LAWS3419

Competition Law
Semester Two, 2010 Undergraduate Unit of Study Outline

Faculty of Law http://sydney.edu.au/law

Unit of Study information Lecturer contact details Name Address Phone Fax Email
Brett Williams Room 633, Sydney Law School 9351 0312 9351 0200 [email protected]

Preferred method of communication

Student Consultation time: I will be in my room to meet students without appointments between 2 pm and 3 pm on Tuesdays. I encourage you to call in or to phone me during these times. I am usually available to answer questions after class (rather than before class or during class breaks). With regards to correspondence with academic staff, students should remember to sign their name and provide their student identification number, especially when sending emails..

Overview
This unit of study examines competition law and policy in Australia. The central part of the course deals with Part IV of the Trade Practices Act 1974 (Cth). The framework for analysis will include a critical examination of the fundamental purposes of competition policy and the legal regulation of economic activity in general. Some references will be made to the restrictive trade practices provisions of comparative jurisdictions.
Topics include: (a) common law antecedents of competition law and history of competition law legislation; (b) the Hilmer Report, National Competition Policy and the Dawson review; (c) application of the Trade Practices Act 1974 (Cth) and the role of the Australian Competition and Consumer Commission; (d) elementary economic theory of monopoly and the goals of competition policy; (e) fundamental concepts of competition, market definition, market power and public benefit; (f) mergers and acquisitions; (g) horizontal arrangements including primary boycotts, price fixing and arrangements which substantially lessen competition; (h) vertical arrangements including exclusive dealing and third line forcing; (i) misuse of substantial market power; (j) notifications and authorizations; and (k) overview of remedies and enforcement. Additional topics may include resale price maintenance or access to essential facilities.

Aims & Objectives

The general aims of the unit are: that students should acquire an understanding of different views on the question of whether and how competition law should regulate economic activity by considering the economic arguments for competition law and considering how they are reflected in statutes and implemented in cases; that students should acquire a good understanding of the basic concepts of competition law including markets, competition and market power such as can enable them to apply those parts of the Trade Practices Act that are studied in this unit and also to help them to apply other sources of competition law not studied directly in this unit;

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that students should acquire a reasonable familiarity with Part IV of the Trade Practices Act; that students should be capable of researching competition law; and that students should be reasonably proficient in applying Part IV of the Trade Practices Act to fact situations.

This unit should, in addition to achieving the objectives set out above, assist students in acquiring the attributes set out in the statement of generic graduate attributes adopted by the Faculty (see 2009 Faculty Handbook available at http://www.usyd.edu.au/handbooks/handbooks_admin/law.shtml an understanding of the fundamental economic and legal principles underlying competition law and the interaction between the two disciplines. the critical analysis of cases, legislation and readings, particularly some skills in statutory interpretation;. the ability to apply these economic and legal principles to factual examples, in particular, skills in making a legal argument using available evidence; Enhanced written skills and oral communication skills, particularly through the opportunities in class to present your pre-prepared answers to assigned questions The ability to pursue independent research and analysis in the field. The unit of study will proceed by a mixture of lectures, discussion of previously assigned materials or problems, including in small groups, and student presentation on particular materials. Students will maximize their learning if they learn through an appropriate mixture of learning through reading before class, thinking during class and reading after class. Students will be directed to read certain material before class and will be expected to be prepared to answer questions on the assigned reading. I would not expect students who spend less than 2 hours of private study for each hour of class time to be able to get on top of the subject. Students are reminded of the statement of the Dean of the Faculty in the Faculty Handbook: a large involvement in part-time work (especially if it extends beyond the equivalent of one day per week) is inconsistent with proper participation in a full-time degree program. For most course topics, there is a corresponding chapter in Clarke & Corones, Competition Law and Policy Cases and Materials (Oxford, 2005, 2nd ed). You will need to read all of chapters 1 to 10 between pages 1 and 491, chapters 12 and 13 between pages 550 and 641 and a little of chapters 14 and 15. Other recommended reading is listed within the course outline. Discussion will sometimes focus on a close reading of particular cases, sometimes on a particular problem question or sometimes more upon extracting the basic economic and legal principles from each topic. To focus your preparation and the use of class time, we will set a designated reading for a class discussion in a designated hour each week. Some of the designated readings will relate to particular cases and some will relate to exam style problem exercises. During these class discussions, students must have Issued Materials Book 2 open at the relevant materials and must not have computers open. During the early part of the course we will consider some elementary economics of competition. This will form the basis for much of the later analysis of the law.

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In examining the Australian provisions some references will be made to comparative antitrust provisions in the United States, New Zealand and the European Community. These comparative provisions are important because Australian courts and regulators constantly refer to decisions from these jurisdictions for assistance in interpreting the legal and economic basis of the Australian legislative provisions.

Reading materials
I have requested that those marked Reserve be placed in the law library Closed Reserve.

Required Book of Cases and Materials

Philip Clarke & Stephen Corones, Competition Law and Policy Cases and Materials (Oxford University Press, 2nd edition, 2005) Book on Closed Reserve [available at Co-op Bookshop]

Recommended Textbooks
You are not required to purchase a textbook. You may find the following helpful. Corones, S Competition law in Australia (Thomson 5th ed 2010) Corones, S., Competition law in Australia (Thomson, 4th ed, 2007) Book in Closed Reserve Corones, S., Competition Law in Australia (Lawbook Co., Sydney, 3rd ed, 2004) (Law Short Loan 343.940723 9 B) Steinwall and others, Butterworths Australian Competition Law (Butterworths, 2000) Law Short Loan 343.940721 22

Legislation
You will need constant access to the relevant parts of the Trade Practices Act 1974 (Cth). In particular, you will need to refer to Parts I, II, IV, VI, VII, and IX (and depending on whether the course covers resale price maintenance Part VIII and access to essential facilities, Part IIIA). It is possible to obtain your own copy of the Act from free sources or several versions are available for purchase. We will discuss the statute in the first class and give you an exercise to look up certain sections of the Act. It is likely that the University will print a book of extracts containing relevant parts of the Act. You would be allowed (and encouraged) to take this into the exam. You may not take any other version of the Trade Practices Act into the exam. This means that copies of Millers Annotated Trade Practices Act or Steinwalls Butterworths Annotated Trade Practices Act are not permitted to be taken into the exam.

Cases
You will find that you need to read beyond the extracts of cases in Clarke and Corones. In particular, you will need to have read all of the important High Court decisions in this field and several of the Federal Court decisions.

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Issued Materials
In the first class, you will be issued with hard copies of this Course Information booklet and of a booklet of Class Discussion Exercises. In addition to the book of extracts from the Trade Practices Act 1974, the following books of materials are available for purchase. The WebCT site contains the tables of indexes for the following books of supplementary materials. You will need to have a copy of Books 1 and Book 2: Book 1 contains some reference material on the economics of competition and a couple of articles about the role of economic evidence in competition litigation. Book 2 contains the readings which you need to prepare for the Class Discussion Exercises. You could choose to obtain these from online sources instead of buying this Book. Having the book of readings will be more convenient. You may choose to buy Books 3 and 4 or to access these materials through the library. I will circulate a class list asking you to indicate whether I should have a copy printed for you. Book 3 contains some articles about the fundamental concepts of market definition, competition, market power, and public benefits which will assist you in your essay and in the course generally. Book 4 contains some additional cases. You could choose to use online sources instead of buying this Book 4. The cases in the volume are HC decisions in Melways, Rural Press and NT Power, the full FC decisions in Safeway, Universal, and Monroe Topple.

Topic Outlines
This course outline contains detailed outlines for each topic. We wont cover everything on the outline. It should not be necessary to revise any of them during the course. However, if any part is reissued, it will be published to the WebCT site.

Other Reference Material

Books: Search Library Catalogue Bruce, Alex, The Trade Practices Act: restrictive trade practice law (Law Book Co, Nutshell Series, Sydney, 2001, 2nd ed) Law Short Loan 343.9407 73 A Bruce, Alex, Restrictive Trade Practices Law (Butterworths Student Companions, 1999) Law Short Loan 343.940723 12 Duns, John, Mark J. Davison, and Caron Beaton-Wells, Competition Law Cases and Materials (Butterworths, Australia, 2006 2nd ed) Law Short Loan 343.940723 13 A Greig, Alison M., Trade practices law (Butterworths companions) Law Research 343.9408 18 Hurley, A., Restrictive Trade Practices: Commentary and Materials (Sydney: Law Book Company, 1995) Law Short Loan 343.940723 4 A Hurley and Wiffen, Outline of Trade Practices and Consumer Protection Law, (Butterworths, 1999) Law Short Loan 343.9407 62 A Nagarajan, Vijaya, and David M Meltz, Trade practices law (Butterworths questions and answer series) (Butterworths, Sydney, 1999) Law Short Loan 343.9407 93 Steinwall R. (ed), 25 Years of Australian Competition Law (Butterworths, 2000) Law Research 343.940721 21 Clarke. P., Vertical Price Fixing in Australia (Federation Press, 1991) Law Research 343.940725 5 M. Richardson and P. Williams (eds) The Law and the Market - essays in honour of Maureen Brunt (Federation Press, 1995) Law Research 346.9407 64

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Loose-leaf: Search Library Catalogue Australian Trade Practices Reporter (CCH, Loose-leaf). Law Loose-leaf 343.9407 72 Heydon, D., Trade Practices Law (Sydney: Law Book Company, Loose-leaf)

Law Loose-leaf 343.9407 46

Journals: Search Library Catalogue Australian Business Law Review (Law Book Company) Competition and Consumer Law Journal (Butterworths) Trade Practices Law Journal (Law Book Company) ACCC Journal (ACCC) (I understand that a $25/year subscription is available to students enquiries to http://www.accc.gov.au/content/index.phtml/itemId/142 or 6243 1143) Government Reports: Search Library Catalogue Economic Planning Advisory Council, Promoting Competition in Australia, Council Paper No. 38 (Canberra: AGPS, 1989) Fisher Research 338.6048 36 House of Representatives Standing Committee on Legal and Constitutional Affairs, Mergers, Takeovers and Monopolies: Profiting from Competition? (Canberra: AGPS, 1989) (Griffiths Report) Law Research 338.820994 2 Senate Standing Committee on Legal and Constitutional Affairs, Mergers, Monopolies and Acquisitions: Adequacy of Existing Legislative Controls (Canberra: AGPS, 1991) (Cooney Report) Law Research 346.9406626 8 Report by the Independent Committee of Inquiry, National Competition Policy (AGPS, 1993) (the Hilmer Report) Law Short Loan 338.6048 53 Intellectual Property and Competition Review Committee (Henry Ergas, Jill McKeogh & John Stonier, Review of Intellectual Property Legislation under the Competition Principles Agreement Final Report (IP Australia, Canberra, Sept 2000) (Ergas Report) available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_ErgasCommitte ereport-September2000 Dawson Committee, Report on the Review of the Trade Practices Act (16 November 2002) http://tpareview.treasury.gov.au/content/report.asp (Dawson Report) Also see the government response to the Dawson Committee report at: http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp And see the Government Bill implementing the recommendations of the Dawson Report at http://parlinfoweb.aph.gov.au/piweb/browse.aspx?path=Legislation%20%3 E%20Current%20Bills%20by%20Title and scroll down to Trade Practices Legislation Amendment Bill 2006. ACCC publications ACCC, Update Magazine ACCC, Merger Guidelines: A Guide to the Commissions administration of the merger provisions (ss50/50A) of the Trade Practices Act (Canberra: revised June 1999). Available via search at http://www.accc.gov.au/content/index.phtml/itemId/3737 ACCC, Summary of the Trade Practices Act 1974 (available for purchase from the ACCC)

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United States Search Library Catalogue USA Department of Justice and the Federal Trade Commission, Horizontal Merger Guidelines, revised 8 April 1997, on the website of the DOJ at to http://www.usdoj.gov/atr/public/guidelines/hmg.htm (via http://www.usdoj.gov/atr/public/guidelines/guidelin.htm). Areeda, P. and Turner, D.F., Antitrust Law (Boston: Little Brown, 1978- ) and supplements by Areeda and Hovenkamp Law Research 343.730721 16 Phillip Areeda, Antitrust Law (Aspen, NY, 2004) Bork, R., The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978) Law Research 343.73072 35 Fox, E.M. and Sullivan, L.A., Cases and Materials on Antitrust (Minnesota: West Publishing Co.,) Law Research 343.730721 1 Kwoka J.E. and White, L. (eds) The Antitrust Revolution: Economics Competition and Policy (Oxford University Press, NY, 2004) Fisher Research 338.85 6 A Peritz, J.R., Competition Policy in America 1888 1992 (Oxford University Press, New York, 1996) Fisher Research 343.730721 10 The Antitrust Bulletin Antitrust Law Journal BNA Reporter European Community: Search Library Catalogue Korah, V., An Introductory Guide to EC Competition Law and Practice (Hart, London, 2000) Law Research 341.753 17 D Korah, V., Cases & Materials on EC Competition Law (Hart, London, 2001) Law Research 341.753094 3 Bellamy, C. and Child, G.C., Common Market Law of Competition (Oxford University Press, 1993, 1997 suppl.) Law Research 341.753 3 B Whish, R., Competition Law (London, Butterworths, 2003, 5th ed.) Law Research 343.410721 1 B ACCC Newsletters See http://www.accc.gov.au/content/index.phtml/itemId/142 to subscribe to ACCC Update Magazine and to subscribe to free email newsletter from ACCC. Useful web sites (see links for related sites) Australian Competition and Consumer Commission http://www.accc.gov.au/ National Competition Council http://www.ncc.gov.au/ Productivity Commission http://www.pc.gov.au/ Department of the Treasury http://www.treasury.gov.au/ Department of Communications, Information technology and the Arts IPART (NSW) http://www.ipart.nsw.gov.au/ Regulator General (Vic) http://www.esc.vic.gov.au/public/ United States Department of Justice: Antitrust Division: http://www.usdoj.gov/atr/index.html United States Federal Trade Commission: http://www.ftc.gov/ US Federal Communications Commission http://www.fcc.gov/ American Bar Associations Section of Antitrust Law http://www.abanet.org/antitrust/ OECD Competition/Antitrust Policy http://www.oecd.org/ European Commission DGIV Competition http://ec.europa.eu/comm/competition/index_en.html UK Competition Commission http://www.competition-commission.gov.uk/ UK Office of Fair Trading http://www.oft.gov.uk/ NZ Commerce Commission http://www.comcom.govt.nz/

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Lecture times Days

Tuesdays & Thursdays

Time
11am 1pm

Note: For up to date information regarding class venues, visit the following link: http://www.law.usyd.edu.au/cstudent/undergrad/timetables.shtml There will be no classes during the following weeks: Week 5 Tuesday 24 August and Thursday 26 August The Semester break in the week commencing Monday 27 September. Week 10 Tuesday 5 October and Thursday 7 October Week 12 Tuesday 19 October and Thursday 21 October

University eLearning System (WebCT)

The University Learning Management System (LMS) is used by the Faculty of Law to manage online unit of study content. Every semester, an eLearning site is developed for each unit of study and the material found on these sites is supplemental and supportive to your face-to-face studies. Unit of study outlines, class handouts, PowerPoint slides, notices, and links to relevant University sites are some of its useful features. Students are strongly advised to check eLearning sites regularly as some important notices and assessment details (including results) may be posted there. To log into the University LMS, go to: https://learn-on-line.ce.usyd.edu.au/webct/entryPageIns.dowebct. require your unikey login to access the site.

You

will

ELearning sites are available on the first day of classes for semester-length units of study.

Like to know more about the University eLearning system?

Please contact your eLearning Administrator via email at [email protected] or visit the following website: http://www.usyd.edu.au/elearning/student/index.shtml

Assessment
The assessment is directed to achieving the objectives of the course and achieving the Generic Graduate Attributes: the compulsory essay requires students to demonstrate their understanding of the fundamental economic and legal concepts underlying competition law and requires them to critically analyze legislation and cases; the exam requires students to demonstrate their familiarity with the TPA and their ability to apply the law to fact situations. See the more detailed description of the assessment at the end of this section.

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All parts of the assessment are compulsory. Class attendance. Limited open book exam for two thirds of the marks. 2000-2500 word essay on set topic for one third of the marks due Thursday 30 September 2010. I will make every effort to return those essays that are submitted on time in hard copy on Thursday 30 September 2010 before the last class on Thursday 28 October 2010 (though this will depend also on the final class size). Essays received later than Thurs 30 September 2010 may not be returned until after the final marks are released. Exam during end of semester exam period is compulsory: Students are required to take responsibility for ensuring that they are able to sit the exam on the designated day and for reading the examination timetable to ensure that they know the date, time and place of the exam. Students who are unable to stay in Sydney until the end of the exam period (for 2010 2nd semester, this is Saturday 20 November 2010) should not enrol in this course. Should an emergency arise, you can make written application to the Undergraduate Administration Team leader on Level 3. I will not consider or respond to any correspondence about the exam or any assessment between the time of the exam and the issue of exam results. Assessment task 2000-2500 essay Exam Due date % of final Assessment details/additional mark instructions one-third compulsory, non-redeemable two-thirds Compulsory 2 hour limited open book

word 30 September TBA

Compulsory Essay Topic: The provisions of Part IV of the Trade Practices Act require judgments about competition - existing or hypothetical states of competition and projected impacts on markets. Under sections 45, 47 and 50, Courts and the Australian Competition Tribunal must decide whether certain arrangements or conduct substantially lessens competition or is likely to do so and, under section 46, Courts must decide whether certain entities have substantial market power. Explain the similarities and differences between making assessments under the substantial lessening of competition test and making assessments of whether an entity has substantial market power and evaluate whether Australian courts and tribunals are making these assessments in a way that helps to achieve the objectives of the TPA.

Marks: Length:

Worth one third of marks for the subject. 2000-2500 words; including everything in the text but excluding footnotes and bibliography; Any substantial narrative text in the footnotes will not be taken into account in assessing the essay. Please state the total number of words on the title page. Thursday 30 September 2010, 4 pm in 2 ways: Drop Box: assignments are to be submitted to the drop box function on the WebCT site, AND

Date Due:

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Level 3 Desk in hard copy: Assignments (identical to that submitted via Drop Box) must be submitted with an assignment Cover Sheet with signed plagiarism declaration to the level 3 Desk. Essays will not be marked until the hard copy is received. Format: Typed (not handwritten), single side, 1.5 or 2 point line spacing on numbered pages and corner stapled. (You will lose a mark if you dont meet these format requirements).

Compulsory Exam Marks: When: Two thirds of the marks for the subject. During the end of semester exam period. Please check the University exam timetable for the date, time and place of the exam. Two hours (120 minutes) writing time which will be preceded by 30 minutes reading time during which you can write on notepaper but may not write in the examination booklets. You will have to answer two questions chosen from three problem questions. The problems will mix topics. At least one question will be based to some extent on a question from a past year exam paper.

How long:

Content:

Closed Book: You can bring into the exam room the following: The Course Outline (you may write in it) The extracts from Trade Practices Act 1974 (Cth) as issued by the Faculty of Law (no other versions of the TPA are permitted in the exam room) (you may write in it) Clarke & Corones Any issued material Your own notes Any dictionaries, You may NOT bring in any other books or computers.

Tips on Exam Technique: Do use the reading time to write a plan of the headings and paragraphs in your answer. Do use headings. Divide up the material by considering different conduct separately rather than trying to group considerations under a particular provision together. Having focussed on the conduct, then identify the possible contraventions and go through the elements of the contravention. If one of the elements involves defining a market, then define the purpose for which you are defining the market and then define the market. It is risky to begin a question with a definition of the market on the assumption that a single market definition will be appropriate for all possible contraventions. Do break separate ideas into separate paragraphs. Do identify the relevant law but do not waste time quoting statutory provisions verbatim if particular words are important, just identify those particular words. It is critical that you do apply the law to the facts that you have been given.

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Policy on Exceeding Word Length:

If the submitted essay exceeds the maximum word limit, the lecturer will deduct a mark (out of 100) from the achieved mark for each 50 words in excess of 2500 words.

Policy on late submission

The late submission of a piece of assessment which has not been granted an extension will attract a penalty of 1 mark out of 100 marks per calendar day including Saturdays, Sundays and public holidays.

Attendance requirement
Undergraduate students are required to attend 70% (or 80% for student visa holders) of the formal classes in each unit of study. Failure to meet this requirement may result in a student being precluded from sitting the final exam.

Assignment submission guidelines

All assignments must now be submitted online via the Assignment Drop-box in the relevant eLearning site for your subject. If you are submitting your assignment very close to the deadline please make sure that your personal watch is exactly the same as the time showing on the eLearning site (displayed when you first log into the University LMS as pictured below). The time and date of submission as recorded on the eLearning site will be taken as the official (final) record of submission so please ensure that you are familiar with using the site and that you allow yourself plenty of time to upload your assignment.

You are also required to submit an identical hard copy of your assignment. It is recommended that this hard copy is printed double sided. The hardcopy can be dropped off at the Information Desk, Level 3, New Law School Building, Eastern Avenue, Camperdown Campus between or at the counter on Level 12 of the Old Law School Building in Phillip St between 9am and 5pm Monday-Friday (excluding public holidays). Please note that you will not be given a receipt on submission of the hard copy assignment your official record of submission is the eLearning site electronic submission. The submission deadline for both the formal eLearning version as well as the hardcopy version is the same and is specified in this Unit of Study Outline under Assessment regime. An assessment coversheet must be submitted with the hardcopy version ONLY. Please note that coversheet is not necessary for the electronic submission as by submitting via the eLearning site you have agreed to the

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conditions set out in the Assignment Dropbox. You can obtain the Assignment Coversheet Sheet by clicking on the following link: http://www.law.usyd.edu.au/cstudent/undergrad/forms.shtml or they can be found at the Student Information Desk at Level 3, New Law School Building. The Law School reserves the right not to mark assignments that do not have coversheets attached with all fields completed. Instructions on how to submit your assessment through the Assignment Dropbox may be found on the subject eLearning site along with instructions on how to check if your submission was successful. In case you are experiencing difficulties submitting your assignment electronically, please contact the eLearning Administrator on 02 9351 0328 prior to the submission deadline for assistance or your paper may be marked as late and marking penalties applied.

Instructions for written work

Essays should be typed, double-spaced, and should contain appropriate referencing and a bibliography. Keep a copy of your essay when you submit it. With regards to referencing, students should use the Australian Guide to Legal Citation (AGLC): http://mulr.law.unimelb.edu.au/go/aglc Where material used in assignments has been obtained from the internet, appropriate references must be provided. Internet material should be cited by providing the address of the site accessed and the date on which it was accessed. Students must retain an additional copy of their essays and assignments.

Penalties
The late submission of a piece of assessment, which has not been granted an extension, will attract a penalty of 1 mark out of 100 for the piece of assessment per calendar day or part thereof including weekend days and public holidays. A piece of assessment which exceeds the prescribed word limit will attract a penalty of 0.5 marks out of 100 total marks allocated to the piece of assessment for every 50 words, or part thereof, over the limit. For full policy on penalties and other student policies please refer to the Faculty Handbook: http://www.usyd.edu.au/handbooks/law/01_introduction.shtml

Assignment deadline extensions ("Simple Extensions")

Requests for a short extension (of 7 days or less) must be communicated in writing directly to your lecturer in advance of the due date (preferably well before the due date!), including compelling reasons why the extension is necessary. A medical certificate or Professional Practitioner Certificate, Statutory Declaration form or other supporting documentation may be requested by the Lecturer. These extensions of time will be granted only in

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special circumstances, and are considered "Simple Extensions" as defined by Part 5 (Special Consideration Due to Serious Illness, Injury and Misadventure) of the Academic Board Resolutions: Assessment and Examination of Coursework. Requests for longer extensions must be made by a formal application for Special Consideration. See the section below. Students should be warned that late submissions may result in late issue of results, even if the extension has been approved.

Applications for special consideration

Formal applications for special consideration may be made: in the case of exam-based assessments, to request a replacement assessment. in the case of non-exam assessments such as research essays or take-home exams, to request an extension longer than the Simple Extension period (7 days or less). o Note that a close-off date may apply beyond which work will not be accepted (e.g. when the marked assessments are to be returned). If the extension would extend beyond this period a replacement assessment may be issued. in the case of minor, recurring assessments such as weekly tests or class participation marks, to request a reweighting or averaging of marks. No additional marks or leniency in marking will be awarded for illness, injury or misadventure. Applications should be submitted as soon as practicable. Complete applications, along with all supporting documents, must be submitted within 5 working days from the end of the period for which consideration is sought. Law-specific special consideration forms are available from the website or the student information desk. UG form: http://www.law.usyd.edu.au/cstudent/undergrad/forms.shtml For more information see Part 5 of the Academic Board Resolutions Assessment and Examination of Coursework (http://www.usyd.edu.au/ab/policies/Assess_Exam_Coursework.pdf) The special consideration policy applies to final exams, replacing the previous "Application for Re-assessment Exam" process.

Plagiarism and Academic Honesty

University practice on plagiarism and academic honesty is governed by the Academic Board Policy: Academic Dishonesty and Plagiarism. Students are expected to familiarise themselves with this policy, which contains the Universitys principles of academic honesty as well as definition of plagiarism and information about other forms of academic dishonesty. The policy can be accessed at http://www.usyd.edu.au/ab/policies/Academic_Honesty_Cwk.pdf. The policy requires students to submit a signed statement of compliance for all work submitted for assessment. Therefore, all students must submit their essay with the Assignment Coversheet (see http://www.law.usyd.edu.au/cstudent/undergrad/forms.shtml ) and must give the Declaration on Plagiarism set out on the Assignment Coversheet.

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Students who are suspected to have engaged in academic dishonesty will be reported to the Dean's nominee for academic dishonesty and plagiarism and will be required to attend a formal meeting to discuss the possible outcomes. A record is kept in relation to each instance. Serious cases and repeat cases will be referred to the University Registrar and could result in exclusion from the University. Information on honest academic practices and avoiding plagiarism can be found at: WriteSite (http://writesite.elearn.usyd.edu.au/): to assist with writing skills, quoting, paraphrasing and referencing. iResearch (http://sydney.edu.au/library/skills/): short learning tools for referencing and avoiding plagiarism. The Learning Centre (http://www.usyd.edu.au/stuserv/learning_centre/index.shtml): workshops and resources on a variety of research and writing skills such as study skills, academic reading and writing and oral communication skills. Help Manual http://sydney.edu.au/law/cstudent/coursework/docs_pdfs/helpmanualstyleguide.pdf contains information about making an academic argument (p11), referencing (p12) and plagiarism (p17). All Your Own Work http://www.usyd.edu.au/student_affairs/plagiarism_index.shtml A guide to avoiding plagiarism, cheating and copying. Students should note that plagiarism, academic dishonesty, and other forms of academic misconduct (including misstatement of word count or submitting a hard copy which is not identical to the electronic version of an assessment) can have serious consequences on admission to practice.

Assessment grading guidelines

These guidelines are designed to provide students with an understanding of the standards applied when grading assessments. Students should note that the type of assessment will affect the relevance of each factor. For example, the amount and type of research required will vary between a research essay, which will require independent research beyond the prescribed materials, and a problem question which may only require appropriate analysis of the prescribed materials. These standards may be applied in conjunction with specific marking criteria. Fail (Below 50%) Work may fail for any or all of the following reasons: Does not answer the question. Contains significant or numerous errors. Few or no identifiable arguments. Content that is inappropriate or irrelevant. Plagiarism, inappropriate use of other student work, including recycling all or a significant part of a paper which has already been given credit in another course. Lack of research or analysis. Difficult or impossible to understand through poor grammar, expression or structure. Overall, does not demonstrate the minimum level of competence in the assessment. Pass (50-64%) Work receiving a pass grade will generally exhibit the following characteristics: Identifies the key issues, but does not follow through with a reasoned

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argument. Contains some significant errors. Displays satisfactory engagement with the key issues. Offers descriptive summary of material relevant to the question. Superficial use of material, and may display a tendency to paraphrase. Demonstrates little evidence of in-depth research or analysis. Adequate expression. Overall, demonstrates the minimum level of competence in the assessment and satisfies the requirements to proceed to higher-level studies in the degree or subject area.

Credit (65-74%) Work receiving a credit grade will generally exhibit the following characteristics: Covers main issues fairly well in answering the question. Contains no significant errors Demonstrates an attempted critical approach to the issues. Demonstrates reasonably sound research and analysis in addressing the key issues. Has a clear structure and reasonably clear expression. Distinction (75-84%) Work receiving a distinction grade will generally exhibit the following characteristics: Completely answers the question. Achieves a critical and evaluative approach to the issues. Content and structure is well organised in support of the argument. Demonstrates extensive research and analysis to support a well-documented argument. Generally well expressed and free from errors. Has a clear structure and is well articulated. High Distinction (85% +) Work receiving a high distinction grade will generally exhibit the following characteristics: Completely answers the question. Contains striking originality of approach or analysis. Demonstrates exhaustive or innovative research (where independent research required). Exceptionally well written, structured and expressed. Is otherwise exceptional in some way.

Grade distribution (policy on standardisation of grades) (Note: applicable to undergraduate students only)
The purpose of this policy is to ensure an appropriate degree of fairness and consistency in marking. The distribution of grades in each undergraduate unit in the Faculty of Law shall generally conform to the following guidelines: The range of HD grades should be between 3-10% and D grades between 530%. No more than 40% of a group should receive HD and D grades.

Marks could be scaled up or down, where deemed necessary, in order to conform to the Facultys grade distribution policy. The full policy on standardisation of grades can be found in the Faculty Handbook: (http://www.usyd.edu.au/handbooks/law/09_undergrad_resolutions.shtml)

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Withdrawal from units of study

Students should be aware of the important differences between a withdrawal (W), a discontinued - not to count as failure (DNF), a discontinued - fail (DF) and an absent fail (AF). For more information please go to the Faculty Handbook at http://www.usyd.edu.au/handbooks/law/09_undergrad_resolutions.shtml

Lecture schedule
This is indicative. We may not cover everything on the outline. The order may change a bit. For example the Introduction in the first 2 classes will include the first part of Topic 7 on economic theory. Due to the need to address both the fundamental concepts and the individual contraventions, a little overlap and repetition is unavoidable. 1 2 3 4 5 6 7 8 9 10 10A 11 12 Introduction Common Law Antecedents of Competition Law Historical Introduction to Competition Law Legislation The Hilmer Report, National Competition Policy, the State Codes and the Dawson Reforms The Trade Practices Act 1974 (Cth): Application and Institutions Overview of Part IV of the Trade Practices Act 1974 (Cth) Economic theory, the problem of monopoly and the goals of competition policy The Fundamental Concepts: Competition, market definition, market power and public benefit Section 50 and s50A Mergers and Acquisitions Section 45 Contracts, Arrangements and Understandings Section 45A price fixing Section 47 Exclusive Dealing Section 46 and s46A Misuse of market power

13 Penalties, Remedies and Enforcement Page references designated: "Corones" refers to Corones, S.G., Competition Law in Australia (Sydney, Law Book Company, 5thrd ed, 2010); C&C refers to Clarke, P. & Corones, S., Competition Law and Policy: Cases and Materials (Oxford University Press, Melbourne, 2nd ed 2005) Butterworths refers to Steinwall et al, Butterworths Australian Competition Law (Butterworths, 2000) Miller refers to Miller, Russel V., Millers Annotated Trade Practices Act (Lawbook Co., Sydney, NSW, 2005, 26th ed).

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Designated Class Discussion Exercises

Please refer to the separate booklet containing the Class Discussion exercises. The following is an indicative draft and also includes a schedule for some practice exam problems. Date Required Reading (all in Supp Mats Book 2) Week 1 Thurs 29 First instance decision in: Rural Press Ltd v Australian July Competition and Consumer Commission Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Via AustLII Week 2 Thurs 5 Aug Exercise on market Definition in Australian Rugby Union Ltd v Hospitality Group Pty Ltd (Federal Court, Gyles J) [2000] FCA 823; (2000) 173 ALR 253, (2000) ATPR 41-768 Via AustLII and Port Adelaide Bricks problem on market definition Week 3 Thurs 12 Exercise on the Decision of the Trade Practices Tribunal in August Re QCMA and Defiance Holdings (1976) 25 FLR 169; (1976) ATPR 40-012 Online via e-reserve & assess the lessening of competition in the problem from last week. Week 4 Thurs 19 Exercise on the substantial lessening of competition test August Cool & Sons v OBrien Glass Industries Federal Court, Keely J. (1981) 35 ALR 445 Online via e-reserve OBrien Glass v Cool & Sons Federal Court, Full Court (1983) 77 FLR 441, 48 ALR 625 Online via e-reserve *Outboard Marine Australia Pty Ltd v Hecar Investments (No. 6) Pty Ltd (1982) ATPR 40-327, 44 ALR 667 Online via ereserve and problem on Bentley. Week 6 Thurs 2 Exercise on Public Benefits in 4 cases: Sept QCMA Re Southern Cross Beverages Pty Ltd (1981) 50 FLR 176: (1981) ATPR 40-200 (1981) 6 TPC 596 Online via e-reserve Re 7 Eleven Stores Pty Ltd, Australian Association of Convenience Stores Inc. and Queensland Newsagents Federation (1994) ATPR 41-357 Online via e-reserve Qantas Airways Limited [2004] ACompT 9 Via AustLII Week 7 Thurs 9 Exercise on Market Power Sept Queensland Wire v BHP (1989) 167 CLR 177; and Via AustLII ACCC v Boral [2001] FCA 30, judgement of Finkelstein J esp paras 321 to 349. Via AustLII Week 8 Thurs 16 Exercise on Market Power continued Sept Boral Besser Masonry v ACCC (2003) 196 ALR 609; [2003] HCA 5 Via AustLII Week 9 Mon 20 Sept Lectures - No Class Discussion exercise this week Thurs 30 Essay Due - Non-Teaching week Sept Week 10 Mon 5 Oct Public Holiday No lectures this week Week 11 Thurs 14 Exercise on Contracts Arrangements and Understandings Oct Facts situations beer and petrol/ Problem on Friendly Skies Required Reading: C&C pp229-247. Book in Closed Reserve Week 12 Comm. No lectures this week Mon 18 Oct
Week 13 Comm 25 Oct Last week of lectures

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1.

Introduction

1.1 Introduction to the first Class Discussion Exercise: the facts of the Rural Press case Our introductory class will consist of consideration of the facts in the Rural Press case which will be the subject of the first Class Discussion exercise in the first class in week 2. You need to read the first instance decision and prepare answers to the questions set out in the Class Discussion Exercise. 1.2 Introduction to the Competition Law Consider handout Fact Situations and see section of WebCT site 1 Biscuits, Groceries and TV (Arnotts, Davids) 2 Beer, Petrol and Football (Queensland Wire; Nicholas/ Morphett Arms case) 3 Cars, spare parts & Windscreens (Tepeda, Suburu, OBrien Glass) 4 Eggs, & Street Directories (Victorian Egg Board case, Melways case), Is there a reason for the law to intervene in these situations? 1.3 Introduction to the Economics of Monopoly

We will turn to Topic 7 on the economics of competition and will consider the first 3 points (up to 3.1) Either before or after class you should read 10 pages of Materials Book 1. 1.4 Introduction to Remedies for Week 2

Look up the TPA and chapters 14 & 15 of Clarke & Corones to find out the answers to the following questions: Public Enforcement List the remedies available to the ACCC? Private Enforcement List the Remedies available to private parties? Pecuniary Penalties Which court is the Court in s76? Who can the court impose pecuniary penalties on? What is the maximum for a body corporate? What is the maximum for a natural person? Injunctions under s80 (Apart from mergers under s50) Who can apply for an injunction? In relation to a merger, who can apply for an injunction? Undertakings under s87B Who can accept an undertaking? Who can agree to a change in an undertaking? If a person breaches an undertaking, who can apply to the Court for an order? What order can they get? Divestiture Who can give directions about disposal of assets? Who can seek directions about disposal of assets? When can a Court give directions about the disposal of assets?

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2.

Common Law Antecedents of Competition Law

Corones [chap 3, pp131-136]; C&C [chap 1, pp1-6, ch2, pp27-77]; Butterworths [ch1, pp2-5]

Readings:

Essential Pre-Class Reading: C&C from p38-43 including the Nordenfeldt case. The Common Law doctrine of restraint of trade Essential reading: C&C: p 1-6 and all of the commentary scattered throughout Chapter 2 plus the following cases contained in Chapter 2 Collins v Locke (1879) 5 App Cas 674 [C&C, p5] (Privy Council on appeal from Vic Sup Ct) Summary of the law in the case of *Nordenfeldt v The Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535 (C&C:38-43) Adelaide Steamship Co. v R (1912) 15 CLR 65 (where the High Court adopts the language of McNaughten J) Via AustLII (appealed to Privy Council in (1913) 18 CLR 30. Via AustLII See the questions at C&C:p30 Does it require a legitimate interest? Vancouver Malt and Sake Brewing Co Ltd v Vancouver Breweries Ltd [1934] AC 181. Search Westlaw The two limbs of reasonableness Reasonable as between the parties Reasonable in the interests of the public What is the difference between the two? Application of Doctrine to Restraint in an Employment Contract Lindners v Murdocks Garage (1950) 83 CLR 628 Via AustLII [C&C:62-66] Can the restraint of trade doctrine apply during the continuance of the relationship? Application of the Doctrine to a Vertical Restraint of Trade / Exclusive Dealing Esso Petroleum v Harpers Garage [1968] AC 269 Search Westlaw Does the Doctrine apply only to Contractually binding Restraints? Who can challenge the clause?

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Application of the Doctrine to rules between Sporting Clubs affecting players Buckley v Tutty (1971) 125 CLR 353 Via AustLII [C&Cp43] Reasonable as between the Parties *Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 [C&Cp46] Via AustLII Buckley v Tutty (1971) 125 CLR 353 (HCA) [C&C52-53] Via AustLII Adamson v NSW Rugby League (1991) 31 FCR 242, (1991) 103 ALR 319 Online via e-reserve [C& C: 53-61] Reasonable with reference to the Interests of the Public Lindner v Murdocks Garage [see C&C p66] AG v The Adelaide Steamship Co Ltd (1913) 18 CLE 30. Via AustLII *Texaco Ltd v Mulberry Filling Station Ltd (1972) 1 All ER 513. [C&C68-70] Preservation of RoT Doctrine and Interaction with the Trade Practices Act [C&Cp35-38] See s4M regarding concurrent application of restraint of trade doctrine. See s51(2) list of exceptions. Matters which are governed by the RoT doctrine and are excluded from Part IV (except s48) of the TPA include: - contracts relating to behaviour of a service provider or employee during or upon termination of a contract for provision of services, whether as an employee or not: section 51(2)(b) - contracts containing non-compete arrangements between non-incorporated partners whether during or after the termination of the partnership: section 51(2)(d) - contracts containing restraints by a vendor of a business or of shares in a company which protect the goodwill purchased by the purchaser: section 51(2)(e). For other types of restraints, it is possible that both the TPA and the restraint of trade doctrine might apply, so we need to ask: What is the effect of section 4M? and Are there categories of restraint to which the doctrine cannot apply? Esso Petroleum Co Ltd v Harpers Garage Ltd [1968] AC 269 Online via e-reserve Quadramain Ltd v Sevastopol Investments Pty Ltd (1976) 133 CLR 390. Via AustLII *Peters (WA) Ltd v Petersville Ltd [2001] HCA 45 [ C&C 28-33] or Via AustLII [see extract in C&C at 28-33 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; (2001) 185 ALR 152; (2001) 76 ALJR 246 Via AustLII [see extract from Callinan J in C&C at74-76] Australian Capital Territory v Munday (2000) 99 FCR 72; (2000) 173 ALR 1; (2000) ATPR 41-771; [2000] FCA 653 Via AustLII (leave to HC refused in Munday v Australian Capital Territory (2001) 22(16) Leg Rep SL 2,

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Severance: C&C: p72-73 *Restraints of Trade Act 1976 (NSW) s4 [C&C:77] Example of Rewriting the clause under s4: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 Search NSWLR Does the Restraint of Trade clause protect the public interest? interest of economic efficiency the interest of consumers

Limitations on the Restraint of Trade doctrine Corones 135-6; also C&C: p3, C&C: p64-65. [73-74 in 2005 edition] Further Reading: Search Library Catalogue Heydon, JD, The Restraint of Trade Doctrine (Butterworths, 2nd ed, 1999) Law Short Loan 343.0723 2 Extract from Trebilcock, Michael, The Common Law of Restraint of Trade: A Legal and Economic Analysis (Carsell , Toronto, 1986) pp 142-151 [ C&C 65-69] Law Research 343.0723 1

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3.

Historical Introduction Legislation

To

Competition

Law

Readings:

Corones [chap 3 136-138; 161-167; 172] C&C [chap 1, 5-12, 16-17] Butterworths ch1, pp7-17

Recall limitations in the Restraint of Trade doctrine 1 United States Sherman Act 1890 (US) s1, s2 [codified at 15 USC 1, 2; reproduced in C&C:ch1, p6 or at http://www.usdoj.gov/atr/public/divisionmanual/chapter2.htm ] Did this attempt to regulate by: - preventing entities from becoming monopolies? or; - prescribing the levels of acceptable conduct by monopolists? Did this regulate horizontal conduct or vertical conduct? 2 Was the Sherman Act too Broad ?

Two judicial responses to the Sherman Act being too broad? [see Corones, 34-41 2.1 The consideration of whether the conduct is ancillary to a legitimate objective or the ancillary restraints approach

United States v Addyston Pipe & Steel Co , 85 F 271 (6th Cir 1898), affd 175 us 211 (1899) Search Lexis 2.2 The consideration of the effect on competition or the rule of reason approach

Standard Oil Co of New Jersey v US, 221 US 1 (1911) ) Search Lexis Chicago Board of Trade v USA 246 US 231 (1918) Search Lexis 3 3.1 Australian Industries Preservation Act 1906 (Cth) Influences of the Sherman Act and the Restraint of Trade Doctrine

Section 4 & 5 prohibited entering into combinations with intent to restrain trade or commerce to the detriment of the public Section 7 & 8 prohibited monopolization or any attempt to monopolize any part of trade or commerce to the detriment of the public 3.2 Constitutional Invalidity of Sections 5 and 8 based on corporations power Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 Via AustLII

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3.3

Judicial Interpretation of Sections 4 and 7 [Corones:p136-7] Attorney General (Cth) v Associated Northern Colleries [ Isaacs J] (1911) 14 CLR 387 Via AustLII Confirmed by Full High Court in Adelaide Steamship Co v Attorney- General (Cth) (1912) 15 CLR 65 Via AustLII Appeal dismissed by the Privy Council in AG (Cth) v The Adelaide Steamship Co Ltd (1914) 18 CLR 30; [1913] AC 781. Via AustLII

Was the Sherman Act too Narrow? The Clayton Act A response to the Sherman Act being too narrow buying shares - Clayton Antitrust Act 1914, Section 7 [extracted in C&C:, ch 1, p7; or at: http://caselaw.lp.findlaw.com/casecode/uscodes/15/chapters/1/sections/s ection_12.html ] vertical restrictions Clayton Antitrust Act 1914, Section 3 [extracted in C&C, ch1, p7 or at: http://caselaw.lp.findlaw.com/casecode/uscodes/15/chapters/1/sections/s ection_12.html ]

UK Restrictive Trade Practices Act 1956 - Emphasis on the public interest - Consider relative role of judiciary and executive

Treaty Establishing the European Economic Community (Treaty of Rome) 1957 Article 81 (formerly article 85) agreements having the object or effect of distorting competition [C&C:ch1, 25-26; ] Article 82 (formerly article 86) abuse of dominant position [C&C, ch1, p17] Exception to Article 81 in Article 81(3)

Trade Practices Act 1965 (Cth) (repeal of Industries Preservation Act 1906) Power of Commissioner of Trade Practices

Trade Practices Act 1974 (Cth) Stricland v Rocla Pipes Ltd (1970) 123 CLR 361 Via AustLII Restrictive Trade Practices Act 1971 (Cth) Whitlam government Trade Practices Act 1974 (Cth) Via AustLII

Swanson Committee and the Trade Practices Amendment Act 1977 Fraser government, Swanson Committee & amendments

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10

1983 1993 Hawke government, amendments in 1986 Trade Practices Revision Act 1986 (Cth) Griffith Committee in 1988 Closer Economic Relations with New Zealand insertion of s46A 1991 Cooney Committee Trade Practices Legislation Amendment Act 1982 (Cth)

11

Hilmer Report See Topic 6

12

Dawson Report See Topic 6

Further Reading Allan Fels and Ross Jones, The First 25 Years under the Trade Practices Act (1999) 7 TPLJ 126-144. Online via e-reserve On EU law: Whish, R., Competition Law (London, Butterworths, 2003, 5th ed.) (Law research 343.410721 1 B) On US law: Areeda, P and Turner, D, Antitrust Law (Boston: Little, Brown, 1978-1997) (Law research 343.73072 25) and supplements by Areeda and Hovenkamp

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4.

