Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38
TRADE PRACTICES – exclusive dealing – contract arrangement or understanding substantially lessening competition – abuse of market power – statutory port authority – grantor of licences for provision of towage services in port – current regime involving non-exclusive licence – tenders called for exclusive licence for fixed term with maximum price schedule – whether purpose, effect or likely effect of substantially lessening competition in a market – nature of market – market for provision of towage services or right to provide towage services in regional port – natural monopoly – whether contestable market – barriers to entry – sunk costs – capital costs – costs of displacing incumbent – competitive process in tendering for exclusive licence – no substantial lessening of competition – no exercise of market power in statutory function – no proscribed purpose in exercising statutory function. Bunbury Port Authority Act 1909 (WA) Port Authorities Act 1999 (WA) ss 32, 33, 34, 35 Trade Practices Act 1974 (Cth) ss 45, 46, 47 Prices Surveillance Act 1983 (Cth) J Fenwick & Co Pty Ltd v Adelaide Steamship Industries Pty Ltd (1976) ATPR 35-200 cited Howard Smith Industries Pty Ltd (1991) ATPR (Com) 50-511 cited Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 64 FLR 238 applied Outboard Marine Australia Pty Ltd v Hecar Investments No 6 Pty Ltd (1982) 44 ALR 667 cited Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) ATPR 41-128 cited Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 cited Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 cited Sodastream Ltd v Electronics (Broken Hill) Pty Ltd (1985) 60 ALR 427 applied John S Hayes & Associates Py Ltd v Kimberly-Clark Australia Pty Ltd (1994) ATPR 41-318 cited Plume v Federal Airports Corporation (1997) ATPR 41-589 cited OD Transport Pty Ltd v Western Australian Government Railways Commission (1986) 13 FCR 270 cited
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