Case: Tillmans Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 42 FLR 331
Outcome: referred to
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. The content of the word "substantially" in s 45(2)(a)(ii) and (b)(ii) has been discussed in a number of cases, to some of which I referred at [86]-[89] above. It is clear that "substantially" is used in the sense of meaningful or relevant to the competitive process, and that it is necessary that the purpose be to achieve an effect of that kind. The discussion in Rural Press (HC) at [41] footnote 67 may indicate that there is a layer of meaning of "considerable" to be added to the notion of being meaningful or relevant to the competitive process. However, it is difficult to understand what purpose of the Act would be advanced by a conclusion that the purpose or effect of a provision was to lessen, prevent or hinder the competitive process, in a way which was meaningful and relevant to the competitive process, but was not sufficiently "considerable" to warrant relief. Once one recognises that the purpose must be to do something meaningful or relevant to the competitive process, adjectives, adverbs or like phrases connoting quantity, such as "considerable", "more than nominal", "more than insignificant", can be seen to be subsumed in the evaluative and functional analysis in deciding whether a purpose or conduct was of a character deserving of the intervention of the Court, in the light of the purposes of the Act, as being meaningful or relevant to the competitive process. I am not able, with respect, to express the matter more clearly than French J did in Stirling Harbour Services Pty Ltd v Bunbury Port Authority (2000) ATPR 41-752 at [114]: The concept of "substantially lessening" competition is evaluative. There is only limited assistance to be derived from replacing the words with other phrases. The term is not defined in the Act and has not received extensive judicial exposition Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) ATPR 41-128 at 52,905 (Wilcox J); Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 564 (Lockhart J); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348, the latter on the meaning of "substantial" in the collocation "substantial loss or damage" under the old s 45D. In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard.