Case: Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158
Outcome: discussed
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]. Put another way, the purpose of Woolworths in behaving in a particular manner may be relevant in the conclusion about the market. Though the field of activity here was common ground (the sale of packaged takeaway liquor for off-premises consumption) the following passage from Neale The Antitrust Laws of the United States of America (2 nd Ed, 1970) at 21, quoted in Heydon JD, Trade Practices Law (Law Book Co Subscription Service) at [3.245] and cited in Singapore Airlines at 178, is relevant (though by no means determinative): The court will take as the market, for the purposes of deciding cases, just that market which the firm itself takes for its field of activity: if a firm shows an intent to exclude competition from that field it will be assumed that the field sufficiently describes a market for otherwise what would be the point of the effort to exclude? If, in the real commercial world, the firm in question takes the trouble to be concerned about restricting a new entrant's capacity, because of the potential effect on the sales and profits of its nearby local outlets (and not because of any concern about the potential effect on sales and profits of other, more widely situated, outlets), that may assist in a conclusion as to the importance of the closeness of competition and the concern as to additional constraints in that local area. The reality of the concern of the firm in question may assist in the illumination of the correct framework to analyse that conduct: cf Rural Press (HC) at 45. Woolworths submitted that whilst the purposive approach requires the relevant market to be defined by reference to the conduct sought to be impugned, the alleged purpose is not a relevant consideration in determining the market in which that purpose is to be assessed. I do not accept that submission. The impugned purpose in connection with the provisions of the relevant deed is the conduct to be assessed. The very fact that the firm behaved with that purpose may tell one something of the market. Further, it is the market analysis or tool best adapted to consider that conduct which is to be chosen. It is appropriate at this point to set out the principles of market definition that appear to be agreed between the experts. Whilst, of course, the views of Dr Walker and Dr Smith in this regard are not determinative or binding on me, the agreement of two such experienced and learned economists is highly persuasive. the common ground between Dr Walker and Dr Smith