Competition and Consumer Law

Competition and Consumer Law

 

*Following content was submitted via Turitin in 2016.


 

A : Resale Price Maintenance ('RPM') - S 48

The Magic Pudding Books Pty. Ltd. ('MPB') is a wholesaler as well as a retailer; the Moby Dick Books Pty. Ltd. ('MDB') and Bloomsday Books Online Pty. Ltd. ('BBO') are retailers. Since it is common for retailers, who purchase books from publishers, to on-sell those books to other retailers when they have excess stock, in the agreement between MDB and BBO, cartel conduct does not apply.

MPB requested BBO to cease discounting the Oxbridge University Press science book but BBO refused to do so. In June 2015, MPB ceased supplying books to BBO. Later on, MPB discovered the arrangement between MDB and BBO. MPB also ceased supplying books to MDB.

 

Section 48 in the Competition and Consumer Law 2010 ('CCA') states that a corporation or other person shall not engage in the practice of resale price maintenance ('RPM'). Section 4 states that price of resale price maintenance means the practice of resale price maintenance referred to in Part VIII.

Under section 96 (1), a corporation (the supplier, in this case MPB) engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of subsection (3). Section 96 (3)(a) states that the supplier making it known to a second person that the supplier will not supply goods to the second person unless the second person agree not to sell those good at a price less than a price specified by the supplier.

 

In this case, there was no indication of the price specified; hence we are not sure how much the book was selling for from other retailers. Yet, we can assure that BBO was selling the books at a lower than average price on the market: Australian Competition and Consumer Commission v High Adventure Pty Ltd.[1]

Also, consider other sections, such as section 96 (3)(e),[2] section 96 (4)[3] and section 96 (7):[4] Australian Competition and Consumer Commission v TEAC Australia Pty Ltd;[5] Australian Competition and Consumer Commission v Netti Atom Pty Ltd.[6]

Since MPB is the only importer of books, they cut the entire supply of products because of refusing to supply BBO with books if they do not cease the discounting of books. This indicates that MPB is engaged in RPM. The Australian Competition and Consumer Commission ('ACCC') has an action with respect to the RPM of MPB.


 

B : Cartel Conducts

 

Bredli Books Australia Pty Ltd ('BBA')  & Drop Bear Books Pty Ltd ('DBB')

 

In this case, due to the budget cuts, the Commonwealth Department of Public Prosecutions will not begin criminal proceedings for any anti-competitive conduct of BBA and DBB. Applying section 45 would not have any result if BBA and DBB were to informally stick to it. Therefore, the Cartel provisions are more applicable.

According to the 44ZZRJ[7] and 44ZZRK,[8] DBB and BBA made a contract, arrangement  and understanding which contains a cartel provision. Clause 3 in Agreement 1 contains the bid rigging: Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (No 8),[9] allocating customers suppliers or territories: Trade Practices Commission v TNT Australia Pty Ltd,[10] and Clause 4 contains the price fixing cartel conduct: Australian Competition and Consumer Commission v Visy Holdings Pty Ltd (No 3).[11] Here, CAU exists: ACCC v Leahy Petroleum Pty Ltd.[12]

 

The relevant section and sub-sections, for both BBA and DBB will be:

44ZZRD  Cartel provisions

(1)  For the purposes of this Act, a provision of a contract, arrangement or understanding is a cartel provision if:

(a)  either of the following conditions is satisfied in relation to the provision:

(i)  the purpose/effect condition set out in subsection (2);

(ii)  the purpose condition set out in subsection (3); and

(b)  the competition condition set out in subsection (4) is satisfied in relation to the provision.

