Air New Zealand v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission

This case involved applications for special leave to appeal to the High Court of Australia by Air New Zealand and PT Garuda Indonesia Ltd against a decision of the Full Court of the Federal Court of Australia. The dispute concerned the definition and geographical location of a market for the purposes of section 4E of the *Trade Practices Act 1974* (Cth), which requires a market to be "in Australia" for the Act to apply. The Australian Competition and Consumer Commission (ACCC) was the respondent.

The primary legal issue before the High Court was whether the Full Court had erred in its approach to defining a market and determining its location. Specifically, the applicants argued that the Full Court had departed from established principles, particularly the centrality of "substitution" or "substitutability" as the defining feature of a market, and had adopted an "arbitrary" criterion for locating a market within Australia. They contended that the Full Court's reasoning, which considered a broader range of factors beyond substitution and included the place of destination for services, was inconsistent with prior High Court authority and created uncertainty regarding market definition.

The applicants' submissions focused on the established understanding that market definition is a process of substitution, where buyers can switch between different goods or services. They argued that the Full Court's characterisation of substitution as an "arbitrary choice of criterion" for determining if a market is in Australia was a significant departure from this orthodoxy, citing *Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd* as foundational. The applicants further contended that the Full Court's reasoning, particularly its consideration of a "suite of services" and the location of marketing and decision-making, was not supported by precedent and risked expanding the scope of Australian competition law in an unintended and unworkable manner. They highlighted the dissenting judgment in the Full Court as embodying the correct, orthodox approach.

The applicants sought special leave to appeal on the grounds that the Full Court's decision raised important questions of law concerning market definition and the geographical scope of Australian competition law, which had not been definitively settled by the High Court. They argued that the case presented an ideal opportunity for the High Court to clarify these principles, particularly in the context of international commerce.