the prohibition against price fixing, but not the prohibition against exclusionary provisions (primary boycotts). Penalties of $3.5m were ordered. The Full Federal Court dismissed an appeal by Prysmian.

Appeal to FCAFC (dismissed): Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] FCAFC 30 ➤ (13 March 2018)
Special leave to appeal (refused): Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] HCASL 201 ➤ (8 August 2018)

Related to: ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 ➤ (20 July 2016) (liability judgment)

Tabcorp Holdings and Tatts Group - proposed merger (ACT 1 of 2017) ➤ (22 June 2017)
(Tribunal: Justice Middleton, Mr Grant Latta AM, Dr Darryn Abraham)
Mergers (authorisation)

Application for authorisation of proposed merger between Tabcorp Holdings Limited and Tatts Group Limited. Following release of statement of issues by the ACCC Tabcorp withdrew its application for informal merger clearance and applied for authoristation to the Tribunal. Authorisation granted subject to condition that Tabcorp sell the Odyssey gaming monitoring operations.

★ Air New Zealand Ltd v ACCC; PT Garuda Indonesia Ltd v ACCC [2017] HCA 21 (14 June 2017)
(Chief Justice Kiefel, Justices Bell, Keane, Nettle and Gordon)
Cartels (Price fixing) - Market in Australia

The ACCC claimed that Air NZ and Garuda had been involved in price fixing in relation to certain fuel surcharges. The trial judge held that there was no 'market in Australia' and dismissed the case. The ACCC appealed (press release). On 21 March 2016, the Full Federal Court, by majority, upheld the appeals. Air NZ and Garuda applied for, and were granted, special leave to appeal. The High Court unanimously dismissed both appeals.

Appeal from FCAFC (dismissed): ACCC v P T Garuda Indonesia Ltd [2016] FCAFC 42 (21 March 2016)
Trial: ACCC v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

Penalty (Air NZ): ACCC v Air New Zealand Limited (No 15) [2018] FCA 1166 (27 June 2018)
Penalty (Garuda): ACCC v P.T. Garuda Indonesia Ltd (Remedies) [2019] FCA 786 (30 May 2019)

ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (9 May 2017)
(Justice Besanko)
Cartels (market sharing, price fixing) - penalties

The ACCC alleged Yazaki and Australian Arrow Pty Ltd (a wholly owned subsidiary of Yazaki Corporation) engaged in cartel conduct, market sharing and price fixing in relation to the supply of wire harnesses to Toyota and related entities in Australia. Justice Besanko held that Yazaki had engaged in collusive conduct in contravention of s 45 (exclusionary provisions), but not in contravention of the price fixing provisions because his Honour held that the relevant conduct by Yazaki did not occur in a market in Australia (then required by the Act). A penalty of $9.5 million was imposed by Justice Besanko. An appeal against penalty succeeded (increased to $46m).

Related to: ACCC v Yazaki Corporation (No 2) [2015] FCA 1304 (liability decision)
Appeal to FCAFC (succeeded on penalties): ACCC v Yazaki Corporation [2018] FCAFC 73 (16 May 2018)
Special leave to appeal (refused)

Bendigo and Adelaide Banks & Ors (Authorisation application re: ApplePay) ➤ (31 March 2017)
(ACCC)
Authorisation (collective bargaining and boycott)

Application for authorisation in respect of ApplePay - Authorisation denied

ACCC v Olex Australia Pty Ltd [2017] FCA 222 (9 March 2017)
(Justice Beach)
Cartels

Allegations of cartel conduct (dismissed)

★ Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 ➤ (9 December 2015)
(Chief Justice French, Justices Kiefel, Bell, Gageler, Keane, Nettle and Gordon)
Agreed penalties

This case was not a competition law case; however it related to the common practice of parties agreeing with regulators on appropriate penalties to present to the Court. The High Court concluded that "in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties" (quote taken from judgment summary). This restored the common practice that had been halted as a result of the Full Federal Court's decision which precluded joint penalty submissions.

ACCC v Yazaki Corporation (No 2) [2015] FCA 1304 (21 November 2015)
(Justice Besanko)
Cartels (market sharing, price fixing) - penalties

Liability judgment. The ACCC alleged Yazaki and Australian Arrow Pty Ltd (a wholly owned subsidiary of Yazaki Corporation) engaged in cartel conduct, market sharing and price fixing in relation to the supply of wire harnesses to Toyota and related entities in Australia. Justice Besanko held that Yazaki had engaged in collusive conduct in contravention of s 45 (exclusionary provisions), but not in contravention of the price fixing provisions because his Honour held that the relevant conduct by Yazaki did not occur in a market in Australia (then required by the Act). A penalty of $9.5 million was imposed by Justice Besanko. An appeal against penalty succeeded (increased to $46m).

Related to: ACCC v Yazaki Corporation (No 3) [2017] FCA 465 (penalty decision)
Appeal to FCAFC (succeeded on penalties): ACCC v Yazaki Corporation [2018] FCAFC 73 (16 May 2018)
Special leave to appeal (refused)

ACCC v Little Company of Mary Health Care Ltd [2015] FCA 1144 ➤ (26 October 2015)
(Justice Robertson)
Exclusive dealing - practice and procedure

Exclusive dealing (s 47): conditional acquisition of medial services from medical practitioners - effect or likely effect of substantially lessening competition in relevant market (contravention admitted). Practice and procedure: discretion to make declaration where statement of agreed facts, proposed consent orders - no pecuniary penalty sought.

ACCC v Visa Inc [2015] FCA 1020 ➤ (4 September 2015)
(Justice Wigney)
Exclusive dealing - pecuniary penalties

Exclusive dealing: section 47 - admitted conduct - related to moratorium on Dynamic Currency Conversion service. Penalty: relevant principles discussed (s 76) - $18m penalty imposed.

▲ Flight Centre Limited v ACCC [2015] FCAFC 104 (31 July 2015)
(Chief Justice Allsop, Justice Davies, Justice Wigney)
Cartels (price fixing - agency arrangements)

The ACCC alleged that Flight Centre attempted to induce three airlines (Singapore Airlines, Malaysia Airlines and Emirates) to enter into a contract, arrangement or understanding to fix, control or maintain prices for air travel in contravention of the Act. A key question was whether Flight Centre (as agent) and the airlines were ‘in competition’ in a relevant market. The primary judge found they were and that price fixing had been established. This appeal of the Full Federal Court succeeded, the Court finding Flight Centre did not compete in the alleged market (they found there was no market as alleged). This decision was overturned on appeal to the High Court

Appeal from: ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 ➤ (6 December 2013) (Justice Logan) (contravention established)
Appealed to High Court (succeeded): ACCC v Flight Centre Travel Group Limited [2016] HCA 49 (14 December 2016)

Related
ACCC v Flight Centre Limited (No 3) [2014] FCA 292 ➤ (28 March 2014) (penalty decision)
Flight Centre Limited v ACCC [2014] FCA 658 ➤ (19 June 2014) (application to stay penalty dismissed)
Flight Centre Limited v ACCC (No 2) [2018] FCAFC 53 ➤ (4 April 2018) (appeal and cross-appeal from penalty decision)

▲ ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103➤ (31 July 2015)
(Chief Justice Allsop, Justice Davies, Justice Wigney)
Cartels (price fixing)

The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then TPA, because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release). The claim failed; this appeal also failed.

Appeal from: ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206 ➤ (18 November 2013)

▲ ACCC v Pfizer Australia Pty Ltd [2015] FCA 113 (18 March 2015)
(Justice Flick)
Misuse of market power - exclusive dealing

Various rebate agreements entered into ahead of patent expiry (Lipitor) were alleged to constitute a misuse of market power (pre Harper-reforms to s 46). It was also alleged exclusive dealing - the alleged supply on condition pharmacists would not stuck other products except to a limited extent. Both claims were dismissed. An appeal failed in substance (with some different findings on market power and taking advantage).

Appeal to FCAFC (largely unsuccessful): ACCC v Pfizer Australia Pty Ltd [2018] FCAFC (25 May 2018)
Special leave to appeal to HC refused

ACCC v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413 ➤ (19 December 2013)
Resale price maintenance (admitted) - Agreed penalties

The Court found that the Respondent had engaged in RPM and ordered a total of $2.2million in penalties for three separate contraventions.

ACCC v Australia and New Zealand Banking Group Limited [2013] FCA 1206 ➤ (18 November 2013)
(Justice Dowsett)
Cartels (price fixing)

The ACCC alleged that, in 2004, ANZ had required Mortgage Refunds Pty Ltd to agree to limit the amount of refund it could provide in respect of arranging ANZ home loans and that this, as a result, 'ANZ made and gave effect to an agreement where it would only allow Mortgage Refunds to continue to be accredited to offer ANZ mortgage products if it agreed to limit any refund it paid to its customers to $600, which would allow ANZ branches to match the deal if they chose to waive the ANZ loan establishment fee.' This, the ACCC alleged, constituted price fixing under s 45 (with aid of s 45A) of the then TPA, because 'ANZ and Mortgage Refunds were competitors in the market for the provision of loan arrangement services.' (see ACCC press release). The claim failed; an appeal by the ACCC also failed.

Appeal to FCAFC (dismissed): ACCC v Australia and New Zealand Banking Group Limited [2015] FCAFC 103 ➤ (31 July 2015)

▲ACCC v Cement Australia [2013] FCA 909 (10 September 2013)
(Justice Greenwood)
Anti-competitive agreements, misuse of market power

Proceedings related to contracts entered into by five related companies (inc Cement Australia Pty Ltd, Cement Australia Holdings Pty Ltd, Cement Australia Queensland Pty Ltd, Pozzolanic Enterprises Pty Ltd and Pozzolanic Industries Pty Ltd) with operators of certain power stations in South East Queensland to acquire flyash. The ACCC alleged contraventions of s 45 (anti-competitive agreements) and misuse of market power. The misuse of market power claim was dismissed (with a finding that the companies were not taking advantage of their substantial market power) but several s 45 claims were made out. The lengthy judgment runs to 940 pages.

Separate penalty judgment: ACCC v Cement Australia [2016] FCA 453 (29 April 2016)

▲ACCC v Flight Centre Limited (No 2) [2013] FCA 1313➤ (6 December 2013)
(Justice Logan)
Cartels (price fixing - agency arrangements)

The ACCC alleged that Flight Centre attempted to induce three airlines (Singapore Airlines, Malaysia Airlines and Emirates) to enter into a contract, arrangement or understanding to fix, control or maintain prices for air travel in contravention of the Act. A key question was whether Flight Centre (as agent) and the airlines were ‘in competition’ in a relevant market. The primary judge found they were and that price fixing had been established. This was overturned on appeal the Full Federal Court, but a further appeal to the High Court succeeded. Penalties exceeding $12 were ultimately awarded.

Appeal to FCAFC (successful): Flight Centre Limited v ACCC [2015] FCAFC 104 (31 July 2015)
Appealed to High Court (successful): ACCC v Flight Centre Travel Group Limited [2016] HCA 49 (14 December 2016)

Related
ACCC v Flight Centre Limited (No 3) [2014] FCA 292 ➤ (28 March 2014) (penalty decision)
Flight Centre Limited v ACCC [2014] FCA 658 ➤ (19 June 2014) (application to stay penalty dismissed)
Flight Centre Limited v ACCC (No 2) [2018] FCAFC 53 ➤ (4 April 2018) (appeal and cross-appeal from penalty decision)

ACCC v Koyo Australia Pty Ltd [2013] FCA 105 ➤ (18 October 2013)
Cartels (agreed penalties)

Admitted cartel conduct - penalties by consent. See ACCC media release: ‘The Court found that in 2008 and 2009, Koyo Australia made and gave effect to two separate cartel arrangements with two of its competitors to increase the price of ball and roller bearings to their aftermarket customers.’

ACCC v Prysmian Cavi E Sistemi Energia S.R.L. (No 5) [2013] FCA 294➤ (5 April 2013)
(Justice Lander)
Price fixing/bid rigging (admissions and agreed order between Viscas/ACCC). Proceedings continued against other respondents

In 2009 the ACCC brought action against three parties; Prysmian Cavi E Sistemi SRL (Prysmian), Nexans SA and Viscas Corporation. It alleged market sharing and price fixing (effectively in the form of bid rigging) between September and October 2003 in contravention of s 45(2) of the TPA (the relevant conduct occurred prior to introduction of the new cartel laws). The ACCC alleged that four companies - Prysmian, Nexans SA, Viscas and J-Power Systems (JPS was a whistleblower and received immunity from prosecution) - engaged in cartel conduct in the markets for land cables and submarine cables worldwide in the form of bid rigging and market allocation. Viscas, the third respondent, admitted that ‘it reached an anti-competitive arrangement with other Japanese and European suppliers of land cables in relation to an invitation to tender issued by Snowy Hydro Limited.’ A pecuniary penalty of $1.35m was ordered.

Related proceedings
Against Prysmian and Nexans: ACCC v Prysmian Cavi E Sistemi S.R.L. (No 12) [2016] FCA 822 ➤ (20 July 2016) (liability judgment)
Penalty judgment against Prysmian: ACCC v Prysmian Cavi E Sistemi S.R.L. (No 13) [2017] FCA 851 ➤ (28 July 2017)
Prysmian appeal to FCAFC (dismissed): Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] FCAFC 30 ➤ (13 March 2018)
Prysmian application for Special Leave (refused): Prysmian Cavi E Sistemi S.R.L. v ACCC [2018] HCASL 201 ➤ (8 August 2018)

Application by Co-operative Bulk Handling Limited (No 3) [2013] ACompT 3 (19 April 2013)
(Tribunal - Justice Mansfield, GF Latta and Ray Steinwall)
Exclusive dealing - notification

This was an appeal against revocation of exclusive dealing notification - consideration of public benefit v substantial lessening of competition. The Tribunal affirmed the ACCC’s notice revoking notification.

▲ Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013)
(Justice Gordon)
Cartels (bid rigging) - misleading or deceptive conduct

Bradken found to have engaged in bid-rigging and ordered to pay damages amount to US$22.4 million (loss was assessed based on sums used as part of the transactions which were in $US). This was the first test of Australia's new cartel laws, which entered into force in 2009, and raised several interesting issues, including an issue as to the extraterritorial scope of the provision and consideration of anti-overlap provisions. An appeal was filed but subsequently discontinued. A claim alleging misleading or deceptive conduct was also established.

▲ Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd [2013] FCA 119 ➤ (22 February 2013)
(Justice Collier)
Exclusive dealing - mandatory interlocutory injunction

Parlamat sought urgent interlocutory relief after VIP Plastic Packaging refused continued supply of goods. They alleged there was a serious question to be tried that the conduct constituted unlawful exclusive dealing. Application for interlocutory relief dismissed.

Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2 ➤ (8 February 2013)
(Justice Mansfield and Mr R Shogren and Mr R Steinwall)
Access regime - declaration of service

This was a remission to the Tribunal following a High Court decision. Fortescue Metals Group Ltd, a mining company operating in the Pilbara, sought to have four heavy haulage railways (designed to transport iron ore) declared under the access regime to enable it to run its own trains on the lines. The NCC had recommended declaration of the lines and the Minister subsequently made declarations in relation to three of the lines. The Full Court denied an appeal by Fortescue to obtain access to Rio Tinto's Hamersley rail line in the Pilbara. In addition, Rio Tinto succeeded in a an appeal to overturn the ACT's decision to declare the Robe River line. Fortescue was ordered to pay costs. The High Court agreed with the Full Federal Court. In particular, it concluded that Criterion (b) should be determined by reference to a 'private profitability' test and not a 'social benefit' or 'natural monopoly' test. It remitted the matter back to the Tribunal for determination. On remission, the Tribunal concluded there was insufficient evidence to satisfy criterion (b) and therefore set aside the Minister's declarations in relation to the Robe and Hamersley Lines.

High Court: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 ➤ (4 October 2012)
Full Federal Court: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
Tribunal: Fortescue Metals Group Limited; In the Matter of [2010] ACompT 2 ➤ (30 June 2010)

▲ ACCC v Ticketek Pty Ltd [2011] FCA 1489 ➤ (22 December 2011)
(Justice Bennett)
Misuse of market power - penalty

A statement of agreed facts were provided for purposes of the proceeding only, with Ticketek admitting, for the relevant period only, that it had substantial market power and had taken advantage of that power for a prohibited purpose. The period was for approximately 6 months, during which time Ticketek 'took action in respect of deterring or preventing a competitor, Lasttix, from engaging in competitive conduct in the Ticketing Related Services Market'. Most ticketing related services to which Ticketek was a party granted Ticketek exclusive rights to print, prepare, sell and distribute tickets at the relevant venue [para 10]. Ticketek refused on several occasions to implement in its Ticketing System a discounted Price Type to be published exclusively by Lasttix. The Court accepted that there had been a contravention of the Act. The parties proposed penalties which were accepted: $725k for each of the first three contraventions, $325k for the fourth and agreed costs of $100,000. See ACCC media release.

▲ ACCC v Metcash Trading Limited [2011] FCAFC 151 (30 November 2011)
(Justices Finn, Buchanan and Yates)
Merger

Appeal dismissed. The ACCC did not seek special leave to appeal to the High Court. Three separate reasons were provided. Justice Finn agreed with the reasons of Justice Yates and expressly refrained from expressing a concluded view on the proper construction of, and standard of proof, to be applied in the context of s 50 (mergers). Justice Buchanan made additional comments on burden of proof, concluding that it was inappropriate to apply a ‘real chance’ test should when considering what would happen if the proposed acquisition was blocked and whether or not (on that hypothesis) there would be a substantial lessening of competition. Instead his Honour concluded a ‘more likely than not’ or ‘balance of probabilities’ test should apply at both stages. Justice Emmett at trial had considered that the ‘real chance’ test should apply at the second stage only - the ACCC had argued it applied at both stages. For a useful summary of the reasons see Herbert Smith Freehilss Kramer’s note at Lexology.

Appeal from: ACCC v Metcash Trading Limited [2011] FCA 967 (25 August 2011)

▲ ACCC v Metcash Trading Limited [2011] FCA 967 (25 August 2011)
(Justice Emmett)
Merger

After the ACCC announced it would oppose the proposed acquisition by Metcash of a share in Franklins, Metcash announced it would nevertheless proceed with the acquisition. The ACCC initiated proceedings seeking an injunction against the proposed acquisition. Justice Emmett found in favour of Metcash, finding the acquisition would not substantially lessen competition. It rejected the ACCC’s suggested market (Independent Wholesale Grocery Market) and this was enough to dismiss the case; his Honour nevertheless went on to state that even if that market was accepted there would not have been a substantial lessening of competition. An appeal failed and in September 2011 Metcash concluded its takeover of Franklins.

Appeal to FCAFC (dismissed): ACCC v Metcash Trading Limited [2011] FCAFC 151 (30 November 2011)

▲ ACCC v TF Woollam & Son Pty Ltd [2011] FCA 973 ➤ (24 August 2011)
(Justice Logan)
Cartels (price fixing) - cover pricing in building tenders

The ACCC alleged that ‘in relation to tenders for various Queensland and local government public works projects, the respondents variously engaged in or were a party to conduct’ which constituted making and giving effect to anti-competitive agreements (with conduct deemed anti-competitive by virtue of the deeming provision in s 45 as it then operated). The case considered what was necessary for an ‘arrangement or understanding’ to be established, noting it ‘must be consensual and carry with it an element of obligation rather than mere expectation’ (para 5)). On the facts it was not necessary to resolve the question of whether ‘mutual obligation’ was required (because there was one here). There was also some discussion of the purpose element (relevant purpose established) and on whether parties were ‘in competition’. Contravention established.

Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
(Chief Justice Keane and Justices Mansfield and Middleton)
Access regime - declaration of service

This was an appeal following a Tribunal declaration determination. Fortescue Metals Group Ltd, a mining company operating in the Pilbara, sought to have four heavy haulage railways (designed to transport iron ore) declared under the access regime to enable it to run its own trains on the lines. The NCC had recommended declaration of the lines and the Minister subsequently made declarations in relation to three of the lines. The Full Court denied an appeal by Fortescue to obtain access to Rio Tinto's Hamersley rail line in the Pilbara. In addition, Rio Tinto succeeded in a an appeal to overturn the ACT's decision to declare the Robe River line. Fortescue was ordered to pay costs. The High Court agreed with the Full Federal Court. In particular, it concluded that Criterion (b) should be determined by reference to a 'private profitability' test and not a 'social benefit' or 'natural monopoly' test. It remitted the matter back to the Tribunal for determination. On remission, the Tribunal concluded there was insufficient evidence to satisfy criterion (b) and therefore set aside the Minister's declarations in relation to the Robe and Hamersley Lines.

Appeal to High Court (failed): Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36 ➤ (4 October 2012)
Full Federal Court: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2011] FCAFC 58 ➤ (4 May 2011)
Appeal from Tribunal: Fortescue Metals Group Limited; In the Matter of [2010] ACompT 2 ➤ (30 June 2010)
Remission to Tribunal: Applications by Robe River Mining Co Pty Ltd and Hamersley Iron Pty Ltd [2013] ACompT 2 ➤ (8 February 2013)

ACCC v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153 ➤ (25 February 2011)
(Justice Bennett)
Cartel (price fixing) - agreed penalties - injunctions

Between 2000-2004 Asia Pulp & Paper Company Ltd (Singapore) and PT Indah Kiat Pulp and Paper Tbk (Indonesia) arrived at 'arrangements with competitors for the supply to customers in Australia of uncoated woodfree folio and cut-size paper (UWF paper)' containing 'provisions which had the purpose and effect or likely effect of fixing, controlling or maintaining the average price per metric tonne at which they would supply UWF paper to customers in Australia' and gave effect to those provisions in its pricing for the supply of UWF paper to customers in Australia. This contravened the prohibition on anti-competitive conduct (in the form of price fixing) at the time (and the Competition Codes as defined in ss 150A and 150I). (see para 1). Parties reached agreement as to admitted facts and orders, including pecuniary penalties of $3.4m for APP Singapore and $800k for Indah Kiat. The case against the named party and another related company was resolved in earlier proceedings with collective penalties of $4m imposed. This proceeding was against the 11th (Asia Pulp & Paper Company Ltd (Singapore), 12th (PT Indah Kiat Pulp and Paper TBK (Indonesia), 13th (Paul George) and 15th (Sunil Sood) respondents. Proceedings against the 13th and 15th respondents were dismissed.

Related case: ACCC v April International Marketing Services Australia Pty Ltd (No 5) [2010] FCA 17 ➤ (29 January 2010)
(involving 1st (April International Marketing Services Australia) and 2nd (April Fine Paper Trading Pte Limited (Singapore))

Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Limited (No 5) [2009] FCA 1464 ➤ (11 December 2009)
(Justice Tracey)
Pleadings - cartel - specificity of market (and associated proceedings) - strike out proceedings

This application involved an amended statement of claim after an original statement of claim had been struck out as failing to disclose a reasonable cause of action. The applicant was a representative party on behalf of a group of members who had (either directly or indirectly) paid for freight services provided by the respondents. It was alleged by the applicant that the respondents were members of a cartel which had agreed to and did fix charges for international airfreight into and out of Australia and that this increased prices through imposition of an agreed fuel surcharge, security surcharge and war-risk surcharge (para 3). The respondents argued all or part of the applicant's Second Amended Statement of Claim (SASC) should be struck out 'on the grounds that it discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay.' (para 5) Justice Tracey concluded that it should be struck out, finding that the it was 'fundamentally flawed' (para 51). This application to strike out a further amended statement of claim also succeeded. An appeal to the Full Federal Court succeeded (by majority and in part).

Appealed to FCAFC: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Limited [2010] FCAFC 96 ➤ (12 August 2010)
Related: Auskay International Manufacturing & Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ➤ (29 September 2008)

▲ Seven Network Ltd v News Limited [2009] FCAFC 166 (the C7 case) (2 December 2009)
(Justices Mansfield, Dowsett and Lander)
Anti-competitive agreements - misuse of market power - market definition

The case arose out of claims that in the late 1990s and early 2000s, News Ltd, Fox Sports and others had acquired AFL and NRL rights in order to put C7 out of business so that Fox Sports could 'dominate the market for supplying sports channels to pay television suppliers [and] dominate the market for the supply of pay television services to subscribers'. Seven’s claim was dismissed by the trial judge and the appeal failed.

Appeal from: Seven Network Limited v News Limited [2007] FCA 1062 (the C7 case) ➤ (27 July 2007)

▲ Singapore Airlines Ltd v ACCC [2009] FCAFC 136 ➤ (2 October 2009)
(Chief Justice Black and Justices Mansfield and Jacobson)
Section 155 notices - carrying on business in Australia

Appeal dismissed. Singapore sought to set aside s 155 notices seeking information and documents relating to alleged price fixing. Consideration of market in Australia - ‘international air cargo services’

ACCC v Bill Express Limited (in liq) [2009] FCA 1022 ➤ (14 September 2009)
(Justice Gordon)
Exclusive dealing (third line forcing)

Considered meaning of ‘on the condition’. Also considered issues of misleading and deceptive conduct and false and misleading representations. A 'Bill Express Payment System', provided by Bill Express to participating newsagents and merchants, allowed consumers to pay bills or buy products and services at those participating outlets. In order to obtain access to the system, participating merchants entered into two contracts, one with Bill Express and another with Technology Business International (TBI) to rent computer and other equipment. The ACCC alleged (amongst other things) that entry into these contracts constituted third line forcing. In particular, Bill Express and TBI offered to supply merchants with electronic products and services under a contract with Bill Express 'on condition that the merchants acquired other goods and services' from a third party - TBI (para 2 declaration). Justice Gordon declared that entry into the contracts involved engaging in exclusive dealing (third line forcing). Her Honour considered the phrase 'on the condition' at length, rejecting the ACCC's contention that this required only mere hope or expectation (para 64), noting that a condition was required, although such condition need not be legally enforceable or direct (para 65) and the existence of a condition could be inferentially drawn by the court from the 'entire factual matrix' (para 65).