The Hilmer Report, National Competition Policy, the State Codes and the Dawson Reforms
Corones: chpt 4, pp193-194] C&C: chpt 1, pp13-26, ch4, pp119-122 & Ch3. Butterworths: chpt 1, pp17-28 *Part XI A of the TPA

Readings:

*Generally - Miller Annotated competition policy law and practice ch1 - esp pp2-7. 4.1 the 1992 Hilmer Inquiry and the 1993 Hilmer Report *Report by the Independent Committee of Inquiry, National Competition Policy (AGPS, 1993) (Hilmer Report) [Extracts C&C 13-26 and pp119-122] (a) (b) (c) (d) 4.2 Competition Policy Reform Act 1995 (Cth) Conduct Code Agreement Competition Principles Agreement Competition Implementation Agreement

The Competition Principles Agreement COAG, Competition Principles Agreement [Miller, annotated competition policy law and practice ch 2 @ pp12-53] Clause 1 the public interest test Clause 2 oversight of prices by government business enterprises Clause 3 competitive neutrality also see: Productivity Commission Act , ss21 and 22 Via AustLII Clause 4 the approach to structural reform of public monopolies Clause 5 Legislative Review the approach to reviewing existing state legislation affecting competition Legislative reviews see www.ncc.gov.au then click on Legislative Reviews Find an example of a state statute that has been reviewed, or is being reviewed in the NCC, Legislation Review Compendium 4th ed Feb 2002. Clause 6 access to services provided by significant infrastructure facilities insertion of TPA Part IIIA Clause 7 application of the competition principles to local government

4.3

The Competition Implementation Agreement COAG, Competition Implementation Agreement [Miller, annotated competition policy law and practice ch 4 @ pp75-85] . Payments see http://www.ncc.gov.au Assessments - http://www.ncc.gov.au

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4.4

Competition Policy Reform Act 1995 (Cth)

*Competition Policy Reform Act 1995 (Cth) 4.4(a) Institutional Changes Australian Competition and Consumer Commission Australian Competition Tribunal National Competition Council 4.4(b) Substantive Amendments to Part IV application to State Crown s2B treatment of goods and services exclusive dealing for services third line forcing per se with notification price discrimination repealed the Competition Code see 4.3 below 4.5 The Competition Code and the Conduct Code Agreement COAG, Conduct Code Agreement [Miller, annotated competition policy law and practice ch 3 @ pp54-74] *Competition Policy Reform Act 1995 (Cth) inserting Part XIA of the TPA [C&C:77-78] and the Uniform Competition Policy Reform Acts implementing the Competition Code: *Competition Policy Reform (New South Wales) Act 1995 (NSW) [C&C:86-88] Competition Policy Reform (Victoria) Act 1995 (Vic) Competition Policy Reform (Queensland) Act 1996 (Qld) Competition Policy Reform (South Australia) Act 1996 (SA) Competition Policy Reform (Western Australia) Act 1996 (WA) Competition Policy Reform (Tasmania) Act 1996 (Tas) Competition Policy Reform (Northern Territory) Act 1995 (NT) Competition Policy Reform (Australian Capital Territory) Act 1995 (ACT) Please read Part XIA of the TPA (Sections 150A to 150K) especially: s150A - definitions s150C what is the Competition Code s150A what is the definition of the phrase Schedule version of Part IV What is in Part I of the Schedule? s150I what is meant by a reference to the Competition Code? What is meant by: participating jurisdiction, participating State Then read Competition Policy Reform Act 1995 (NSW) especially s5 what is the effect of s5 s4 - what is the definition of competition code

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4.6

Further Issues relating to the Competition Code: Legislative, Executive and Judicial

4.6(a) Legislative What happens when we want to amend Part IV? Is it possible that the Federal government could decide to amend Part IV; that the State government could decide not to adopt the amendment so that we could have a divergence between the laws applying under the different Acts in the different States? Conduct Code Agreement, clause 6 Competition Policy Reform (New South Wales) Act 1995, s6(1) [in C&C at 79] TPA, Part XIA, s150K. Via AustLII TPA s4 fully participating jurisdiction s51(1)(b) exemption for laws of fully participating jurisdictions 4.6(b) Executive Do the state governments create a body to give authorisations? Is there the possibility of getting different outcomes from inconsistent rulings on notifications from different levels of government? Competition Law Reform (NSW) Act 1995, s19(1), s19(2). Via AustLII TPA s150F, s150J. Via AustLII 4.6(c ) Judicial Which courts should deal with matters arising under the Competition Codes in each State? Could the situation arise in which the Supreme Court of a State and the Federal Court of Australia adopt divergent decisions? Exercise of pendant Federal jurisdiction by a Federal court: Accrued jurisdiction matter in Ch III of Constitution Phillip Morris case (1981) 148 CLR 457 Via AustLII Associated jurisdiction Federal Court of Australia Act 1976 (Cth), s32 Via AustLII TPA, s4, s86 Via AustLII Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth), s4(2), s5(1), s6 Via AustLII S3(1)(a) & (aa) special federal matter includes matters under TPA Part IV and matters arising under the Competition Code Via AustLII See the original provisions of the Code TPA. Part IXA, s150D Via AustLII Competition Policy Reform (NSW) Act 1995 (Cth) s21 Via AustLII Re Wakim, Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; 31 ACSR 99 Via AustLII Note the amendments in 2000 TPA Part IX s150D : The Federal Court may exercise jurisdiction (whether original or appellate) conferred on that Court by an application law of a Territory with respect to matters arising under the Competition Code. Competition Policy Reform (NSW) Act repeal of s21 & 22

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4.7

The Dawson Report See summary of the recommendations of the Dawson Report in C&C p21-23. Dawson Committee, Report on the Review of the Trade Practices Act (16 November 2002) http://tpareview.treasury.gov.au/content/report.asp (Dawson Report) The government response to the Dawson Committee report : http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp Trade Practices Legislation Amendment Bill (No 1) 2005 passed House, split by the Senate, subsequently lapsed. Report of the Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business (Tabled 1 march 2004) available at: http://www.aph.gov.au/Senate/committee/economics_ctte/completed_inqui ries/2002-04/trade_practices_1974/index.htm The government response to the Senate economics committee report was released on 24 June 2004 available at: http://www.aph.gov.au/Senate/committee/economics_ctte/completed_inqu iries/2002-04/trade_practices_1974/index.htm Trade Practices Legislation Amendment Act 2006 (Cth) (No131 of 2006) Key Provisions: New defences for certain horizontal arrangements: inserted s76C, s76D Notification process available for collective bargaining: inserted s45(8A) & Part VII Div 2 subdiv B New Formal Clearance for mergers: inserts Part VII Div 3 sub div B (esp see s95AC) Authorisations go to AC Tribunal: inserts Part VII Div 3 sub div C (esp see s95AT)

4.8

Since 2006 Trade Practices Act Amendment Act (No. 1) 2007 (Cth) (No 159 of 2007) Containing the Birdsville Amendment to s46, adding s46(1A)

Further Reading: Further Reading on Hilmer report Economic Planning Advisory Council, Promoting Competition in Australia, Council Paper No. 38 (Canberra: AGPS, 1989) Fisher Research 338.6048 36 National Competition Council, National Competition Policy and the Public Interest, Discussion Paper (November, 1996) Productivity Commission, Impact of Competition Policy Reforms on Rural and Regional Australia: Inquiry Report (September 1999)

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National Competition Council, Competitive Neutrality Reform Issues in Implementing Clause 3 of the Competition Principles Agreement (AGPS, January 1997).

Further Reading on Competition Principles: Sunstein, C., Congress, Constitutional Moments, and the Cost-Benefit State (1996) 48 Stanford Law Review 247 Search HeinOnline Further reading on reform of public monopolies Nagarajan, V., Reform of Public Utilities: What about the consumer? (1994) 2 Competition and Consumer Law Journal 155 Search Lexis Kahn, "Market Power Issues in Deregulated Industries" 60 Antitrust Law Journal 857 (1992) Search HeinOnline Farrar, J. and McCabe, B., "Corporatisation, Corporate Governance and the Deregulation of the Public Sector Economy" (1995) 6 Public Law Review 24. Online via e-reserve Allars, M., "Private Law But Public Power: Removing Administrative Law Review From Government Business Enterprises" (1995) 6 Public Law Review 44. Online via e-reserve Administrative Review Council, Administrative Review of Government Business Enterprises, (AGPS, Canberra, 1995), Report No. 38 Law Research 354.94092 11 Yarmirr v Australian Telecommunications Corp. (Federal Court, Burchett J.) (1990) 96 ALR 739. Search LexisNexis AU Further Reading on the Dawson Committee Reforms Pengilley, W Trade Practices Act Amendment Bill and government indication of future attitudes (2004), Competition and Consumer Law Journal 12(1) 102 Search LexisNexis AU

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Topic 5. The Trade Practices Act 1974 (Cth): Application And Institutions
Readings: Corones: chpt 3, pp 138-140, 140 161, 179-193 C&C: pp 78-95, Butterworths: chpt 1, pp 76-88.

5.1

Constitutional Context Australian Constitution, s51(i), (v), (xiii), (xiv), (xx), (xxix), (xxxix), s52, s122 Via ComLaw

5.2

Direct application to Corporations Section 4(1) Definitions of corporation, foreign corporation,financial corporation trading corporation & s4A, holding company control

5.2.1 Trading corporation (see C&C:p79-81) and Financial Corporation (See C&C:p81-82) What about corporations established under statutes, bodies incorporated under Associations Incorporation Act? Do you look at what the corporation was established to do, what its principal objectives are or at what it does?? R v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533, 2 ALR 371 Via AustLII Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (FCA Full Court) (1978) 36 FLR 134 esp at 158; 22 ALR 621 Via AustLII In R v Federal Court and Adamson; Ex parte WANFL & West Perth Football Club (High Court) (1979) 23 ALR 439 Via AustLII State Superannuation Board v Trade Practices Commission (Federal Court) (1982) 60 FLR 165, esp 174 per Northrop J, 41 ALR 279, 3 ATPR 40-192; (High Court) (1982) 150 CLR 282 esp at 305 per Mason, Murphy and Deane JJ, 57 ALJR 89, 44 ALR 1, ATPR 40-326. Via AustLII The law relating to trading corporations is summarized in the judgement of Toohey J in Hughes v Western Cricket Association (1986) 19 FCR 10 (see C&C:p72-73). 5.2.2 Further examples Red Cross Society, Royal Prince Alfred Hospital - E. v Australian Red Cross Society (1991) 99 ALR 601 Search LexisNexis AU University of Western Australia - Quickenden v OConnor (1999) 166 ALR 385, per Lee J. Via AustLII

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5.3

Direct Application to the Crown [C&C pp81-84] shield of the Crown binding the Commonwealth TPA s2A , s4(1) def authority of the Cth ( eg Tytel v Australian Telecommunications Commission (1986) 67 ALR 433.) binding the states: Bradken Consolidated Ltd v BHP (High Court of Australia) (1979) 145 CLR 107; 24 ALR 9. State Superannuation Board v Trade Practices Commission TPA ss2B (See C&C, pp74-76 for extracts) inserted by Competition Policy Reform Act 1995 (Cth) Business activity under s2B: J.S.McMillan v Commonwealth (1997) 77 FCR 337. Via AustLII NT Power Generation Pty Ltd v Power & Water Authority, Federal Court (Mansfield J): (2001) ATPR 41-814, [2001] FCA 334, Via AustLII Full Federal Court (Lee, Branson and Finkelstein JJ): [2002] FCAFC 302; (2002) 122 FCR 399; (2003) ATPR 41-909 Via AustLII High Court: (2004) 210 ALR 312; (2004) ATPR 42-021 Via AustLII Licence under s2C: NT Power Generation as above Derivative Immunity: ACCC v Baxter Healthcare Pty Ltd [2006] FCAFC 128; (2006) 153 FCR 574; (2006) ATPR 42-128. Via AustLII Affirming the decision in ACCC v Baxter (2005) ATPR 42-066; [2005] FCA 581. Via AustLII Appeal allowed in ACCC v Baxter Healthcare [2007] HCA 38 Via Austlii (noted in (2007) 35(5) ABLR 374 & (2008) 16(1) TPLJ 51.

5.4

Direct Application to Natural Persons TPA, s6(1), 6(2). Via AustLII (on indirect application to natural persons refer to Topic on The Hilmer Report)

5.5

Extraterritorial Effect TPA s5(1), 5(2) Via AustLII

Further Reading On Application to the Crown: Steinwall, R., "The Liability of the Crown and its Instrumentalities under the Trade Practices Act 1974 (Cth)" (1994) 17 UNSWLJ 314 Search HeinOnline Nicolee Dixon, When are State Government Owned Corporations Caught by Part IV of the Trade Practices Act? (1996) 4 TPLJ 118-125. Online via ereserve Warren Pengilley, Those Dealing with Crown Immune Entities are also entitled to Such Immunity: Baxter Healthcare Appeal Case Note (2006) 22 (7) TPLB 92. Online e-reserve

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Topic 6. Overview Of Part IV of the Trade Practices Act 1974 (Cth) [and impact of 2006 amendments ]
Readings: Corones: chpt 3, pp 138-140, 140 161, 179-193 C&C: pp, 89-95 and Ch 13, pp593-598, 627-633. Butterworths: chpt 1, pp 76-88.

See PPT slides Institutions: Australian Competition and Consumer Commission www.accc.gov.au TPA, Part II, s6A to 29 Three Roles: - Enforcing the TPA - Assessing Authorisations and Notifications - Roles under access rules in Part IIA and XIC of TPA Australian Competition Tribunal TPA, Part II, ss30-44A Via AustLII National Competition Council http://www.ncc.gov.au/ - see What is Competition Policy. TPA, Part IIA, s29B to 29O Federal Court of Australia, Sections 4(1), s86(1) Substantive Law: Part IV Division 1 Cartel Conduct S44ZZRF & 44ZZRG criminal offences of making and giving effect to a cartel provision S44ZZRJ & 44ZZRK civil contraventions of making and giving effect to a cartel provision Exclusions: S44ZZRS overlap with s47 Ss44ZZRN if CAU between related parties Ss44ZZRL if collective bargaining notice in force S88(1A)(c)&(d) if an authorisation in force S44ZZRO & s44ZZRP exempting some joint ventures TPA Part IV Division 2 ss 45-50, s45 horizontal arrangements collusion and price fixing C&C p218-219 Section 45(2)(a)(i) and 45(2)(b)(i) purpose or effect of substantially lessening competition including exclusionary provisions under s4D [C&Cp287] and defence under s76C price fixing under s45A [s45A(1) at C&Cp335] and defence under s76D s45(6) exclusion for conduct covered by other provisions s45(8) exclusion if only related parties are parties to the CAU

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s45(8A) exclusion if a collective bargaining notification is in force. s88(1) no contravention if authorisation in force

s46 prohibited use of market power [C&Cp375] s46(1) substantial market power, taking advantage, proscribed purpose s46(1AA) substantial market share, sales below relevant cost, proscribed purpose s46(6) excluding conduct under authorisation, subsisting notification or clearance s46A prohibited use of market power in a Trans Tasman market [s46A(2) at C&Cp379] s47 exclusive dealing [C&Cp424] see s47(1) to (9) including third line forcing under s47((6) and (7) s47(10) does not apply to non-3rd line forcing contraventions unless meet SLC test (and under s93(7) deemed not to SLC if notification under s93(1) is in force) s47(12) does not apply to 3rd line forcing contraventions if notification under s93 is in force s88(8) no contravention if authorisation is in force. s48 resale price maintenance s48 prohibition on resale price maintenance s96(1) to 96(3) [ C&Cp507] setting out what constitutes resale price maintenance s49 price discrimination REPEALED New s49 enacted in 2006 Dual Listed Company Arrangements that Affect Competition s50 mergers and acquisitions [C&Cp551] s50(1) acquisition by a corporation s50(2) acquisition by a person ss50(3) [C&Cp558] mandatory considerations in the determination of substantial lessening of competition authorisation of mergers by ACT clearance of mergers by ACCC s50A s88(9) no contravention of s50A if authorisation in force ACCC Merger Guidelines

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Definitions: s4, including acquire, competition, goods services supply also: 4A - subsidiary, holding and related bodies corporate 4C acquisition, supply and re-supply 4E market 4F purpose or reason 4G lessening of competition includes 4J - joint ventures

Exemptions:
ss51(1) conduct authorised by legislation conduct authorised by Cth legislation; some conduct authorised by State or territory legislation s51(2) - certain agreements especially those in (b), (d) & (e) that would usually be subject to restraint of trade doctrine: see topic 1. Ss51(2A) concerted action by consumers not in trade or commerce ss51(3) - intellectual property limited exemption for certain terms in licences of patents, designs or copyright material for conditions relating to the articles, goods, or subject matter of the respective IP right; limited exception for arrangements between registered proprietor and a registered user of a trademark relating to the qualities of goods that may bear the trade mark. Other parts of the Act

Part IIIA Access to Declared Services Path 1 Section 44ZZA the facility owner lodges an undertaking which is approved by the ACCC. Path 2 Section 44F 3rd party applies to the National Competition Council to recommend that the Minister make a declaration. Path 3 Section 44M a state government applies to the NCC to recommend that the Minister certify an existing access scheme under State law. Part VI Enforcement and Remedies Pecuniary penalties s76(1) [C&Cp643] Person involved in a contravention s75B Defence for natural persons acting honestly and reasonably s85(6) [C&Cp667] Injunctions s80(1), [C&Cp669] Injunctions against mergers s80(1A) [C&Cp686] Undertakings s87B [C&Cp674] Divestiture- s81(1) Damages s82 (limitation period under s82(2) )[C&Cp692] Declarations s163A(1) [C&Cp689] Other Orders s87 [C&Cp692]

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Part VII Authorizations, Notifications and Clearances Part VII Div 1 Authorisations other than in merger situations Section 88 authorizations [C&Cp594] Section 90 test to be applied in authorization decisions Part VII Div 2 Notifications [C&Cp596] Sub div A -Section 93 Notifications for exclusive dealing Sub div B esp section 93AB notifications for collective bargaining Part VII Div 3 Merger Clearances and Authorisations Sub divB Merger Clearances (by the ACCC) S95AC - clearances S95AN test to be applied in clearances Sub Div C Merger Authorisations (by the ACT) S95AT - authorisations S95AZH test to be applied in authorisations Part VIII resale price maintenance Part XIB anticompetitive conduct in telecommunications Part XIC Access in the telecommunications sector This outline reflects amendments made by: Trade Practices Legislation Amendment Act 2006. (No 131 of 2006); and Trade Practices Act Amendment Act (No. 1) 2007 (Cth) (No 159 of 2007) As at 18 June 2008, the last amendment to the TPA was: Trade Practices Act (Access Declarations) Act 2008 (No 7 of 2008) As at 18 June 2008, the following Bills were in process of being drafted of submitted to Parliament during 2007 or 2008 No bills had been introduced by the government into either house (apart from no 7 of 2008 referred to above) Trade Practices (Creeping Acquisitions) Amendment Bill 2008 had been introduced into the Senate but had not passed (either house). Exposure Draft of Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 was released by the Department of Treasury on 11 January 2008; The date for submissions was 29 February 2008. See http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1330 At the same website, also see: Draft MOU between the Commonwealth DPP and the ACCC regarding Serious Cartel Conduct Criminal Penalties for Seerious Cartel Conduct. (Passed in week ending 19 June 2009) Exposure Draft of Trade Practices Legislation Amendment Bill 2008 was released by the Department of Treasury on 1 May 2008; see http://www.treasury.gov.au/contentitem.asp?NavId=006&ContentID=1373 Containing proposed amendments to s46. The Treasurer has not sought public submissions. Senate Economics Committee (referred 26/6/08, report due 27 August 2008) Further Reading Warren Pengilley, Thirty years of the Trade Practices Act: some thematic conclusions (2004) 12 CCLJ 1 63. Search Lexis Warren Pengilley, Trade Practices Act Amendment Bill and government indication of future attitudes (2004) 12 CCLJ 102-113. Search LexisNexis AU ACCC, Authorisation and Notifications: A Summary (ACCC 5 January 2007

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Topic 7. Economic theory, the problem of monopoly and the goals of competition policy
Readings: Corones: [chap 1] C&C: [chap 4] Butterworths: [chap 2]

Essential Reading: Corones chapter 1, Economic Theory and Competition Law Stiglitz, Monopolies and Imperfect Competition in Joseph Stiglitz, Principles of Microeconomics (WW Norton & Co, NY, 1993) pp395 (in Supplementary Materials book 1, p1). Online e-reserve 1 Economic theory What is it? models, assumptions and predictions. Perfect Competition Model Assumptions, In aggregate - Supply and Demand For the individual firm Marginal Cost and Demand (D = AR = MR) Equilibrium at Marginal Cost = Marginal Revenue Monopoly Model Corones, ch1, pp5-9, Stiglitz, p1-6. The setting of price and quantity by a monopolist For the Monopoly firm: Industry Demand = Firm Demand; D=AR , MR<AR. The Loss from Monopoly: Allocative efficiency loss Quantifying the loss Pareto Efficiency, Kaldor Hicks Efficiency Does the valuation of transfers matter? Does wealth = welfare? What if costs fall? : Technical or Productive efficiency gain Williamsons Trade-Off Model (see Corones, ch1, p19 based on Williamson, Economics as an Antitrust Defence: The Welfare Trade-offs (1968) 58 American Economic Review 18) Search JSTOR What if costs rise? X-efficiency loss Gains Dissipated through Rent-Seeking See Posner, Richard A., The Costs and Occasionally the Benefits of Monopoly ch1 in Antitrust Law (University of Chicago Press, 2nd ed, 2001) p9-32. Online via e-reserve Further Reading: G. Tulloock, The Welfare costs of Tariffs, Monopolies and Theft Western Economic Journal 1967, Vol 5, 224-232. Dynamic Efficiency

3.1

3.2

3.3

3.4 3.5

3.6

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3.7

The Cost of Monopoly & the Appropriate Policy Response The Cost = (a) -Allocative Efficiency Loss (b) + Technical Efficiency Gain (c) X-Efficiency Loss(d) - Gains Dissipated in Rent Seeking (e) + or - Dynamic Efficiency Gains or Losses The Response: (a) Do nothing and let the market deal with it; or (b) Use Competition Law to Intervene. If (b) how do we measure (a), (b), (c ) (d) and (e) above so as to estimate that intervention results in a net gain?

4 4.1 4.2

What if some of the Assumptions are Relaxed The Monopolist Can Price Discriminate (Consumers do not have perfect information) There are No Barriers to Entry What is a Barrier to Entry? Corones, pp12-13. wider view eg. Bain, Barriers to New Competition (1956). narrower view eg Stigler, The Organization of Industry (Irwin, Homewood, Illinois, 1968) esp at 67-68. Contestability Further Reading: Scherer & Ross, Industrial Market Structure and Economic Performance (Houghton Mifflin, 1990), p17 drawing on William J Baumol, John C. Panzar & Robert D. Willig, Contestable Markets and the Theory of Industry Structure (Harcourt Brace Jovanovich, NY, 1982).

4.3 4.4

Competition from Imports There are Few Sellers Not One Seller and Not Many Sellers Oligopoly (Note: all of the theories below are subject to there being barriers to entry) 4.4.1 If each thinks the other will hold Quantity Constant Cournot Competition (see Stiglitz p436-438) If each thinks the other will hold Price Constant Bertrand Competition (see Stiglitz pp438 440) If each thinks that Other firms will match a price decrease but will not match a price Increase Kinked Demand Curve (See Stiglitz pp440-441) If One Firm Does Not Know What the Other Firm Will Do

4.4.2

4.4.3

4.4.4 4.4.1

Is there a Dominant Strategy: Prisoners Dilemma Duopolists Dilemma

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4.4.2

What if there is no Dominant Strategy The rational outcome - Nash Equilibrium Are markets rational ? Total Welfare or Consumer Welfare Efficiencies and the Williamson trade-off Valuation Externalities Eg. Negative externality in Production Negative externality in Consumption Summary of Schools of thought Concentration = Monopoly Edward S Mason of Harvard University Mainstream or Competition School or Harvard School See C&C, ch4 extracts from Kaysen & Turner (1965) & Pitofsky (1979) Corones, pp10-11. Efficiency School or Chicago School See C&C ch4 extracts from Bork (1978) & Posner (1976) Corones, pp11-13. Post Chicago Economics * Jonathan B Baker, Recent Developments in Economics that Challenge Chicago School Views (1989) 58 Antitrust Law Journal 645-659. in supplementary materials Book 1. Search HeinOnline * Richard L. Gordon, Modern Economics and the Microsoft case ch 3 in Richard L Gordon, Antitrust abuse in the new economy: the Microsoft case (Edward Elgar, Cheltenham UK, 2002) pp12-23. In supplementary materials Book 1. Online via e-reserve

5 5.1 5.2 5.3

6 6.1 6.2 6.2

6.3

6.4

Further Reading: Hovenkamp, H., The reckoning of post-Chicago antitrust in A. Cucinotta, R. Pardolesi & R Van Den Burgh(eds), Post Chicago Developments in Antitrust Law (Edward Elgar, 2002) Online e-reserve 7 Policy Response in Australia TPA s2 [C&C: end of Ch4] How do we determine existence of Market Power or a Lessening of Competition How should we define competition? Or market power? How much should we be concerned with market structure and market share? Are we concerned with consumer welfare or total welfare? How do we determine public benefit? Are we concerned with consumer welfare or total welfare?

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Use of economics in Courts We will follow up this topic in a subsequent lecture for which you should read: Arnotts v TPC(1990) 97 ALR 555 between 588 613. Search LexisNexis AU Yeung, K., The Court-Room Economist in Australian Antitrust Litigation: An Underutilized Resource? (1992) 20 ABLR 461. (issued in Supplementary Materials Book 3). Online via e-reserve Donald Robertson, Expert economic evidence: Challenging the paradigm (2003) 11 TPLJ 70 Online via e-reserve

Further Reading: Generally on economics of competition: *Varian, H.R., Intermediate Microeconomics, (Norton and Co., New York, 1996 4th ed) [ch 1 The Market, ch23 Monopoly, ch24 Monopoly Behaviour, ch26 Oligopoly, ch27 Game Theory] *Stiglitz, Joseph E., Principles of Micro-economics (Norton, NY, 1993) [ch15 Monopolies and Imperfect Competition, ch16 Oligopolies, ch17Government Policies Toward Competition Book in Closed Reserve Gellhorn, E., and Kovacic, W.E., Antitrust Law and Economics in a Nutshell (4th ed, 1994) ch 2 Online via e-reserve (For Hard copy,76 edition, Law Research 343.73072 22) Brunt, Economic Overview Lecture No 11, Monash trade Practices Lectures, 1975 [C&C 117- 119] Law Research 343.9407 20 A Curtis, Wayne C., Microeconomic Concepts for Attorneys A Reference Guide (Quorum Books, Westport, 1984) [ Part II Market Structure] Law Research 338.502434 1 Scherer, Frederick M & David Ross, Industrial Market Structure and Economic Performance (Houghton Mifflin, Boston, 1990, 3rd ed). Fisher Short Loan 338.70973 4 B *Hovenkamp, Antitrust Policy and the Social Cost of Monopoly (1993) 78 Iowa Law Review 371 Search HeinOnline [noting the additional costs of monopoly due to activity to achieve and to avoid monopoly outcomes] *Williamson, Economics as an Antitrust Defence: The Welfare Trade-offs (1968) 58 American Economic Review 18 Search HeinOnline Areeda, Introduction to Antitrust Economics (1983) 52 Antitrust Law Journal 520. Search HeinOnline J. Clark, Toward a concept of workable competition (1940) American Economic Review 30. Search Business Source Premier Calvani, T., Rectangles & Triangles: A Response to Mr Lande (1989) 58 Antitrust Law Journal 657. Search HeinOnline

Reading generally on utility and functions of antitrust law Crandall, R.W. & Winston, C., Does Antitrust policy Improve Consumer Welfare? Assessing the Evidence (2003) 17(4) Journal of Economic Perspectives 3. Search Business Source Premier

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Brodley, The Economic Goals of antitrust: Efficiency, Consumer Welfare and Technological Progress (1987) 62 New York University Law Review 1020. Search HeinOnline Reading on leading influences on the Competition School: Kaysen & Turner, Antitrust Policy (Harvard University Press, Cambridge, 1965) Fisher Research 338.8 49 Areeda & Turner, Antitrust Law (Little Brown & Co, Boston, 1978) Law Research 343.730721 16 Bain, Industrial Organization (John Wiley, NY, 1959) Fisher Research 338 17 * Pitofsky, The Political Content of Antitrust 127 University of Pennsylvania Law Review 1051 (1979) [C & C: 104] Search HeinOnline Reading on leading influences on the Chicago School: Stigler, The Organization of Industry (Irwin, Homewood, Illinois, 1968). (Esp on barriers to entry at pp67-68). Fisher Research 338.7 83 Posner, The Social Costs of Monopoly and Regulation (1975) 83 Journal of Political Economy 807. Search HeinOnline * Posner, Antitrust Law: An Economic Perspective (University of Chicago Press, 1976) [C & C: 96, 280] Demsetz Economics as a Guide to Antitrust Regulation (1976) 19 Journal of Law and Economics 371. Search JSTOR * Bork, R., The Antitrust Paradox: A Policy at War with Itself (New York: Basic Books, 1978) [C& C: 88] Law Research 343.73072 35 *Posner, The Costs and Occasionally the Benefits of Monopoly chapter 1 in Antitrust Law (University of Chicago, 2nd ed, 2001) (in issued materials Book 1) Online via e-reserve Further reading on barriers to entry including the conflict between Chicago School and Harvard School Bain, Barriers to New Competition (1956). Fisher Short Loan 338.5 2 Baumol, William J, John C. Panzar & Robert D Willig, Contestable Markets and the Theory of Industry Structure (Harcourt Brace Jovanavich, NY, 1982). Fisher Research 338.6 54 Sullivan, L.A., "Economics and More Humanistic Disciplines: What are the Sources of wisdom for Anti-trust?" (1977) 125 University of Pennsylvania Law Review 1214 Search HeinOnline Stigler, George, The Theory of Price (Macmillan 1987 4th ed) [ch 12, The Theory of Monopoly esp pp203-210]. Online via e-reserve Salop, Strategy, Predation and Antitrust analysis: An Introduction in Salop (ed), Predation and Antitrust (Federal Trade commission, Washington DC, 1981) Online via e-reserve Salop, Strategic Entry Deterrence (1979) American Economic Review 335. Search Business Source Premier

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Further Reading On Theory of 2nd Best Markovits, R.S., The Case for Business as Usual in Law-and-Economics Land: A Critical Comment (1993) 78 Iowa Law Review 387 Search HeinOnline On the use of economics by courts: Brunt, M., The Use of Economic Evidence in Antitrust Litigation: Australia (1986) 14 Australian Business Law Review 261. Search e-Reserve Yeung, K., The Court-Room Economist in Australian Antitrust Litigation: An Underutilized Resource? (1992) 20 ABLR 461. (issued in Supplementary Materials Book 3) Online via e-reserve Blunt, G., Shafron, P., and Keneally, B., From Arnotts to QIW A Study of Expert Evidence in Trade Practices Cases (1994) 1 CCLJ 181. Online via e-reserve Pleatsikas, Christopher & Teece, David, Economic Fallacies Encountered in the Law of Antitrust: Illustrations from Australia and New Zealand (2001) 9 TPLJ 7394. Online via e-reserve Sweeney and Hay, Quantitative economic evidence in Australian and New Zealand courtrooms (2003) 10 Competition and Consumer Law Journal 284 Search LexisNexis Au Beaton-Wells Proof of Antitrust Markets in Australia (Federation Press, Sydney, 2003) LR 343.940721 36 Beaton-Wells and Round Australian Rugby Union Ltd v Hospitality Group Pty Ltd: A salient reminder of the perils facing parties proving market under the Trade Practices Act 1974 (Cth) (2001) 29 Australian Business Law Review 211 Online via e-reserve

Australian Perspectives *Brunt, M., The Australian Antitrust Law after 20 Years - a Stocktake (1994) 9 Review of Industrial Organization 483. [C&C: 124] Online via e-reserve RS French, Competition law Covering a multitude of sins (2004) 12 CCLJ 125141. Online via e-reserve

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Topic 8. The Fundamental Concepts: Competition, market definition, market power and public benefit
Readings: Corones: chpt 2 C&C: chpt 5, plus ch13, pp596-627; Butterworths chpt 2 ACCC, Merger Guidelines (1999) paras 5.34 5.81 via ACCC website

8.1 8.1.1 8.1.2

Introduction Objectives of the TPA The structure-conduct-performance approach 1975 - Brunt, Economic Overview extracted in C&Cp124 1976 TPC, Second Annual Report extracted in C&Cp127 *Re QCMA and Defiance Holdings (1976) 25 FLR 169; (1976) ATPR 40012 [C&C: 167] Online via e-reserve [SuppMat] The QCMA factors 1994 Brunt, The Australian Antitrust after 20 Years: A Stocktake (1994) 9 Review of Industrial Organization 483 Online via e-reseve (also in Maureen Brunt, Economic essays on Australian and New Zealand Competition Law (Kluwer Law, 2003) ch7) extracted in C&Cpp131. Market Definition Purposive approach to Market Definition BHP/ Koppers case , TPTribunal (1981) ATPR 40-203, at 42,828 Search Library Catalogue *Queensland Wire Industries Pty Ltd v BHP Co. Ltd (Federal Court, Pincus J.) (1987) ATPR 40-810; Online via e-reserve (Federal Court, Full Court) (1988) 78ALR 407; Online via e-reserve (High Court) (1989) 167 CLR 177, (1989) ATPR 40-925, 83 ALR 577. Via AustLII * TPC v Australia Meat Holdings Pty Ltd (Federal Court per Wilcox J.) (1988) ATPR 40-876 [C&C: 148] (market definition aspect upheld by Full Court of Federal Court: Australian Meat Holdings Pty Ltd v TPC (1989) ATPR 40-932 on purposive approach see Pincus at 50,104) Search Library Catalogue

8.2 8.2.1

8.2.2

Defining the market General Principles C&C:135-189 Top Performance Motors v Ira Birk (Queensland) Pty Ltd (1975) 5 ALR 465 *QCMA case at p517) Online via e-reserve Swanson Committee Report, p17, para 4.22. TPA ss4(1), 4E Via AustLII The Mason approach to Market Definition *See C&C pp136-137

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Substitutability demand and supply side: TPC v Australian Meat Holdings Pty Ltd (1988) ATPR 40-876 per Wilcox J Queensland Wire, see Toohey J at p599 of 83 ALR. Via AustLII * Re Tooth & Co. Ltd; Re Tooheys Ltd (1979) ATPR 40-113 [C&C: 139] Telecom Corporation of New Zealand Limited v Commerce Commission (1991) 3 NZBLC 99-239 {C&C:141] Close substitutability and the hypothetical monopolist test: Areeda, Solow and Hovenkamp Antitrust (Little Brown, Boston, 1992) at Para 506: A market is any grouping of sales whose sellers, if unified by a hypothetical cartel or merger, could profitably raise prices significantly above the competitive level. If the sale of other producers substantially constrain the price-increasing ability of the hypothetical cartel, these others are part of the market.. Close substitutability and the SSNIP test (Small but significant and non-transitory increase in price) ACCC v The Australian Medical Association Western Australian Branch Inc (2003) ATPR 41-945 Via AustLII 8.2.2.1 The product dimension: Differentiating characteristics TPC v Ansett Transport Industries (Operations) Pty Ltd (1978) 32 FLR 305. Via AustLII ACCC v Australian Medical Association Western Australia Branch Inc [ Carr J.] (2003) ATPR 41-945 Via AustLII The question of a single product or a single brand market Tru Tone Ltd v Festival Records Retail Marketing Ltd [1988] 2 NZLR 352 {C&C:p148] Search NZLR Identifying the constraints operating on the entity: * Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (Federal Court, Wilcox J.) (1987) 75 ALR 581; (1987) ATPR 40-809 [C&C: 153] *News Ltd v Australian Rugby Football League Ltd [at C&C: 154] (Federal Court, Burchett J, 23 February 1996) (1996) ATPR 41-466, 58 FCR 447, 135 ALR 33 Online via e-reserve (Noted: 4 TPLJ 156, 5TPLJ 48 [1997] 2 M.A.L.R. 35) (Questions of market definition were not dealt with on appeal to Full Court: see below under Exclusionary provisions) Comment from Sweeney, Professional Sporting Leagues and the Competition Law (1997) 5 Competition and Consumer Law Journal 173. [extracted in At C&C 1st ed p157] Search LexisNexisAU Australian Rugby Union Limited v Hospitality Group Pty Ltd [2000] FCA 823; Gyles J [C&C 157] Via AustLII Emphasis on Close Competition *ACCC v Boral Ltd Federal Court, Heerey J, 22 September 1999, (1999) FCA 1318, (1999) ATPR 41-715, 166 ALR 410. Via AustLII Federal Court, Full Court , 27 February 2001, [2001] FCA 30, (2001) ATPR 41-803. Via AustLII High Court: (2003) 195 ALR 609; (2003) 77 ALJR 623; (2003) 24(3) Leg Rep 18; (2003) ATPR 41-915; [2003] HCA 5; BC200300131 Via AustLII

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Rural Press Ltd v Australian Competition and Consumer Commission High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 Via AustLII Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA - 16/07/2002 Via AustLII Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Via AustLII 8.2.2.2 The Geographic Dimension * TPC v Australia Meat Holdings Pty Ltd (Federal Court per Wilcox J.) (1988) ATPR 40-876 [C&C: 165] relationship between the product dimension and the geographic dimension 8.2.2.3 The Functional Dimension *QIW Retailers Limited v Davids Holdings Pty Ltd; Attorney-General v Davids Holdings Pty Ltd Federal Court, Spender J (1993) ATPR 41-226. [C&C:169] Full Court: Davids Holdings Pty Ltd v Attorney-General of the Commonwealth (1994) ATPR 41-304. 49 FCR 211, 121 ALR 241. Via AustLII Re Queensland Independent Wholesalers Ltd (1995) 132 ALR 225 [C&C:583] 8.2.2.4 The Time Dimension C&C:171 Telecom Corporation of New Zealand Limited v Commerce Commission (1991) 3 NZBLC 99-239 {C&C:141] 8.2.3 Sub-markets * Singapore Airlines Ltd v Taprobane Tours W.A. Pty Ltd (Full Court, FCA) (1992) ATPR 41-159, 33 FCR 158 [Extract from full court decision in C&C: 173] [on appeal from Taprobane Tours WA Pty Ltd v Singapore Airlines Limited Federal Court, Lee J, (1990) ATPR 41-054, 96 ALR 405. ] Online via AustLII Regents Pty Ltd v Suburu (Aust) Pty Ltd (Federal Court, Nicholson J.) (1996) ATPR 41-463. Search CCH Online Brunt, M., "`Market Definition' Issues in Australian and New Zealand Trade Practices Litigation" (1990) 18 ABLR 86. [C&C: 176] [in Supp Mat] Online via e-reserve 8.2.4 Real market or a potential market *Queensland Wire Industries Pty Ltd v BHP Co. Ltd (Federal Court, Pincus J.) (1987) ATPR 40-810; Online via e-reserve (Federal Court, Full Court) (1988) 78ALR 407; Online via e-reserve (High Court) (1989) 167 CLR 177, (1989) ATPR 40-925, 83 ALR 577. Via AustLII * NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90; (2004) 210 ALR 312. Via AustLII [in C&C at pp179] Onus of Proof *Australian Rugby Union Ltd v Hospitality Group Pty Ltd (Federal Court, Gyles J) [2000] FCA 823; (2000) 173 ALR 253, (2000) ATPR 41-768. Via AustLII [extract in C&C at 157- 164] (applies QCMA and Queensland Wire, distinguishes News v ARFL) [the decision on definition of the market was upheld on appeal in Hospitality Group Pty Ltd v Australian Rugby Union Ltd (Full Court) (2001) ATPR 41-831, [2001] FCA 1040; 110 FCR 157. See paras 51-65. Via AustLII

8.2.5

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Articles *Brunt, M., "`Market Definition' Issues in Australian and New Zealand Trade Practices Litigation" (1990) 18 ABLR 86. [C&C: 131, 142,162,164] [in Supp Mat Book 3] Online via e-reserve *N.R. Norman and P.L. Williams, ''The Analysis of Market and Competition under the Trade Practices Act: Towards the Resolution of some hitherto Unresolved Issues'' (1983) 11 ABLR 396. (issued in Supplementary Materials Book 3) Online via e-reserve David Brewster, Market Definition and Substitutability Australian Courts Continue to Struggle with Part IV of the Trade Practices Act 1974 (Cth) (1996) 112 QUTLJ 246-263. (issued in Supplementary Materials). [in Supp Mat Book 3] Online via e-reserve See also the 1999 Revision: ACCC, Merger Guidelines: A Guide to the Commissions administration of the merger provisions (ss50/50A) of the Trade Practices Act (Canberra: revised June 1999) Via accc.gov.au Smith, Rhonda L. and David K Round, When is a market a market? (2003) 31 ABLR 412 422. [In Supp Mat Book 3] Online via e-reserve Further Reading: United Brands Co and United Brands Continental BV v Commission [1978] ECR 207 Search Lexis.com Hoffmann-La Roche v Commission [1979] ECR 461 Search Lexis.com Federal Trade Commission v Staples 970 F Supp 1066 (1997) Search Lexis.com Mitchell G. Landrigan, Is the Australian Rugby League Wrapped Up? Section 46 of the Trade Practices Act and the Cellophane Fallacy [1996] 4 TPLJ 156160. Online via e-reserve Sweeney, Professional Sporting Leagues and the Competition Law (1997) 5 Competition and Consumer Law Journal 173. [C&C: 157-159] Search LexisNexisAU Hay, G.A., Market Definition and Market Dominance: Issues from the Davids-QIW Merger Case 3 Competition and Consumer Law Journal 1 Search Lexis.com Hogan-Doran, Dominique, Case Note: Regents Pty Ltd v Suburu (Aust) Pty Ltd [1996 ATPR 41-463], (1996) 4 TPLJ 206-208. Search CCH Online Scherer, F.M. & Ross, D, Industrial Market Structure and Economic Performance (Houghton Mifflin, Boston, 3rd ed, 1990) (Market definition precedents at pp176, Economic principles at p178, Market structure changes at 184, Smith, R.L., "The Practical Problems of Market Definition Revisited" (1995) 23 Australian Business Law Review 52 Online via e-reserve R.L. Smith and N. Norman Functional Market Definition 4 (1996) Competition and Consumer Law Journal 1 Search LexisNexis AU R. Smith and J. Walker The Role of Commercial Reality versus Substitution in Market Definition 5 (1997) CCLJ 1 Search LexisNexis AU M. Algie and B. Kewley, Market Definition Competition Law and Practice (Longmans 1997) Law Research 343.940721 12 Australian Competition & Consumer Commission, Exports and the Trade Practices Act guide to the Commissions approach to mergers, acquisitions and other

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collaborative arrangements that aim to enhance exports and the international competitiveness of Australian industry (October 1997) Fisher Research 343.9407 82 Beaton-Wells, C Proof of a market for the purposes of the Trade Practices Act 1975 (Part 1) (2003) Australian Business Law Review 31(2) 113 Search Law Book Online Beaton-Wells, C Proof of a market for the purposes of the Trade Practices Act 1975 (Part 2) (2003) Australian Business Law Review 31(3) 171 Search Law Book Online Smith, R and Round, D When is a market a market (2003) Australian Business Law Review 31(6) 412 Search Law Book Online Smith, R and Trindade, R Its time: The temporal dimension of competition analysis (2004) Competition and Consumer Law Journal 12(2) 142 Search LexisNexis AU 8.3 Competition in the market & Substantial Lessening of Competition in the Market Generally C&C: chapter 5 from 189. TPA, s4, 4E, 4G, 45(3), 47(13), s50(3). Via AustLII Meaning of Competition s4, s4G *Re QCMA and Defiance Holdings (1976) 25 FLR 169; (1976) ATPR 40012 [C&C: 167] Online via e-reserve Future with and future without test Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) ATPR 4031 [C&C: 178] Outboard Marine *Stirling Harbour Services v Bunbury [C&Cp196] Federal Court, French J.(2000) ATPR 41-752, [2000] FCA 38, paras 113-121. Via AustLII Federal Court Full Court 2000 FCA 1381 Via AustLII Competition not competitors *Outboard Marine Australia Pty Ltd v Hecar Investments (No. 6) Pty Ltd (1982) ATPR 40-327, 44 ALR 667 [C&C: 414]. Substantial Lessening of Competition Use of the QCMA factors Use of the s50(3) factors Future with and future without Stirling Services (see below) [in C&C at 196] How much is a substantial lessening

8.3.1

8.3.2

8.3.3

8.3.4

8.3.5

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Meaning of Substantial *Cool & Sons v OBrien Glass Industries Federal Court, Keely J. (1981) 35 ALR 445 online via e-reserve OBrien Glass v Cool & Sons Federal Court, Full Court (1983) 77 FLR 441, 48 ALR 625 [C&C: 170] Stirling Harbour Services v Bunbury Port Authority Federal Court, French J [2000] FCA 38, para 114 via AustLII Rural Press, High Court as above esp at para 41 [extracted in C&C :p204] Some Examples in Practice ASX Operations Pty Ltd v Pont Data Australia (No 1) (1990) 27 FCR 460 [C&Cp173} Dowling v Dalgety Australia Ltd (1992) ATPR 41-165, (1992) 34 FCR 109 [C&C: 201] Eastern Express Pty Ltd v General Newspapers Pty Ltd Federal Court, Wilcox J., (1991) 30 FCR 385; (1991) 103 ALR 41; (1991) ATPR 41-128 Via AustLII Federal Court, Full Court (1992) 35 FCR 43, (1991) 106 ALR 297, (1991) ATPR 41-167 Via AustLII

Rural Press Ltd v Australian Competition and Consumer Commission High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA - 16/07/2002 Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Relative Emphasis on Market Structure and New Entry / Contestability Stirling Harbour Services Pty Ltd v Bunbury Port Authority French J(2000) ATPR 41752 Via AustLII; Full Court (2000) ATPR 41-783 Via AustLII Re Qantas Airways Limited [2004] ACompT 9 [ACT] Via AustLII Are efficiencies relevant to the SLC test? See Davids Holdings Pty Ltd v Attorney-General (Cth) (Davids / QIW Merger case) (1994) 49 FCR 211; (1994) 121 ALR 241; (1994) ATPR 41-304 per Drummond J Search Lawbook Online To be considered again in Topic 9 Purpose: ACCC v Australian Medical Association Western Australian Branch Inc [in C&C at 193] Universal Music v ACCC [2003] FCAFC 193 esp para 255-269 Via AustLII Articles: Mary Coleman, Christopher Pleatsikas and David Teece, The Merger Guidelines in the United States, Australia and New Zealand: An Economic Perspective (1998) 6 TPLJ 153-171. [In supp mat book 3] Online via e-reserve Henry Ergas, Are the ACCCs Merger Guidelines Too Strict? A Critical Review of the Industry Commissions Information Paper on Merger Regulation (1999) 6 CCLJ 171-186. [in Supp Mats Book 3] Online via e-reserve

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Donald Robertson, The regulatory assessment of mergers (and things like mergers) (2000) 7 CCLJ 201-223. [in Supp Mats Book 3] Online via e-reserve Susan Yee-Kong, Case Noted on Stirling Harbour Services Pty Ltd v Bunbury Port authority [2000] ATPR 41-783 What substantially lessens competition in a market, (2001) 9 TPLJ 52-57. [in Supp Mats Book 3] Via Library Catalogue Ergas, H Stirling Harbour Services v Bunbury Port Authority: A review of some economic issues (2002) 10(1) Competition and Consumer Law Journal [in Supp Mats Book 3] online via e-reserve Philip Williams & Graeme Woodbridge, The Relation of Efficiencies to the Substantial Lessening of Competition Test for Mergers: Substitutes or Complements? (2002) 30 ABLR 435-444. [in Supp Mats Book 3] Search ProQuest King, Stephen P, The role of the hypothetical monopolist test in market definition under the Merger Guidelines (2006) 14 CCLJ 89. Search LexiNexis AU 8.4 The Concept of Market Power *[C&C: chapter 5 from p204] *Queensland Wire Industries Pty Ltd v BHP Pty Co. Ltd (Federal Court, Pincus J.) (1987) ATPR 40-810; Online via e-reserve (Federal Court, Full Court) (1988) 78ALR 407; Online via e-reserve (High Court) (1989) 167 CLR 177, (1989) ATPR 40-925, 83 ALR 577. Via AustLII *Arnotts Ltd v TPC (1990) ATPR 41-061 [C&C: 206] *Arnotts Ltd v TPC (Federal Court, Full Court) (1990) ATPR 41-061, 24 FCR 313; 97 ALR 555. [C&C 181-186).

