Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: discussed
Commission stressed the difference between purpose and effect and submitted that a person may have the relevant purpose even if the effect cannot be achieved: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at [249] . Here, it was said that the direct evidence of the Woolworths witnesses, Mr Meagher and Mr Smith, make out this part of the case (together with the relevant market analysis). Part of that submission, as will be clear when I deal with the evidence, was the submission that the purpose of filing the objection cannot be divorced from the purpose of the relevant provisions in the contracts. Woolworths emphasised the substantive nature of the required purpose substantially to lessen competition, and distinguished this from intentional harm to competitors or protection of its own business: cf Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 and Universal Music at 591. Leaving aside the submissions on the market, to which I will come, Woolworths submitted that there had been an inadequate foundation in cross-examination of Messrs Meagher and Smith and that it was not open to conclude on the evidence that either had the relevant purpose in respect of the relevant provisions or in respect of the giving effect to the relevant provisions. It was submitted that the cross-examiner did not squarely put relevant issues to Mr Smith and Mr Meagher, in particular the purposes of any provision in the deeds to prevent, limit or restrict supply of the sale of liquor to any persons, whether they be actual or potential customers of Woolworths or of any other liquor seller and to substantially lessen competition in the relevant market. I disagree. Mr Yates cross-examined Mr Smith and Mr Meagher fairly about what their intentions and purposes were in the transactions. Cross-examination took place in the language of human discourse. It was not necessary, although it could have been done, to put the exact words of the Act. It is for the Court to characterise the purpose from the evidence given. See generally Rural Press (HC) at [48] and Rural Press (FC) at [163]. The Ettamogah group of companies operated what were referred to as "themed" hotels and restaurants using the work of a cartoonist and artist, Mr Ken Maynard. The group had a number of licensed premises in Western Australia, New South Wales and Queensland. Mr Leigh O'Brien was the controller of the group and of the relevant company concerned with the relevant events (Ettamogah Pub (Campbelltown) Pty Ltd). He was an experienced and competent businessman, who had undertaken objections under the Liquor Act to the licence applications of others in connection with one or more of the group's licensed establishments. I do not see how the evidence is sufficient for me to conclude that it was likely (in the sense of there being a real chance or possibility: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331 at 346-48; News Ltd v Australian Rugby Football league Ltd (1996) 64 FCR 410 at 564-65; Monroe Topple &amp; Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 ; (2002) 122 FCR 110 at [111] ; and Universal Music at [247]) that Ettamogah would be successful in the licence application to sell takeaway liquor other than themed liquor. Debate took place on the meaning of the word "substantially". Great care needs to be taken in debate about the content of such words. In s 46 "substantial" means "a considerable or large degree of such power", when qualifying market power: Eastern Express Ltd v General Newspapers (1992) 35 FCR 43 at 63; and Universal Music at [131]-[132]. In relation to the word "substantial" in s 4F(a)(ii) and (b)(ii) Heerey J said the following in Monroe Topple at [97]: Did the proscribed purpose, if it existed, loom large among the objects the corporation sought to achieve?"