Case: Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53
Outcome: referred to
The following ten principles emerge from Queensland Wire and the trilogy of cases which have explained the proper approach to construction:- (1) what is involved in answering the question of whether a firm has taken advantage of market power is the sufficiency of the connection between the market power and the conduct complained of: Melway at [44] and [67]; Boral [120] and [170]; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press ") at [51]. McHugh J has said that a causal connection is required: Boral at [279]. (2) if the impugned conduct has a rational business explanation, that is a factor which points against the existence of a relevant connection between the market power and the conduct: Melway at [67]; Boral at [170]. (3) the words "take advantage" do not encompass conduct which has the purpose of protecting market power but no other connection: Rural Press at [51]. (4) in deciding whether a firm has taken advantage, is it relevant to ask how it would have behaved if it lacked power and whether it could have behaved in the way it did in a competitive market: Melway at [52] and [61]; Rural Press at [52]. (5) it may be proper to conclude that a firm is taking advantage of market power where it does something that is materially facilitated by the existence of the power: Melway at [51]; Rural Press at [53]. (6) McHugh J has said that the conduct must have given the firm an advantage it would not have had in the absence of market power: Boral at [279]. (7) the test may be whether the conduct was necessarily an exercise of market power: Melway at [68]. (8) one of the difficulties in determining what constitutes taking advantage stems from the need to distinguish between monopolistic practices and vigorous competition: Queensland Wire at 202. (9) the purpose of s 46 is the promotion of competition; it is concerned with the protection of competition, not competitors: Queensland Wire at 191 and 194; Boral at [87], [160], [164] and [260]; Melway at [17]. (10) it is dangerous to proceed from a finding of proscribed purpose to a conclusion of the existence of a substantial degree of market power, which can be taken advantage of; to do so will ordinarily be to invert the reasoning process: Boral at [123], [194]. 1092 Moreover, the suggestion that QR took advantage of market power is at odds with three further principles which emerge from the authorities. First, I do not see how it can be said that to obtain possession with a view to converting the AR terminal to a common user facility as was sought in 1997-98 or a multi-user facility in 2003, was facilitated by the existence of the power: Melway at [51] and Rural Press at [53]. 1194 Nor am I satisfied that NRC's purpose in failing to grant the access applications was a proscribed purpose in contravention of s 46. Its purpose was the protection of the integrity of its national network. The position is not entirely analogous with that which arose in Rural Press . Nevertheless, in my view, so long as NRC gave proper consideration to the access applications, which in my opinion it did, its purpose cannot be said to be to have been to prevent QR from engaging in competitive conduct in the relevant market. 1195 It follows from my rejection of PN's estoppel claim and from my rejection of the claims of misleading conduct, unconscionability and breach of s 46, that QR is entitled to an order for possession. There is to be a stay of the order in accordance with the undertaking given by QR to the Court. 1196 It also follows that QR is entitled to an order for payment by NRC of additional rent pursuant to s 139 of the Property Law Act .