Boral Besser Masonry Ltd v ACCC (2003)

High Court of Australia
(2003) 215 CLR 374 (Misuse of Market Power)
Chief Justice Gleeson
Justices Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan

See also

(1999) 166 ALR 410 (first instance)
[2001] FCA 30 (full federal court)

Facts and summary

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.

Trial

Justice Heerey held that the relevant market was the market in which builders 'acquired materials for use in the construction of walls and paving' and that, in that market, BBM did not hold substantial market power. His Honour further concluded that even if BBM did have substantial market power, they had not taken advantage of that power.

Full Federal Court

The ACCC successfully appealed to the Full Federal Court. All members of the Court (in separate judgments) found that the relevant market was the Melbourne market for concrete masonry products, that BBM had substantial market power in that market and that there was a proscribed purpose.

High Court

The majority upheld Boral’s appeal by 6-1. If found that BBM did not have substantial market power and, even if it did, it did not take advantage of that power for purposes of s 46.

External case links

Trial: ACCC v Boral Ltd [1999] FCA 1318 (22 September 1999)

Full Federal Court: ACCC v Boral Ltd [2001] FCA 30 (27 February 2001)

High Court: Boral Besser Masonry Ltd v ACCC [2003] HCA 5 (7 February 2003)