 

(2)  The purpose/effect condition is satisfied if the provision has the purpose, or has or is likely to have the effect, of directly or indirectly:

(a)  fixing, controlling or maintaining; or

the price for, or a discount, allowance, rebate or credit in relation to:

(d) goods or services acquired, or likely to be acquired, by any or all of the parties to the contract, arrangement or understanding; or

 

(3)  The purpose condition is satisfied if the provision has the purpose of directly or indirectly:

(a)  preventing, restricting or limiting:

(i)  the production, or likely production, of goods by any or all of the parties to the contract, arrangement or understanding; or

(b)  allocating between any or all of the parties to the contract, arrangement or understanding:

(i)  the persons or classes of persons who have acquired, or who are likely to acquire, goods or services from any or all of the parties to the contract, arrangement or understanding; or

(c)  ensuring that in the event of a request for bids in relation to the supply or acquisition of goods or services:

(i)  one or more parties to the contract, arrangement or understanding bid, but one or more other parties do not; or

(4)  The competition condition is satisfied if at least 2 of the parties to the contract, arrangement or understanding:

(a)  are or are likely to be; or

(b)  but for any contract, arrangement or understanding, would be or would be likely to be;

in competition with each other in relation to:

(d)  if paragraph (2)(d) or (3)(b) applies in relation to an acquisition, or likely acquisition, of goods or services—the acquisition of those goods or services; or

(f)  if subparagraph (3)(a)(i) applies in relation to preventing, restricting or limiting the production, or likely production, of goods—the production of those goods; or

(j)  if paragraph (3)(c) applies in relation to an acquisition of goods or services—the acquisition of those goods or services.

 

Here, the CEOs  of BBA and DBB decided there was no need to compete with each other, so they came to an understanding and entered in to an agreement that would result in BBA controlling the publication of the DCR and the MQCR's, while DBB would control the SCR and COAR's under Clause 3(i).  These behaviours was caught by the section 44ZZRD 3(a)(i), 3 (b)(i) and 3 (c)(i).

Both parties also came to an understanding that they should try to set the amount of price competition that would exist between them for the publication of Queensland legislations. They came to an understanding regarding this service under Clause 4(i).  Section 44ZZRD (2) (a) and (d) will be applied since BBA and DBB agreed to set their price for the publication of Queensland legislation to be outsourced by the Queensland Government in 2016 and 2017.

 

In this respect, DBB and BBA conduct amounts to cartel conduct, and there is no exception here.[13]  Therefore, the ACCC  has an action with respect to the cartel conduct by the DBB and BBA.

 


 

 JB

 

There is no action against JB. They have not done anything wrong, but they are not in  a position to bid due to company restructure.

 

Price signalling[14]

Competitors share certain information with other competitors, which can lead to coordinated behaviour that impacts consumers.  In particular, the sharing of pricing information with each other can lead to coordinated anti-competitive pricing practices or strategies. The price signalling is often difficult to prove due to the absence of any contract, arrangement, or understanding between competitors, however it can still lead to an anti-competitive outcome for the market, competition and consumers.

There are two prohibitions in the sharing of pricing information, which are regulated in Div 1A Part IV. Under section 44ZZW, it is prohibited per se, while a prohibition involving a substantial lessening of the competition ('SLC') threshold is created by section 44ZZX.

 


 

C : Taking advantage of market power - S 46

 

MPB is concerned that Air Balloon Books ('ABB') could become so strong that ABB may take away much of the market share currently held by MPB. The CFO of MPB suggested cutting the price of all books by 5-10% below their sticker price to prevent ABB from increasing their market share any further. This way MPB can prevent ABB from making a profit, even though it would not allow them to increase their price in the future. After all, the MPB board reduced the price of all their books sold at their bookstores by 7.5% below each product's average variable cost.

Since section 46 of the Act is prohibited per se, there is no need to find that conduct has 'substantially lessened competition' in a defined market for the section to be breached.

 

 

MPB  bound by s 46 TPA

MPB is engaging in predatory pricing which is an extreme form of price discrimination. This may be indicated by a large corporation  using selective price reduction for a predatory purpose: Boral Besser Masonary Ltd v ACCC.[15]  Therefore, MPB is bound by section 46 TPA for reducing prices by 7.5% below products average variable cost to eliminate ABB from the market.