Taprobane Tours WA Pty Ltd v Singapore Airlines Limited Federal Court, Lee J, (1990) ATPR 41-054, 96 ALR 405. Via AustLII Singapore Airlines Limited v Taprobane Tours W.A. Pty Ltd Federal Court, Full Court (1992) ATPR 41-159, (1991) 33 FCR 158, 104 ALR 633. Via AustLII Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ATPR 40-809 Search CCH Online Dowling v Dalgety Australia Ltd (1992) ATPR 41-165, (1992) 34 FCR 109 [C&C: 176] Eastern Express Pty Ltd v General Newspapers Pty Ltd Federal Court, Wilcox J., (1991) 30 FCR 385; (1991) 103 ALR 41; (1991) ATPR 41-128 Via AustLII Federal Court, Full Court (1992) 35 FCR 43, (1991) 106 ALR 297, (1991) ATPR 41-167 Via AustLII *ACCC v Rural Press Limited Federal Court: Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA - 16/07/2002

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High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 *ACCC v Boral Ltd Federal Court, Heerey J, 22 September 1999, (1999) FCA 1318, (1999) ATPR 41-715, 166 ALR 410. Federal Court, Full Court, 27 February 2001, [2001] FCA 30, (2001) ATPR 41-803. High Court: (2003) 195 ALR 609; (2003) 77 ALJR 623; (2003) 24(3) Leg Rep 18; (2003) ATPR 41-915; [2003] HCA 5; BC200300131 ACCC v Australian Safeway Stores (No2), Goldberg J. (2001) 119 FCR 1; (2002) ATPR (Digest) [2001] FCA 1861 Via AustLII *ACCC v Australian Safeway Stores Pty Ltd [FC, full court] [2003] FCAFC 149 (2003) 198 ALR 657; (2003) ATPR 41-935; Via AustLII [Note: special leave to appeal to the High Court was refused] ACCC v Universal Music Australia Pty Ltd, Hill J., (2001) 115 FCR 442; (2002) ATPR 41-855; [2001] FCA 1800; [2002} ACL Rep 420 FC25. Via AustLII Universal Music Australia Pty Ltd v ACCC Full Court, [2003] FCAFC 193. Via AustLII Articles: George A. Hay, Market Power in Antitrust (1992) 60 Antitrust law Journal 807. [In Supp Mats Book 3] Online via e-reserve George A. Hay, Market Power in Australasian Antitrust: An American Perspective (1994) 1 Competition and Consumer Law Journal 215 [in Supp Mat Book 3] Online via e-reserve Ian B Stewart, The Economics and Law of Section 46 of the Trade Practices Act (1998) 26(2) ABLR 111. [in Supp Mat Book 3] Online via e-reserve

Anthony Niblett, Joshua Gans & Stephen P. King, Structural and behavioural market power under the Trade Practices Act: An application to predatory pricing (2004) 32 ABLR 83-110. [in Supp Mat Book 3] Online via e-reserve Alexandra Merrett, The court speaks for itself: What Australian decisions say about assessing market power for the purposes of s46 of the TPA (2004) 11 Competition & Consumers Law Journal 330. [in Supp Mat Book 3] Online via e-reserve

Further Reading: US cases: United States v Aluminum Co. of America 148 F.2d 416 (2d Cir. 1945) Search Lexis.com United States v E. I. Du Pont De Nemours & Co 351 U.S. 377 (1956) Search Lexis.com EU cases on dominance: British Airways v Commission, T-219/99, 17th December 2003 Via BaiLII

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8.5

The Concept of Public Benefit Recall: Williamson trade-off Externalities See TPA, s90, s50A(1B). Via AustLII See generally C&C Chapter 13. The Test in Section 90 See section 90 [extract in C&Cp596

General Principles QCMA case [in Supp Mat book 2] Re Tooths case [in Supp Mat book 2] Re Howard Smith Industries Pty Ltd & Adelaide Steamship Industries Pty Ltd (1977) 28 FLR 385; (1977) ATPR 40-023 Online via e-reserve Re Southern Cross Beverages Pty Ltd (1981) 50 FLR 176: (1981) ATPR 40-200 (1981) 6 TPC 596 Online via e-reserve Re 7 Eleven Stores Pty Ltd, Australian Association of Convenience Stores Inc. and Queensland Newsagents Federation (1994) ATPR 41-357. Online via e-reserve ACCC, Guide to authorisation and Notifications 1995 [C&Cp553ff] Qantas Airways Limited [2004] ACompT 9 (proposed Qantas/ Air New Zealand merger) Via AustLII When does a Benefit become a Public Benefit * Officer and Williams, The Public Benefit Test in An Authorisation Decision in Richardson and Williams (eds), The Law and the Market (Federation Press Sydney 1995) [C&C p574ff ] [entire article in Supp Mat Book 3] or at Law Research 346.9407 64 Consider this in two questions? Is correction of an externality a public benefit? Is the Identity of the Recipient or the Distribution of the Benefit Relevant to Classifying a Benefit as a Public Benefit. Is Correction of a Market Failure a Public Benefit? See C&C p599. Correction of an Externality See 6.3 in Topic 7 above on what is an Externality. (There is a helpful explanation of approaches to correcting externalities in David Friedman, The Swedes get It Right at http://www.daviddfriedman.com/Academic/Coase_World.html ) QCMA, as above Southern Cross, as above Australasian Performing Rights Association Limited (1998) ATPR (Com) 50-256 Online via e-reserve BMW Australia Limited (1998) ATPR (Com) 55-001 Online via e-reserve Is the Identity of the Recipient or the Distribution of Benefit Relevant to Classifying a Benefit as a Public Benefit Is Pass Through of Benefits from Private entities to a broader Public Necessary? Are we concerned with Consumer Welfare or Total Welfare?

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Generally see the extract from: Brunt, The Australian Antitrust Law After 20 Years: A Stocktake (1994) 9 Review of Industrial Organization 483. [extracted in C&C p614616] Search Springer Online Approach of the ACCC ACCC, Guide to Authorisations March 2007 (ACCC, 28 mary 2007) Hendersons Federal Springworks Pty Ltd (1987) ATPR (Com) at 57 Online via ereserve Re ACI Operations Pty Ltd (1991) ATPR 50-108 Online via e-reserve Macadamia Processing Company and Suncoast Gold Pty Ltd (1991) ATPR (Com) 51-109 API v Sigma Authorisation No A30215 (11 September 2002) http://www.accc.gov.au/content/index.phtml/itemId/744546/display/acccDecision

One Federal Court decision under ADJR Act: Hospital Benefit Fund of Western Australia Inc v Commission (1997) 76 FCR 369 Via AustLII Approach of the Australian Competition Tribunal Re Howard Smith (1977) as above Qantas Airways Limited [2004] ACompT 9 (proposed Qantas/ Air New Zealand merger) Via AustLII Articles: Gentle, Economic Welfare, the Public Interest and the Trade Practices Tribunal in Nieuwenhuysen (ed), Australian Trade Practices Readings (Croome Helm, London) [in Supp Mat Book 3] or at Law Research 381.0994 2 A Robert R Officer & Philip L. Williams, The Public Benefit Test in an authorisation Decision in M Richardson & P Williams (eds), The Law and the Market (Federation Press, Sydney, 1995) [in Supp Mat Book 3] [also a short extract in C&C p616-621] or at Law Research 346.9407 64 John Duns, Competition Law and Public Benefits (1994) 16 Adelaide LR 245 [in Supp Mat] or Search Heinonline Rhonda Smith & Timothy P. Grimwade, Authorisation: Some Issues (1997) 25 ABLR 351-368. [in Supp Mat Book 3] "R Smith, "Authorisation and the TPA: More About Public Benefit" (2003) 11 CCLJ 8. Search LexisNexis Au [in Supp Mat Book 3] Further Reading: Fels, A and Grimwade, T Authorisation: Is it still relevant to Australian competition law (2003) Competition and Consumer Law Journal 11(2) 1 Search LexisNexis Au Chapter 6 Authorisation in Review of the competition provisions of the Trade Practices Act (The Dawson Report) (2003) http://tpareview.treasury.gov.au/content/report.asp,

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8.6

The reception of evidence relating to the Fundamental Concepts Generally see Corones, ch4, at pp77-88 Evidence Act 1995 (Commonwealth) esp. abolition of ultimate issue rule by s80(a) Evidence Act 1995 (NSW) Questions of Law Meaning of legal terms Acts Interpretation Act (Cth) s15AA and s15AB Via AustLII Expert testimony Questions of Fact - industry participants - survey evidence - export testimony Expert Testimony of opinion Ultimate Issue Rule abolished by Evidence Act 1995 (Cth) s 80a Factual Basis Rule TPC v Arnotts Ltd Federal Court Full Court (1990) ATPR 41-061, 24 FCR 313, 97 ALR 555 [C&C: 206]. Federal Court Practice Direction Guidelines for Expert witnesses in Proceedings in the Federal Court of Australia version 5 of this document was released on 6 June 2007 Via FederalCourt website Qantas Airways Limited [2004] ACompT 9 (proposed Qantas/ Air New Zealand merger) Via AustLII

Articles *Yeung, K., "The Court-Room Economist in Australian Antitrust Litigation: An Underutilised Resource?" (1992) 20 ABLR 461. [in Red Supp Mat Book 1] Online via e-reserve Blunt, G, Shafron, P and Keneally, B., "From Arnotts to QIW - A Study of Expert Evidence in Trade Practices Cases" (1994) 1 CCLJ 181 [in Red Supp Mat Book 1] Online via e-reserve Don Robertson, Expert economic evidence: challenging the paradigm (2003) 11 TPLJ 70-77 [ in Supp Mats Book 3] Online via e-reserve Alexandra Merrett, Quantitative analysis again up in lights (2005) 13 TPLJ 90 [ in Supp Mats Book 3] Online via e-reserve Further Reading Brunt, M., "The use of Economic Evidence in Antitrust Litigation: Australia" (1986) 14 Australian Business Law Review 261 Online via e-reserve Lockhart Effective case management of complex commercial litigation in Richardson and Williams The Law and the Market (Federation Press 1995) Law Research 346.9407 64 NSW Law Reform Commission, Report 109 Expert Witnesses (2005) Via LawLink King, Stephen P, The use of empirical methods in merger investigations (2006) 34 ABLR 227. Search ABLR Online Hodgekiss, Christopher C, Expert evidence in competition litigation (2006) 14 TPLJ 6. Search TPLJ Online Pleatsikas, Christopher, Expert economic evidence in the United States (2006) 14 TPLJ 187. Search TPLJ Online

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Topic 9.
Reading:

Section 50 and Acquisitions

s50A -

Mergers

And

Corones: chpt 7 C&C: chpt 12, ch13, pp621-627 Butterworths: chpt 7

Other general reading: Australian Competition & Consumer Commission, Merger Guidelines: A guide to the Commission's administration of the merger provisions (ss50/50A) of the Trade Practices Act (Canberra: revised 1999) Law Short Loan 346.9406626 24 and pdf versions via catalogue ACCC, public register of merger decisions at ACCC site: Via ACCC website Smith, The Economic Theory of Competition Law in C&C: p534 9.1 Context of s50 in other regulation Corporations Act 2001 (Cth) Chapter 6 Via AustLII Foreign Acquisitions and Takeovers Act 1975 (Cth) Treasurers power to prevent acquisitions Via AustLII Banking Act s59 (Cth), s59 power to make regulations Via AustLII Financial Sector Shareholdings Act 1998 (Cth), ss11-13. banks and insurance institutions Via AustLII Broadcasting Act 1942 (Cth), Part IIIBA. Radio, TV and cross-media Via AustLII 9.2 History of Section 50 1974-1977 - Substantially lessening competition 1977 amendment Position of control or dominance Attorney General Department, The Trade Practices Act Proposals for Change (AGPS, Canberra, 1984, para 45 proposing SLC test Law Research 343.9407 40 1986 amendment - dominance Griffiths Committee 1989 House of Representatives Standing Committee on Legal and Constitutional Affairs, Mergers, Takeovers and Monopolies: Profiting from Competition? (Canberra: AGPS, 1989) (Griffiths Report), chap 5 Law research 338.8209942 Cooney Committee 1991 Senate Standing Committee on Legal and Constitutional Affairs, Mergers, Monopolies and Acquisitions: Adequacy of Existing Legislative Controls (Canberra: AGPS, 1991) (Cooney Report), chap 3 Law Research 346.9406626 8 1992 amendments Trade practices Legislation Amendment Act 1992 (Cth) (in force 21 January 1993) Via AusLII

Since 1993 substantially lessening competition

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9.3

Provisions of s50(1) and s50(2) and their application definitions person corporation market s4E, s50(6) Extended application to natural persons TPA, Section 6 Via AustLII Acquire TPA, Section 4(4) directly or indirectly acquire acquisition of options TPC v Arnotts (1990) 93 ALR 657 Search LexisNexis Au decision on this point not appealed acquisition by a trustee for a beneficiary acquisition by an agent for a principal acquisition of shares in B Ltd by A Ltd which is a subsidiary of C Ltd see TPC v Australian Iron & Steel Pty Ltd (1990) ATPR 41-001, 22 FCR 305 [C&C: 494] Extent of extraterritorial application TPA, Section 5(1) Mergers outside Australia: s50A [C&C:518-519]

9.4

Overview of Authorisation and informal procedures *C&C pp588 - 592 Corones, pp 314-321, 331-338 TPA, section 50(4), (5), (5A) Dawson Committee, Report on the Review of the Trade Practices Act (16 November 2002) http://tpareview.treasury.gov.au/content/report.asp (Dawson Report), pp 43-71 Government response to the Dawson Committee report: http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp , pp 2-4 Government bill implementing the recommendations of the Dawson Report at: http://parlinfoweb.aph.gov.au/piweb/browse.aspx?path=legislation%3Eold+bill s (scroll down to Trade Practices Legislation Amendment Bill 2004)

9.4.1

Informal merger clearance from the ACCC International Competition Network Principles for Best Practice http://www.accc.gov.au/content/index.phtml/itemId/536843 Guideline for informal merger reviews, ACCC, October 2004, available at: http://www.accc.gov.au/content/index.phtml/itemId/589178 Which were replaced by: ACCC, Merger review process guidelines July 2006 (http://www.accc.gov.au/content/index.phtml/itemId/740765

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9.4.2 Formal Clearance of a Proposed Merger from the ACCC Part VII, Div 3, Subdiv B Section 95AC applications Section 95AN the test to be applied by the ACCC (not SLC) Section 111 - appeal ACCC, Formal Merger Review Process Guidelines 2007 available at http://www.accc.gov.au/content/index.phtml/itemId/776055 - esp chapter 5 & p23ff for summary of the clearance process. 9.4.3 Formal Authorisation of a proposed Merger from the Australian Competition Tribunal Part VII, Div 3, Subdiv C Section 95AT applications Section 95AZH test to be applied by ACT (public benefit including matters under s95AZH(2)) ACCC, Formal Merger Review Process Guidelines 2007 available at http://www.accc.gov.au/content/index.phtml/itemId/776055 - esp chapter 6. Mergers Public Register: http://www.accc.gov.au/content/index.phtml/itemId/774335 9.4.3 Authorisations in respect of Contraventions of Section 50A TPA section 88(9) and 90(9) Law based on the 1974-1977 test Re Queensland Co-operative Milling Association Ltd proposed merger; Re Defiance Holdings Ltd proposed mergers 1 and 2 (decision of the Trade Practices Tribunal ) (1976) 25 FLR 169; (1976) ATPR 40-012; (1976) 8 ALR 481. (the QMCA case) Online via e-reserve

9.5

Further reading: Re Howard Smith Industries Pty Ltd and Adelaide Steamship Industries Pty Ltd (1977) ATPR 40-023. (the Howard Smith case) Online via e-reserve 9.6 Law based on the test of dominance under the 1977 amendment TPC v Ansett Transport Industries (Operations) Pty Ltd (1978) 32 FLR 305; (1978) ATPR 40-071 [C&C: 552-557] See Questions 1-6 on C&C:p557. Amendment of control or dominate to dominate 1986 - 1st TPC Merger Guidelines TPC v Australia Meat Holdings Pty Ltd Wilcox J (1988) 83 ALR 299. Search LexisNexis AU (1988) ATPR 40-876. [C&C165-168] Australia Meat Holdings Pty Ltd v TPC Full Court, (1989) ATPR 40-932. TPC v Arnotts Ltd, Beaumont J. (1990) 93 ALR 657 Search LexisNexis AU Arnotts Limited v. TPC Federal Court Full Court (1990) 24 FCR 313; 97 ALR 555 [C&C:206-211]

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QIW Retailers Limited v Davids Holdings Pty Ltd; Attorney General v Davids Holdings Pty Ltd, Spender J., (1993) ATPR 41-226 Search CCH Online Davids Holdings Pty Ltd v AG, Full Court (1994) 49 FCR 211, (1994) 121 ALR 241; (1994) ATPR 41-304. Search CCH Online Further Reading: TPT decisions In the Matter of the Application by Rural Traders Co-operative (WA) Ltd & Ors (1979) ATPR 41-438 (The Wesfarmers case) Search CCH Online TPC decisions: 1986 Coles takeover of Myers 1987 News takeover of Herald & Weekly Times 1987 TNT Ltd & News Corp Ltd proposed acquisition of East West Airlines 9.7 The 1992 Amendment: s50(1), 50(2) the test of substantial lessening of competition

Insertion of section 50(3) Federal Court Decisions: Re Queensland Independent Wholesalers Ltd, Trade Practices Tribunal(1995) 132 ALR 225 [C&C: 583] Australian Gas Light Co v Australian Competition & Consumer Competition (No 3) (Loy Yang) (2003) ATPR 41-966; [2003] FCA 1525 Via AustLII [C&C p558 566] Australian Competition Tribunal: Qantas Airways Limited [2004] ACompT 9 (proposed Qantas/ Air New Zealand merger) Via AustLII Selected TPC decisions: API & Sigma Boral and Adelaide Brighton Cement Recent Issues: Eg. Lions Nathan takeover of Coopers Brewing Toll Holdings takeover of Patrick Corporation 9.8 The Merger Guidelines Australian Competition & Consumer Commission, Merger Guidelines: A guide to the Commission's administration of the merger provisions (ss50/50A) of the Trade Practices Act (Canberra: revised 1999) Proposed 2008 Guidelines: ACCC, Merger Guidelines Draft 2008 available at http://www.accc.gov.au/content/index.phtml/itemId/809866 Further Reading: On the 1993 draft Merger Guidelines A Guide to the Commissions administration of the merger provisions (sec 50, 50A) of the Trade Practices Act: Draft for Comment, TPC November 1992 Hay, G., and Walker, J., "Merger Policy and the Trade Practices Commission's Draft Merger Guidelines" (1993) 1 CCLJ 33 Search CCH Online

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On the 1996 Merger Guidelines A Guide to the Commissions administration of the merger provisions (sec 50, 50A) of the Trade Practices Act, ACCC July 1996 Industry Commission , Merger Regulation A Review of the Draft Merger Guidelines Administered by the Australian Competition and Consumer Commission, Information Paper, (AGPS, Canberra, 1996) . W. Anderson, T. Grimwade, J Walker & L Woodward Merger Misconceptions: the Industry Commissions Paper on the ACCCs Draft Merger Guidelines (1997) 4 CCLJ 128. Search CCH Online Merger guidelines in the US and in the EU: US Department of Justice Antitrust division, Horizontal Merger Guidelines (1992, last amended April 1997) http://www.usdoj.gov/atr/public/premerger.htm (Note there are separate guideines for Non-horizontal Guidelines) European Council regulation on mergers Council Reg No 139/2004 of 20 January 2004 http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0139:EN:NOT EC Commission Regulation NO 802/2004 of 7 April 2004 http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:133:0001:0039:EN:PDF Merger guidelines in the EU: European Commission, Director-General Competition (2004/C31/03) 9.8 The factors for assessing competition under s50(3) (a) Actual and potential import competition 1999 Merger Guidelines para 5.104 examples Alcan/Comalco, Tubemakers/BHP, ACI (1991), ). 2008 Merger Guidelines (b) Barriers to entry Queensland Wire v BHP see HC decision, (1988) 83 ALR 577 esp per mason CJ & Wilson J Via AustLII [including the extract in &Cp183] Arnotts Limited v TPC Federal Court Full Court (1990) 24 FCR 313 Search FCR [C&C:181-186] 1999 Merger Guidelines, para 5.115 Strategic barriers - Boral case 2008 Merger Guidelines (c) Level of concentration 1999 Merger Guidelines, para 5.87 Hirfindahl- Hirschman Index (HHI) (see examples on C&Cp524) (via Reserve search) 2008 Merger Guidelines (d) The degree of countervailing power in the market

1999 Merger Guidelines, para 5.129 2008 Merger Guidelines

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(e) likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins (e) Availability of Substitutes

1999 Merger Guidelines, para 5.134 2008 Merger Guidelines (f) Dynamic Characteristics, innovation and product differentiation

1999 Merger Guidelines, para 5.161 5.165 2008 Merger Guidelines (g) Likelihood of removal of a vigorous and effective competitor

1999 Merger Guidelines, para 5.138 5.147 2008 Merger Guidelines (h) Vertical integration

1999 Merger Guidelines, para 5.148 5.160 2008 Merger Guidelines QIW Retailers Limited v David Holdings Pty Ltd; Davids Holdings Pty Ltd v Attorney-General (Cth) Spender J (1993) ATPR 41-226 [C&C:151] Full Court (1994) 49 FCR 211, 121 ALR 241, ATPR 41-304 [C&C: 574] Re Queensland Independent Wholesalers Ltd, Trade Practices Tribunal (1995) 132 ALR 225 [C&C: 583]

