Case: Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1988) 167 CLR 177
Outcome: discussed
were sought and provided in relation to the suburban areas pleaded. In the provision of those particulars a measure of flexibility was sought to be retained by the Commission. The relevant areas were particularised as follows: The Arncliffe area Paragraph B1.16 defines "the Arncliffe area" as Arncliffe or the close vicinity of Arncliffe. The Arncliffe area is depicted on maps 315 and 316 in the seventh edition of the Sydway Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. The geographic bounds of the Arncliffe area cannot be stated exactly, nor is it necessary to be stated exactly (see Queensland Wire Industries Pty Ltd v BHP Co Ltd [1989] HCA 6 ; (1989) 167 CLR 177 at 195-196, Australian Meat Holdings Pty Ltd v TPC (1989) ATPR 40-932 at 50,011 &amp; 50,097 , Davids Holdings Pty Ltd v Attorney General (1994) ATPR 41-304 at 42,091, ACCC v Rural Press (2001) ATPR 41-804 at 42,736, para [103], ACCC v Australian Safeway Stores Pty Ltd [2003] FCAFC 149 at [293] - [297] ). The City of Rockdale area The City of Rockdale area is depicted on maps 315, 316, 335 and 336 in the seventh edition of the Sydways Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). (The third paragraph of the response to 24(a) and (b) was the third paragraph above under the heading "the Arncliffe area".) The Campbelltown area Paragraph B2.9 defines "the Campbelltown area" as Campbelltown or the close vicinity of Campbelltown. The Campbelltown area is depicted on maps 368 and 369 in the seventh edition of the Sydway Greater Sydney and Blue Mountains Street Directory published by Sydway Publishing Pty Ltd, July 2001. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). The Tweed Heads area Paragraph B4.9 defines "the Tweed Heads area" as Tweed Heads or the close vicinity of Tweed Heads. The Tweed Heads area is depicted on page 447 in the fourteenth edition of the UBD New South Wales CountryLink Street &amp; Travel Directory published by Universal Press Pty Ltd, 2002. Otherwise, the Applicant repeats the third paragraph of its response to 24(a), (b). The references in the third paragraph of the response to 24(a) and (b) made clear the Commission's intention to maintain flexibility at the boundary of the market. Deane J in Queensland Wire Industry Proprietary Limited v The Broken Hill Proprietary Company Limited [1989] HCA 6 ; (1988) 167 CLR 177 at 195-96 spoke of the outer limits of markets, including their geographical confines, to be "blurred". Sheppard J in Australian Meat Holdings Pty Ltd v Trade Practices Commission [1989]) ATPR 40-932 at 50,097, referred to what Deane J had said in Queensland Wire and also spoke of the arbitrary exercise of the drawing of any line to define the geographic market and there always being a "fuzziness" about geographic definition of the market. See also Davids Holdings Pty Ltd v Attorney-General of the Commonwealth (1994) 49 FCR 211. I have sought at [429] above to encapsulate something which has been said by scholars and courts about the nature of the process of market definition. Market definition is to be approached by beginning with the problem at hand and asking what market identification best assists the assessment of the conduct and its asserted anti-competitive attributes. See generally, Norman N and Williams P "The Analysis of Market and Competition and the Trade Practices Act : Towards the Resolution of Some Hitherto Unresolved Issues" (1983) 11 Australian Business Law Review 399 at 400-401; Queensland Wire (FC) at 218-219; Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Company Ltd [1989] HCA 6 ; (1988) 167 CLR 177 at 195 (" Queensland Wire (HC)"); Brunt op cit p 236. This approach has been followed in many cases: for some, see Corones SG, Competition Law in Australia (3 rd Ed) p 42 ftnt 15. As the Trade Practices Tribunal (of which Professor Brunt was a member) said in Re Media Council of Australia [1996] ATPR 41-497 at 42,262: [t]he choice of market definition, ie the specification of relevant markets in the particular case, must depend upon the issues for determination. For the Tribunal's purposes it is the identification of a market or markets that best enables it to evaluate the likely effects of authorized conduct, whether the subject of past authorisation or possible future authorisation. This is not the abrogation of principled analysis in favour of the impugned conduct determining the market. Rather, it is to recognise the consequence of market definition being a tool for analysis and not a physical thing, or essence, which can be identified in a manner divorced from the relevant context. An analysis of market power in Australia in relation to the liquor industry for the purposes of merger evaluation under s 50 of the Act may not turn upon individual analyses of the degree of competition in suburban or regional areas as small as Arncliffe, Campbelltown or Tweed Heads. However, the assessment of the purposes of Woolworths (through Messrs Smith and Meagher) in the placement of the relevant clauses into deeds with prospective local shopkeepers in order to prevent competitive sales from new licences detracting from the sales and hence profitability of their own local suburban liquor shops provides another framework of analysis entirely. The facts and perspectives of analysis in the two circumstances are different. It is the market that best enables evaluation of Woolworths' conduct that is relevant. Thus, the identification of the market as the correct analytical tool or instrumental concept to assess the conduct in question will be assisted by the recognition of the close competition and factors dealing with constraints that may be seen to be affected or advanced by the conduct in question. This relationship between the conduct the subject of analysis, and the correct market for its analysis takes place in the context where value judgments must be made in an economy where markets overlap and where the geographical boundaries (for the reasons given earlier) are likely to be blurred: cf Queensland Wire (HC) at 195-96 per Deane J.