Misuse of market power, described under section 46.[16]  The ACCC follows the elements set out by the court in order to establish a breach of section 46: RP Data Ltd (ACN 087 759 171) v  State of Queensland.[17]

 

The nature of the 'market(s)' as contemplated by section 46 and 4E

Currently, MPB holds a 35% share of the Australian bricks and mortar book market and is taking advantage of that power in the Australian or other markets for the purpose of deterring or preventing ABB from engaging in competitive conduct in the Australian or any other markets. MPB is using their substantial degree of power in the Australian bricks and mortar book market.

 

 

MPB has a substantial degree of power in that market

A classic  definition of market power is "the ability of a firm to raise prices above the supply cost without rivals taking away customers in due time": Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd;[18] Boral Besser Masonry Ltd v Australian Competition and Consumer Commission.[19] The market power must be distinct from taking advantage of property right: NT Power Generation P/L Power and Water Authority.[20]

In determining, for the purpose of section 46 (3), the degree of power that a body corporate or bodies corporate has or have in a market, the court shall have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of competitors or potential competitors, of the body corporate or of any of those bodies corporate in that market; or person to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market.[21]

 

In Boral Besser Masonry Ltd v Australian Competition and Consumer Commission, Kirby said that substantial market power exists if the corporation has the capacity through its decision to substantially effect market outcomes: Rural Press Ltd v ACCC.[22] Under section 46 (3C),[23] MPB has 35% shares of the market and has the capacity, through their decision, to affect market outcomes, so clearly has substantial market power in the market.

 

The conduct of MPB....conduct which can be characterised as the respondent taking advantage of a substantial degree of power in a relevant market

In determining, for the purpose of this section, whether, by engaging in conduct, a corporation has taken advantage of its substantial degree of power in a market, the court may have regard to whether it is likely that the corporation would have engaged in the conduct if it did not have a substantial degree of power in the market: Queensland Wire Industries P/L v Broken Hill Propriety Co Ltd.[24]

In this case, if  MPB had less than 35% shares  of the market (i.e., 7% ), then MPB would not reduce costs by 7.5% below each product's average variable cost and restrict ABB from entering into the market. The answer therefore is yes, MPB likely took advantage of their market power.

 

 

MPB taking advantage of a substantial degree of power in a relevant market, was it for a proscribed purpose

The purpose of MPB reducing costs by 7.5% below average market price is to deter or prevent ABB from engaging in competitive conduct in the current Australian bricks and mortar book market or in any other market.[25]

 


D : Contract, arrangements or understandings that restrict dealings or affect competition - s45

 

On the 15th of March 2016, MDB entered into a written agreement with MPB to attract more events at MPB stores, which infringes on section 45 (2)(a)(i) and (2)(b)(i).[26] "Exclusionary provision" is defined in section 4(D) of the CCA.[27]  In this case, there is CAU.[28]

 

(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 more of whom are completive with each other; and: Competitive Elements;

(b) the provision has the purpose of preventing, restricting or limiting:

(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of person; Purposive elements;

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

 

by all any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, of a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

Here both parties, MDB and MPB, are competitors in the retail book industry in Australia. Clause 5(i) in agreement two deals with the bid rigging issues and 5 (ii) deals with the exclusionary provision, which states that MPB agrees.[29]

 

Competition Elements: 4D (2)

(2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if,

  • the first‑mentioned person or a body corporate that is related to that person is, or is likely to be: The word likely means a 'real chance or possibility': News Ltd v Australian Rugby Football League Football Ltd;[30] Tillmanns Butcheries Pty Ltd v Australian Meat Industries Employee's Union.[31]

 

  • in competition with the other person, or with a body corporate that is related to the other person

 

  • in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of relates

 

Here, there is  the agreement between MDB and MPB.  If both parties do not comply with clause 5, they would be in competition with each other.