Other Factors: 1999 Merger Guidelines, para 5.166

Efficiency See s50(3)(f) : dynamic characteristics *C&C p570-574 1999 Merger Guidelines, para 5.171 Merger Guidelines Eg API v Sigma Duke, Arlen, A more efficient use of efficiencies in merger authorisation determinations (2007) 35 ABLR 278. Search ProQuest online

Failing Firm Argument QCMA case

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9.9

Unilateral Market Power and Collusive Market Power (explicit and tacit) Merger Guidelines, paras 5.11, 5.89, 5.91, 5.167-5.170 Smith The Economic Theory of Competition Law in C&C 1st edition p534 Note emphasis in 2008 Merger Guidelines on the distinction between Unilateral and Collusive Market Power Likelihood of market power through Collusion Express or tacit ACCC, Wattyl (Australia) Pty Ltd, Courtaulds (Australia) Pty Ltd (1996) ATPR (Com) 50-232 Online via e-reserve Compare US Merger Guidelines, para 2.2 Compare EU Merger Guidelines (2004/C31/03) para 39-57 on Coordinated Effects Likelihood of market power Unilaterally Homogenous market capacity constraints Non-homogenous market assessing degree of switching between products Compare US Merger Guidelines, para 2.2 Compare EU Merger Guidelines, (2004/C31/03) para 24-38 on Noncoordinated effects Further Reading: Caron Beaton-Wells, Mergers without markets? Unilateral effects analysis in the United States and its prospects in Australia (2006) 34(3) ABLR 175. Search online via Lawbook

9.10

Structural Approach and Strategic Approach Corones The Strategic Approach to Merger Enforcement by the ACCC in C&C 1st edition p534-541 Industry Policy versus Competition Policy Casestudies: C&C (1st edition) p544-548 Rooftiles Pastry Products Automotive Batteries

9.11

Further Reading: ACCC Merger Guidelines: *Australian Competition & Consumer Commission, Merger Guidelines: A guide to the Commission's administration of the merger provisions (ss50/50A) of the Trade Practices Act (Canberra: revised 1999) Law Short Loan 346.9406626 4 Industry Commission , Merger Regulation A Review of the Draft Merger Guidelines Administered by the Australian Competition and Consumer Commission, Information Paper, (AGPS, Canberra, 1996) . *Corones, The Revised ACCC Merger Guidelines (1996) 24 ABLR 402 [C&C: 520] *Fels, Current Issues in Merger Policy and Regulation: A Discussion (1996) 9 Corporate & Business Law Journal 173 [C&C: 526] *Corones, The Strategic Approach to Merger Enforcement by the ACCC (1998) 26 ABLR 64 [C&C: 534] Mergers and Acquisitions, Bureau of Industry Economic, Research Report 36 (AGPS, Canberra, 1990) [C&C:542] ACCC, The ACCCs approach to Mergers A statistical summary (January 1998) Fisher Research 343.940721 14

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US Merger Guidelines: Joint United States Department of Justice and Federal Trade Commission Horizontal Merger Guidelines (1992 as amended) http://www.ftc.gov/bc/docs/horizmer.htm USA Department of Justice and the Federal Trade Commission, Horizontal Merger Guidelines, revised 8 April 1997, on the website of the DOJ at to http://www.usdoj.gov/atr/public/guidelines/hmg.htm (via http://www.usdoj.gov/atr/public/guidelines/guidelin.htm ). Federal Trade Commission v Staples 970 F Supp 1066 (1997) Search Lexis.com NZ Merger Guidelines: New Zealand Commerce Commission, Business Acquisition Guidelines (1999) EU Merger Guidelines European Council Regulation 139/2004 of 20 January 2004 (Merger Regulation) supplemented http://ec.europa.eu/comm/competition/mergers/legislation/regulations.html by: Merger guidelines in the EU: European Commission, Director-General Competition Extraterritorial application: TPC v Gillette Co (No 1) (1993) ATPR 41-267 Search CCH Online TPC v Santos Ltd (1992) ATPR 41-195 Search CCH Online Articles: Mayanja, James, Takeover Control under the Trade Practices Act: Towards a More Efficient and Competitive Corporate Australia (1998) 6 TPLJ 33-45. Online via e-reserve Mary Coleman, Christopher Pleatsikas & David Teece, The Merger Guidelines in the United States, Australia and New Zealand: An Economic Perspective (1998) 6 TPLJ 153-171. Online via e-reserve Ergas, Are the ACCCs Merger Guidelines Too Strict? (1999) 6 Competition and Consumer Law Journal 171. Online via e-reserve Rose Merger Misconceptions A Comment (1997) 5 Competition and Consumer Law Journal 151. Search LexisNexis AU Nicole Tyson & Lynden Griggs, Mergers and Metaphors (2001) 9 Trade Practices Law Journal 95. Search LawBook Online Cento Veljanovski, The Australis Foxtel Merger (2000) 28 Australian Business Law Review 166. Online via e-reserve Jill Walker & Luke Woodward, The Ampol/Caltex Australia Merger: Trade Practices Issues (1996) 4 Trade Practices Law Journal 21. Online via e-reserve Corones, S Informal merger clearance process under scrutiny: Australian Gas Light Company v ACCC (2004) Australian Business Law Review 32(2) 147 Search Law Book Online Brebner, J The relevance of import competition to merger assessment in Australia (2002) Competition and Consumer Law Journal 10(1) 4 Search LexisNexis AU Trindade, Rachel & Smith, Rhonda, Modernising Australian merger analysis (2007) 35 ABLR 358. Search Lawbook online King, Stephen P, The Public benefit standard for merger authorisations (2006) 34 ABLR 38. Search Lawbook online Samuel, Graeme, The ACCCs Merger review process guidelines (2006) 14 CCLJ 184. Search LexisNexis AU

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Topic 10. Section 45 Contracts, Arrangements And Understandings

Readings: Corones: chpt 5; C&C: chpt 6, 7 & 8; Butterworths: chpt 3

PLEASE NOTE That Following The Passage Of The 2009 Cartel Offences Act The Topic 10 Outline will be rewritten and issued separately 10.1 Economic Conditions for Likelihood of Cartels Consider Topic 9.9 and consider: What factors increase the likelihood that business entities may try to create a cartel? What factors increase the likelihood that the cartel might be successful? McGee, Cartels: Organization and Function (1960) 27 University of Chicago Law Review 191 at C&Cp219-226. Extract from Round, D., et al Collusive Markets in Australia: An Assessment of their Economic Characteristics and Judicial Penalties (1996) 24 Australian Business Law Review 292 [C&C: 340-342] Search ProQuest Types of behaviour that may make it more likely that collusion or cooperative behaviour may be sustained: Landes, Harm to Competition: Cartels, Mergers, and Joint Ventures in E.M. Fox & J.T. Halverson (eds), Antitrust Policy in Transition: The Convergence of Law and Economics, American Bar Association 1984 [extracts in C&C p 227228] Economic Impact of Cartels Reconsider allocative efficiency and productive efficiency 10.2 History and outline of s45 1974 provision contained the phrase restraint of trade 1977 removed the phrase restraint of trade, inserted the lessening of competition test Overview of provisions in s45, 45A, 45B, 45C, 45D, 45E, 88, 90 s45(2)(a)(ii) & s45(2)(b)(ii) CAUs substantially lessening competition s45(2)(a)(i) & s45(2)(b)(i) CAUs containing exclusionary provisions (primary boycotts) under s4D s45A CAUs relating to price s45B Covenants running with an interest in land - substantially lessening competition s45C Covenants running with an interest in law relating to price s45D secondary boycotts - causing loss to the target s45DA - secondary boycotts substantially lessening competition Defence under s76C and 76D s88(1) authorisations under s45 s90(6) test for authorisations under s45(2)(a)ii) and s45(2)(b)(ii).

10.3

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10.4

Contract arrangements or understanding (CAU) Generally C&C:Ch6. Re: British Basic Slag Ltds Agreements [1963] 2 All ER 807 (Court of Appeal) [C&C: 230] TPC v Nicholas Enterprises Pty Ltd (No. 2) Federal Court, Fisher J. (1979) 40 FLR 83, 26 ALR 609, (1979) ATPR 40-126 [C&C: 232] On appeal to Federal Court, Full Court: Morphett Arms Hotel Pty Ltd v TPC (1980) 30 ALR 88 (1980) ATPR 40-157. (Dismissing appeal but disagreeing with Fisher Js views on mutuality of obligation) Via AustLII * TPC v Email Ltd Lockhart J. (1980) 43 FLR 383; ATPR 40-172; 31 ALR 53 [C&C: 243] TPC v TNT Management Pty Ltd Federal Court, Franki J., (1985) 6 FCR 1 at 25; 58 ALR (1985) ATPR 40-512. Via AustLII * TPC v David Jones (Aust.) Pty Ltd Fisher J. (1986) ATPR 40-671; (1986) 13 FCR 446 [C&C: 238] TPC v Service Station Association Limited Full Federal Court (1993) ATPR 41-260; (1993) 44 FCR 206 [C&C: 235] News Ltd v Australian Rugby Football League Ltd Burchett J (1995) 58 FCR 447; (1996) 135 ALR 33. Online via e-reserve (Full Federal Court) (1996) ATPR 41-521, 64 FCR 410 ; 139 ALR 193 [C&C: 237] Rural Press Ltd v Australian Competition and Consumer Commission Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA 16/07/2002 High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003

10.4.1 Comparison with the EC Treaty Article 81 (see C&Cp25 quoting the former Art 85) Agreement T-7/89 SA Hercules v Commission [1991] ECR II-1711 Search Lexis.com Concerted practice - ICI v Commission [1972] ECR 619 [1972] CMLR 557; Search Westlaw Decisions C-89/85 Woodpulp [1993} ECR I-1307, [1993] 4 CMLR 407. Search Westlaw 10.4.2 Comparison with Sherman Act s1 s1 see C&C quoting s 1 contract, combination or conspiracy Interstate Circuit, Inc v United States 306 US 208 (1939) Search Lexis.com US v Paramount Pictures 334 US 131 (1948) Search Lexis.com Theatre Enterprises, Inc v Paramount Film Distributing Corp 346 US 537 (1954) Search Lexis.com

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10.5

Substantially lessening competition [C&C: 248ff] See Outline for Topic 8 at 8.3 Meaning of Competition QCMA case [C&C:p167] Meaning of Substantial OBrien v Cool & Sons [C&C:p170} Lessening of Competition: Outboard Marine Australia Pty Ltd v Hecar Investments (No. 6) Pty Ltd (1982) ATPR 40-327 [C&C: 414] Future with and Future without test * Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) ATPR 40-315 [C&C:p178] & Stirling Harbour Services case [2000] FCA 38, paras 113-121. Via AustLII

10.5.1 Purpose of Substantially Lessening Competition - The Meaning of purpose Section 4F Purpose under s45 is different from purpose under s46 Australian Stock Exchange Pty Ltd v Pont Data Pty Ltd (1991) ATPR 41069, (1990) 27 FCR 460, 97 ALR [C&C: 218] on appeal from the decision of Wilcox J. in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd & Anor. (1989) 21 FCR 385, (1990) ATPR 41-007. Subjective or Objective purpose: Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 343-349, per Deane J. ;(1979) 27 ALR 367 at 382383. Search LexisNexis Au TPC v TNT Management Pty Ltd (1985) 6 FCR 1 , per Franki J at 75. Hughes v WA Cricket Association (Inc) (1986) 19 FCR 10, (1986) 69 ALR 660; esp per Toohey J at 688-689. Search LexisNexis Au ASX v Pont Data as above esp 97 ALR at 526 Via AustLII What if more than one purpose? -is the purpose a Substantial Purpose under Section 4F: Dowling v Dalgety Australia (1992) ATPR 41-165; 34 FCR 109 [C&C: 176,219] Stationers Supply Pty Ltd v Victoria (1993) 44 FCR 35 [C&C: 221] 10.5.2 Effect of Substantially Lessening Competition Dowling v Dalgety Australia (1992) ATPR 41-165; 34 FCR 109 [C&C: 176,219] Australian Stock Exchange Pty Ltd v Pont Data Pty Ltd (1991) ATPR 41069, Search CCH Online (1990) 27 FCR 460, 97 ALR [C&C: 218] on appeal from the decision of Wilcox J. in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd & Anor. (1989) 21 FCR 385, (1990) ATPR 41007. Eastern Express Pty Ltd v General Newspapers Pty Ltd Federal Court, Wilcox J., (1991) 30 FCR 385; (1991) 103 ALR 41; (1991) ATPR 41-128 Via AustLLI Federal Court, Full Court (1992) 35 FCR 43, (1991) 106 ALR 297, (1991) ATPR 41-167 Via AustLII Rural Press Ltd v Australian Competition and Consumer Commission High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 [c&Cp253ff]

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ACCC v Liquorland (Australia) Pty Ltd and Woolworths Limited, Decision of Allsop J on 30 June 2006 [2006] FCA 826; (2006) ATPR 42-123. Via AustLII Further reading: Bembrick, Catherine, Going down to the local: ACCC v Liquorland (Australia) Pty Ltd and Woolworths Pty Ltd (2006) 14 TPLJ 234. [s45] Search Lawbook online 10.5.3 Likely Effect of Substantially Lessening Competition Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 346-348, per Deane J. & per Bowen CJ at 339-340 {in relation to s45D] Dowling v Dalgety [C&C p177] News v ARL [in relation to s4D] Full Court 139 ALR at 336 Search ALR 10.6 Authorisation of CAUs under s88 / s90 What are the possible public benefits from horizontal CAUs? Re Qantas Airways Limited [2004] ACompT 9 [ACT] Via AustLII 10.7 Categories of Conduct that may be subject to s45 SLC

10.7. 1 Market Division: Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159 [C&Cp257] 10.7.2 Information Exchange arrangements USA approach American Column & Lumber Co v US 257 US 377 (1921) Search Lexis.com US v American Linseed Oil Company 262 US 271 (1923) Search Lexis.com US v Container Corporation of America 393 US 333 (1969) US Supreme Court Search Lexis.com [in C&C p259] In Australia * TPC v Email Ltd Lockhart J. (1980) 43 FLR 383; ATPR 40-172; 31 ALR 5 [C&C: 213, 227] 10.7.3 Professional Standards and Industry Codes of Conduct Anticompetitive effects: Re Media Council of Australia (No 2) (1987) ATPR 40-774 Search CCH Online Codes with restrictions on price: in US: National Society of Professional Engineers v US 1978-1 Trade Cases 61,990 US Supreme Court Search Lexis.com [C&Cp287] in Aust: Re Association of Consulting Engineers, Australia (1981) ATPR 40 202. Search CCH Online 10.8 Joint Ventures No general exemption for joint ventures so need to apply for authorisation unless exempt.

10.8.1 Anticompetitive effects Consideration of various factors whether the joint venturers would be actual or potential competitors: United States v Penn-Olin Chemical Co 378 US 158 (1964) Search Lexis.com

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10.8.2 Public Benefit s90(6) Eg: AW Tyree Transformers Pty ltd and Wilson Transformer Company Pty Ltd (1997) ATPR (Com) 50-247 [C&C268] Online via e-reserve Further Reading on Joint Ventures: Tyson, Nicole, Joint venture regulation under Australian competition law: An update (2006) 34 ABLR 211. Search Lawbook online Harpham, Andrew, Robertson, Donald & Williams, Philip L, The competition law analysis of collaborative structures (2006) 34 ABLR 399. Search Lawbook online 10.9 Overlap & Exceptions Overlap Generally see the list in C&C at p276 general rule is that if another part of Part IV applies then s45 does not apply s45(5)(c) - relating to s48 retail price maintenance s45(6) - relating to agreements that contravene s47 s45(7) - relating to agreements for the acquisition of shares (this is left to s50) s45(8) - relating to agreements between related corporations On operation of s45(6) See under outline for Topic on s47: Visy Paper Pty Ltd v ACCC [2003] HCA 59 Via AustLII [C&C p277] Exceptions: s51(1) Federal or territory legislation, & state legislation s51(2)(a) CAU relating to conditions of employment s51(2)(b) restraints on employees during or after the term of their employment s51(2)(d) - restrictions agreed between partners either during or after the continuance of the partnership s51(2) (e) restrictions between vendor and purchaser of a business for the purpose of protecting the goodwill; s51(2)(g) exemption for export cartels requirement to register the agreement with the ACCC s51(2A) - - agreements between the ultimate users or consumers of goods or services (other than those in trade or commerce) against the suppliers of those goods or services. s51(3) arrangements between holders of intellectual property rights and licensees, or assignees.

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Further Reading: On CAUs under s45 Re Media Council of Australia (1996) ATPR 41-497 Search ATPR [C&C: 230] Miller & Round, Price-fixing, Price Leadership or Ordinary Commercial Considerations :Guilt under Section 45 of the Trade Practices act (1983) 11 Australian Business LR 251. Search Lawbook online Round, D., et al Collusive Markets in Australia: An Assessment of their Economic Characteristics and Judicial Penalties (1996) 24 Australian Business Law Review 292 [C&C: 297] Search Proquest 5000 Report by the Independent Committee of Inquiry, National Competition Policy (AGPS, 1993) (Hilmer Report), pp 33-49. Law Short Loan 338.6048 53 Pengilley, W The appointment by competitors of a negotiator on their behalf: When will this be a contract, arrangement or understanding under the Trade Practices Act? (2003) Competition and Consumer Law Journal 11(2) 215 Search LexisNexis AU Review of the competition provisions of the Trade Practices Act (The Dawson Report) (2003) http://tpareview.treasury.gov.au/content/report.asp, chapter 10, Penalties. Pengilley, Warren, What is required to prove a contract, arrangement or understanding? (2006) 13 CCLJ 241. Search LexisNexis AU

On US approach to inferring arrangements from circumstantial evidence, parallel behaviour or price communications: Re Ethyl 729 f 2d 128 (1984) Search Lexis.com Re Domestic Air Transportation Antitrust Litigation 1993-1 Trade Cases 70,165. Search Lexis.com Turner, D., The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal (1962) 75 Harvard LR 655 Search HeinOnline Aldor, L., Oligopolistic Conscious Parallelism under the Competition Law of the USA [1987] Federal LR 74. Search HeinOnline Kovacic, WE, The Identification and Proof of Horizontal Arrangements under the Antitrust Laws (1993) 38 Antitrust Bulletin 5. Search Expanded Academic ASAP Online Posner, Antitrust Law, ch3 Price Fixing and the Oligopoly Problem pp51-100 (University of Chicago Press, 2001) Book in Closed Reserve Scherer, The Posnerian Harvest: Separating Wheat from Chaff (1977) 86 Yale Law Journal 974 Search JSTOR online Symposium on Tacit Collusion in (1993) 38 Antitrust Bulletin 1. Search Legal Trac online On Joint ventures: King, Short of a Merger: The Competitive Effects of Horizontal Joint Ventures (1999) 6 Competition and Consumer Law Journal 227. Search LexisNexis AU

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Topic 10. Section 45 Contracts, Arrangements And Understandings Topic 10A.

Readings:

Cartel Conduct and Price Fixing

Corones chpt 5, pp 228-246 C&C chpt 8 Butterworths: chpt 3, p172-187

Topic Outline to be issued separately.

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Topic 10. Section 45 Contracts, Arrangements And Understandings Topic 10B.

Reading:

Section 45 & s4D exclusionary provisions primary boycotts

Corones: chpt 5, pp217-226 C&C: chpt 7; Butterworths: chpt 3, p 187-195

10B.1 Primary and Secondary Boycotts Primary Boycott Eg Klors Inc v Broadway-Hale Stores 359 US 207 (1959) Search Lexis.com [C&C:282] 10B.2 Motives for Entering into a Boycott See C&C p284-287 Encouraging membership of a trade or professional association Eg McCarthy v Australian Rough Riders Association Inc , Spender J. (1988) ATPR 40-836 Online via e-reserve Helping to enforce price fixing Promoting some public interest Eg Hughes v Western Australian Cricket Association (1986) 19 FCR 10 Via AustLII To equalize earning of the parties Eg Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159 Via AustLII 10B.3 Elements of a Exclusionary provision contravention - Section 4D (1) there must be a contract, arrangement or understanding or a proposed contract, arrangement or understanding between two or more parties containing an exclusionary provision see s45 (2) at least two or more of the parties to that contract, arrangement or understanding must be competitors s4D(1)(a) and s4D(2) the provision must have the purpose of preventing, restricting or limiting the supply of goods or services to, or the acquisition of goods or services from a target, - see s4D(1)(b) target means - particular persons or classes of persons, either generally or in particular circumstances or on particular conditions by all, or any , of the parties to the contract, arrangement or understanding or a related body corporate. See s4D(1)(b)

(3)

(4)

(1)

there must be a contract, arrangement or understanding or a proposed contract, arrangement or understanding between two or more parties containing an exclusionary provision

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Stationers Supply v The Victorian Authorised Newsagents Association Ltd (1993) 44 FCR 35 Via AustLII News Ltd v Australian Rugby Football League Ltd Full Federal Court (on appeal from decision of Burchett J. : see above under Market Definition) [C&C: 291ff]] (1996) 64 FCR 410, 139 ALR 193, 21 ACSR 635, [1996] ATPR 41-521. Via AustLII Noted in 25 ABLR 72, 150; 5 TPLJ 48, [1997] 2 M.A.L.R 35. (leave to appeal to HC refused: ARL v News (1996) 187 CLR 692. Via AustLII Rural Press Ltd v Australian Competition and Consumer Commission High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA - 16/07/2002 Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 (2) at least two or more of the parties to that contract, arrangement or understanding must be competitors

must be competitors: Devendish v Jewel Food Stores (1991) 172 CLR 32 Via AustLII Do all the parties to the arrangement have to be in competition with each other? See s4D(1)(a) In competition in relation to the goods the subject of the boycott: the meaning of in competition under s4D Eastern Express v General Newspapers (1992) ATPR 41-167 Via AustLII Is it a requirement of s4D that any of the parties to the boycott must be in competition with the target? Hughes v Western Australian Cricket Association (Inc.) Toohey J., (1986) ATPR 40736, 19 FCR 10 [C&C: 296] News Ltd v Australian Rugby Football League Ltd Full Federal Court (on appeal from decision of Burchett J. : see above under Market Definition) [C&C: 297] (1996) 64 FCR 410, 139 ALR 193, Search ALR 21 ACSR 635, [1996] ATPR 41-521. Noted in 25 ABLR 72, 150; 5 TPLJ 48, [1997] 2 M.A.L.R 35. (leave to appeal to HC refused: ARL v News (1996) 187 CLR 692. Via AustLII (3) the provision must have the purpose of preventing, restricting or limiting the supply of goods or services to, or the acquisition of goods or services from a target,

Does s4D require determination of an objective or a subjective purpose? Australian Stock Exchange Pty Ltd v Pont Data Pty Ltd (No1) Federal Court Full Court, (1990) 27 FCR 460, 97 ALR 513, (1991) ATPR 41-069 [C&C: 268, 274] *South Sydney District Rugby League Football Club Ltd v News Ltd [C&C:301]