ACCC v Singapore Airlines Cargo Pty Ltd [2009] FCA 510 ➤ (20 May 2009)
(Justice Jacobson)
Pleadings - market definition (market in Australia)

Statement of claim struck out.

Emirates v ACCC [2009] FCA 312 ➤ (2 April 2009)
(Justice Middleton)
Validity of s 155 notice - market definition

Application dismissed. Emirates and Singapore Airlines had challenged ACCC decisions to issue s 155 notices seeking documents and information for alleged price fixing. Applications were not identical but were heard together. Determined that decision to issue notices was not so unreasonable it could not have been made in the circumstances (para 117).

ACCC v Australian Abalone Pty Ltd [2007] FCA 1834 ➤ (26 November 2007)
(Justice Weinberg)
Cartels (price fixing) - exclusionary provision (boycott) - penalties (where conduct was open and not dishonest)

Abalone was in high demand as a luxury item and harvesting and sale was regulated, with Victoria divided into zones (the central zone was in issue here). Relevant licences to harvest, distribute and sell were limited. The respondents were holders of the ‘Abalone Fishery Access Licence’ (quota holders) which permitted the taking of abalone of sale, use, possession etc. They were concerned that the power wielded by those with harvesting and distribution licences (‘Fish Receivers’ (Abalone) Licence’) to whom they were required to supply, combined with poaching which was prevalent, was leading to low returns. The held meetings and decided to establish a new company, Australian Abalone', to market and sell the abalone they caught. The agreements between the quota holders and the new company included several provisions, including stating that teh agreement envisaged provision of consultation services for ‘the purpose of generally utilising the combined volume of catch from the quota holders to efficiently control the supply to processors and buyers of abalone.’ The conduct was admitted. Justice Weinberg observed there was no attempt to contravene the Act and parties had not acted dishonestly. His Honour observed the case was unusual because the respondents acted openly, documented their actions and had no idea it might be breaching the law. His Honour considered most of the agreed penalties were within the permissible range - for the others he reduced the penalties. Total penalties of $927,500 were awarded.

▲ ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 ➤ (2 November 2007)
(Justice Heerey)
Cartel conduct (admitted) - price fixing and exclusive dealing - agreed penalties

The ACCC and Visy tendered an agreed statement of facts. The ACCC alleged Visy engaged in price fixing and market sharing in the market for the supply of corrugated fibreboard packaging (CFP) with Amcor between January 2000 and October 2004. Visy admitted liability (including admittign to 69 contraventions). Amcor was not pursued by the ACCC because they applied (successfully) for leniency under the ACCC's existing Leniency Policy for Cartel Conduct. Agreed penalties of $36m were accepted as appropriate (the highest awarded at the time), reflecting what Justice Heerey described as ‘the most serious cartel case to come before the Court in the 30 plus years in which price fixing has been prohibited by statute’ (para 320). No individual penalty was imposed on Mr Pratt (Director), but $1.5m was awarded against Mr Debney (CEO) and $500k against Mr Carroll (General Manager).

RP Data Limited (ACN 087 759 171) v State of Queensland [2007] FCA 1639 ➤ (30 October 2007)
(Justice Collier)
Misuse of market power - carrying on a business - market definition

Application dismissed. State of Queensland supplied bulk valuation and sales data to the applicant pursuant to a licence. When it came time to renew the respondent included proposing exclusion of certain information. Applicant claimed this exclusion constituted misuse of market power. Respondent not bound by s 46 when fulfilling statutory function. In relation to business that was not a statutory function it had substantial market power and had taken advantage of that power, but not for a proscribed purpose; the purpose in excluding information from the data was to prevent use of the data for direct marketing, not for anti-competitive purposes.

★ ACCC v Baxter Healthcare [2007] HCA 38 ➤ (29 August 2007)
(Chief Justice Gleeson, Justices Gummow, Kirby, Hayne, Callinan, Heydon and Crennan)
Derivative crown immunity

The majority of the High Court (Justice Callinan dissenting) upheld the appeal, finding Baxter did not benefit from derivative Crown immunity. They remitted the matter to the Full Federal Court to consider the ss 46 and 47 claims.

Primary judgment: ACCC v Baxter Healthcare [2005] FCA 581 ➤ (16 May 2005)
Appeal to FCAFC on derivative immunity (unsuccessful): ACCC v Baxter Healthcare [2006] FCAFC 128 ➤ (24 August 2006)
Appeal to FCAFC on ss 46 and 47 on remission from HC (successful): ACCC v Baxter Healthcare [2008] FCAFC 141 ➤ (11 August 2008)
Penalty decision: ACCC v Baxter Healthcare [2010] FCA 929 ➤ (26 August 2010)

Seven Network Limited v News Limited [2007] FCA 1062 (the C7 case) ➤ (27 July 2007)
(Justice Sackville)
Anti-competitive agreements - misuse of market power - market definition

The case arose out of claims that in the late 1990s and early 2000s, News Ltd, Fox Sports and others had acquired AFL and NRL rights in order to put C7 out of business so that Fox Sports could 'dominate the market for supplying sports channels to pay television suppliers [and] dominate the market for the supply of pay television services to subscribers'. Seven’s claim was dismissed and an appeal failed. The trial lasted 120 days, produced 85,654 documents comprising 589,392 pages (only 12849 of which were admitted into evidence), produced 1,028 pages of pleadings, 1,613 statements from lay witnesses, 2,041 pages of expert reports (plus appendices), 2,368 pages of written closing submissions by Seven and 2,594 pages of written closing submission from the Respondents (naturally supplemented by outlines, notes and summaries), a trial transcript running to 9,530 pages and resulted in a 1,200+ page judgment at a cost of more than $200m in legal fees (about the same amount as the claimed damages).  This was all described by Justice Sackville as “extraordinarily wasteful” and “bordering on the scandalous”.

Appeal to FCAFC (dismissed): Seven Network Ltd v News Limited [2009] FCAFC 166 (the C7 case) ➤ (2 December 2009)

Nelson Enterprises Pty Ltd [ACCC Notification] ➤ (31 July 2007)
(ACCC)
Collective bargaining notification

This was the first application made under new notification powers. Three Queensland citrus growers proposed to collectively negotiate the price and quantity of their supply of citrus fruit to Woolworths and IGA. The ACCC did not object.

Re Medicines Australia Inc [2007] ACompT 4 ➤ (27 June 2007)
(Justice French, GF Latta and Prof Walsh)
Authorisation - public benefits test

Medicines Australia (previously Australian Pharmaceutical Manufacturers' Association Inc) sought authorisation for a revised Code of Conduct from the ACCC. The ACCC granted authorisation for three years subject to a condition requiring members to report on events sponsored by them for healthcare professionals. Medicines Australia appealed to the Tribunal challenging both the three year authorisation (arguing it should be five years) and the condition imposed on authorisation. The Tribunal held that the public benefit from implementation of the Code was likely to outweigh any anti-competitive detriment. However, in exercising its discretion to authorise conduct, the Tribunal concluded that a condition should be imposed requiring reporting and public disclosure of certain hospitality benefits, which would 'increase the likelihood that the public benefit claimed for the Code is realised ...' (para 8). The Tribunal granted authorisation for five years.

▲ ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794 (Geelong Petrol case) (29 May 2007)
Price fixing - meaning of 'contract, arrangement or understanding' (held no contravention)

The ACCC alleged that several petrol retailers in the Geelong area had made and given effect to price fixing provisions. It was not in dispute that parties had made calls to each other and discussed prices before raising their own, including discussion about the timing and size of possible increases. The dispute revolved around whether this constituted an ‘understanding’. Finding that understanding required a ‘meeting of the minds’ and commitment.

▲ ACCC v Jurlique International Pty Ltd [2007] FCA 79 (8 February 2007)
(Justice Spender)
Resale price maintenance (admitted) - agreed penalties

The ACCC alleged Jurlique had engaged in resale price maintenance (s 48) and anti-competitive conducts (s 45). All respondents made admissions and a joint submission as to final orders and penalties was submitted. The argument for RPM centered around ‘prestige goods’, with Justice Spender stating that ‘the attraction of many products to consumers lies in the fact that they are expensive, and have an aura of exclusivity about them.’ His Honour expressed some sympathy for the view that RPM should not be per se prohibited, but noted that RPM is prohibited per se prohibited in Australia and there was no available defence to Jurlique. Penalties totalling $2.7m were imposed.

ACCC v Eurong Beach Resort Ltd [2005] FCA 1900 ➤ (15 December 2005)
(Justice Kiefel)
Misuse of Market Power - exclusionary provisions - exclusive dealing - agreed penalties

Related to pricing of certain barge services on Fraser Island. Eurong had achieved a purpose of eliminating or substantially damaging a competitor by implementing a pricing policy of decreasing prices to ensure advertise price was $10 less than competitors and by charging below the cost of fuel and wages in some instances, where elimination of competitors would have allowed return to monopoly pricing. An exclusionary provision were also admitted and agreements constituting exclusive dealing were also admitted. Joint submissions and agreed facts. Total penalties of $900k awarded. See ACCC media release.

▲ Apco Service Stations Pty Ltd v ACCC [2005] FCAFC 161 ➤ (Ballarat Petrol case) (17 August 2005)
(Justices Heerey, Hely and Gyles)
Cartels (price fixing) - meaning of understanding

Apco and its managing director (Anderson) contended 'that they were not a party to any price-fixing understanding because they did not, as between themselves and the other parties to the alleged understanding, commit themselves to Apco’s charging the same prices or any particular prices or to increasing prices being charged by it.’ The Full Court overturned the findings of the primary judge, holding that commitment was required in order to find an understanding. No commitment existed here: ‘Apco received information about price increases (albeit the fact of an increase rather than the amount) from Bentley and Carmichael, as it did from other sources such as its franchisees, but it reserved to itself the decision, as a matter of commercial judgment, whether to follow those prices up’ (para 44). They distinguished Apco’s conduct from that of the other parties. See ACCC media release. The ACCC sought, but was refused, special leave to appeal to the High Court.

Appeal from: ACCC v Leahy Petroleum Pty Ltd [2004] FCA 1678 ➤ (17 December 2004)

ACCC v Liquorland (Australia) Pty Ltd (ACN 007 512 419) [2005] FCA 683 ➤ (31 May 2005)
(Justice Gyles)
Cartels (exclusionary provisions - anti-competitive agreements) (admitted) - agreed penalties

Liquorland admitted cartel conduct (in the form of exclusionary provisions and anti-competitive agreements) in relation to objections they made to liquor licence applications. Penalties of $4.75m imposed. Separate contested proceedings continued against Woolworths.

Related (Woolworths liability decision): ACCC v Liquorland (Australia) Pty Ltd [2006] FCA 826 ➤ (30 June 2006)
Related (Woolworths penalty decision): ACCC v Liqourland (Australia) Pty Limited [2006] FCA 1799 ➤ (22 December 2006)

ACCC v Baxter Healthcare [2005] FCA 581 ➤ (16 May 2005)
(Justice Allsop)
Misuse of market power - exclusive dealing

This case involved supply by Baxter Healthcare Pty Ltd to a number of State purchasing authorities of sterile fluids used for dialysis treatment. Baxter manufactures and supplies intravenous (IV) solutions, peritoneal dialysis (PD) fluids and parenteral nutrition (PN) products. It has an effective monopoly in relation to sterile fluids but faced real competition in relation to PD fluids. During the relevant time Baxter tendered for the supply of sterile and PD fluids to State Purchasing Authorities (SPA's). If offered products either as (prohibitively) high item-by-item prices or 'bundled' at significantly lower prices. The 'bundled' price was only available on condition Baxter was the sole supplier of both sterile and PD fluids to the SPA's. The ACCC alleged that Baxter had contravened the exclusive dealing and misuse of market power provisions of the Act by using the market power it enjoyed in relation to sterile fluids to effectively compel the SPAs to enter into exclusive supply contracts including the PD products. It was conceded by the ACCC that the SPAs were not ‘carrying on a business’ for purposes of the Act and therefore had Crown immunity from Part IV.  A key issue became whether Baxter benefited from ‘derivative’ Crown immunity in its dealings with these authorities. 

The primary judge concluded the relevant prohibitions did not apply because of the principles of derivative Crown immunity, but if that immunity did not apply Baxter would have contravened the misuse of market power and exclusive dealing prohibitions, but only to a limited extent relevant to the ACCC’s claims. The ACCC appealed successfully.

Appeal to FCAFC on derivative immunity: ACCC v Baxter Healthcare [2006] FCAFC 128 ➤ (24 August 2006)
Appeal to High Court on derivative immunity: ACCC v Baxter Healthcare [2007] HCA 38 ➤ (29 August 2007)
Appeal to FCAFC on ss 46 and 47: ACCC v Baxter Healthcare [2008] FCAFC 141 ➤ (11 August 2008) (following remission from High Court)
Penalty decision: ACCC v Baxter Healthcare [2010] FCA 929 ➤ (26 August 2010)

ACCC v Dermalogica Pty Ltd [2005] FCA 152 ➤ (2 March 2005)
(Justice Goldberg)
Resale price maintenance (partly admitted) - penalties

Involved RPM in relation to the sale of beauty products. ACCC ‘contended that Dermalogica made it known to Fatal Attraction and Café Beauty that it would no longer supply Dermalogica products to Fatal Attraction unless the salons agreed not to sell Dermalogica products at discounted prices. - ‘making it known’ to retailers Fatal Attraction and Café Beauty Advanced Anti-Aging that they would not supply products unless the retailers agreed not to discount was admitted RPM conduct.’ Dermalogica admitted contraventions in breach of s 96(3)(b) and (f) but disputed allegations relating to s 96(3)(a) (‘the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agrees not to sell those goods at a price less than a price specified by the supplier’).

Para 42: ‘In order for the conduct to constitute resale price maintenance under s 96(3)(a), it must be established on the balance of probabilities that Dermalogica made it known to each of the salons that Dermalogica would not supply its products unless the salons agreed to stop discounting the prices of Dermalogica products on their websites. It is clear that Dermalogica asked the salons not to discount and that they posited that the likely consequence of the salons discounting was that Dermalogica could cease supply. But does the evidence suggest that Dermalogica made it known that the salons would cease supply. The principal question is, what is the necessary degree of certainty that must be apparent to the second person in relation to the withholding of supply consequential on the second person’s failure to agree to maintain the supplier’s specified resale price?’

Para 51: ‘There is no need for evidence that a formal agreement is sought. All that must be shown is that the supplier made it known that agreement by the second person not to discount is required to maintain supply; it need not be shown that the supplier was even seeking acknowledgment that it had been made known, let alone any indication of the second person’s intended course of conduct in response to the making-known. The provision requires only communication from the supplier to the second person, and it does not require anything in the nature of a response, nor does it require that the communication from the supplier sought a response. The second person may acquiesce or submit and may do so in complete silence.’

Justice Goldbert was satisfied Dermalogica had strongly discouraged the retailers from offering discounts and this ‘was given force by the threat of withholding skills’ (para 43). Breach established. Penalty of $250,000 imposed. ACCC also sought injunction which was not awarded.

Rieson v SST Consulting Services Pty Ltd (ACN 083 263 914) [2005] FCAFC 6 ➤ (15 February 2005)
(Justices Wilcox, Sackville and Finn)
Severance and s 4L of the Act - exclusive dealing (third line forcing)

The primary judge found that a loan contract included an exclusive dealing (third line forcing) provision. Pursuant to s 4L of the Act this could be severed and the rest of the contract remained enforceable. Damages were awarded in the amount claimed. SST appealed, arguing severence was not possible. The Full Court agreed, allowing the appeal, concluding severance was not possible, the relevant provisions being indivisible from the whole. Special leave was granted and, by 5-1 majority (Justice Kirby dissenting) the High Court allowed the appeal. The offending term could be excised and the loan contract remained enforceable.

Appeal to High Court (successful): SST Consulting Services Pty Limited v Rieson [2006] HCA 31 ➤ (15 June 2006)
Appeal from: SST Consulting Services Pty Ltd v Rieson [2004] FCA 937 ➤ (21 April 2004)

▲ Australian Gas Light Company (ACN 052 167 405) v ACCC (No. 3) [2003] FCA 1525 ➤ (19 December 2003)
(Justice French)
Mergers - declaration that merger would not SLC - declaration sought after ACCC refused to provide informal clearance

AGL, an electricity retailer, sought to acquire, as part of a consortium, the Loy Yang A Power Station Business (LYP), a Victorian electricity generation business. The acquisition would have given AGL a 35% share in LYP, the maximum permitted by the Electricity Industry (Prohibited Interests) Regulations 2003. AGL sought an informal clearance from the ACCC for the proposed acquisition. This was denied by the ACCC and the ACCC indicated that, should the acquisition proceed, the ACCC would 'seek appropriate remedies from the Federal Court, including divestment'. AGL then instituted proceedings in the Federal Court seeking a declaration that the proposed acquisition would not infringe s 50 of the TPA, which prohibits mergers which substantially lessen competition. This was the first time an informal clearance ruling had been challenged in Court and the first time the SLC test then in force had been tested. The ACCC opposed the application. It first argued that there was no jurisdiction for the court to grant a declaration, because there was no 'matter' before the court that could appropriately be the subject of a declaration. They further argued that even if such jurisdiction existed, the declaration should not be granted because the merger would substantially lessen competition.

Justice French found that there was a ‘matter’ before the Court that could be the subject of a declaration and further that the merger would not substantially lessen competition (subject to certain structural undertakings made to the Court).

★ Rural Press Limited v ACCC [2003] HCA 75 ➤ (11 December 2003)
(Chief Justice Gleeson, Justices Gummow, Kirby, Hayne, Callinan and Heydon)
Misuse of market power and exclusionary provisions

★ Visy Paper Pty Ltd v ACCC [2003] HCA 59 ➤ (8 October 2003)
(Chief Justice Gleeson, Justices McHugh, Gummow, Kirby, Hayne and Calllinan)
Section 45 and 47 - anti-overlap

The ACCC alleged (inter alia) that Visy had attempted to breach s 45(2)(a)(i) of the TPA by proffering to one of its competitors, Northern Pacific Paper (NPP), an agreement which contained a ‘non-competition clause’. Specifically, the clause would have prevented NPP collecting waste products from, and supplying waste collection services to, any of Visy’s customers or potential customers.

▲ Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193 ➤ (22 August 2003)
(Justices Wilcox, French and Gyles)
Misuse of market power - exclusive dealing - purpose or effect of SLC

The Court upheld an appeal based on s 46 on the basis that, following the High Court’s decision in Boral, it could not be said that the parties had the requisite ‘substantial market power’.

★ News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ➤ (13 August 2003)
(Chief Justice Gleeson and Justices McHugh, Gummow, Kirby (dissenting) and Callinan)
Exclusionary provisions

This case arose following the Super League drama between the Australian Rugby League and News Ltd (which was the subject of separate litigation). As part of a compromise, a new rugby competition, the National Rugby League (NRL) was formed in 1998. Part of the agreement between ARL and News for the formation of the NRL was that the number of teams would be reduced from 17 to 14 by 1998. This was to be done through a selection process which would rank teams in order of their suitability for the competition. In this ranking, the South Sydney Football Club was ranked 15th and was therefore excluded from the competition. South Sydney challenged the term, claiming it constituted an unlawful exclusionary provision. Application for interlocutory injunction was denied by Justice Hely in December 1999. At trial, Justice Finn rejected South’s claim that the term reducing the competition from 17 to 14 teams was an exclusionary provision. The majority of the Full Federal Court overturned the decision of Justice Finn, holding the term was an exclusionary provision. On further appeal the majority of the High Court held that news did not have a purpose of excluding any particular club.

Appeal from FCAFC: South Sydney District Rugby League Football Club Ltd v News Ltd [2001] FCA 862 ➤ (6 July 2001)
Primary decision: South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 ➤ (3 November 2000)
Interlocutory injunction claim: South Sydney District Rugby League Football Club Ltd v News Ltd [1999] FCA 1710 ➤ (9 December 1999)

ACCC v Australian Medical Association Western Australian Branch Inc [2003] FCA 686 ➤ (9 July 2003)
(Justice Carr)
Price fixing, market definition

▲ ACCC v Australian Safeway Stores Pty Limited [2003] FCAFC 149➤ (30 June 2003)
(Justices Heerey, Sackville and Emmett)
Misuse of market power, exclusive dealing, price fixing

The ACCC alleged price fixing, exclusive dealing and misuse of market power by Safeway in relation to the supply of bread by Tip Top, Buttercup and Sunicrust bakeries to retailers. In particular, it was alleged Safeway had takin action aginst each manufacturer to induce or attempt to induce them to take action to stop the discounting by retailers, including by refusing to accept further supply of bread from bakers who were supplying to discounters. At trial Justice Goldberg found none of the allegations to have been established. On appeal the ACCC partly succeeded. See ACCC media release.

Penalty decision: ACCC v Australian Safeway Stores Pty Limited (No 4) [2006] FCA 21 ➤ (31 January 2006)
Trial: ACCC v Australian Safeway Stores Pty Limited (No 2) [2001] FCA 1861 ➤ (21 December 2001)

★ Boral Besser Masonry Limited (now Boral Masonry Ltd) v ACCC [2003] HCA 5 (7 February 2003)
(Chief Justice Gleeson, Justices Gaudron, McHugh, Gummow, Kirby (dissenting), Hayne, Callinan)
Misuse of market power (predatory pricing)

The ACCC alleged Boral Besser Masonry (BBM) and its parent company, Boral, had contravened s 46 of the TPA (misuse of market power) by pricing below avoidable cost in order to drive out a competitor (C&M Brick). The ACCC alleged BBM had a substantial degree of power in the market for concrete masonry products in metropolitan Melbourne.

At trial Justice Heerey dismissed the ACCC’s application. An appeal by the ACCC was successful (Justices Beumont, Merkel and Finkelstein). A further appeal by Boral to the HC was successful, with the majority finding that BBM did not have substantial market power in the relevant market and, even if it did, they had not taken advantage of that power for purposes of the misuse of market power prohibition.

Appeal from FCAFC: ACCC v Boral Ltd [2001] FCA 30 (27 February 2001)
Primary decision: ACCC v Boral Ltd [1999] FCA 1318 (22 September 1999)

ACCC v Australian Safeway Stores Pty Limited (No 2) [2001] FCA 1861 ➤ (21 December 2001)
(Justice Goldburg)
Misuse of market power - exclusive dealing - price fixing

The ACCC alleged price fixing, exclusive dealing and misuse of market power by Safeway in relation to the supply of bread by Tip Top, Buttercup and Sunicrust bakeries to retailers. In particular, it was alleged Safeway had takin action aginst each manufacturer to induce or attempt to induce them to take action to stop the discounting by retailers, including by refusing to accept further supply of bread from bakers who were supplying to discounters. Justice Goldberg found none of the allegations to have been established. On appeal the ACCC partly succeeded. See ACCC media release.

Penalty decision: ACCC v Australian Safeway Stores Pty Limited (No 4) [2006] FCA 21 ➤ (31 January 2006)
Appeal (partly successful): ACCC v Australian Safeway Stores Pty Limited [2003] FCAFC 149 ➤ (30 June 2003)

★ Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 201 CLR 181 ➤ (13 December 2001)
(Chief Justice Gleeson, Justices Gummow, Kirby, Hayne and Callinan)
Restraint of Trade

★ Peters (WA) Ltd v Petersville Ltd [2001] HCA 45 ➤ (9 August 2001)
(Chief Justice Gleeson, Justices Gummow, Kirby, Hayne and Callinan)
Restraint of trade - s 4M - anti-competitive agreements - exclusive dealing

Sale of business - restriction on supplying ice cream products in WA. At trial Justice Carr held the restraint was not reasonable between the parties and was void as being in restraint of trade. The Full Court upheld that finding. The appeal to the High Court was dismissed.

Appeal from FCAFC: Peters (W.A.) Ltd v Petersville Ltd [1999] FCA 1245 ➤ (14 September 1999)
Trial: Petersville Ltd & Anor v Peters (WA) Ltd [1999] FCA 5 ➤ (8 January 1999)

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056 ➤ (6 August 2001)
(Justice Lindgren)
Misuse of Market Power - Exclusive Dealing - Anti-competitive agreements - Likely effect of SLC

Original application dismissed. Appeal dismissed.

Appeal (dismissed): Monroe Topple & Associates Pty Ltd v The Institute of Chartered Accountants [2002] FCAFC 197 ➤ (19 June 2002)

South Sydney District Rugby League Football Club Ltd v News Ltd [2001] FCA 862 ➤ (6 July 2001)
(Justices Heerey (dissenting), Moore and Merkel)
Exclusionary provisions

This case arose following the Super League drama between the Australian Rugby League and News Ltd (which was the subject of separate litigation). As part of a compromise, a new rugby competition, the National Rugby League (NRL) was formed in 1998. Part of the agreement between ARL and News for the formation of the NRL was that the number of teams would be reduced from 17 to 14 by 1998. This was to be done through a selection process which would rank teams in order of their suitability for the competition. In this ranking, the South Sydney Football Club was ranked 15th and was therefore excluded from the competition. South Sydney challenged the term, claiming it constituted an unlawful exclusionary provision. Application for interlocutory injunction was denied by Justice Hely in December 1999. At trial, Justice Finn rejected South’s claim that the term reducing the competition from 17 to 14 teams was an exclusionary provision. The majority of the Full Federal Court overturned the decision of Justice Finn, holding the term was an exclusionary provision. On further appeal the majority of the High Court held that news did not have a purpose of excluding any particular club.

Appeal to High Court (successful): News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ➤ (13 August 2003)
Primary decision: South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 ➤ (3 November 2000)
Interlocutory injunction claim: South Sydney District Rugby League Football Club Ltd v News Ltd [1999] FCA 1710 ➤ (9 December 1999)

ACCC v ABB Transmission and Distribution Limited [2001] FCA 383 ➤ (5 April 2001)
(Justice Finkelstein)
Pecuniary penalty - joint submissions - factors relevant to appropriate penalty - cartel conduct

Corporate penalties of $7m imposed against Alstom and penalties imposed on its managing director in relation to price fixing and market sharing contraventions in the Australian transformer industry. Alstom admitted conduct and cooperated with the ACCC. See ACCC media release on penalties.

Related penalty decisions
ACCC v ABB Transmission and Distribution Limited (No. 2) [2002] FCA 559 ➤ (3 May 2002)
ACCC v ABB Power Transmission Pty Ltd [2004] FCA 819 ➤ (7 April 2004)

ACCC v Roche Vitamins Australia Pty Ltd [2001] FCA 150 ➤ (28 February 2001)
(Justice Lindgren)
Pecuniary penalty - factors relevant to appropriate penalty

★ Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ➤ (15 March 2001)
(Chief Justice Gleeson, Justices Gummow, Kirby (dissenting), Hayne and Callinan)
Misuse of market power

Publishers of the Melway street directory terminated its dealings with a distributor (Robert Hicks Pty Ltd – T/A Auto Fashions).  At the time of trial Melway had 80-90% of the market, that being for street directories of Melbourne, a dominance it had acquired between 1966 and the early 1980’s. Melway appointed exclusive distributors to particular market segments; eg newsagents, petrol stations, mega-retailers such as K-Mart, Target and Big-W, dealers in auto-accessories etc. These distributorships were terminable at will. Large retail outlets such as Target and K-Mart had tried to get distributors to compete by tender to supply them copies of the Melway directory at a discount, but Melway had insisted on maintaining its “orderly marketing” system. By the time of trial inter-brand competition was minimal - the UBD and Gregory’s market share hovering around 5% or so each.

Melway terminated the distributorship of Auto Fashions following a split between the partners of that entity. One of the partners, Nagel, left Auto Fashions, and started his own business. Melway then terminated Auto Fashions’ distributorship and appointed Nagel as its sole distributor in that market segment. Auto Fashions then placed an order for between 30,000 and 50,000 copies of the Melway directory.  Melway refused to supply and Auto Fashions commenced proceedings alleging a breach of s 46.

At Trial Justice Merkel found the market was for Melbourne street directories and in this Melway had substantial market power. Finding that a firm without substantial market power would not have refused the order, Justice Merkel concluded Melway had taken advantage of its market power when refusing supply. His Honour also held that the proscribed purpose requirement was satisfied. On appeal a majority upheld Justice Merkel’s decision, rejecting Melway’s business justification argument. On further appeal to the High Court the majority allowed the appeal, noting Melway could have refused supply even without substantial market power and refusal in this case did not deny Melway extra sales; there was a legitimate business purpose and not a proscribed purpose.

Appeal from FCAFC: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [1999] FCA 664 ➤ (20 May 1999)
Trial: Robert Hicks Pty Ltd (trading as Auto Fashions Australia) v Melway Publishing Pty Ltd [1998] FCA 1379 ➤ (30 October 1998)

ACCC v Boral Ltd [2001] FCA 30 (27 February 2001)
(Justices Beaumont, Merkel & Finkelstein)
Misuse of market power (predatory pricing)

The ACCC alleged Boral Besser Masonry (BBM) and its parent company, Boral, had contravened s 46 of the TPA (misuse of market power) by pricing below avoidable cost in order to drive out a competitor (C&M Brick). The ACCC alleged BBM had a substantial degree of power in the market for concrete masonry products in metropolitan Melbourne.

At trial Justice Heerey dismissed the ACCC’s application. An appeal by the ACCC was successful (Justices Beumont, Merkel and Finkelstein). A further appeal by Boral to the HC was successful, with the majority finding that BBM did not have substantial market power in the relevant market and, even if it did, they had not taken advantage of that power for purposes of the misuse of market power prohibition.

Appeal to High Court (successful): Boral Besser Masonry Limited (now Boral Masonry Ltd) v ACCC [2003] HCA 5 ➤ (7 February 2003)
Appeal from: ACCC v Boral Ltd [1999] FCA 1318 ➤ (22 September 1999)

ACCC v Mobil Oil Australia Ltd [1997] FCA 480; (1997) ATPR 41–568 ➤ (5 June 1997)
(Justice Heerey)
Price fixing - pleadings - parallel conduct.

ACCC alleged price fixing. Mobil Oil sought to strike out the application - argument that no adequate particulars of arrangement. Application successful. Further amended statement of claim struck out and leave to re-plead refused. Justice Heerey: “'The retail petroleum products market, with its highly visible price boards and mobile customers is one where a trader’s prices and fluctuations thereof are as readily apparent to competitors as they are to customers. Therefore parallel pricing in itself, in this particular market, is as likely to follow from observation and independent decision of rival traders as from prior arrangement.” (ATPR p 43,896)

▲ AW Tyree Transformers Pty Ltd and Wilson Transformer Co Pty Ltd (1997) ATPR (Com) 50–247
(The Commission)
Authorisation - joint marketing scheme

The applicants sought authorisation of a joint marketing agreement which they claimed was a competitive response to changes in electricity supply industry. AW Tyree supplied distribution transformers and Wilson produced power transformers and specialised distribution transformers. There were four four ranges of distribution transformers. Tyree produced mainly sub 100 kVA products; Wilson produced mainly above 100 kVA products. Changes to industry were forcing electricity utilities to implement cost reduction strategies. A joint marketing agreement was entered into so parties could jointly tender to utility customers – the agreement set out when joint bids could be made: (a) if tender indicates preference for single supplier and (b) if utility expresses positive interest in joint bid. When there was no joint bid, the companies would operate separately.  Authorisation was sought.

The Commission noted the applicants currently compete in respect of only a limited range. The joint venture would predominantly affect range B transformers and was limited to where range B was linked to range A or range C and where tender indicated it would assess tenders on preference for single supplier. Where a tender was for range B only, A’s would still compete. The Commission held that the JV had no significant anti-competitive effect because of (1) the number and size of existing competitors that would provide the parties with significant competition; (2) the threat of imports due to falling tariffs; (2) the countervailing power of utilities and (4) evidence that demand was falling. In fact, they concluded, the JV was pro-competitive because it provided an additional market participant able to singularly provide full range of transformers where demanded.

▲ Re QIW Ltd (1995) 132 ALR 225; (1995) ATPR 41-439
(Tribunal: Justice Lockhart, Professor Brunt, Dr Aldrich)
Mergers - market definition (sub-markets)

The Trade Practices Commission granted authorisation for Davids Ltd to acquire the shares and securities of Composite Buyers Ltd (CBL). Both were in the business of wholesale grocery distribution. QIW applied for a review of the Commission's decision.

The Tribunal concluded the merger would not be anti-competitive and that authorisation should be granted. The Tribunal varied the determination of the Commission by authorising Davids to acquire all issued shares and other securities in CBL, provided the acquired at least enough to enable Davids Ltd to cast more than 50% of votes at general meetings of CBL, and otherwise no condition was attached to the authorisation.

[At ATPR 40,967; ALR 284] "The proposed merger would have no anti-competitive or any other detriment. The relevant wholesaling sub-markets are subject to competitive discipline from the market as a whole, which is the Australia-wide market for grocery distribution. The proposed reduction in the number of wholesalers in New South Wales and Victoria from two to one would be subject to the same competitive discipline and would have no anti-competitive or other detriment. In fact, it would be pro-competitive as it would improve the results to which the competitive process gives rise."

On the issue of functional market definition, the Tribunal, noting that 70% of turnover at wholesale level of that market passed through vertically integrated supermarket chains, concluded (at 266):

In summary, there is an Australia-wide or national market for the distribution of grocery products to the consuming public via integrated retail chains and independent wholesalers supplying independent retailers. We distinguish two wholesale sub-markets of relevance to this application, namely, transactions between independent wholesalers and independent retailers in (1) the New South Wales region and (2) the Victorian region. We use the term “sub-market” to refer to a field of rivalry that is 'especially close or especially immediate' reflecting 'some discontinuity in substitution possibilities': Tooth & Tooheys at 18,197; QCMA at FLR 190; ATPR 17,247. In specifying these wholesale sub-markets we have, in effect, made two “cuts” in the pattern of substitution within the market as a whole: a functional cut to separate certain wholesale transactions between independent wholesalers and independent retailers, and a geographic cut to separate certain transactions within the independent sector that centre upon the geographic pattern of physical distribution. There are also retail submarkets whose functioning has significance for this application. We do not regard the various sub-markets as separable markets, however, for the activities concerned are subject to the ultimate discipline of pervasive competition with the national integrated chains.

Trade Practices Commission v the Gillette Company; Wilkinson Sword Limited; Wsgal Pty Limited (Formerly Wilkinson Sword Group Australia Limited); Registrar of Trade Marks [1993] FCA 495 ➤ (8 October 1993)
(Justice Burchett)
Mergers - divestiture power under s 81 - constitutional validity

WSGAL P/L argued that s 81 (divestiture power) was invalid as purporting to authorise the acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution) and also that s 81(1A) was invalid as purporting to confer non-judicial powers on a Chapter III Court. Justice Burchett (at trial) held that sections 81(1) and (1A) were valid. The Full Federal Court dismissed the appeal.

Appeal to Full Court (dismissed): WSGAL Pty Limited v Trade Practices Commission, the Gillette Company, Wilkinson Sword Limited and Registrar of Trade Marks [1994] FCA 1079; (1994) 122 ALR 673 ➤ (11 May 1994)

Case note: Ray Steinwall, ‘Constitutional Validity of Divestiture Orders’ [1994] UNSWLawJl 24; (1994) 17(2) UNSW Law Journal 648 ➤

▲ TPC v Service Station Association Ltd [1993] FCA 405; (1993) 44 FCR 206; (1993) 116 ALR 643; (1993) ATPR 41-260 ➤ (26 August 1993) (Sydney Petrol Case)
(Justices Lockhart, Spender and Lee)
Anti-competitive agreements - cartels (price fixing)

TPC alleged petrol retailers in the Sydney metro area made an arrangement or understanding with each other and the Service Station Association Ltd to fix, control or maintain retail prices of petrol. Justice Heerey dismissed the claim, finding no agreement as alleged. An appeal was dismissed

Appeal from: Re Trade Practices Commission v Service Station Association Limited; John Alick Langley and Brian Ernest Mark [1992] FCA 350; (1992) 14 ATPR 41-179 ➤ (24 July 1992)

▲ Stationers Supply Pty Ltd v Victorian Authorised Newsagents Associated Limited [1993] FCA 380; (1993) 44 FCR 35 ➤ (13 August 1993)
(Justice Ryan)
Purpose or effect of substantially lessening competition - anti-competitive agreements - exclusive dealing

Newspower entered into arrangements with Victorian Newsagent Supplies (VNS) (one of the defendants) and individual newsagents to establish a “Newspower” product line.Stationers Supply alleged Newspower supplied promotional services to members on condition they purchase promotional goods or supplies from VNS.  It was claimed this constituted an arrangement with the purpose of SLC. Justice Ryan held that to contravene provisions substantial purpose must be to SLC. In this case purpose of membership agreement was to ‘unite newsagents under common marketing banner’ (para 85). To strive for market dominance is not to have a purpose of SLC (para 85). Here, the purpose of the arrangement was the more effective promotion of newsagents with a view to increasing sales (para 87). There was no substantial purpose of SLC.