 

Purposive Elements

Section (1)(b) states that the provision has the purpose of preventing, restricting or limiting. The purpose is to be determined by ascertaining the effect or effects the parties sought through the inclusion of the impugned provision: News Ltd v South Sydney District Rugby League Football Club Ltd.[32] The purpose is simply the effect that is sought to be achieved:  Rural press Ltd v ACCC.[33] To determine the subjective purpose it can be inferred from the surrounding circumstances:  Dowling v Dalgety Australia Ltd.[34] The immediate purpose, not the long run purpose.It must be a shared purpose, not merely one some of the parties are aware of.

 

Must be a substantial purpose: 4F

There are debate over what substantial means is an inconclusive one:  Rural press Ltd v ACCC.[35] It needs not be the sole or even dominant purpose, but it must be “real or of substance”, not necessarily for the market as a whole but for a significant section of the market: Dandy Power Equipment P/L v Mercury Marine P/L.[36] “Substantial” in this context appears to mean “real or of substance and not insubstantial or nominal” and does not necessitate a quantitative evaluation:  Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & Ors.[37]

MDB entered into a written agreement with MPB on the 15th of March, 2016. The exclusionary provision is incorporated into the agreement that has the subjective purpose of preventing, restricting or limiting the supply of service from BBA. The purpose is the effect; the compensation provision which in the end had a goal of limiting or preventing the supply to BBA. The maximum pecuniary penalty for a contravention of section 45 (2) is $10 million for a corporation and $500,000 for  individuals.[38]

 


 

E : Exclusive dealing - S 47

 

In February 2016, DBB sent out two letters, one to BBO and MDB and another letter to all other retailers. In letter two, DBB stated that they will only supply MDB with their award winning travel publications, if MDB agrees to purchase 25% of their coffee from 100% Australian owned coffee producers. In letter three, DBB states that they will only enter into agreements regarding the three options if the retailer agrees, in writing, to only sell DBB travel books to the general public. That is, the retailer must agree to not on-sell any DBB travel books to any other retailers or wholesalers.

Under section 47,[39] a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd.[40] The practice of exclusive dealing defined in 47 (2), (3), (4), (5), 8(a),8(b), or 9(a), (b) or (c) is only prohibited if the conduct has the purpose, effect or likely effect of substantially lessening competition. In this scenario, there is a substantially lessen competition. Section 4 (1) states that the practice of exclusive dealing means the practice of exclusive dealing referred to in subsection 47 (2), (3), (4), (5), (6), (7), (8) or (9). In this case, DBB's behaviour amounts to an exclusive dealing.

 

Section 47 (7)[41] will be applied  to DBB because they refused to supply their award winning travel publications, if MDB does not agree to purchase 25% of their coffee from 100% Australian owned coffee producers. Section 47 (3)(f)[42] will be applied to DBB because they will only enter into agreements regarding the three options if the retailer agrees, in writing, to only sell DBB travel books to the general public. That is, the retailer must agree to not on-sell any DBB travel books to any other retailers or wholesalers.

However, under section 47 (10), subsection (1) does not apply to the practice of exclusive dealing constituted by a corporation engaging in conduct of a kind referred to in subsection (2), (3), (4) or (5) or paragraph (8)(a) or (b) or (9)(a), (b) or (c) unless:

 

(a) the engaging by the corporation in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or

(b) the engaging by the corporation in that conduct, and the engaging by the  corporation, or by a body corporate related to the corporation, in other conduct of the  same or a similar kind, together have or are likely to have the effect of substantially  lessening competition.

Therefore, the ACCC has an action with respect to the exclusive dealing of DBB.

 


[1] Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247.

[2] The supplier withholding the supply of goods to a second person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the second person: (i) has not agreed not to sell those goods at a price less than a price specified by the supplier; or (ii) has sold, or is likely to sell, goods supplied to him or her, or to be supplied to him or her, by the  second person, at a price less than a price specified by the supplier as the price below which the goods are not to be sold.

