mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523
Outcome: cited
Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.
Case: Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627
Outcome: cited
Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.
Case: Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Toohey J, 3 August 1983
Outcome: cited
Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.
Case: Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213
Outcome: cited
However as was pointed by the High Court in Queensland Wire [1989] HCA 6 ; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137] ). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5 ; 215 CLR 374 (at 434): "If the impugned conduct has a business rationale, that is a factor pointing against any finding that conduct constitutes a taking advantage of market power. If a firm with no substantial degree of market power would engage in certain conduct as a matter of commercial judgment, it would ordinarily follow that a firm with market power which engages in the same conduct is not taking advantage of its power." 158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13). "Section 46 aims to promote competition, not the private interests of particular persons or corporations." (cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139] , Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne &amp; Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia , its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.
Case: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427
Outcome: cited
The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .)
Case: Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381
Outcome: distinguished
The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13] . 90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 ( Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13] .) 119 Finally, in my view the power used by the respondent in withdrawing the Excluded Data from supply was not regulatory power, but market power. I have already found that, although the collection of data by the respondent was pursuant to statutory obligations, the supply of Collected Data by the respondent to the applicant and the other licensees was in the course of carrying on a business by the respondent. In my view this case is distinguishable from Stirling Harbour [2000] FCA 1381 and Plume v Federal Airports Corporation [1997] 1019 FCA where the Court found that relevant entity was exercising regulatory authority rather than market power: &#8226; In Stirling Harbour [2007] FCA 1381 , the function of the port authority under the relevant statute was to arrange for port services to be provided, including towage, and did so by tender. The Full Court in that case was satisfied that the port authority had assumed the role of a market regulator. &#8226; Similarly in Plume [1997] 1019 FCA, the court was satisfied that the conduct of the Federal Airports Corporation was properly characterised as use of a regulatory power designed for the benefit of the members of the public who had occasion to use the facilities of the airport at Alice Springs. 120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue.
Case: Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385
Outcome: cited
Similarly, the Privy Council in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385 at 402 observed that use and purpose, though separate requirements, will not be easily separated. 147 While in some cases where an entity has used its dominant position it may, as the Privy Council said in Telecom Corporation of New Zealand Ltd [1995] 1 NZLR at 402 be hard to imagine a case in which it would have done so otherwise than for the purpose of producing an anti-competitive effect, and it will legitimate for a court to infer from the respondent's use of its dominant position that its purpose was to produce the effect in fact produced, the respondent in this case is a government department under the direction of a State government Minister which, while engaged in supply of data for revenue, is also required to take into account broader community interests. In my view it is not difficult to accept that the public interest to ensure that its data base is not misused for direct marketing purposes is what has motivated the respondent to act in this case. 148 Third, from the consistent evidence of the respondent's witnesses it could not be inferred that changes to the respondent's pricing structure were implemented for the purpose of eliminating or damaging the applicant as a competitor. The respondent's proposal was implemented in relation to all licensees, not only the applicant and in accordance with a Department wide approach. One possible explanation for this development is that the respondent was seeking to eliminate all possible competition in the Retail Market, including that posed by the applicant. However it is inconsistent with a deliberate attack on the applicant specifically as a competitor. 149 Fourth, according to evidence of Mr Witt, the current licence fees are considerably lower than they were in the late 1990s when the applicant paid $600,000 upfront plus $50,000 per month for five years for its licence (affidavit of Mr Witt para 13). The applicant currently pays $158,749 per annum in licence fees, and under the proposed new licence the applicant would pay a maximum of $158,749 comprising licence fees and a capped royalty fee (Witt affidavit para 13, Oakley affidavit para 27). The proposal of the respondent meant, at least in the foreseeable future, that the licensees would not pay more under the proposed licence than they were paying under the current arrangement (oral evidence of Mr Oakley TS p 279 ll 34-45), although clearly without receiving the Excluded Data, which is a key aspect of the applicant's complaint.
Case: United States v Columbia Steel Co (1948) 334 US 495
Outcome: cited
The notion of "market power" in the sense of capacity to act in a manner unconstrained by the conduct of competitors has been the subject of frequent judicial consideration. The leading case in this context is Queensland Wire [1989] HCA 6 ; 167 CLR 177. Usefully, Lockhart J in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 138 summarised from the judgment of Mason CJ and Wilson J in Queensland Wire 167 CLR at 188-190 the following factors as relevant in defining and identifying market power: "(a) "the ability of a firm to raise prices above the supply cost without rivals taking away customers in due time, supply cost being the minimum cost an efficient firm would incur in producing the product"; (b) "the extent to which the conduct of [any of the respondents] in that market is constrained by the conduct of...competitors or potential competitors..." (s 46(3)); (c) market share of each respondent must be examined but this alone is generally not determinative of market power as "the relative effect of percentage command of a market varies with the setting in which that factor is placed" (Mason CJ and Wilson J adopted the language of Reed J in United States v Columbia Steel Co (1948) 334 US 495 at 528); (d) the presence of vertical integration is another factor, but its presence does not necessarily mean that a substantial degree of power exists; and (e) to what extent is it rational or possible for new entrants to enter the relevant market? That is to say, what are the barriers to entry? It is this factor which must be taken as the primary consideration in determining market power. See also the judgment of the Full Court of this court in Arnotts Ltd v Trade Practices Commission at FCR 336 9."
