Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Toohey JJ. Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7

ORDER Appeal allowed with costs. Set aside the orders of the Full Court of the Federal Court of Australia allowing the appeal from the orders of Burchett J. made 22 February 1989 and in lieu thereof order that the appeal to the Full Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1991, April 9 Mason C.J.

This appeal raises an important point of construction concerning s. 45D(1)(b) of the Trade Practices Act 1974 ("the Act"), the constitutional validity of which was considered by this Court in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. [4] . Section 45D(1)(b) provides:

Subject to this section, a person shall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first-mentioned person), where —

(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing —

(i) substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or

(ii) a substantial lessening of competition in any market in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services.

1. (1982) 150 C.L.R. 169.

As is at once evident from the complexity of the section, it is susceptible of a variety of distinct and different applications: see Actors Equity [1] , per Gibbs C.J.; [2] , per Stephen J., [3] , per Mason J. and [4] , per Brennan J. In this appeal, it was argued that the appellants engaged in conduct which constituted a hindering of the acquisition rather than the supply of goods. It is necessary to describe the appellants' conduct in a little detail so that the relevant "persons" and their interrelationship for the purposes of the section may be identified.