Boral Besser Masonry Limited (now Boral Masonry Ltd) v Australian Competition and Consumer Commission [2003] HCA 5

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

BORAL BESSER MASONRY LIMITED

(now Boral Masonry Ltd) APPELLANT

AND

AUSTRALIAN COMPETITION AND

CONSUMER COMMISSION RESPONDENT

Boral Besser Masonry Limited (now Boral Masonry Ltd) v Australian Competition and Consumer Commission

[2003] HCA 5

7 February 2003

M1/2002

ORDER

1. Appeal allowed with costs. 2. Set aside the orders of the Full Court of the Federal Court dated 27 February 2001, and in place thereof order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

A C Archibald QC with C M Maxwell QC and I B Stewart for the appellant (instructed by Blake Dawson Waldron)

N J Young QC with D Shavin QC, M J Crennan SC and P M Tate for the respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Boral Besser Masonry Limited (now Boral Masonry Ltd) v Australian Competition and Consumer Commission

Trade practices – Restrictive trade practices – Misuse of market power – Predatory pricing – Market definition – Concrete masonry products market – Close substitutability – Whether appellant had substantial degree of market power – Recoupment of losses – Analysis of market structure – Market share – Barriers to entry – Whether barriers to entry created by practices and policies of incumbent firms – Pricing behaviour – Increase in supply capacity – Whether taking advantage of a substantial degree of market power for a proscribed purpose – Legislative purpose of Trade Practices Act 1974 (Cth) – Relevance of market economic conditions – Relevance of purpose of damaging a competitor – Trade Practices Act 1974 (Cth), s 46(1), (3).