QIW Retailers Ltd v Davids Holdings Pty Ltd [1993] FCA 204; (1993) 42 FCR 255; (1993) 114 ALR 579 ➤ (30 April 1993)
(Justice Spender)
Mergers - market definition (functional market)

QIW Retailers Ltd (QIW) and the Attorney General of the Commonwealth, each brought proceedings against Davids and its subsidiaries in respect of a proposed acquisition by Davids. At trial, Justice Spender granted the applications, declaring that an acquisition by Davids of the issued shares in QIW would contravene s 50 of the TPA. Davids Holdings Pty Ltd (Davids) and the second to tenth appellants (subsidiaries of Davids) appealed against these orders. The appeal succeeded.

Note: dominance test for mergers applied at the time. Davids was the forerunner to Metcash. The takeover of QIW and CBL was completed in 1996. The company name changed from Davids Limited to Metcash Trading Limited in September 2000.

Appeal to Full Court: Davids Holdings v Attorney-General [1994] FCA 1039; (1994) 49 FCR 211 ➤ (22 April 1994)

▲ Gallagher v Pioneer Concrete (NSW) Pty Ltd [1993] FCA 59; (1993) 113 ALR 159; (1993) 14 ATPR 41-216 ➤ (26 February 1993)
(Justice Lockhart)
Anti-competitive agreements

Applicants were lorry owner drivers (LOD’S) engaged by Pioneer to carry ready-mixed concrete to building sites in Sydney.  Pioneer claimed the LOD’s had an agreement to restrict the number of trucks available to Pioneer and also to prevent it from engaging third parties.  They also operated on a rotation system to share work and equalise income.

Justice Lockhart observed that the equalisation system conceals differences between operators.  It limits ability of market participants to change the number and form of ownership of trucks, penalising efficient operators and subsidising inefficient operators: ‘They are acts of protection which are contrary to the dictates of market competition.  There is a lessening of competition … caused by an artificial limit being imposed on the number of trucks that may be used …’. The lessening of competition was substantial both in the cartage market and the concrete market (in relation to the latter, his Honour observed that cartage accounted for approximately 15% of the cost to the customers and the restrictions meant there was an inability to meet customer demand).

▲ TPC v Penfold Wines Pty Ltd (1992) ATPR 41–163 ➤ (13 December 1991)
(Justices Pincus, French and Foster)
Resale price maintenance

[para 1 appeal] “Penfolds threatened to withdraw the benefits of certain allowances and discounts for FAL unless it brought its prices "into line" with those charged by Penfolds. The allowances and discounts were subsequently withdrawn.” The TPC alleged this constituted RPM. At trial the application was dismissed. The Commission appealed. [para 3 appeal]: “On the appeal, it was contended for the Commission among other things, that his Honour had erred in holding that because Penfolds was prepared to tolerate a deviation by FAL from its own wholesale prices, it had not specified a resale price and therefore was not guilty of resale price maintenance. Penfolds argued that the Commission had only pleaded and advanced its case upon the basis that the price had been specified with precision. No "approximation" case had been run.” The appeal was dismissed, the Court adopting a technical approach to interpreting s 96.

Appeal from: Re Trade Practices Commission v Penfolds Wines Pty Limited; James Llewellyn Williams and George Keys [1990] FCA 534; (1991) 13 ATPR 41-071 ➤ (21 December 1990)

Broderbund Software Inc v Computermate Products (Australia) Pty Ltd (1992) ATPR 41-155 (21 November 1991)
(Justice Beaumont)
Market definition - misuse of market power - exclusive dealing - anti-competitive agreement

Related to parallel importing of the program “Where in the World is Carmen Sandiego”. Dataflow had exclusive rights to sell in Australia; Broderbund owned the copyright. Computermate imported and sold reproductions. Computermate sought declarations of various contraventions. The claim was dismissed.

Berlaz Pty Ltd v Fine Leather Care Products Limited [1991] FCA 163; (1991) 13 ATPR 41-118 ➤ (24 April 1991)
(Justice Pincus)
Misuse of market power - trans-Tasman market - interlocutory proceedings - injunction refused

Interlocutory injunction requested to require respondent to continue to supply applicant with certain products. Applicant argues that the respondent terminated its distributorship ‘with a view to eliminating or substantially damaging Berlaz as a competitor’ (para 3). It was not contested that FLC dominated the market for leather care products in Australia; however, his Honour was not satisfied that relevant purpose of TLC in terminating the distributorship was suppressing or deterring competition, or otherwise that there was a serious issue to be tried.

Eastern Express Pty Ltd v General Newspapers Pty Ltd [1991] FCA 321; (1991) 30 FCR 385; (1991) 13 ATPR 41-128; (1991) 103 ALR 41 ➤ (23 July 1991)
(Justice Wilcox)
Misuse of market power (predatory pricing)

Owner of new newspaper (Eastern Express) claimed owners of established newspaper (Wentworth Courier) engaged in predatory pricing in relation to advertising services in order to damage or eliminate it. Market described as special and unusual. Claim dismissed. Appeal failed.

Appeal to Full Court (failed): Eastern Express Ltd v General Newspapers Pty Ltd [1992] FCA 162; (1992) 35 FCR 43; (1992) 106 ALR 297; (1992) 14 ATPR 41-167 ➤ (2 April 1992)

▲ Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd [1991] FCA 621; (1991) 33 FCR 158; (1991) 104 ALR 633; (1992) 14 ATPR 41-159 ➤ (12 December 1991)
(Justices Spender, French and O’Loughlin)
Misuse of market power - market definition

Taprobane Tours WA Pty Ltd (Taprobane) was a wholesale travel agent, including operating as a wholesaler of tours to the Maldive Islands from 1984-1987. The air component of the tours was provided by Singapore Airlines, which later also conducted its own in-house sales for these destinations and began to restrict wholesaling of Maldive services by Taprobane and increase prices for supply of its services to Taprobane. Taprobane alleged this constituted an abuse of market power contrary to s 46 of the TPA and instituted proceedings for damages. Taprobane succeeded at first instance and was awarded $14,000 damages. Singapore Airlines appealed the decision. The appeal was allowed on the threshold question of market definition. The Court also noted there did not appear to be any anti-competitive purpose.

Appeal from: Re Taprobane Tours WA Pty Ltd v Singapore Airlines Limited [1990] FCA 325; 96 ALR 405 ➤ (30 August 1990)

▲ TPC v CSR Ltd [1990] FCA 521; (1991) 13 ATPR 41-076 ➤ (20 December 1990)
(Justice French)
Misuse of market power (admitted) - exclusive dealing - pecuniary penalties

Admitted contravention of the misuse of market power provision. In particular, CSR admitted having a substantial degree of market power in the ceiling materials market in WA, refusing to supply certain customers for the purpose of deterring competitive conduct in the ceiling market and preventing entry of Boral into that market and that it took advantage of its market power in the ceiling materials market in contravention of s 46 (para 32). CSR further admitted that its conduct was engaged in with purpose of substantially lessening competition or that it was likely to have that effect and that, as a result, its conduct also contravened section 47 (exclusive dealing) (para 32). CSR was ordered to pay a pecuniary penalty of $220,000.

Case note: John Tyrril, ‘Trade Practices - Building Materials - Misuse of Market Power - Trade Practices Commission v CSR Limited, Federal Court of Australia, 20 December 1990, ATPR 41-076’ [1991] AUConstrLawNlr 101; (1991) 18 Australian Construction Law Newsletter 54 ➤

Re Paul Dainty Corporation Pty Ltd and Paul Dainty Productions Pty Ltd v the National Tennis Centre Trust; the Victorian Arts Centre Trust and Olympic Park Management [1989] FCA 173 ➤ (17 May 1989)
(Justice Sweeney)
Exclusive dealing (third line forcing)

No exclusive dealing found at trial. Appeal dismissed.

Appeal to Full Court (failed): The Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust [1990] FCA 163; (1990) 22 FCR 495 ➤ (28 May 1990)

★ Queensland Wire Industries v BHP [1989] HCA 6; (1989) 167 CLR 177(8 February 1989)
(Chief Justice Mason, Justices Wilson, Deane, Dawson and Toohey)
Misuse of market power - leveraging market power (section 46)

Qld Wire claimed that BHP had engaged in a misuse of market power by refusing to supply it with Y-Bar necessary to make star picket fencing. At trial Justice Pincus found there was market dominance and a proscribed purpose, but no ‘taking advantage’. The claim failed. The Full Court dismissed an appeal, though on different grounds (finding no relevant market). An appeal to the High Court was successful.

Full Court: Re Queensland Wire Industries Pty Limited v the Broken Hill Proprietary Co Limited and Australian Wire Industries Proprietary Limited [1987] FCA 496 (24 December 1987)
Trial: Re Queensland Wire Industries Pty Ltd v the Broken Hill Proprietary Company Limited; Australian Wire Industries Proprietary Limited [1987] FCA 294 (2 September 1987)

Case note: Stephen Lee, 'Queensland Wire Industries: A Breath of Fresh Air' (1989) 18 Federal Law Review 212 ➤

1987

Re Queensland Wire Industries Pty Limited v the Broken Hill Proprietary Co Limited and Australian Wire Industries Proprietary Limited [1987] FCA 496 (24 December 1987)
(Chief Justice Bowen and Justices Morling and Gummow)
Misuse of market power - leveraging market power (section 46)

Qld Wire claimed that BHP had engaged in a misuse of market power by refusing to supply it with Y-Bar necessary to make star picket fencing. At trial Justice Pincus found there was market dominance and a proscribed purpose, but no ‘taking advantage’. The claim failed. The Full Court dismissed an appeal, though on different grounds (finding no relevant market). An appeal to the High Court was successful.

High Court: Queensland Wire Industries v BHP [1989] HCA 6; (1989) 167 CLR 177(8 February 1989)
Trial: Re Queensland Wire Industries Pty Ltd v the Broken Hill Proprietary Company Limited; Australian Wire Industries Proprietary Limited [1987] FCA 294 (2 September 1987)

Case note: Stephen Lee, 'Queensland Wire Industries: A Breath of Fresh Air' (1989) 18 Federal Law Review 212 ➤

Williams and Vajili Pty Ltd v Papersave Pty Ltd [1987] FCA 351 ➤ (12 October 1987)
(Justices Fox, Beaumont and Burchett)
Misuse of market power

Appeal dismissed: "Here we simply have a corporation which handled 60 per cent of the collection and treatment of waste computer paper, seeking to take a lease with no added special features, except a knowledge that a potential competitor also wanted the lease." (para 24)

Appeal from: Williams & Anor v Papersave Pty Ltd (1987) ATPR 40-818; [1987] FCA 162 ➤ (19 May 1987)

Re Queensland Wire Industries Pty Ltd v the Broken Hill Proprietary Company Limited; Australian Wire Industries Proprietary Limited [1987] FCA 294 (2 September 1987)
(Justice Pincus)
Misuse of market power - leveraging market power (section 46)

Qld Wire claimed that BHP had engaged in a misuse of market power by refusing to supply it with Y-Bar necessary to make star picket fencing. At trial Justice Pincus found there was market dominance and a proscribed purpose, but no ‘taking advantage’. The claim failed. The Full Court dismissed an appeal, though on different grounds (finding no relevant market). An appeal to the High Court was successful.

High Court: Queensland Wire Industries v BHP [1989] HCA 6; (1989) 167 CLR 177(8 February 1989)
Full Court: Re Queensland Wire Industries Pty Limited v the Broken Hill Proprietary Co Limited and Australian Wire Industries Proprietary Limited [1987] FCA 496 (24 December 1987)

Case note: Stephen Lee, 'Queensland Wire Industries: A Breath of Fresh Air' (1989) 18 Federal Law Review 212 ➤

▲ Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd [1987] FCA 282; (1987) 74 ALR 581; (1987) ATPR 40–089 ➤ (25 August 1987)
(Justice Wilcox)
Exclusive dealing - market definition

Bursill was a ski boot supplier who refused to supply to Mark Lyons after it engaged in price discounting in warehouse and through town hall sales. Mark Lyons alleged the supplier's conduct would substantially lessen competition in the market. In assessing whether competition had been lessened, Mark Lyons argued that the relevant product market was for a particular brand of ski boot (Salomon ski boot). Bursill argued it was either sports gear generally or ski gear. Justice Wilcox held that the refusal to supply a dealer who was offering vigorous competition would result in a removal of significant competition. Bursill had contravened s 47. His Honour found that Bursill’s claimed market definition was too broad and Mark Lyons’ was too narrow. The best evidence of market dimensions ‘may be the behaviour of people in the particular trade.’ (at 591). In this case that evidence led to a determination that the appropriate market was the ‘Australian ski boot market’ [at 591]

Williams & Anor v Papersave Pty Ltd (1987) ATPR 40-818; [1987] FCA 162 ➤ (19 May 1987)
(Justice Sheppard)
Misuse of market power

Substantial market power and prohibited purpose existed, but not the taking advantage element; taking advantage of information, not taking advantage of market power. Appeal failed.

