Case: Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd [1997] ATPR 41-570
Outcome: considered
The applicant relies on certain observations, made by Heerey J, in Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd [1997] ATPR 41-570. In that case objection had been taken to the manner in which the relevant market had been pleaded by the Australian Competition and Consumer Commission ("the ACCC"). The pleading identified the major suppliers of services, described how the market operated and provided details of the barriers to entry to the market and its geographic limits. Although the pleading was objected to on the ground that it was "conclusionary", it was struck out, by his Honour, on the ground that it was prolix, unnecessary and irrelevant. Having referred to ss 45(2) , 45 (3) and 45A (1) of the Act his Honour continued (at 43,920): "Thus competition relevantly means competition in any market in which the parties to the actual or proposed contract, arrangement or understanding are engaged. As long as the ACCC can establish that, in connection with the alleged arrangements or understandings, McPhee and DFE were competing in a market, it is not to the point that others may have been supplying the same services in that market, or that services other than express freight transportation services might have been provided, or that the geographical extent of the market might have been different from that pleaded. To illustrate the point, one might ask rhetorically what would it matter for the purposes of the present case if, after elaborate discovery and issue of many subpoenas, expensive expert evidence, and a trial lasting several weeks, if not months, it were proved that AirRoad and COPE were not participants in the alleged market, that some other firms not named in para 10 were participants, or that the alleged market did not cover the whole of Australia but only Victoria, South Australian and New South Wales?" (Emphasis in original). 16 Later (at 43,921), his Honour concluded that: "In the present case, if it were established that McPhee and DFE were offering, or contemplating the offer of, the same services (express freight transportation services), to the same existing or potential customer ..., it would be open to a Court to conclude that McPhee and DFE were in competition with (at least) each other in a market for the supply (at least) of such services." 20 In my view an applicant, in a proceeding such as the present in which exclusive reliance is placed on s 45A of the Act , must, in its statement of claim, identify the market or markets in which it is said that the anti-competitive conduct has taken place. The pleadings must identify (at least) the relevant goods or services and the geographic boundaries of the market. The pleading need not descend to the degree of particularity to which Heerey J objected in McPhee or the detail which Selway J found to be unnecessary in McMahon Services . In both of those cases it was held that the identification of a market was a material fact or particular which had to be pleaded. This had been done in an acceptable way in McMahon Services . It is true that the necessary competition between those who have entered into arrangements can take place in any market. This does not mean that applicants are absolved from the need to identify the parameters of that market by reference to the relevant goods and services and the geographic area within which competition in relation to the supply of those goods and services is said to take place. In McPhee Heerey J deprecated the ACCC's attempt to define the market in minute detail. He did not, however, hold that no attempt to define the market was necessary. Indeed his reasoning proceeded on the assumption that a geographic and product market had been pleaded. As McMahon Services demonstrates this can be done succinctly and without unnecessary prolixity.