Case: Adamson v West Perth Football Club (1979) 27 ALR 475
Outcome: considered
Although the term "competitor" has received no judicial attention that I can identify, the word "competition" has, in the context of Pt IV TPA. So in Adamson v West Perth Football Club (1979) 27 ALR 475 at 502, Northrop J said: "When used in s 45 of the Act, the word is used in a commercial or economic sense. Thus in order to have competition in a market, there must be substitution between one product and another and between one source of supply and another in response to changing prices or the quality of the product being supplied." 139 I have already expressed the view that the respondent is not "carrying on a business" within the meaning of s 2B TPA in relation to its supply of data in response to individual searches, which forms the primary activity of the respondent in the Retail Market. If the respondent is not carrying on a business, the question immediately arises whether the respondent is capable of being a "competitor" of the applicant in the Retail Market for the purposes of s 46(1)(a), in respect of this particular conduct of the respondent. In my opinion, the obvious answer in this case is that the respondent is not the respondent is fulfilling a statutory function in supplying that data, and is subject to legislative control in respect of prices charged and product quality. There are, however, some elements of "competition" as between the applicant and the respondent as submitted by the applicant, particularly in relation to issues of product substitution. In the event that I am in error in relation to whether the respondent is carrying on a business in relation to its supply of data, then as I have done elsewhere in this judgment I propose to continue to consider whether, within the meaning of s 46(1)(a), the applicant is a "competitor" of the respondent in the Retail Market. 140 Further, I have also said that the evidence before me does not support a finding that the respondent has a substantial degree of power in the Retail Market. Irrespective whether the respondent has any power in the Retail Market flowing from its power in the Wholesale Market as a monopoly supplier, this does not equate to the respondent being a "competitor" of the applicant in the Retail Market. 141 To date the activities of the applicant and the respondent have been at different points on an economic continuum, with different product offerings, different levels of sophistication of products, different client bases, and apparently minimal overlap. The value-added products of the applicant appear to have little in common with such products of the respondent as SmartMap, or the raw data supplied in response to statutory searches. The applicant and the respondent have not been "rivals" in the Retail Market in the sense of being entities who strive to outdo each other (see discussion by Professor Stephen Corones Competition Law in Australia (4th ed, Lawbook Co, 2007) at 5. Nor, as the respondent submitted with reference to statements of Mr Catelan and the applicant in its Information Memorandum, does the applicant perceive the respondent as its competitor in the Retail Market. 142 Nonetheless there is commonality in the activities of the applicant and the respondent in the Retail Market in that both supply data sourced from the respondent, and it appears that the Excluded Data at present can be obtained by customers of the applicant from either the applicant or the respondent. In that sense there is presently the potential of substitution between one source of supply and another of that data as contemplated in Adamson . Although the competition appears in the present environment to be minimal, leaving aside for the moment issues arising out of s 2B TPA, I am prepared to assume that the applicant is a "competitor" of the respondent in the Retail Market. Can the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market be inferred? 143 However, irrespective whether applicant and the respondent are competitors in the Retail Market, in my view the alleged purpose of the respondent as claimed by the applicant is neither demonstrated by the evidence, nor can it be inferred from the respondent's conduct. In fact, the evidence demonstrates unambiguously that the purpose claimed by the respondent in engaging in the conduct the subject of complaint was in truth its purpose. This is so on any view of the meaning of the word "purpose", and regardless whether the interpretation submitted by the applicant or the respondent as to the meaning of "purpose" in s 46(1) is accepted. The object in view or sought to be achieved by the conduct of the respondent was clearly to ensure that Collected Data could not be used by anyone for the purpose of direct marketing to consumers. It was for this reason, and this reason alone, that the respondent took advantage of its substantial degree of market power in the Wholesale Market. This purpose is not a proscribed purpose within the meaning of s 46(1)(a) TPA. The respondent did not engage in the relevant conduct for the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market. 144 I form this view for the following reasons, taking into consideration relevant submissions of the applicant in relation to this claim.