Rural Press Ltd v Australian Competition & Consumer Commission [2002] FCAFC 213

FEDERAL COURT OF AUSTRALIA

Rural Press Ltd v Australian Competition & Consumer Commission [2002] FCAFC 213 TRADE PRACTICES – exclusionary provision – ss 45(2) and 4D of the Trade Practices Act 1974 (Cth) ("Trade Practices Act") - alleged arrangement between regional newspaper publishers for one to withdraw its newspaper from the area of the other in return for the other not competing elsewhere – whether evidence sufficient to support a finding that the parties had made or given effect to an "arrangement" – whether the arrangement had the purpose of preventing or limiting the supply of services to "particular … classes of persons" within the meaning of s 4D(1)(b)(i) of the Trade Practices Act. TRADE PRACTICES – whether a party to an arrangement had taken advantage of a substantial degree of power in a market for a purpose proscribed by s 46(1) of the Trade Practices Act – whether a party takes advantage of a substantial degree of power in market A by threatening to compete in market B where it has no power – whether the party making the threat would have been able to act in the same way if it had not had a substantial degree of power in market A. TRADE PRACTICES – whether arrangement between newspaper publishers for one to withdraw from the territory of the other contains a provision which has the purpose or effect of substantially lessening competition – whether degree of competition in the relevant market was too slight to justify conclusion that competition had been substantially lessened. TRADE PRACTICES – definition of market – whether the relevant market had been correctly identified as the Murray Bridge newspaper market – whether market should have been defined to include regional commercial radio stations as well as the regional newspaper. TRADE PRACTICES – accessory liability – whether alleged accessories must know that actions constitute a breach of the Trade Practices Act – whether finding that individuals had been knowingly concerned in or party to contraventions of s 45(2)(a)(ii) and s 45(2)(b)(ii) of the Trade Practices Act was supported by the evidence. TRADE PRACTICES – penalties – whether primary Judge correct to take into account the manner in which the litigation was conducted – appropriate penalties for less serious breach of s 45(2) of the Trade Practices Act – whether primary Judge should have required contraveners to enter a trade practices compliance program. Trade Practices Act 1974 (Cth), ss 4A(5), 4D, 4E, 4G, 45, 46(1), 75B, 76, 155 A New Tax System (Trade Practices Amendment) Act 1999 (Cth) Trade Practices Revision Act 1986 (Cth) Yorke v Lucas (1985) 158 CLR 661, applied. Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (1999) 92 FCR 375, cited. Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344, cited. Morphett Arms Hotel Pty Ltd v Trade Practices Commission (1980) 30 ALR 88, cited. ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460, distinguished. South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456, applied. News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 577, cited. South Sydney District Rugby League Football Club v News Ltd (2000) 177 ALR 611, applied. Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169, applied. Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177, applied. Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158, applied. Davids Holdings Pty Ltd v Attorney-General (Cth) (1994) 49 FCR 211, cited. Australian Competition and Consumer Commission v Boral Ltd (2001) 106 FCR 328, cited. Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313, applied. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, cited. Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 62 FLR 437, applied. Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331, cited. Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 64 FLR 238, cited. Trade Practices Commission v CSR Ltd (1991) 13 ATPR ¶41-076, cited. Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1, applied. Victorian Egg Marketing Board v Parkwood Eggs Pty Ltd (1978) 33 FLR 294, cited. Crocodile Marketing Ltd v Griffith Vinters Pty Ltd (1989) 28 NSWLR 539, cited. Hamilton v Whitehead (1988) 166 CLR 121, cited. Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302, applied. Johnson v Youden [1950] 1 KB 544, cited. Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681, cited. Westbay Seafoods (Aust) Pty Ltd v Transpacific Standardbred Agency Pty Ltd [1996] FCA 630, cited. Pereira v Director of Public Prosecution (1989) 82 ALR 217, cited. Heydon v NRMA Ltd (2000) 51 NSWLR 1, cited. Trade Practices Review Committee Report (1976) Clarke & Corones, Competition Law and Policy (1999) Explanatory Memorandum to the Trade Practices Revision Act 1986 (Cth) Robertson, "The Primacy of Purpose in Competition Law – Part 1" (2001) 9 Competition & Consumer Law Journal 101 McMahon, "Church Hospital Board or Board Room?" (1997) 5 Competition & Consumer Law Journal 129 Areeda & Kaplow, Antitrust Analysis (1988) Brunt "Market Definition Issues in Australian and New Zealand Trade Practices Litigation" (1990) 18 Aust Bus LR 86 Kaysen and Turner, Antitrust Policy: An Economic and Legal Analysis (1959) RURAL PRESS LTD & ORS v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION & ORS S 141 of 2002 WHITLAM, SACKVILLE & GYLES JJ 16 JULY 2002 SYDNEY (HEARD AT ADELAIDE)