Case: Australian Competition and Consumer Commission v Qantas Airways Ltd (2009) 253 ALR 89
Outcome: distinguished
is true that the authorities, including three recent cases that have considered the question in relation to international air freight services, accept the proposition (either expressly or impliedly) that a global market is capable of constituting a market in Australia: Riverstone Computer Services Pty Limited v IBM Global Financing Australia Limited [2002] FCA 1608 at [21] , Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Ltd [2008] FCA 1458 ; (2009) 251 ALR 166 at [21] ; Australian Competition and Consumer Commission v Qantas Airways Ltd (2009) 253 ALR 89 at [35]; Emirates v Australian Competition and Consumer Commission [2009] FCA 312 at [70] . In my opinion, neither Auskay, Emirates nor ACCC v Qantas , to which I have referred above, answer the question of whether the pleading is deficient in the respects that I have stated. In ACCC v Qantas , Lindgren J imposed penalties and other relief on Qantas for contravention of s 45 of the Act in relation to understandings of the type alleged in the present proceeding. However, in reading his Honour's remarks, it is necessary to bear in mind that, for the purpose of the proceeding, Qantas admitted that its conduct contravened s 45 of the Act. His Honour determined the appropriate penalty in light of a statement of agreed facts which included an admission by Qantas that there is a worldwide market for air cargo services and that its conduct may also be considered by reference to a number of narrower markets, including a market or markets in Australia. Lindgren J referred at [31] to the relevant territorial connection provisions stated in ss 4E and 5 of the Act. He was satisfied that s 5 extended the provisions of s 45 of the Act to the relevant conduct because Qantas is incorporated in Australia. Similarly, s 5 would apply in the present case (subject to the elimination of the identified defects) because Singapore Airlines carried on business here. The two critical paragraphs of the judgment of Lindgren J are [35] and [38] which I will set out below: The definition of "market in Australia" in s 4E excludes, however, a market that is wholly outside Australia. Part of the present global and international air cargo market necessarily falls within the territorial boundaries of Australia. The fuel surcharge understanding necessarily affected the prices exacted from persons, including persons in Australia, in respect of the international transport of cargo by air. ... Since the fuel surcharge understanding had the purpose and effect of substantially lessening competition in the worldwide market for air cargo services (including by virtue of the operation of s 45A), giving effect to it anywhere in the world contravened s 45(2)(b) of the Act. Mr O'Bryan relied on those paragraphs of Lindgren J's judgment to support the pleading. However, I do not think they assist. This is because they are to be read in light of the admissions to which I referred above. In Australian Competition and Consumer Commission v British Airways PLC [2008] FCA 1977 at [20] , Lindgren J adopted the remarks he had earlier expressed in ACCC v Qantas. However, this observation is also to be read in light of admissions made by British Airways in that case. It does not, in my view, amount to a statement of general principle which is sufficient to support the present pleading.