Case: Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd &amp; Ors (1997) ATPR 41-570
Outcome: cited
The ACCC says its pleading exhibits none of these contended failings. It says the pleading of the contravention of s 45 in reliance upon s 45A is in truth a simple and straightforward matter. It says the adoption of a definitional device does not assume any or a collection of matters but rather asserts as facts that the content of terms are comprehended by the elements of the definition. The subsequent use of those terms in the pleading, although they encapsulate more than one element, makes the contention of contravening conduct plain and clear. As to the obfuscation of the services and whether they are the same, similar or substitutable services provided in competition in a market between ANZ and the relevant participant, the ACCC says that because it relies upon ss 45(2)(a)(ii) and 45 (2)(b)(ii) in conjunction with s 45A , it is simply not necessary to plead all of the various layered onion rings of contestable conduct within the relevant market. What is necessary is to plead, at the centre, whether ANZ and the relevant participant are engaged in an identified market in the provision of identified services in competition. Whether others are in competition with those participants and isolating the composition and characteristics of the outer ring of contestable substitution is neither here nor there nor relevant. Pleading the full structural elements of the market and the boundaries of substitution is thus not required in order to establish the cause of action. Such a proposition is said to be supported by the observations of Heerey J in Australian Competition and Consumer Commission v J McPhee &amp; Son (Australia) Pty Ltd &amp; Ors (1997) ATPR 41-570 at 43, 920 and consistent with Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; (2004) ATPR 41-996 per Selway J at 48, 671. 42 In analogous circumstances, Heerey J in ACCC v J McPhee &amp; Son (Australia) Pty Ltd &amp; Ors (supra) at 43, 921 observed in respect of the relationship between ss 45(2)(a)(ii) , 45 (2)(b)(ii) and 45A that: If it were established that McPhee and DFE [two providers of express freight transportation services] were offering or contemplating the offer of the same services (express freight transportation services), to the same existing or potential customer (Just Jeans or ACI Florapak) 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. 43 At 43, 920, his Honour also said this: 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 service 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 Air Road 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 Australia and New South Wales. 44 His Honour further observed that the paragraphs of the pleading before him pleading the structural elements of the market "are prolix, unnecessary and irrelevant and raise false issues which are likely to embarrass and delay the fair trial of this proceeding". 45 With respect, his Honour's observations are undoubtedly correct in that case as there was no contest between the parties that precisely the same service was in issue involving precisely the same customers in respect of a readily identifiable market for express freight transportation services between particular geographic points. Whether the market comprised broader rings of geographic boundary or outer rings of particular participants was irrelevant to the question of whether McPhee and DFE were in competition in the identified express freight transportation market in respect of precisely the same service. However, it is plain from ACCC v McPhee that pleading material facts of the particular market in which there is competition for the relevant services between the participants to the s 45A provision of the pleaded contract, arrangement or understanding, remains fundamental. In principle therefore, having regard to the relationship between contended conduct by the parties to the provision and the market in which the conduct is said to have occurred, the pleading of material facts establishing close competition in the market might well be quite contained, as Heerey J concluded in the circumstances of the case before his Honour.