Visy Paper Pty Limited v Australian Competition and Consumer Commission [2003] HCA 59

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

VISY PAPER PTY LIMITED & ORS APPELLANTS

AND

AUSTRALIAN COMPETITION AND

CONSUMER COMMISSION RESPONDENT

Visy Paper Pty Limited v Australian Competition and Consumer Commission

[2003] HCA 59

8 October 2003

S209/2002

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

N J Young QC with M H O'Bryan for the appellants (instructed by Minter Ellison)

B R McClintock SC with V F Kerr 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

Visy Paper Pty Limited v Australian Competition and Consumer Commission

Trade practices – Restrictive trade practices – Exclusionary provisions – Exclusive dealing – Arrangements for waste paper collection – Where non-competition provisions have dual and composite character – Non-competition provisions preventing both the acquisition of goods from, and the supply of services to, particular persons – Both aspects of the non-competition provisions contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) and one of those aspects would, but for s 47(10), have contravened s 47 – Whether s 45(6) precluded the application of s 45(2)(a)(i) to both aspects of the non-competition provisions or only that aspect covered by s 47.

Words and phrases – "provision", "by reason that", "give effect to", "condition".

Trade Practices Act 1974 (Cth), ss 4(1), 4D, 45(2)(a)(i), 45(6), 47.

1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. This case arises out of attempts the first appellant ("Visy Paper") made to make an agreement with Northern Pacific Paper Pty Ltd ("NPP") under which NPP would have been prevented from acquiring goods from some third parties and would have been prevented from supplying services to those third parties. The respondent ("the ACCC") contended that these attempts contravened the Trade Practices Act 1974 (Cth) ("the Act"). 2. Part IV of the Act contains a number of provisions dealing with what its heading describes as "Restrictive Trade Practices". Since the Act was first enacted, various amendments and additions have been made to the provisions of Pt IV. This appeal concerns the relationship between certain provisions of Pt IV, as they stood in 1996 and 1997. In particular, it concerns the relationship between provisions of ss 45 and 47. Section 45 dealt (among other things) with the making of a contract, arrangement or understanding which contained an "exclusionary provision"[1]. Section 47 dealt with "the practice of exclusive dealing". 3. The central issue debated on the appeal concerned the operation of s 45(6) of the Act. So far as relevant, that sub‑section provided that: