Case: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: discussed
turning to the contentions of the parties as to the construction of s 4D a number of considerations concerning s 4D expressed by the High Court and the Full Court of this Court should be noted. In Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press (HC)") Gleeson CJ and Callinan J emphasised the need for the requisite degree of particularity of the object or objects of the provision, saying at [6]: If attention were not paid to the compound nature of an exclusionary provision, and the requirement of particularity of its object or objects, there is a danger that s 4D would be given an operation that would greatly reduce the statutory significance of lessening competition, in relation to agreements between competitors generally. Contracts, arrangements or understandings between competitors commonly involve some form of prevention, restriction or limitation of supply or acquisition of goods or services. If two hairdressers in a suburban main street were to have an understanding that one would provide services to men, and one would provide services to women, it may be unlikely that their understanding would involve a substantial lessening of competition in a market. It would be surprising if it were held, nevertheless, to contravene the Act. To the extent to which it had an anti-competitive purpose, that purpose would not be "directed toward" particular persons or classes of persons. [Footnotes omitted] Whilst Gleeson CJ and Callinan J agreed with Gummow, Hayne and Heydon JJ that there was sufficient particularity in that case, their Honours said the following at [7] and [8] about the purpose of preventing , restricting or limiting supply or acquisition: We agree with Gummow, Hayne and Heydon JJ that there was sufficient particularity in the present case, but we can think of other cases in which it would be absent, notwithstanding the existence of a purpose of preventing, restricting, or limiting supply or acquisition. If it were not so, the references to particular persons or classes of persons would be redundant. ... In its original form, the proscribed purpose was of preventing, restricting or limiting supply to or acquisition from particular persons. The words "or classes of persons" were added in 1986, following some decisions that were thought to reveal an undue narrowness in the legislation in its original form. Those words were clearly intended to widen the provision, but not to change its entire character. The proscribed purpose must still be one that is directed toward particular persons or classes of persons. Parliament did not delete the word "particular" and substitute the word "any". Nor did it remove all reference to persons as objects of the proscribed purpose. The legislative history, as well as the text, tends strongly against a reading of the section which requires only that a provision of a contract, arrangement or understanding has the purpose of preventing, restricting or limiting, in any way, supply or acquisition. Supply or acquisition will always be to or from persons. Ordinary principles of construction require that the references to particular persons or classes of persons be given work to do; they are not mere drafting verbosity. A court construing a provision in an Act "must strive to give meaning to every word of the provision". A court will seek to avoid a construction of a statute that renders some of its language otiose. Here, that consideration is powerfully reinforced by the legislative history, which shows that the reference to particular persons was originally an essential feature of s 4D, and that the addition of the reference to classes was intended to expand it, not to make it superfluous. [footnotes omitted] The relevant facts of Rural Press were that senior officers of two companies publishing country newspapers agreed that one company, which had extended its circulation and advertising into the other's traditional catchment area, would withdraw from that area in exchange for the second company not, itself, extending its coverage into the first company's traditional area. There was found to be sufficient particularity of purpose for the engagement of s 4D. The persons who were deprived of the opportunity of acquisition of services from the first company were readers and advertisers in the Mannum area of South Australia. What follows should be read with the recognition that there was a tolerably clear geographical boundary within which one found the readers and advertisers in question. Gummow J, Hayne J and Heydon J said at [67]: The Full Federal Court's reasoning concentrates too narrowly on the purpose of preventing Waikerie Printing selling papers to readers and space to advertisers, and not enough on the correlative -- the purpose of preventing readers buying papers and advertisers buying space from Waikerie Printing. The relationship between a buyer and a seller is not merely symbiotic. The link is inextricable. A supply by sale is an acquisition by purchase. There cannot be a seller without a buyer. There cannot be a supplier without an acquirer. There cannot be supply without acquisition. If one's purpose is to prevent the supply of services, an inevitable part of that purpose is to prevent the acquisition of those services by the person or persons to be supplied. Thus when the Full Federal Court accepted the trial judge's finding that the purpose of Rural Press and Bridge was to maintain their market power in Murray Bridge by preserving absence of competition in that market, it was accepting that their purpose was to maintain their market power in Murray Bridge by ensuring that the Standard would be the only paper and that readers and advertisers would not enjoy the services of the River News . The purpose of maintaining market power was indistinguishable from the purpose of preventing supply of certain services to, and acquisition of those services by, readers and advertisers. Acquisition of those services by readers and advertisers from the River News was inconsistent with the prevention of supply by the River News . It was not possible for the Rural Press parties consistently to say both that they had a purpose of preventing the River News from supplying services to readers and advertisers and also that they did not have a purpose of preventing readers and advertisers from acquiring services from the River News . "You could not have one without the other, however much you protested that you did not really want the other." This can be said to permit the identification of the particular persons or classes of person by reference to the operation of the provision. As Gummow J, Hayne J and Heydon J show in footnote 132 in Rural Press (HC), whilst Callinan J in Souths expressed opposition to such an operation of s 4D, Gummow J, with whom McHugh J agreed, did not, and, indeed cited this passage in Souths . Neither Gleeson CJ nor Kirby J in Souths referred to the passage in question from Pont Data . It can be seen from the judgment of Gummow J, Hayne J and Heydon J as well as that of Gleeson CJ and Callinan J that there was a sufficient degree of particularity in Rural Press (HC) for the operation of s 4D. It was not a particularity derived from an a priori process of reasoning or definition. It was founded on a distinct geographical area and, to some degree, the ability to identify people within that locality who fitted the description of readers of, or advertisers in, a newspaper that had been, and was otherwise intended to be, sold in that locality. It is now clear from the High Court's decision in Souths that the purpose referred to in s 4D (notwithstanding that it is the purpose of the provision ) is a subjective purpose requiring an examination of the subjective purposes of the parties to the relevant contract, arrangement or understanding.