[3] For the purposes of subsection (3): (a) where a price is specified by another person on behalf of the supplier, it  shall be deemed to have been specified by the supplier; (b) where the supplier makes it known, in respect of  goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first‑mentioned goods, by the supplier; (c) where a formula is specified by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that formula, that price shall be  deemed to have been specified by the supplier; and (d) where the supplier makes it known, in respect of goods,  that the price below which those goods are not to be sold is a price ascertained by calculation from, or by  reference to, a formula specified by another person in respect of those goods or in respect of goods of a like  description, that price shall be deemed to have been specified, in respect of the first‑mentioned goods, by the supplier.

[4] A reference in any of paragraphs (3)(a) to (e), inclusive, including a reference in negative form,  to the selling  of goods at a price less than a price specified by the supplier shall be construed as   including references to: (a)  the advertising of goods for sale at a price less than a price specified by the supplier as the price below which  the goods are not to be advertised for sale; (b) the displaying of goods for sale at a price less than a price  specified by the supplier as the price  below which the goods are not to be displayed for sale; and (c) the  offering of goods for sale at a price less  than a price specified by the supplier as the price  below which the  goods are not to be offered for sale; and a reference in paragraph (3)(d), (e) or (f) to a price below which the  goods are not to be sold  shall be construed as including a reference to the price below which the goods are not  to be advertised  for sale, to the price below which the goods are not to be displayed for sale and to the price  below which the goods are not to be offered for sale.

[5]  Australian Competition and Consumer Commission v TEAC Australia Pty Ltd [2007] FCA 1859.

[6] Australian Competition and Consumer Commission v Netti Atom Pty Ltd [2007] FCA 1945.

[7] 44ZZRJ  Making a contract etc. containing a cartel provision.  A corporation contravenes this section if: (a)the corporation makes a contract or arrangement, or arrives at an understanding; and (b)the contract, arrangement or understanding contains a cartel provision.

[8] 44ZZRK  Giving effect to a cartel provision. (1)A corporation contravenes this section if: (a) a contract, arrangement or understanding contains a cartel provision; and (b)the corporation gives effect to the cartel provision. (2)Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.

[9] Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (No 8) [1999] FCA 954.

[10] Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR.

[11] Australian Competition and Consumer Commission v Visy Holdings Pty Ltd (No 3) [2007] FCA 1617.

[12] ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794. In this case, Gray J set out the relevant definitions/tests etc of what constitutes a CAU.  This has more recently been discussed in the case of  Norcast S.ÁR.L v Bradken Ltd and Others (No 2) (2013) 302 ALR 486, beginning at paragraph 263. In general, a contract is a legally binding agreement between parties resulting from the acceptance of an offer, supported by consideration and enforceable by law. Refer to section 4H in Competition and Consumer Law 2010 (Cth). An arrangement is some form of consensual dealing between the parties that is less formal than a contract. Gray J stated that a contract may be described as an 'arrangement' if the parties to it intended not to create a legally binding relationship but only to give expression to their intentions as to the obligations that each fell morally bound to adhere to in relation to what was to pass between them, or to be carried out by them. An understanding is some form of consensual dealing between the parties that is even less formal and structured than an arrangement. Gray J stated that like an arrangement, it falls outside the sphere of contractual obligations of a kind normally enforceable in a court.

[13] Exception section are 44ZZRD (6); 44ZZRM;44ZZRV;44ZZRN;44ZZRO-RP;44ZZRV.

[14] In June 2012, the Competition and Consumer Amendment Act (No 1) 2011 (Cth) introduced Div 1A into Pt IV of the CCA, titled ' Anti-competitive disclosure of pricing information'.

[15] Boral Besser Mansonary Ltd v ACCC [1999] FCA 1318, 104.

[16] It means a corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market; preventing the entry of a person into that or any other market or deterring or preventing a person from engaging in competitive conduct in that or any other market.

[17] RP Data Ltd (ACN 087 759 171) v  State of Queensland [2007] FCA 1639.

[18] Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 177, 188.

[19] Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374. Gleeson CJ and Callinan J stated that the essence of market power is the absence of constraint. There are, however, many factors that are relevant to a firm having market power. These include barriers to entry, the absence of competitive constraints and market share.

