Stirling Harbour Service Pty Ltd (ACN 008 767 600) v Bunbury Port Authority [2000] FCA 1381

FEDERAL COURT OF AUSTRALIA

Stirling Harbour Services Pty Limited (ACN 008 767 600) v Bunbury Port Authority [2000] FCA 1381 TRADE PRACTICES – natural monopoly - exclusive licence arrangement for provision of towage services in the Port of Bunbury – whether entry into the licence agreement with the successful tenderer has the purpose, or is likely to have the effect, of substantially lessening competition – primary judge correctly applied the test of whether, on consideration of the likely state of future competition in the market 'with and without' the impugned conduct, the conduct has a proscribed anti-competitive purpose or effect TRADE PRACTICES - contestable market theory – whether, in a natural monopoly market, there exist competitive forces that derive from credible threats of entry, rather than from the number of actual contestants – primary judge's finding that the market was, at most, only weakly contestable was supported by the evidence – primary judge correctly took account of factors which operated as disincentives to entry, in determining the extent of contestability –there was no error in the primary judge's finding that the threat to the applicant of entry by competitors, was insufficiently credible to exert an effective control over its prices – the fact that details of the agreement were to be negotiated with the preferred tenderer, did not detract from the price and level of service which resulted from the competitive tender process – there was no evidence that a particular less restrictive proposal was likely to have been adopted by the respondent, were it not for the calling of tenders for the exclusive licence – primary judge was correct in concluding that the respondent was exercising regulatory, not market power APPEALS ) PRACTICE AND PROCEDURE ) – further evidence – whether a Federal Court appeal is an appeal stricto sensu or is by way of rehearing – effect of recent High Court authorities - whether further evidence may be adduced on appeal, in relation to matters which have occurred since the delivery of judgment – court not satisfied that the further evidence would have produced a different result, had it been available at the trial – importance of public interest in the finality of litigation