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Application for Injunction to Restrain Respondents from Excluding South Sydney from the 2000 NRL Competition - Refused by Federal Court, Hely J., 9 December 1999, (1999) ATPR 41-728, 169 ALR 120, [1999] FCA 1710. Finn J., Federal Court, (1999) 177 ALR 611, [2000] FCA 1541 Noted in Pengilley, Warren, Rabbitohs cant run on the Rugby League grass (2001) 16(8) Trade Practices law bulletin 69-75. Federal Court, Full Court, (majority judgements by Moore J. & Merkel J, dissent from Heerey J.) [2001] FCA 862. noted in Pengilley, Warren, Fifteen into fourteen will go: the Full Federal Court defies the laws of mathematics in the South Sydney case (2001) 17(4) Trade Practices law bulletin 25-36. Online via e-reserve High Court [2003] HCA 45; (2003) 200 ALR 157 Via AustLII *Rural Press [C&C:312] ACCC v Liquorland (Australia) Pty Ltd and Woolworths Limited, Decision of Allsop J on 30 June 2006. [2006] FCA 826; (2006) ATPR 42-123. Via AustLII How important must the proscribed purpose be? Section 4F(1)(a) News Ltd v Australian Rugby Football League Ltd Full Federal Court , see extract at [C&C: 270] South Sydney case [C&C306] Must the purpose be a common purpose of the parties to the CAU? Carlton & United Breweries (NSW) Pty Ltd v Bond Brewing (NSW) Ltd (1987) ATPR 40-820, 16 FCR 351. Search CCH Online ASX v Pont Data see above Preventing, Restricting or Limiting Se C&C p273 South Sydney case Goods or Services Se definition in s4 On the exclusion for contracts of service see Hughes v Western Australian Cricket Association (Inc.) Toohey J., (1986) ATPR 40736, 19 FCR 10 [C&C: 263]; and Adamson & Ors v New South Wales Rugby League Ltd and Ors (1991) ATPR 41141 Search CCH Online target means - particular persons or classes of persons, either generally or in particular circumstances or on particular conditions by all, or any , of the parties to the contract, arrangement or understanding or a related body corporate. ASX Operations v Pont Data Australia (1990) 27 FCR 460 Via AustLII *South Sydney District Rugby League Football Club Ltd v News Ltd Application for Injunction to Restrain Respondents from Excluding South Sydney from the 2000 NRL Competition - Refused by Federal Court, Hely J., 9 December 1999, (1999) ATPR 41-728, 169 ALR 120, [1999] FCA 1710. Finn J., Federal Court, (1999) 177 ALR 611, [2000] FCA 1541 Federal Court, Full Court, [2001] FCA 862. High Court [2003] HCA 45; (2003) 200 ALR 157 Via AustLII (4)

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10B.4 Defence under s76C See the Dawson Committee Report and the Government response at: http://tpareview.treasury.gov.au/content/home.asp s76C two requirements s76C(1)(a) for the purposes of a joint venture s76C(1)(b) not having the purposes of SLC and not having the effect or likely effect of SLC 10B.5 Consequences of Breach Declaration under s87 - of illegality Severance under s4L 10B.6 Authorisation s88(1), s90(8) 10B.7 Exclusions Primary boycotts by employees Section 51(2)(a) Primary boycotts by consumers Section 51(2A) Further Reading: On overlap between s45 and s47, see: Visy Paper Pty Ltd & Ors v Australian Competition and Consumer Commission Federal Court Full Court (2001) 112 FCR 37; (2001) ATPR 41-835; [2001] FCA 1075 leave granted for appeal to High Court Generally : Pengilley, Warren, Trade Associations and collective Boycotts in Australia and New Zealand: A Mistranslation of the Sherman Act Downunder (1987) 32 Antitrust Bulletin 1019. Online via e-reserve Trade Practices Commission, Procedure in Cases of Determination of Clearance Applications for Agreements Constituting Codes of Ethics, Information Circular No 9 (May 1995) Pengilley, W., ARL v Super League: What Does it Mean for Sporting Organisations? (1997) 5 CCLJ 77 Search LexisNexis AU Griggs, L., News Ltd v ARL: the Birth of Superleague? (1997) 5 CCLJ 166 Search LexisNexis AU McMahon, Church Hospital Board or Board Room? The Super League Decision and Proof of Purpose under section 4D (1997) 5 Competition and Consumer Law Journal 129. Search LexisNexis AU McInerney, The Super League Litigation: Has Klors Inc v Broadway Hale Stores Come Down Under? (1997) 25 ABLR 384. Online via e-reserve Pengilley, Warren, Rabbitohs cant run on the Rugby League grass (2001) 16(8) Trade Practices law bulletin 69-75 Online via e-reserve Pengilley, Warren, Fifteen into fourteen will go: the Full Federal Court defies the laws of mathematics in the South Sydney case (2001) 17(4) Trade Practices law bulletin 25-36. Online via e-reserve Fridman, Saul, Sport and the Law: The South Sydney Appeal (2002) 24(4) The Sydney Law Review 558. Wylie, I S, What is an exclusionary provision? Newspapers, rugby league, liquor and beyond (2007) 35 ABLR 33. Search journal online

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Topic 11. SECTION 47 - EXCLUSIVE DEALING

Reading: Corones: chpt 9 C&C: chpt 10 Butterworths: chpt 5

11.1

Layout of s47 When does it not apply? Section 47(12) Section 88(8) Interbrand and Intrabrand competition and the Free rider argument for exclusive dealing Hay, G.A., "The Free Rider Rationale and Vertical Restraints Analysis Reconsidered" 56 Antitrust Law Journal 27 (1987) Search HeinOnline [C&C: 483] Definitions Supply and acquire TPA s4, Via AustLII Extended meaning of supply and resupply - s4C Meaning of "on the condition that" TPA section 47(13)(a) Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134; (1978) ATPR 40-094; 22 ALR 621 Full Federal Court see esp Deane J at 36 FLR 134 at 167 [para 45ff] Via AustLII SWB Family Credit Union v Parramatta Tourist Services (1980) 48 FLR 445 Via AustLII TPC v Tepeda Pty Ltd , Davies J., (1994) ATPR 41-319 Universal Music Australia Pty Ltd v ACCC Full Court, [2003] FCAFC 193; (2003) 131 FCR 529. Via AustLII esp para 225 to 238

11.2

11.3

11.4

11.5

Section 47(2)(d) Supplying on condition as to acquisition or re-supply Example 1 - Solus agreements Re Tooth, Re Tooheys *O'Brien Glass Industries Ltd v Cool & Sons Pty Ltd Federal Court, Full Court (1983) 48 ALR 625; (1983) ATPR 40-376, 77 FLR 441 [C&C: 430] Example 2 Requirements Contracts C&Cp441 Example 3 Minimum Quantity conditions C&C p441

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Example 4 - Tying arrangements full line forcing Concluding Points 1 must the goods offered be the same as the goods the subject of the restriction? 2 does the reference to goods of a competitor mean a competitor in relation to the goods or services that are the subject of the restriction? 3 what is the effect of the words except to a limited extent ? 4 what is meant by indirect in directly or indirectly? Eg Nashua Australia (1975) ATPR (Com) 13-925 Online via e-reserve Is it one product or two? Jefferson Parish Hospital District No. 2 v Hyde 466 US Search Lexis.com 2 (1984) [C&C: 435] Eg Southern Cross Beverages, Monroe Topple v Institute of Chartered Accountants (2002) 122 FCR 110 Via AustLII ACCC v Baxter Healthcare [2005] FCA 581 Via AustLII s47(2)(e) Re-supply restrictions s47(2) (f) customer restrictions or territory restrictions 11.6 Section 47(3) - Suppliers Refusal to Deal s47(3)(f)(ii) Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ATPR 40-809 [C&C: 443] s47(3)(d) Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193; (2003) 131 FCR 529 Via AustLII (22 August 2003) Section 47 (4) and (5) Acquisition restrictions C&Cp398 * ACCC v Safeway Pty Ltd (No3) (2001) 119 FCR 1, Goldberg J Search Lawbook online Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd - [2003] FCAFC 149; (2003) 129 FCR 339; (2003) 198 ALR 657; (2003) ATPR 41-935; BC200303400 - FCA - 30/06/2003 Via AustLII Section 47(6) and (7) - Third-line forcing [C&C from 398] compulsion: Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd (1978) 36 FLR 134; (1978) ATPR 40-094 Via AustLII Stationers Supply Pty Ltd v Victorian Newsagents Association Ltd Ryan J. (1993) 44 FCR 35, ATPR 41-225. *Kam Nominees Pty Ltd v Australian Guarantee Corp Ltd Drummond J., (1994) 51 FCR 338, 123 ALR 711, (1994) ATPR 41-325 [C&C: 447]

11.7

11.8

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third person: *Castlemaine Tooheys Ltd v Williams & Hodgson Transport Pty Ltd High Court (1986) 162 CLR 395, 68 ALR 376, 61 ALJR 10; (1986) ATPR 40-751 Via AustLII [C&C: 453] (Decision of Wilcox J: Williams & Hodgson Transport Pty Ltd v Castlemaine Tooheys (1985) 64 ALR 521; (1985) ATPR 40-609 Search CCH Online Decision of Full Federal Court: Castlemaine Tooheys v Williams & Hodgson Transport Pty Ltd (1985) 7 FCR 509, 64 ALR 536, (1986) ATPR 40-653. Search CCH Online The Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust & Ors Federal Court Full Court 22 FCR 495, 94 ALR 225, (1990) ATPR 41-029 Search CCH Online Not being a body corporate related to the corporation See the final words of s47(6) & 47(7). per se contravention: Hilmer Report, p52 [C&C:410] Dawson Committee Report and the Government response at: http://tpareview.treasury.gov.au/content/home.asp 11.9 Substantially lessening competition Section 47(10) Purpose Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) ATPR 40315 ; 44 ALR 173; 64 FLR 238; esp per Smithers J at 64 FLR 238 at 276. Via AustLII But cf Cool & Sons [see C&Cp385] And in relation to meaning of purpose in s45 and 46 Pont Data, Dowling v Dalgety. Is it necessary that the purpose actually be achieved? : Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193 Via AustLII Effect or likely effect of substantially lessening competition What are the specific considerations in an exclusive dealing case? Which market should one be concerned with? Do you need to assess market power or SLC in more than one market? Aggregation of effect s47(19)(b) Market s47(13)(b) & (c) Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) ATPR 40315 ; 44 ALR 173; 64 FLR 238; esp per Smithers J at 44 ALR 173 at 191 Via AustLII *Outboard Marine Australia Pty Ltd v Hecar Investments (No.6) Pty Ltd (1982) ATPR 40-327, 44 ALR 667; 66 FLR 120 [C&C: 461] Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ATPR 40-809 [C&C: 395] Universal Music Australia Pty Ltd v ACCC [2003] FCAFC 193 Via AustLII ACCC v Baxter Healthcare [2005] FCA 581 Via AustLII

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11.10 Notifications and Authorisation TPA s47(10A) Re Tooth & Co. Ltd; Re Tooheys Ltd (1979) ATPR 40-113, 39 FLR 1 [C&C: 467] Southern Cross Beverages (1981) 50 FLR 176 [C&C:469] Online via ereserve Re 7 Eleven Stores Online via e-reserve ACCC, Guide to Exclusive Dealing Notifications January 2007 (ACCC) http://www.accc.gov.au/content/index.phtml/itemId/776051 ACCC, Guide to Authorisations and Notifications for Third Line Forcing Conduct (February 1998) Further example in relation to territorial exclusivity: Ford Motor Company of Australia Ltd (1975-76) ATPR (Com) 35-200 [C&C:423] Cf Fisher & Paykel Ltd v Commerce Commission [1990] 2 NZLR 731. Search NZLR In relation to third line forcing: Australian Association of Pathology Practices Incorporated [2004] ACompT 4 Via AustLII [C&C478] McEwin, Third Line Forcing in Australia C&C:485. Dawson Report recommends repeal of s93(2) 11.11 Exceptions and Overlap with s45 TPA Section 47(11) - Via AustLII TPA Section 47(12) - does not apply to restrictions imposed by a corporation on a related corporations within the definition in s4A(5) (note that this is distinct from the effect of the words Not being a body corporate related to the corporation s45(6) if covered by s47, then apply s47 not s45. Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 201 ALR 414; (2003) 77 ALJR 1893; (2003) ATPR 41-952; [2003] HCA 59; BC200305828 - HCA - 08/10/2003 Via AustLII See extract in C&C: Chapter 6 at p277. Further Reading: Ahdar, R., "Exclusive Dealing and the Fisher & Paykel Saga" (1992) 15 New Zealand Universities Law Review 1 Online via e-reserve Marvel, H., "Exclusive Dealing" (1982) 15 Journal of Law and Economics 1 Search JSTOR Telser, L., "Why Should Manufacturers Want Fair Trade?" (1960) 33 Journal of Law & Economics 86 Search JSTOR Hanks, F. and Williams, P.L., "The Treatment of Vertical Restraints under the Australian Trade Practices Act" (1987) Australian Business Law Review 147 Search ProQuest Griggs, Lynden, Tying Arrangements Within Franchise Contracts How Should They be Evaluated? (1998) 6 TPLJ 220-233. Online via e-reserve Report by the Independent Committee of Inquiry, National Competition Policy (AGPS, 1993) (Hilmer Report), pp 49-54 Cavallaro, C ACCC v Australian Safeway Stores Ltd (2003) ATPR 41-935 (2004) Trade Practices Law Journal 12(1) 49 (Full FC case note) Search LawBook Online

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Blycha, Natasha & Duns, John, Tying, bundling, loyalty rebates and exclusive dealing in US antitrust: What can Australia learn (2006) 14 TPLJ 26. Search Lawbook online Coorey, Adrian & Panikabutara, Pornsakol, Exclusive dealing: How exclusive are minimum quantity condition dealings? (2006) 14 TPLJ 145. Search Lawbook online Further reading - Other cases on tying arrangements Nashua Australia Pty Ltd (1975) ATPR (Com) 13-925 Online via e-reserve Applications of Southern Cross Beverages Pty Ltd and Amatil Ltd (1981) ATPR 40200 Search ATPR [C&C: 422] Eastman Kodak Co. v Image Technical Services, Inc 112 S.Ct 2072 (1992) Search Lexis.com Image Technical Services, Inc v Eastman Kodak Co 125 F. 3d 1195 (9th Cir. 1997) cert denied 118 S.Ct 1560 (1998) Search Lexis.com Further reading on Customer and territorial restrictions Continental T.V. Inc. v GTE Sylvania Inc. 433 US 36 (1977) Search Lexis.com John Fairfax & Sons Ltd (1980) ATPR (Com) 25-200 Online via e-reserve Re 7-Eleven Stores Pty Ltd, Australian Association of Convenience Stores Incorporated and Queensland Newsagents Federation (1994) ATPR 41-357. Online via e-reserve Re: 7-Eleven Stores Pty Ltd (1998) ATPR 41-666 Via AustLII ACCC, Determination relating to the ACCCs review of a system for distribution of newspapers and magazines in NSW/ACT, Queensland and Victoria Corones, Tribunal Liberates Victorian Newsagents and Sub-Agents (1995) 23 ABLR 228 [C&C: 564] Search ProQuest Application of Shell Co. (Aust.) and Neptune Oil Co. Pty Ltd (1975) 3 TPR 15 [C & C: 419] Fisher & Paykel v Commerce Commission (1990) 2 NZLR 731 Search NZLR Further Reading on Third Line Forcing: Lipton, Jacqueline D., Third-Line Forcing in Australia: Current Problems and Future Directions (1996) 4 TPLJ 77. Online via e-reserve McEwin, I., "Third-line Forcing in Australia" (1994) 22 Australian Business Law Review 114 [C&C: 432] Search ProQuest

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The overlap provisions of s 45 and s47: Shek, M Non-competition restraints a waste of time: Visy Paper ltd v ACCC (2003) 201 ALR 414 (2004) Trade Practices Law Journal 12(3) 155 (Case note on the HC decision) Search LawBook Online Corones, S The construction of s 45(6) of the Trade Practices Act: The High Courts decisions in Visy Paper v ACCC (2004) Australian Business Law Review 32(1) 70 Search LawBook Online Further Reading on the EC system of Block Exemptions: European Commission, Green Paper on Vertical Restraints in EC Competition Policy (1996) European Commission Regulation No 2790/1999 on the application of Art81(3) of the Treaty to categories of vertical agreements and concerted practices. (superceding NO 1983/83) JF Winterschied & MA Ward, Two Part Harmony: New Rules for Vertical Agreements under European Union Competition Policy [2000] (Summer) Antitrust 52. Search Westlaw Journals See extracts in Pryles, Waincymer & Davies, International Trade Law (Lawbook Co, 2nd ed, 2004) pp3436ff &400ff. Search Closed Reserve

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Topic 12. Section 46 and s46A - Misuse of market power

Reading: Corones: chpt 8 C&C: chpt 9 Butterworths: chpt 4

12.1

Introduction & 3 limbs of s46 The Provisions s46(1) and s46A(2), the 3 elements Relationship with the authorisation provisions: 46(6) does NOT apply to - conduct that would contravene s45 but doesnt by virtue of authorisation or notification in force - conduct that would contravene s47 but doesnt by virtue of authorisation or notification in force - conduct that would contravene s50 but doesnt by virtue of authorisation or clearance in force The market share contravention in s46(1AA) The economics What behaviour might be covered by s46? Does s46 take account of whether there is an allocative efficiency loss? Is loss to a particular competitor sufficient? Does s46 take account of whether there is a productive efficiency loss? The public debate: Review of the competition provisions of the Trade Practices Act (The Dawson Report) (2003) http://tpareview.treasury.gov.au/content/report.asp, chapter 3 And see 12. 8 below.

12.2

Substantial Market Power Fisher, Diagnosing Monopoly (1979) 19 Quarterly Review of Economics and Business 7 [extract in C&C:p372-375]

Corporation expanded by s6 (see esp., s6(2)(b) and 6(2)(h) Power in a market s46(3) extent to which conduct is constrained s46(4) definitions s46(3A), 46(3B), 46(3C), 46 (3D) Power in Which Market Does the effect have to be in the same market as the market in which the entity has power ? Does the action have to be taken in the same market as the market in which the entity has power? Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) ATPR 40-081 [C&C: 333]

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Individual or collective power S46(2) and s46A(3) and s4A(5) definition of related Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) ATPR 41-167 [C&Cp403] Dowling v Dalgety Australia Ltd (1992) ATPR 41-165 [C&C: 176] Importance of the definition of the market to the determination of the existence of market power. see C&C p128ff and cases in Lecture Outline on Topic 8 Eg. : Singapore Airlines Ltd v Taprobane Tours W.A. Pty Ltd (1992) ATPR 41-159. Search CCH Online Dowling v Dalgety Australia Ltd (1992) ATPR 41-165 [C&C: 176] Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) ATPR 41-167 Search CCH Online News v ARL, Burchett J., (1996) 58 FCR 447, 135 ALR 33. [note the appeal did not review the decision on s46, nor the determination of the market] Online via ereserve Determinants of the existence of market power: See C&C chapter 5 , pp179188; and also cases in Lecture Outline on Topic 8 : especially Qld Wire ACCC v Boral Ltd Universal Music 12.3 Taking Advantage of Market Power s46(5) acquisition of plant or equipment does not contravene s46

Does taking advantage of market power necessarily involve reprehensible conduct? Can we distinguish exercise of legal rights from taking advantage of market power? Warman International Ltd v Envirotech Australia Pty Ltd Federal Court, Wilcox J., (1986) 11 FCR 478; ATPR 40-714, 67 ALR 253. Search CCH Online Williams v Papersave Pty Ltd (1987) ATPR 40-818 Search CCH Online *Queensland Wire Industries Pty Ltd v BHP Co. Ltd (Federal Court, Pincus J.) (1987) ATPR 40-810; Online via e-reserve (Federal Court, Full Court) (1988) 78 ALR 407; Online via e-reserve (High Court) (1989) 167 CLR 177, (1989) ATPR 40-925, 83 ALR 577. Via AustLII [C&C: 380] Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ATPR 40-809, 75 ALR 581. Search CCH Online NT Power cited above How do we distinguish between ordinary vigorous competition by a firm with substantial market power and conduct which takes advantage of that substantial market power which goes beyond vigorous competition?