Appeal to Full Court: Williams and Vajili Pty Ltd v Papersave Pty Ltd [1987] FCA 351 ➤ (12 October 1987)

Castlemaine Tooheys Limited v Williams and Hodgson Transport Pty Limited [1985] FCA 477 ➤ (19 December 1985)
(Justices Fox (dissenting), Sweeney and Lockhart)
Exclusive dealing (third line forcing)

The Appellant, Castlemaine Tooheys, brewed beer in Brisbane. In North Queensland the appellant maintained regional depots at Rockhampton, Mackay, Townsville and Cairns. Retailers in the North Qld area had (subject to minor exceptions) a choice of two methods for acquiring CT's beer: (1) taking delivery from one of the regional depots; or (2) arranging for beer to be delivered to their premises from the brewery. If this method was chosen CT would engage the carrier and arrange transportation (this was arranged through CT's 'preferred carrier' (at the time, Queensland Railfast Express (QRX)). The buyer would be invoiced for a total price, although the invoice would list freight separately. Subject to limited exceptions North Qld retailers were not permitted to take delivery directly from the brewery at Brisbane. The respondent (Williams) was a carrier who wished to carry CT's beer to North Qld.

Williams claimed that CT's arrangements amounted to exclusive dealing contrary to s 47 of the Act. Williams argued that a retailer who bought beer to be delivered to its premises by QRX 'acquired' QRX's services because it received the benefit of those services. This was notwithstanding the absence of a contractual arrangement with QRX. Williams also argued that the services of QRX were 'forced' on the retailer because the commercial reality was that they had to accept the terms offered by CT. It was, therefore, argued that CT supplied beer 'on condition' that the retailer acquired services of QRX (third line forcing)

At trial Justice Wilcox found that CT's arrangement regarding carriage constituted exclusive dealing and granted an injunction and damages in the amount of$20,000. The Full Federal Court rejected an appeal (by majority). The High Court upheld an appeal (by majority).

High Court (appeal succeeded): Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395 ➤ (2 December 1986)
Trial: Williams & Hodgson Transport Pty Limited v Castlemaine Tooheys Limited Qld [1985] FCA 299; (1985) ATPR 40 - 609 ➤ (9 August 1985) (Justice Wilcox)

TPC v BP Australia Limited [1985] FCA 466 ➤ (11 December 1985)
(Justice Beaumont)
Resale price maintenance - penalties

At trial RPM was established and penalties ordered in separate proceedings ($20,000). Appeal dismissed.

Appeal on liability to Full Court: BP Australia Ltd v TPC [1986] FCA 152; (1986) 12 FCR 118 ➤ (16 May 1986)
Liability decision: TPC v BP Australia Limited [1985] FCA 391; (1985) 7 FCR 499 ➤ (22 October 1985) (Justice Beaumont)

▲ TPC v Parkfield Operations Pty Ltd [1985] FCA 403; (1985) 5 FCR 140 ➤ (30 October 1985)
(Justices Bowen, Smithers and Morling)
Contract, arrangement or understanding - mutuality - cartels (price fixing)

Whether there was an attempt to make an arrangement or an understanding to increase the price of petrol - whether attempt to induce. Application dismissed at trial. Appeal succeeded: contravention (attempt) established.

Appeal from: TPC v Parkfield Operations Pty Ltd [1985] FCA 27; (1985) 5 FCR 140 ➤ (13 February 1985)

TPC v BP Australia Limited [1985] FCA 391; (1985) 7 FCR 499 ➤ (22 October 1985) (Justice Beaumont)
(Justice Beaumont)
Resale price maintenance

At trial RPM was established and penalties ordered in separate proceedings ($20,000). Appeal dismissed.

Appeal to Full Court (dismissed): BP Australia Ltd v TPC [1986] FCA 152; (1986) 12 FCR 118 ➤ (16 May 1986)
Penalty: TPC v BP Australia Limited [1985] FCA 466 ➤ (11 December 1985)

Williams & Hodgson Transport Pty Limited v Castlemaine Tooheys Limited Qld [1985] FCA 299; (1985) ATPR 40-609 ➤ (9 August 1985)
(Justice Wilcox)
Exclusive dealing (third line forcing)

The Appellant, Castlemaine Tooheys, brewed beer in Brisbane. In North Queensland the appellant maintained regional depots at Rockhampton, Mackay, Townsville and Cairns. Retailers in the North Qld area had (subject to minor exceptions) a choice of two methods for acquiring CT's beer: (1) taking delivery from one of the regional depots; or (2) arranging for beer to be delivered to their premises from the brewery. If this method was chosen CT would engage the carrier and arrange transportation (this was arranged through CT's 'preferred carrier' (at the time, Queensland Railfast Express (QRX)). The buyer would be invoiced for a total price, although the invoice would list freight separately. Subject to limited exceptions North Qld retailers were not permitted to take delivery directly from the brewery at Brisbane. The respondent (Williams) was a carrier who wished to carry CT's beer to North Qld.

Williams claimed that CT's arrangements amounted to exclusive dealing contrary to s 47 of the Act. Williams argued that a retailer who bought beer to be delivered to its premises by QRX 'acquired' QRX's services because it received the benefit of those services. This was notwithstanding the absence of a contractual arrangement with QRX. Williams also argued that the services of QRX were 'forced' on the retailer because the commercial reality was that they had to accept the terms offered by CT. It was, therefore, argued that CT supplied beer 'on condition' that the retailer acquired services of QRX (third line forcing)

At trial Justice Wilcox found that CT's arrangement regarding carriage constituted exclusive dealing and granted an injunction and damages in the amount of$20,000. The Full Federal Court rejected an appeal (by majority). The High Court upheld an appeal (by majority).

High Court (appeal succeeded): Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395 ➤ (2 December 1986)
Full Court (appeal failed): Castlemaine Tooheys Limited v Williams and Hodgson Transport Pty Limited [1985] FCA 477 ➤ (19 December 1985)

TPC v The Heating Centre Pty Limited and Brian Butterfield [1985] FCA 128 ➤ (18 April 1985)
(Justice Beaumont)
Resale price maintenance

At trial Justice Beaumont held that The Heating Centre had contravened s 48 and pecuniary penalties were imposed. The appeal succeeded in part on the level of penalties.

Full Court (partly succeeded on penalty): The Heating Centre Pty Ltd v TPC (1986) 9 FCR 153 ➤ (17 March 1986)

TPC v Parkfield Operations Pty Ltd [1985] FCA 27; (1985) 5 FCR 140 ➤ (13 February 1985)
(Justice Fox)
Contract, arrangement or understanding - mutuality - cartels (price fixing)

Whether there was an attempt to make an arrangement or an understanding to increase the price of petrol - whether attempt to induce. Application dismissed at trial. Appeal succeeded: contravention (attempt) established.

Appeal to Full Court (succeeded): TPC v Parkfield Operations Pty Ltd [1985] FCA 403; (1985) 5 FCR 140 ➤ (30 October 1985)

▲ TPC v TNT Management Pty Ltd [1985] FCA 23 (1985) 6 FCR 1 ➤ (12 February 1985)
(Justice Franki)
Agreement or understanding - exclusionary provision - SLC - economic evidence

Commission successfully proved most alleged arrangements or understandings alleged, but the requirement of restraint of trade required by the Act not established. Claim failed.

▲ O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd [1983] FCA 191; (1983) 77 FLR 441 ➤ (18 August 1983)
(Justices Fox, Franki (dissenting) and Sheppard)
Market definition - exclusive dealing (s 47) - price discrimination (s 49) - restrictive dealings (s 45)

Discount conditional on acquiring substantial quantity of goods. Alleged supply on condition retailers would not, or would not except to a limited extent, acquire from a competitor’. At trial Justice Keely found that O’Brien had engaged in exclusive dealing, RPM and price discrimination and awarded $4,670 damages. In the course of his decision Keely J held that ‘substantially’ in s 47 meant that conduct ‘must be capable of being fairly described as a lessening of competition that is real or of substance as distinct from a lessening that is insubstantial, insignificant or minimal’ (affirmed on appeal). The appeal focused on exclusive dealing and price discrimination and was partly successful, with damages reduced and injunctions resolved, but otherwise dismissed.

Appeal from (injunctions): Re Cool and Sons Pty Limited Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 226 ➤ (24 December 1981)
Appeal from (liability): Re Cool and Sons Pty Ltd Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 95 ➤ (13 July 1981)

TPC v Orlane Australia Pty Ltd T [1983] FCA 144 ➤ (14 July 1983)
(Justice Northrop)
Resale price maintenance (loss leader defence, definition of cost) - penalty

Trial judge found RPM established. Loss leader defence applied for one of the claims. In respect of this finding the TPC appealed. Appeal succeeded - loss leader defence did not apply.

Appeal to Full Court (successful): TPC v Orlane Australia Pty Limited [1984] FCA 5; (1984) 1 FCR 157; (1984) 51 ALR 767 ➤ (3 February 1984)
Related: TPC v Orlane Australia Pty Ltd [1983] FCA 63; (1983) 69 FLR 465 ➤ (12 April 1983)

▲ Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd [1983] FCA 140; (1983) 68 FLR 70 ➤ (12 July 1983)
(Justices Woodward, Northrop and Sheppard)
Cartel (price fixing) - meaning of 'substantial'

Trial judge found no breach (essentially joint venture). Appeal failed.

Appeal from: Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437 ➤ (15 October 1982)
(Justice Lockhart)

TPC v Orlane Australia Pty Ltd [1983] FCA 63; (1983) 69 FLR 465 ➤ (12 April 1983)
(Justice Northrop)
Resale price maintenance (loss leader defence, definition of cost) - penalty

Trial judge found RPM established. Loss leader defence applied for one of the claims. In respect of this finding the TPC appealed. Appeal succeeded - loss leader defence did not apply.

Appeal to Full Court (successful): TPC v Orlane Australia Pty Limited [1984] FCA 5; (1984) 1 FCR 157; (1984) 51 ALR 767 ➤ (3 February 1984)
Related: TPC v Orlane Australia Pty Ltd T [1983] FCA 144 ➤ (14 July 1983) (penalties)

Re Cool and Sons Pty Limited Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 226 ➤ (24 December 1981)
(Justice Keely)
Injunctions (exclusive dealing (s 47) - price discrimination (s 49) - restrictive dealings (s 45))

Discount conditional on acquiring substantial quantity of goods. Alleged supply on condition retailers would not, or would not except to a limited extent, acquire from a competitor’. At trial Justice Keely found that O’Brien had engaged in exclusive dealing, RPM and price discrimination and awarded $4,670 damages. In the course of his decision Keely J held that ‘substantially’ in s 47 meant that conduct ‘must be capable of being fairly described as a lessening of competition that is real or of substance as distinct from a lessening that is insubstantial, insignificant or minimal’ (affirmed on appeal). The appeal focused on exclusive dealing and price discrimination and was partly successful, with damages reduced and injunctions resolved, but otherwise dismissed.

Appeal to Full Court (mainly dismissed): O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd [1983] FCA 191; (1983) 77 FLR 441 ➤ (18 August 1983)
Appeal from (liability): Re Cool and Sons Pty Ltd Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 95 ➤ (13 July 1981)

TPC v Allied Mills Industries Pty Ltd [1981] FCA 142; (1981) 60 FLR 38 ➤ (24 September 1981)
(Justice Sheppard)
Agreed penalties

The TPC brought action against a number of parties for competition law contraventions. Hooker Mill Products Pty Ltd (fourth respondent) withdrew its original defence and submitted orders for penalty of $50,000 and an injunction. Justice Sheppard accepted that there had been a contravention and that the proposed penalty was appropriate.

Re Cool and Sons Pty Ltd Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 95 ➤ (13 July 1981)
(Justice Keely)
Market definition - exclusive dealing (s 47) - price discrimination (s 49) - restrictive dealings (s 45)

Discount conditional on acquiring substantial quantity of goods. Alleged supply on condition retailers would not, or would not except to a limited extent, acquire from a competitor’. At trial Justice Keely found that O’Brien had engaged in exclusive dealing, RPM and price discrimination and awarded $4,670 damages. In the course of his decision Keely J held that ‘substantially’ in s 47 meant that conduct ‘must be capable of being fairly described as a lessening of competition that is real or of substance as distinct from a lessening that is insubstantial, insignificant or minimal’ (affirmed on appeal). The appeal focused on exclusive dealing and price discrimination and was partly successful, with damages reduced and injunctions resolved, but otherwise dismissed.