Case: Calder v Commissioner of Taxation [2004] FCA 1770
Outcome: cited
Finally, with respect to potential issues of prejudice to the respondents, whether relating to privilege or otherwise, I emphasise that: the issue of the subpoena does not at this stage produce any prejudice to the [respondents]. If the [applicants], after leave is granted and the subpoena is answered, decide[s] to seek to bring any documents from that yield to the Court, then the Court will need to be addressed on any issue that might prejudice the [respondents]. Calder v Commissioner of Taxation [2004] FCA 1770 at [11] . To the extent that the subpoena yields documents said to be problematic for one reason or another, those problems can be dealt with in due course. 19 For the foregoing reasons, leave to issue the subpoena will be granted. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. Associate: Dated: 26 June 2008 Counsel for the Applicants: Mr AJ Ryan SC and SM Rebikoff Solicitor for the Applicants: Mallesons Stephen Jaques Counsel for the Applicants: Mr C Golvan SC Solicitor for the Applicants: Middletons Date of Hearing: 12 June 2008 Date of Written Submissions: 19 June 2008 Date of Judgment: 26 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/969.html
Case: Commissioner for Railways v Small (1938) SR (NSW) 564
Outcome: cited
Secondly, the ACC is not presumably ignorant of the dispute in light of the prior correspondence. Thirdly, it is not being asked to form a judgment as to potential relevance of documents; it is simply being asked to produce documents as to which it has already formed a judgment regarding relevance (ie the documents referred to in the 1 May letter). Because it appears from the correspondence that the ACC has already reviewed and identified the relevant documents, I consider that the documents are identified with "reasonable particularity": Commissioner for Railways v Small (1938) SR (NSW) 564 at 573. Indeed, the ACC does not appear to make any complaint regarding undue burden or oppression.
Case: Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137
Outcome: cited
The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules . It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] . A subpoena will be refused unless the documents sought to be produced "on their face, have some potential relevance to the issues in dispute between the parties": Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29] . Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24].
Case: Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541
Outcome: cited
With respect to the remainder of the respondents' objections, I note: (1) that some of the documents requested may not be relevant in the end does not matter - the standard is potential, not actual, relevance; and (2) that the pleadings have not yet closed does not matter because there is no limit on the time at which the court can issue a subpoena: Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 at 543-44. The problem of potential costs to the respondents in dealing with documents generated by the subpoena can and will be addressed in two ways. First, under the ordinary rule, costs follow the event, so that if the respondents prevail in the proceedings they will have the costs incurred in relation to this subpoena as part of those costs. Secondly, if the respondents, after seeing the response to the subpoena, are of the view that it has led to costs thrown away or other waste, their remedy is to make application for a separate costs order.
Case: NSW Commissioner of Police v Tuxford [2002] NSWCA 139
Outcome: cited
The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules . It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] . A subpoena will be refused unless the documents sought to be produced "on their face, have some potential relevance to the issues in dispute between the parties": Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29] . Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24].
Case: Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500
Outcome: cited
can be seen there is no express obligation, imposed on the Tribunal, by s 43(2B) to refer to all relevant evidence, to set out the basis for conclusions or ultimate findings of fact reached, or to set out its understanding of the relevant law. Counsel submitted that these obligations arose from a gloss which Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179 ; (1983) 48 ALR 500 at 507, placed on the differently worded s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). In submitting that the Tribunal had failed to satisfy the obligations imposed on it by s 43(2B), counsel drew attention to the following matters: As a result, so it was submitted, Mr Culley was confronted with statements by the Tribunal which reflected badly on his business acumen and integrity, but was left to guess at the evidentiary basis for this criticism. Because of this he could not defend his good name.
Case: Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321
Outcome: referred to
Culley appealed pursuant to s 44 of the AAT Act. Section 44(1) provides for appeals to this Court "on a question of law" from any decision of the Tribunal: see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178; Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 at 324-5. Mr Culley's further amended notice of appeal identified six questions of law. Some are related to others such that they can be dealt with together. Questions 1 and 2
Case: Comcare v Lees (1997) 151 ALR 647
Outcome: referred to
if it had been established that the Tribunal had not complied with the requirements of s 43(2B) this would not have constituted a reviewable error of law which would justify the setting aside of the Tribunal's decision: see Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 445-6 (per Brennan J); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 379 (per Kirby J); and see also Comcare v Lees (1997) 151 ALR 647 at 656-9 (per Finkelstein J). Counsel for Mr Culley accepted that this was the legal position.