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What is the test? Would not do in the absence of SMP? Could not do in the absence of SMP? Causal link between SMP and conduct? Materially facilitated by the SMP ? Dowling v Dalgety Australia Ltd (1992) ATPR 41-165 [C&C: 176] Natwest Australia Bank Ltd v Boral Gerrard Strapping System Pty Ltd (1992) ATPR 41-196 Search CCH Online Robert Hicks Pty Ltd (t/a Auto Fashions Australia) v Melway Publishing Pty Ltd Via AustLII Federal Court, Merkel J.,[1998] 1379 FCA., (1998) 42 IPR 627, (1999) ATPR 41-668. [Noted in Corones, S., Exclusivity and the Importance of IntraBrand Competition (1999) 27 ABLR 82-84. Online via e-reserve

*Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [C&C:385] Via AustLII Federal Court, Full Court, (1999) 90 FCR 128; 169 ALR 554, (1999) ATPR 41-693; [1999] FCA 664. (Contrast the separate majority judgments of Sundberg J. (dismissing the appeal) & of Finkelstein J. (dismissing the appeal) with the dissenting judgement of Heerey J. allowing the appeal) Appeal Allowed by High Court compare majority judgement by Gleeson CJ, Gummow, Hayne & Callinan, with dissent of Kirby J. (2001) 178 ALR 253; (2001) 75 ALJR 600; (2001) 22(5) LegRep 2; (2001) 50 IPR 257; (2001) ATPR 41-805; [2001] HCA 13 [extract in C&C at 385-392] ACCC v Australian Safeway Stores Pty ltd [2003] FCAFC 149 , (2003) 198 ALR 657; [2003] ATPR 41-935 esp paras 325 to 334. Via AustLII [in Supp Mat Book 4] Boral Besser Masonry (now Boral Masonry Ltd) v ACCC Note findings of fact as to barriers to entry and market power in: Federal Court, Heerey J, 22 September 1999, (1999) FCA 1318, (1999) ATPR 41-715, 166 ALR 410. Via AustLII Note findings regarding barriers to entry and market power; and findings in relation to relevance of recoupment in Federal Court, Full Court , 27 February 2001, [2001] FCA 30, (2001) ATPR 41-803. Via AustLII High Court: (2003) 195 ALR 609; (2003) 77 ALJR 623; (2003) 24(3) Leg Rep 18; (2003) ATPR 41-915; [2003] HCA 5; BC200300131 Via AustLII [extract in C&C at p404-409] ACCC v Universal Music Australia Pty Ltd, Hill J., (2001) 115 FCR 442; (2002) ATPR 41-855; [2001] FCA 1800; [2002} ACL Rep 420 FC25. Universal Music Australia Pty Ltd v ACCC Full Court, [2003] FCAFC 193. Via AustLII

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*Rural Press Ltd v Australian Competition and Consumer Commission [C&C:393] Federal Court: Federal Court: (2001) ATPR 41-804; [2001] FCA 116; BC200100573 Via AustLII note finding on take advantage Full Federal Court: [2002] FCAFC 213; (2002) 118 FCR 236; (2002) 193 ALR 399; (2002) ATPR 41-883; BC200203866 - FCA - 16/07/2002 Via AustLII Does the finding on take advantage contradict the Victorian Egg Board case ? High court: (2003) 203 ALR 217; (2003) 78 ALJR 274; (2003) ATPR 41-965; [2003] HCA 75; BC200307578 - HCA - 11/12/2003 compare with Kirby J especially at paras [115] [139] Via AustLII [extract in C&C 393-396] NT Power Generation Pty Ltd v Power and Water Authority 1st Instance, Mansfield J [2001] FCA 334; (2001) 184 ALR 481 Via AustLII High court: [2004] HCA 48 Via AustLII [C&C:413] 12.4 Proscribed Purposes s46(1)(a), (b) & (c) s46(7) inferring the purpose s4F(b) substantial purpose among more than one purpose

Subjective or Objective Purpose Pont Data (Aust) Pty Ltd v ASX Operations Pty Ltd (1990) ATPR 41-007 [C&C: 360] Australian Stock Exchange Pty Ltd v Pont Data Pty Ltd (1991) ATPR 41-069 Search CCH Online *ACCC v Australian Safeway Stores Pty ltd [2003] FCAFC 149 , (2003) 198 ALR 657; [2003] ATPR 41-935 esp paras 335 to 346. Via AustLII Damaging individual competitors v damaging competition do we need to distinguish between ordinary competitive conduct aimed at harming a competitor or deterring a competitor from competitive conduct and taking advantage of market power to damage a competitor or deter a competitor from engaging in competitive conduct? OBryan, Section 46: Law or Economics (1993) 1 Competition & Consumer Journal 64. [C&C:p349] Yeung, Stewart, Misuse of market power the requirement of purpose (2000) 28 ABLR 66-72. Online via e-reserve 12.5 Examples of application of s46 Predatory Pricing Fisher, Diagnosing Monopoly (1979) 19 Quarterly Review of Economics and Business 7 [C&Cp352] Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) ATPR 40-081 [C&C: 333] TPC v CSBP & Farmers Ltd (1980) ATPR 40-151, (1978) 33 FLR 294 [C&C: 355] Eastern Express Pty Ltd v General Newspapers Pty Ltd [C&C: 334, 357] Federal Court, Wilcox J., (1991) 30 FCR 385; (1991) 103 ALR 41; (1991) ATPR 41-128 Federal Court, Full Court (1992) 35 FCR 43, (1991) 106 ALR 297, (1991) ATPR 41-167

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*ACCC v Boral Ltd [C&C:404-409] Federal Court, Heerey J, 22 September 1999, (1999) FCA 1318, (1999) ATPR 41-715, 166 ALR 410. Federal Court, Full Court , 27 February 2001, [2001] FCA 30, (2001) ATPR 41-803. High Court: (2003) 195 ALR 609; (2003) 77 ALJR 623; (2003) 24(3) Leg Rep 18; (2003) ATPR 41-915; [2003] HCA 5; BC200300131 Lynden Griggs & Samantha Hardy, ACCC v Boral the High Court Awaits another Section 46 Case! (2001) 9 TPLJ 201. Online via e-reserve 12.6 Examples of application of s46 refusals to supply and price or supply squeeze *Queensland Wire Industries Pty Ltd v BHP Co. Ltd (Federal Court, Pincus J.) (1987) ATPR 40-810; Online via e-reserve (Federal Court, Full Court) (1988) 78ALR 407; Online via e-reserve (High Court) (1989) 167 CLR 177, (1989) ATPR 40-925, 83 ALR 577. Via AustLII [C&C: 337] Pont Data (Aust) Pty Ltd v ASX Operations Pty Ltd (1990) ATPR 41-007 [C&C: 410] Australian Stock Exchange Pty Ltd v Pont Data Pty Ltd (1991) ATPR 41-069 Search CCH Online Regents Pty Ltd v Subaru (Aust) Pty Ltd (1998) ATPR 41-647 [noted in (1996) 4 TPLJ 206-208] Via AustLII Robert Hicks Pty Ltd (t/a Auto Fashions Australia) v Melway Publishing Pty Ltd Federal Court, Merkel J.,[1998] 1379 FCA., (1998) 42 IPR 627, (1999) ATPR 41-668. *Melway Publishing Pty Ltd v Robert Hicks Pty Ltd *Federal Court, Full Court, (1999) 90 FCR 128; 169 ALR 554, (1999) ATPR 41-693; [1999] FCA 664. (Contrast the separate majority judgments of Sundberg J. (dismissing the appeal) & of Finkelstein J. (dismissing the appeal) with the dissenting judgement of Heerey J. allowing the appeal) *Appeal Allowed by High Court compare majority judgement by Gleeson CJ, Gummow, Hayne & Callinan, with dissent of Kirby J. (2001) 178 ALR 253; (2001) 75 ALJR 600; (2001) 22(5) LegRep 2; (2001) 50 IPR 257; (2001) ATPR 41-805; [2001] HCA 13 12.7 Examples of application of s46 - Refusal to grant access to property or infrastructure Dowling v Dalgety Australia Ltd (1992) ATPR 41-165 [C&C: 362] NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48 Via AustLII [C&C:413] Examples of application of s46 - Imposition of unfair contract terms General Newspapers Pty Ltd v Australian and Overseas Telecommunications Corporation (1993) 40 FCR 98 [C&C:415]

12.8

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General Newspapers Pty Ltd v Telstra Corporation (1993) 117 ALR 629 (Full Federal Court) [C&C: 418] 12.9 Arguments for Amendments of s46 See summary of the recommendations of the Dawson Report in C&C p21-23.

Dawson Committee, Report on the Review of the Trade Practices Act (16 November 2002) http://tpareview.treasury.gov.au/content/report.asp (Dawson Report) The government response to the Dawson Committee report : http://www.treasurer.gov.au/tsr/content/publications/TPAResponse.asp Trade Practices Legislation Amendment Bill (No 1) 2005 passed House, split by the Senate, subsequently lapsed. Report of the Senate Economics References Committee, The effectiveness of the Trade Practices Act 1974 in protecting small business (Tabled 1 march 2004) available at: http://www.aph.gov.au/Senate/committee/economics_ctte/completed_inquiries/200204/trade_practices_1974/index.htm The government response to the Senate economics committee report was released on 24 June 2004, available at: http://www.aph.gov.au/Senate/committee/economics_ctte/completed_inquiries/200204/trade_practices_1974/index.htm Trade Practices Legislation Amendment Act 2006 (Cth) (No131 of 2006) Via AustLII Further Reading Generally: Search Library Catalogue or follow alternative links provided Trade Practices Commission, Misuse of Market Power: Section 46 of the Trade Practices Act 1974 - Background Paper and Guidelines (Canberra: Paragon, 1990) Law Research 343.940721 2 Report by the Independent Committee of Inquiry, National Competition Policy (AGPS, 1993) (Hilmer Report), pp 61-74. Law Short Loan 338.6048 53 Michael OBryan, Section 46: Law or Economics (1993) 1 CCLJ 64. Search LexisNexisAu Stewart, Ian D., Economics and Law of Section 46 of the Trade Practices Act (1998) 26 ABLR 111. Online via e-reserve Shafron, Peter J., QWI v BHP: A Flash in the Section 46 Pan (1989) 72 ALJ 53. Search e-Reserve Hay, G., "Market Power in Australasian Antitrust: an American Perspective" (1994) 1 CCLJ 215. Online via e-reserve Pengilley, Misuse of market power in Australia: Are the tests no those of fairness, efficiency or business justification (2001) 8(1) Canterbury Law Review 70. Search AGIS Ahdar, Rex, Escaping New Zealands monopolisation quagmire (2006) 34 ABLR 260. s46 Search Lawbook online

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Further Reading on Refusals to Supply and Price Squeeze: Top Performance Motors Pty Ltd v IRA Berk (Qld) Pty Ltd (1975) 24 FLR 286; ATPR 40-004 Online via e-reserve O'Keeffe Nominees Pty Ltd v BP Australia Ltd (1990) ATPR 41-057 Search CCH Online John S. Hayes & Associates v Kimberley Clark Australia Federal Court, Hill J., 1994 ATPR 41-318. Search CCH Online Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) ATPR 40-809 Search CCH Online Maclean v Shell Chemical (Aust.) Pty Ltd (1984) ATPR 40-462 Search CCH Online Berlaz Pty Ltd v Fine Leather Care Products Ltd (1991) ATPR 41-118 Search CCH Online Eastman Kodak Co. v Image Technical Services, Inc 112 S.Ct 2072 (1992) Search Lexis.com Image Technical Services, Inc v Eastman Kodak Co 125 F. 3d 1195 (9th Cir. 1997) cert denied 118 S.Ct 1560 (1998) Search Lexis.com Telecom Corporation of New Zealand Ltd v Clear Communications Ltd Privy Council (1995) 1 NZLR 385 Search NZLR Aspen Skiing v Aspen Highlands Ski Corp. 472 U.S. 105 S.Ct. 585 (1985) Search Lexis.com Byers v Bluff City News (1979) 609 F.2d 843 Search Lexis.com Olympia Equipment Leasing Co. v Western Union Telegraph Co. 797 F.2d 370 (7th Cir. 1986) Search Lexis.com United Brands Co and United Brands Continental BV v Commission [1978] ECR 207 Search Lexis.com Hoffmann-La Roche v Commission [1979] ECR 461 Search Lexis.com Pengilley, W., "Misuse of Market Power: Present Difficulties - Further Problems" (1994) 2 TPLJ 27 Online via e-reserve McMahon, K., "Refusals to Supply by Corporations with Substantial Market Power" (1994) 22 ABLR 7 Search ProQuest Marshall, B., Refusals to Supply under Section 46 of the Trade Practices Act (1996) 8 BondLR 82. Krattenmaker, T.G. and Salop, S.C., "Anticompetitive Exclusion: Raising Rivals' Costs To Achieve Power over Price" (1986) 96 Yale Law Journal 209. Hay, G and McMahon, K., "The "Duty to Deal" Under Section 46: Panacea or Pandora's Box?" (1994) 17 UNSWLJ 54 Search HeinOnline Wright, R., "Injunctive Relief in Cases of Refusal to Supply" (1991) 19 ABLR 65. Search ProQuest Pengilley, Warren, A marketing disaster: what the Full Federal Court says about exclusive distributorships and misuses of market power (199) 15(2) ANZ Trade Practices Law Bulletin 17-23. Online via e-reserve Further Reading on Predatory Pricing: Search Library Catalogue or follow alternative links provided Charlick Trading Pty Ltd v Australian National Railways Commission Mansfield J., 14 April 1999, [1999] FCA 452. Unreported. Via AustLII Trade Practices Commission, The Failure of Compass Airlines: Report by the Trade Practices Commission, (Canberra: February, 1992) Fisher Research 387.710994 27 A A Poultry Farms Inc v Rose Acre Farms Inc 881 F. 2d 1396 (7th Cir. 1989) Search Lexis.com

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Matsushita Electric Industrial Co Ltd v Zenith Radio Corp 106 S Ct 1348 (1986) Search Lexis Cargill Inc. v Monfort of Colorado Inc. 479 U.S.104 Search Lexis.com Brooke Group Ltd v Brown & Williamson Tobacco Corp. 113 S. Ct 25 78 (1993) Search Lexis McMahon, K., "Predatory Pricing under Section 46 of the Trade Practices Act and the Decision in Eastern Express v General Newspapers - Part I" (1993) 1 TPLJ 75; Part II (1993) 1 TPLJ 130. Online via e-reserve Sceales, A, Predatory Pricing Revisited (1998) 6 TPLJ 142-152. Pengilley, Warren, Boral Besser Masonrys acquittal reversed by the Full Federal Court (2001) 16(10) ANZ Trade Practices Law Bulletin 93. Online via ereserve Lynden Griggs & Samantha Hardy, ACCC v Boral the High Court Awaits another Section 46 Case! (2001) 9 TPLJ 201. Online via e-reserve Griggs, L., Predatory Pricing and Dawson Protecting the competitive process not competitors (2003) 26(1) UNSWLR 283. Fallon, John & Menezes, Flavio M, Exclusionary conduct: Theory, tests and some relevant Australian cases (2006) 13 CCLJ 197. Search LexisNexis AU Further Reading on application of s46 to Intellectual Property Search Library Catalogue or follow alternative links provided [Corones: ch 11] Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1991) ATPR 41074 Broderbund Software Inc v Computermate Products (Australia) Pty Ltd (1992) ATPR 41-155 RTE v EC Commission (Magill) [1995] 4 CMLR 718 Search Lexis.com Trade Practices Commission, Application of the Trade Practices Act to Intellectual Property, Background Paper (Canberra: 1991) Law Research 346.94048 28 A I van Melle, Refusals to License Intellectual Property Rights: the Impact of RTE v EC Commission (Magill) on Australian and New Zealand Competition Law (1997) 25 Australian Business Law Review 4 Online via e-reserve National Competition Council, Review of Sections 51 (2), (3) of the Trade Practices Act 1974 (Report March 1999) Law Research 343.940721 18 Joint United States Department of Justice and Federal Trade Commission Antitrust Guidelines for the Licensing of Intellectual Property (1995) http://www.usdoj.gov/atr/public/guidelines/0558.htm Intellectual Property and Competition Review Committee (Henry Ergas, Jill McKeogh & John Stonier, Review of Intellectual Property Legislation under the Competition Principles Agreement Final Report (IP Australia, Canberra, Sept 2000) (Ergas Report) available at http://www.ipaustralia.gov.au/about/ipcr.shtml

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Articles following the Boral case and about the Dawson review: Corones, S Section 46 of the Trade Practices Act: Boral, the Dawson Committee and the protection of small business (2003) Australian Business Law Review 31(3) 210 Search Journal online Corones, S Has the High Court crippled the effectiveness of s 46 of the Trade Practices Act (2004) Australian Business Law Review 32(2) 142 Search Lawbook Zumbo, F The Boral case: Has the High Court done justice to s 46? (2003) Trade Practices Law Journal 11(4) 199 Edwards, G The hole in the section 46 net: The Boral case, recoupment analysis, the problem of predation and what to do about it (2003) Australian Business Law Review 31(3) 151 Search Lawbook Ergas, H and Landrigan, M Not another article about section 46 of the Trade Practices Act! (2004) Australian Business Law Review 32(6) 415 Search Lawbook Niblett, A, Gans, J and King, S Structural and behavioural market power under the Trade Practices Act: An application to predatory pricing (2004) Australian Business Law Review 32(2) 83 Search Lawbook Merrett, A The court speaks for itself: What Australian decisions say about assessing market power for the purposes of s 46 of the TPA (2004) Competition and Consumer Law Journal 11(3) 330 Online via e-reserve Gans, J, Sood, R and Williams, P The decision of the High Court in Rural Press: How the literature on credible threats may have materially facilitated a better decision (2004) Australian Business Law Review 32(5) 337 Search Lawbook Zumbo, F The High Courts Rural Press decisions: The end of s 46 as a deterrent against abuses of market power (2004) Trade Practices Law Journal 12(3) 126 Edwards, Geoff, Small business reforms to section 46: Panacea, placebo or poison? (2006) 34 ABLR 255. Search Lawbook

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Possible Additional Topics if time permits: 13. Penalties, Remedies and Enforcement
Readings: Corones [chap 16,17,18] Butterworths [chap 10] C&C [chaps 14, 15]

The object is to extend the overview presented in Topic 6 13.1 Public Remedies Corones Chapter 16 at

13.1.1 Pecuniary Penalties: s76 Corones [16.05 16.50] Civil penalties under s76 Accessory Liability under s75B Negotiated Penalties 13.1.2 Injunctions (s80) and Undertakings Corones [16.120 16.135] TPA s80 (& s80(1A): that only ACCC can apply for injunction for a breach of s50) Via AustLII TPA s87B 13.1.3 Divestiture (s81) Corones [16.140] 13.2 Private Remedies

13.2.1 Consequences of Illegality Corones [18.10 18.15]; severability : TPA s4L 13.2.2 Injunctions Corones [18.20 18.30] Interim injunctions Mandatory Injunctions 13.4 Damages (s82) Corones [18.60 18.100]

13.5 Section 87 orders for Ancillary Relief Corones [18.125] 13.6 Criminal Penalties Exposure Draft of Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 was released by the Department of Treasury on 11 January 2008; The date for submissions was 29 February 2008. See http://www.treasury.gov.au/contentitem.asp?NavId=037&ContentID=1 330

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At the same website, also see: Draft MOU between the Commonwealth DPP and the ACCC regarding Serious Cartel Conduct Criminal Penalties for Seerious Cartel Conduct Fisse, Brent, The Cartel Offence: Dishonesty? (2007) 35 ABLR 235. Search Lawbook ACCC, Cooperation Policy for Enforcement Matters, July 2002 ACCC, Immunity Policy for Cartel Conduct (ACCC, 5 September 2005) 14. Section 48 - Resale Price Maintenance Readings: Corones [chap 10] Butterworths: [chap 6] C & C [chap 11]

TPA s48, Part VIII: ss 96-100 15. Part IIIA Access to Declared Services Readings: Corones [chap 14] Butterworths: [chap ] C & C [chap 16]

TPA, Part IIIA

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General information Sydney Law School Handbook

The Faculty Handbook is an essential guide for every student who studies at the University of Sydney. It is an important source of enrolment information, examination procedures, assessment policies and useful contacts. An online copy is available at: http://www.usyd.edu.au/handbooks/law/01_introduction.shtml

Student behaviour
Students will be expected to adhere to the Universitys Student Code of Conduct in and outside of classrooms. Basic courtesy will be expected, including having mobile phones turned off, arriving punctually and treating the teacher and other students with respect. A copy of the Universitys Student Code of Conduct is available at: http://www.usyd.edu.au/ab/policies/Student_code_conduct.pdf

Policy on harassment and discrimination

The University has a policy prohibiting harassment and discrimination, and a procedure for handling inquiries and complaints about these. These policies and procedures can be found at the Staff and Student Equal Opportunity Units page on the universitys website: http://www.usyd.edu.au/eeo/harass_discrim/index.shtml

(Grievances) Appeals
If a student is concerned about any academic decision he or she should consult the Faculty and University policy on appeals against academic decisions. The Faculty procedure clearly sets out the steps a student must take to appeal an academic decision. See http://www.law.usyd.edu.au/cstudent/undergrad/appeals.shtml Advice and support for appeals and the appeals process is available from the Students Representative Council (SRC - for undergraduate students). See http://www.src.usyd.edu.au/ for contact details.

Use of lecture material

Lectures are literary works subject to copyright. Students have a limited licence to make use of these lectures by taking notes and making a limited number of copies for their research and study. That licence does not extend to making multiple copies of these notes, publishing them, electronically transmitting them or making them available online in any form. Lectures may not be taped without express personal permission from the lecturer.

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Generic attributes of graduates

The unit will contribute to students attaining the Generic Graduate Attributes set out in the Faculty of Law contextualised statement of Generic Graduate Attributes (see the Law Faculty Handbook available at: http://www.usyd.edu.au/handbooks/handbooks_admin/law.shtml ) particularly in the areas of: Research and inquiry: by developing their ability to recognise, define and analyse legal problems; and to exercise critical thinking in the learning and application of law Information literacy: by enhancing their knowledge of law; developing their research skills in relation to both primary and secondary sources and developing their ability to keep abreast of changes to the law Personal and intellectual autonomy: by developing their ability to work independently to seek mastery of legal subject matter; and helping them become legal experts who appreciate the responsibilities which attach to that role; and equipping them to pursue independent and lifelong learning; Ethical, social and professional understanding: by developing their awareness of the importance of law and process, and the interface between them, to the maintenance of a just society. Communication: by developing their ability to recognise and value communication as a tool for negotiating and creating new understanding, interacting with others, and furthering their own learning.

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Useful contacts and resources Disability Services

Disability Services is the principal point of contact for advice on assistance available for students with disabilities. Students with a disability need to register with Disability Services to receive support and assistance. Disability Services works closely with academic and administrative staff to ensure that students receive reasonable accommodation in their areas of study. Registered students who require exam adjustments must inform Disability Services (http://www.usyd.edu.au/stuserv/disability/), at least 4 weeks before the exam period, if they wish to have special exam adjustments made. Disability Services will assess the request and The Examinations Office will coordinate the venues, timetabling and invigilation of the exams and will notify the student in writing of the arrangements prior to the exam. Telephone: Fax: E-mail: Address: 02 8627 8433 02 8627 8482 [email protected] Level 5, Jane Foss Russell Building G02, City Road (beside the Wentworth Building), Darlington Campus

For details on registering with the Service, including documentation required and online resources see the Disability Services website at http://www.usyd.edu.au/disability

Counselling Service
The Counselling Service aims to help students fulfil their academic, individual and social goals through professional counselling and workshops. The Service provides short-term, problem-focused counselling to promote psychological wellbeing and to help students develop effective and realistic coping strategies.

Telephone: Facsimile: E-mail: Address:

02 8627 8433 02 8627 8482 [email protected] Level 5, Jane Foss Russell Building G02, City Road (beside the Wentworth Building), Camperdown Campus

International students can access counselling assistance through the International Students Support unit (ISSU): Contact: 8627 8437, ISSU Office, Level 5, Jane Foss Russell Building G02.

Learning Centre
For students who feel they may benefit from assistance with academic reading and writing strategies, study skills, time-management skills and/or improving their oral communication, the Learning Centre on Main Campus runs several courses each semester which may be helpful. The Centre is located in the Education Building, Main Campus, Level 7, Ph: 9351 3853, Email: [email protected] (see http://www.usyd.edu.au/stuserv/learning_centre/index.shtml ).

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For students who would like additional help with English as a second language, the Arts Digital Resource Centre has an extensive collection of materials and is available for all students to use. The Arts Digital Audio Visual Library is on Level 2, Brennan MacCallum Building, Main Campus, Ph: 02 9351 2683 or email: [email protected]. Please refer to the Faculty Handbook for information about other support services available to University of Sydney students. Details of Learning Centre resources and workshop timetables can be found at http://www.usyd.edu.au/stuserv/learning_centre/. Some courses are specifically designed for international students and students who come from non-English speaking backgrounds. See: http://www.usyd.edu.au/stuserv/learning_centre/course.shtml#well

Sydney University Law Society (SULS)

All law students are immediately members of Sydney University Law Society (SULS). SULS has an important role in representing the interests and needs of students to the University, the Law School, the Union and the SRC. For further information on SULS please visit: http://www.suls.org.au/ For any general enquiries, please contact the SULS Secretary by emailing [email protected]

General enquiries
Telephone: Fax: E-mail: Website: Address: 02 9351 0351 02 9351 0200 [email protected] http://www.law.usyd.edu.au/ Information Officer Faculty of Law Level 3, Law School Building F10 Eastern Avenue, Camperdown Campus The University of Sydney NSW 2006

Undergraduate enrolment enquiries

Please contact the Undergraduate Team on 02 9351 0344 or 02 9351 0346. Full undergraduate enrolment contact details are available at http://www.law.usyd.edu.au/cstudent/undergrad/contacts.shtml

Feedback
If you have any questions, problems or concerns with this unit of study, please feel free to contact the lecturer or convenor. If you are not comfortable providing this feedback directly to the lecturer or convenor, undergraduate students may contact the SULS Vice President (Education) via [email protected].

For other contacts, please see: http://www.usyd.edu.au/handbooks/law/02_where_to_ask.shtml

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