Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236
Outcome: discussed
applicants for the licences, as new entrants into the market, were denied the freedom to expand or reconfigure their businesses better to meet market requirements and competitive offerings or to sell the unrestricted licence to someone better placed to exploit it. Either would have seen the process of competition work rather than be stifled. Thus, it was said that competition was "nipped in the bud": Trade Practices Commission v CSR Ltd (1991) 13 ATPR 41-076 at p 52, 155; and Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [129] . The case of Woolworths directed attention to the precise terms of the case pleaded against it and the precise effect of the construction it placed on s 4D of the Act. A full discussion of those issues is better left to a point at which the facts of each episode are fully explored. Briefly, however, it was contended that the case of the Commission rested on a number of flaws. First, it gave inadequate weight to the context of the practical operation, and day-to-day practice under the regime of the Liquor Act . The particular aspect of this inadequacy was said to be the failure to appreciate that objection on the needs ground was commonly taken by licence holders of all descriptions against all new applications. It was said to be a commonplace event that applicants would seek the grant of an off-licence retail, subject to conditions which reflected the business sought to be carried on, and no wider. Secondly, the Commission's case confused or conflated the purposes of Woolworths in making the objection and in entering the deeds. The two, it was said, were distinct only the latter being the pleaded purpose. This distinction was said to be important and one based on the evidence of Messrs Meagher and Smith, the two relevant officers of Woolworths. They gave evidence that had there been no deeds agreed, the applications would have been fought, and, they believed, won. Thus, it was submitted that whilst the purpose of making the objection might be said to be "anti-competitive" (being directed to preventing a new, competitive, or potentially competitive, licence), the purpose of the impugned deed was to record the terms of the settlement of litigation which they believed would be won, if fought. Their purposes should be seen in that light; and if that is done, their purposes must be seen as other than found in ss 45(2) and 4D. Market definition is not an exact physical exercise to identify a physical feature of the world; nor is it the enquiry after the nature of some form of essential existence. Rather, it is the recognition and use of an economic tool or instrumental concept related to market power, constraints on power and the competitive process which is best adapted to analyse the asserted anti-competitive conduct. See generally, Breyer S, "Five Questions about Australian Anti-Trust Law" (1977) 51 ALJ 28 at 33-4; Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 per French J at 175 (with whom Spender and O'Loughlin JJ agreed see 159 and 185 respectively); Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1987) 17 FCR 211 at 218-9 (" Queensland Wire (FC)"); Brunt M, Economic Essays on Australian and New Zealand Competition Law, Ch 5 "Market Definition Issues in Australian and New Zealand Trade Practices Litigation (1991)" especially at 203-214, 218-219 and 230-37; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 328-29; Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 132 ; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [57] and [58]; Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [114] (" Rural Press (FC)"); and Australian Competition and Consumer Commission v Australian Safeway Stores Ltd [2003] FCAFC 149 ; (2003) 129 FCR 339 at [193] and [194].