Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197

FEDERAL COURT OF AUSTRALIA

Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197 TRADE PRACTICES – restrictive trade practices – misuse of market power – exclusive dealing – arrangements restricting dealings or affecting competition – appellant in business of providing course materials and other training support to candidates undertaking studies for their "Professional Year" (PY) in order to qualify to apply to become members of respondent and to practise as Chartered Accountants – respondent a non-profit organisation incorporated by Royal Charter – respondent in competition with CPA Australia and other bodies in providing certification of accountants ("certification market") – respondent the only body which can authorise use of designation Chartered Accountant or acronym "CA" – respondent also selling support materials in competition with appellant and other entities ("PY support market") – in return for enrolment fee in PY subjects ("modules") candidates automatically receiving certain information about module but with option of buying respondent's support materials – respondent replaces PY Program with "CA Program" where, for a slightly increased enrolment fee, candidate is now provided with an integrated educational service including module support materials as well as information about module – appellant complains that candidates in CA Program will not now buy any support materials other than those provided by respondent upon payment of module enrolment fee – whether respondent's supply of education and training in connection with its CA Program the provision of services in trade and commerce – whether PY support market was replaced by "a new CA support market (strictly so called)" – whether a market existed in which the respondent provided certification to persons becoming members of itself ("CA certification market") – whether respondent had a substantial degree of market power in the CA certification market – whether respondent had a substantial degree of market power in the certification market – whether respondent had as a substantial purpose eliminating or substantially damaging competitors or deterring or preventing persons from engaging in competitive conduct in the CA support market – whether respondent engaged in predatory pricing – whether respondent supplied services in examination and assessment in the CA certification market on the condition that candidates acquire support services from the respondent – whether there was the purpose or effect of substantially lessening competition for s 47 of the Trade Practices Act 1974 (Cth) – whether there was a relevant provision for s 45 of Act – whether there was the relevant purpose or effect for s 45 of Act – whether s 51AC of Act applies where there was no supply or acquisition of goods or services as between respondent and applicant – whether conduct of respondent unconscionable WORDS AND PHRASES – "market" Trade Practices Act 1974 (Cth) ss 4, 45, 46, 47, 51AC Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 603 applied Plimer v Roberts (1997) 80 FCR 303 at 305G, 310D, and 327A applied Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 at 202 applied and at 187-189 discussed NT Power Generation Pty Ltd v Power and Water Authority (2001) 184 ALR 481 at 331 followed International Salt Company v United States 332 US 392 (1947) at 395-396 cited Melway Publications Pty Ltd v Robert Hicks Pty Ltd (t/as Auto Fashions Australia) (2001) 178 ALR 253 at [52] referred to Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 62 referred to, at 66 applied Warren v Coombes (1979) 142 CLR 531 cited Abalos v Australian Postal Commission (1990) 171 CLR 167 distinguished Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 applied Biogen Inc v Medeva PLC [1987] RPC 1 at 45 cited Esso Australia Resources Ltd v Federal Commissioner of Taxation (1998) 164 ALR 293 cited Parras Holdings Pty Ltd v Commonwealth of Australia [1999] FCA 391 cited AktieBolaget Hassle v Alphapharm Pty Ltd (2000) 51 IPR 375 cited Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 cited Dowling v Dalgety Australia Limited (1992) 34 FCR 109 at 139 followed South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 181 ALR 188 cited Australian Competition and Consumer Commission v Boral Limited (2001) 106 FCR 328 cited Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 168 followed SWB Family Credit Union Limited v Paramount Tourist Services Pty Ltd (1980) 48 FLR 445 at 454 followed Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 at 50 followed Tillmanns Butcheries Pty Ltd v Australasian Meat Employees' Union (1979) 42 FLR 331 at 346-348 followed Australian Competition and Consumer Competition v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491 at 494-496 cited and at [5] to [28] referred to Blomley v Ryan (1956) 99 CLR 362 cited Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 cited Louth v Diprose. (1992) 175 CLR 621 cited Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 referred to Eastman Kodak Co v Image Technical Services Inc 504 US 451 (1992) at 481 – 482 and 462 distinguished Bannock et al Dictionary of Economics 1998 at p.262 Professor Brunt "Market Definition Issues in Australia and New Zealand Trade Practices Litigation" (1990) 18 ABLR 86 at p.96 MONROE TOPPLE & ASSOCIATES PTY LIMITED v THE INSTITUTE OF CHARTERED ACCOUNTANTS IN AUSTRALIA N 1249 OF 2001 BLACK CJ, HEEREY AND TAMBERLIN JJ 19 JUNE 2002 SYDNEY