[20] NT Power Generation P/L Power and Water Authority (2004) 219 CLR 90.

[21] In the explanatory memorandum to the 1986 amendments, it said substantial here means how to it was explained in Dowling v Dalgety Australia Ltd.

[22] Rural Press Ltd v ACCC (2003) 216 CLR 53.

[23] (3C) For the purposes of this section, without limiting the matters to which the court may have regard for the purpose of determining whether a body corporate has a substantial degree of power in a market, a body corporate may have a substantial degree of power in a market even though: (a) the body corporate does not substantially control the market.

[24] Queensland Wire Industries P/L v Broken Hill Propriety Co Ltd (1989) CLR 177. All judges decided that BHP had taken advantage of its market power and all, except Deane J, applied a counterfactual test: Could BHP have acted in this way if it did not have the market power? That is, in a competitive market.

[25] Section 46 (1)(c) in CCA. A corporation that has a substantial degree of power in a market shall not take advantage of that power in that or any other market for the purpose of deterring or preventing a person from engaging in competitive conduct in that or any other market.

[26] Section 45(2) prohibits a person from making (or give effect to) a contract or arrangement or arriving at an understanding if a provision of that contract, arrangement or understanding which contains an exclusionary provision. According to section 45 (2), a corporation shall not: (a) make a contract or arrangement, or arrive at an understanding if: (i) the proposed contract, arrangement or understanding contains an exclusionary provisions; or (b) give effect to a provision of a contract, arrangement or understanding, whether the  contract or arrangement was made, or the understanding was arrives at , before or after the commencement of this section, if that provision: (i) is an exclusionary provision. In this case, section 45(a)(ii) does not apply since the ACCC admit it will not able to prove any conduct in this case, including Agreement 2, has the purpose or likely effect of substantially lessening competition.

[27] 4D  Exclusionary provisions : (1)  A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if: (a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and (b) the provision has the purpose of preventing, restricting or limiting: (i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or (ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions; by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

[28] Please refer to the page 3 to see the definition of CAU.

[29] Exclusionary provisions are those which attempts to exclude a third party in some way. In this case, MPB agrees A) To cease offering, or renting out, all and any of their stores to Bredili Books Australia Pty Ltd for Bredli Book Australia Pty Ltd book launches and book signings between April 2016 to April 2019 (Rental Provision1); and B) To cease purchasing science books from Bredli Books Australia Pty Ltd between April 2016 to April 2019 (Procurement Provision 1).

[30] News Ltd v Australian Rugby Football League Football Ltd (1996) 139 ALR 193.

[31] Tillmanns Butcheries Pty Ltd v Australian Meat Industries Employee's Union (1979) 42 FLR 331.

[32] News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563. The court said that it was a subjective test. Three of the judges said that the purpose can be inferred from the context and circumstance of the case.

[33] Rural press Ltd v ACCC (2002) 193 ALR  399.

[34] Dowling v Dalgety Australia Ltd (1992) 34 FCR 109.

[35] Rural press Ltd v ACCC (2002) 193 ALR  399.

[36] Dandy Power Equipment P/L v Mercury Marine P/L (1982) 44 ALR 173.

[37] Tillmanns Butcheries Pty Ltd v The Australasian Meat Industry Employees Union & Ors (1979) 27 ALR 364 per Deane J.

[38] Competition and Consumer Law 2010 (Cth), Section 76 (1A) and 76 (1B).

[39] Section 47 overlaps section 45: Refer to the section 45 (6).

[40] Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13.

[41] 47 (7) A corporation also engages in the practice of exclusive dealing if the corporation refuses: (a) to supply goods or services to a person; (b) to supply goods or services at a particular price to a person; or  (c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person; for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.

[42] 47 (3) (f) has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or  services of a particular kind or description, acquired from the corporation to any person, or  has re‑supplied, or has not agreed not to re‑supply, goods or services, or goods or services of  a particular kind or description, acquired from the corporation: (i)     to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii)in particular places or classes of places or in places other than particular places or classes of places.

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