Appeal to Full Court (mainly dismissed): O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd [1983] FCA 191; (1983) 77 FLR 441 ➤ (18 August 1983)
Appeal from (injunctions): Re Cool and Sons Pty Limited Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 226 ➤ (24 December 1981)
Appeal from (liability): Re Cool and Sons Pty Ltd Trading As Wagga Windscreen Service v O'Brien Glass Industries Limited [1981] FCA 95 ➤ (13 July 1981)

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 27 ALR 367 ➤ (7 December 1979)
(Chief Justice Bowen, Justices Evatt and Deane)
Secondary boycott - purpose - meaning of 'substantial'

At trial Tillmanns failed to establish case for injunction and damages in relation to s 45D. Appeal upheld in part.

Appeal from: Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1978] FCA 45; (1978) 34 FLR 494 ➤ (20 November 1978)

▲ TPC v Nicholas Enterprises (No 2) [1979] FCA 51 ➤ (7 September 1979)
(Justice Fisher)
Anti-competitive agreement - price fixing - meaning of CAU - market definition

Defendants’s carried on business at 5 hotels. It was alleged they reached an agreement to reduce the selling base of beer from 15 to 14 bottles to the dozen. At trial Justice Fisher declared the appellant and another company contravened s 45 and imposed a pecuniary penalty. On the meaning of understanding, quoting Willmer LJ in British Basic Slag, understanding ‘should be construed in its ordinary or popular sense.  Though it may not be easy to put it into words, everybody knows what is meant by an arrangement … the Act … clearly contemplates that there may be arrangements which are not enforceable by legal proceedings, but which create only moral obligations or obligations binding in honour …’ But, it is necessary for ‘each of the parties to have communicated with the other, for each to have raised an expectation in the mind of the other, and for each to have accepted an obligation qua the other. …’.

Appeal dismissed, but in course of reasons the Court stated that they did not consider that mutuality of obligation was required for an understanding.

Appeal to Full Court (failed): Morphett Arms Hotel Pty Ltd v Trade Practices Commission [1980] FCA 46; (1980) 30 ALR 88 ➤ (1 May 1980)

▲ In Re Tooth and Co Limited; In Re Tooheys Limited (1979) ATPR 40–113 (29 June 1979)
(Tribunal - Justice Keely, J Shipton, Prof Brunt)
Market definition - exclusive dealing - slc - authorisation

Application for review of decision by Trade Practices Commission to refuse authorisation. The application related to various tying arrangements. The Tribunal refused to grant authorisation, setting out a number of public detriments, including anti-competitive detriment. A central consideration was the issue of market definition.

[at 18,196-18,197] '… it may be helpful if we summarise briefly the principles we have had in mind in approaching the task of market delineation. …

First, and most generally, we seek to identify the area or areas of close competition of relevance for the applications.

Second, such competition may proceed not just through the substitution of one product for another in use (substitution in demand) but also through the substitution of one source of supply for another in production or distribution (substitution in supply). The market should comprehend the maximum range of business activities and the widest geographic area within which, if given a sufficient economic incentive, buyers can switch to a substantial extent from one source of supply to another and sellers can switch to a substantial extent from one production plan to another. In an economist’s language, both cross-elasticity of demand and cross-elasticity of supply are relevant.

Third, there is the matter of time perspective. It is plain that the longer the period allowed for likely customer and supplier adjustments to economic incentives, the wider the market delineated. In our judgment, given the policy objectives of the legislation, it serves no useful purpose to focus attention upon a short-run, transitory situation. We consider we should be basically concerned with substitution possibilities in the longer run. This does not mean we seek to prophesy the shape of the future—to speculate upon how community tastes, or institutions, or technology might change. Rather, we ask of the evidence what is likely to happen to patterns of consumption and production were existing suppliers to raise price or, more generally, offer a poorer deal. For the market is the field of actual or potential rivalry between firms.

Fourth, all competition or substitution does not cease at the outer boundaries of the market; the economy as a whole is a network of substitution possibilities in consumption and production; competition is a matter of [18,197] degree. Rather, at the extremities of the market, there is such a break in substitution possibilities that firms within its boundaries would collectively possess substantial market power: were they to join forces as a cartel, they would be able to raise prices or offer a poorer deal without their market being substantially undermined by the incursions of rivals.

Fifth, within the bounds of the market, substitution possibilities may be more or less intense, and more or less immediate: the field of substitution is not necessarily homogeneous but may contain within it sub-markets wherein competition is especially close or especially immediate. There may be, too, certain key sub-markets such that their competitive relationships have a wider effect upon the functioning of the market as a whole. In these matters we have found that the identification of relevant sub-markets may be rather helpful in clarifying how competition works.

Finally, as is commonly recognized, the market is a multi-dimensional concept—with dimensions of product, functional level, space, and time. Taking (as just explained) the longer run time perspective as given, we have found it helpful in our market identification task to proceed in step by step fashion dealing with each of these questions: What is the relevant product? What are the appropriate functional levels? What is the geographic scope of the market?'‘

Parramatta Tourist Services Pty Ltd v SWB Family Credit Union Ltd (1979) ATPR 40-102 (27 February 1979)
(Justice Franki)
Exclusive dealing (third line forcing)

At trial Justice Franki held there was a relevant supply ‘on condition’ and contravention was established. On appeal Court found no ‘condition’ and therefore no breach. Appeal allowed.

Appeal to (successful): SWB Family Credit Union Ltd v Parramatta Tourist Services Pty Ltd [1980] FCA 125; (1980) 48 FLR 445 ➤ (31 October 1980)

▲ Re Queensland Co-Op Milling Association Limited and Defiance Holdings Limited (QCMA) (1976) 8 ALR 481 (5 March 1976)
(Tribunal - Justice Woodward with J Shipton and Prof M Brunt)
Mergers - Trade Practices Economics

Involved proposed acquisitions of flour milling firms; authorisation/clearance was refused by the TPC and an appeal was made to the Tribunal. The significance of the decision lies in the Tribunal’s discussion of economic concepts, including the following key statements:

‘Competition expresses itself as rivalrous market behaviour. …’

‘We take the concept of a market to be basically a very simple idea. A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them … a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive. It is the possibilities of such substitution which set the limits upon a firm's ability to "give less and charge more". Accordingly, in determining the outer boundaries of the market we ask a quite simple but fundamental question: If the firm were to "give less and charge more" would there be, to put the matter colloquially, much of a reaction? And if so, from whom? …’

1972

★ Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617 ➤ (21 December 1972)
(Chief Justice Barwick, Justices McTiernan, Menzies, Walsh, Gibbs and Stephen)
Resale price maintenance - recommended prices - withholding supply

A dinnerware wholesaler sold products with a catalogue from which it was possible to discern “suggested retail price” which was desribed as “a recommended price only with which there is no obligation to comply”. The wholesaler refused supply to a discount house on the ground that it was not their policy to supply these particular dinnerware products to discount houses. Decision: refusal did not need to be for the sole reason that the retailer was likely to supply below a specified price - it was sufficient that it was an operative and substantial reason. There was a 'relevant ‘price specified’ for purposes of the legislation at the time.

Re Books [1972] 20 FLR 256 (5 May 1972)
(Justice Eggleston)
Resale Price Maintenance - Trade Practices Tribunal - Application for exemption from Restrictive Trade Practices Act 1971

1971

★ Buckley v Tutty (1971) 125 CLR 353 ➤ (13 December 1971)
(Chief Justice Barwick, Justices McTiernan, Windeyer, Owen and Gibbs)
Restraint of trade

Tutty was a professional footballer. He was a member of the Balmain Club which played matches organised by the NSWRL. Buckley was the president of the League. The League rules (a) required players to be registered before they could play, (b) contained provisions relating to the transfer of players between club and (c) prevented a player from playing for another club without the permission of the club with whom he was registered. Tutty claimed the rules constituted an unreasonable restraint of trade.

Decision: There was no need for the relationship to be contractual - the ROT doctrine applies to restraints ‘howsoever imposed, and whether voluntary or involuntary’. The rules in this case were in ROT. They were ‘plainly a fetter on the right of a player to seek and engage in employment. It is not to the point to say that the player may resign from the League. If he does resign he may perhaps obtain employment as a labourer or as a cricketer but he will not be able to obtain employment as a professional Rugby League footballer, either in New South Wales or in a number of other places.’

1963

Re British Basic Slag Ltd’s Agreements [1963] 2 All ER 807 ➤ (27 May 1963)
Lord Justice Willmer, Lord Justice Danckwerts, Lord Justice Diplock)
(Court of Appeal (England))
Agreement

Facts: Eight steel companies owned BBS shares. Each entered into a separate (but identical) agreement with BBS to sell to it all its slag and not to sell to anyone else without the consent of BBS. Prior to entering into the agreements, drafts had been distributed to the companies and they had been discussed in meetings. Issue: Legislation required registration of certain agreements under which restrictions were accepted by two or more of the parties. Was there agreement between such parties or just a series of vertical agreements? Decision (Lord Diplock): Agreements required a ‘meeting of the minds’ and ‘mutuality’ requiring ‘parties to it should have communicated with one another … and that as a result … each has intentionally aroused in the other an expectation that he will act in a certain way.’ In this case they all knew each member would enter into a contract and this induced them to do so: ‘If this is not an “arrangement” I do not know what is’ and ‘That it was pure coincidence [that each member entered into agreement on identical terms] offends credulity’.

1950

★ Lindner v Murdock's Garage [1950] HCA 48; (1950) 83 CLR 628 ➤ (21 November 1950)
(Chief Justice Latham, Justices McTiernan, Webb, Fullagar and Kitto)
Restraint of trade

Murdock operated a garage business in two towns - Crystal Brook and Wirrabara - which were 30 miles apart. Lindner was a mechanic employed by Murdoch. The employment contract specified that Linder would not, for a year after terminating employment, work in a garage business within Murdoch's sales territory. After four years Lindner left Murdock's Garage and went to work for another garage in Crystal Brook. Crystal Brook is where Lindner had worked when employed by Murdock. Claim: Murdock sought an injunction to prevent Lindner working in Crystal Brook and Lindner claimed the relevant clause was void as being in restraint of trade. Decision (by majority): Unreasonable restraint of trade established.

1913

★ Attorney-General v The Adelaide Steamship Co Ltd [1913] UKPCHCA 2; (1913) 18 CLR 30 ➤ (25 July 1913)
Price fixing and market allocation (injury to the public) and Restraint of Trade (Privy Council)

Following a period of 'ruinous competition', coal producers (known as the vend) entered into an agreement which fixed prices, allocated quotas and restricted the opening of new mines. The coal producers also entered into a shipping agreement with companies shipping coal from Newcastle which provided that they would deal only with each other and fixed the maximum reselling price of coal. Action was brought under the Industry Preservation Act 1906 which at the relevant time required (s 7) that for a breach to be established there needed to be an agreement and 'intent to control, to the detriment of the public, the supply or price of any service, merchandise, or commodity'. The Board held the vend 'was intended to preclude competition in the sense of underselling among its members, and by this means to raise and maintain the price of coal won from the Newcastle and Maitland coalfields' (at 47), but because it followed a period of ‘disastrously low’ prices due to years of ‘cut-throat’ competition it was not contrary to the public interest. The Council considered that the AG could not 'rely on the mere intention to raise prices as proving an intention to injure the public', but rather had to demonstrate that there was also an 'intention to charge excessive or unreasonable prices' (not demonstrated here). This decision made the legislation largely ineffective in addressing cartels.

1911

★ R v Associated Northern Collieries (1911) 14 CLR 387 ➤ (22 December 1911)
(Justice Isaacs)
Establishing collusion

Decision made pursuant to Australian Industries Preservation Act 1906-9. On the issue of establishing collusion Isaacs J stated: ‘Community of purpose may be proved by independent facts, but it need not be.  If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.’ This passage was quoted with approval by the Federal Court in David Jones (1986).

1894

▲ Nordenfelt v The Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] AC 535 (31 July 1894)
(Lord Herschell LC, Lord Watson, Lord Ashbourne, Lord Macnaghton, Lord Morris)
(House of Lords)
Restraint of trade

Nordenfelt had a machine gun manufacturing business. He (effectively) sold the business the Maxim Nordenfelt. He entered into a restrictive covenant by which he could not engage in the trade of manufacturing guns, explosives or ammunition or engage in any competing business for a period of 25 years. Nordenfelt later entered into an agreement with another gun company. Held: The only justification for a restraint of trade is reasonableness in the interest of the parties and the public. Restraint found to be reasonable in this case.