Alphapharm Pty Ltd v H Lundbeck A-s & Anor

The High Court of Australia considered a dispute between Alphapharm Pty Ltd and H. Lundbeck A/S and another party concerning the importation and supply of pharmaceutical products. The core of the dispute involved allegations of contraventions of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)), specifically relating to exclusive dealing and misuse of market power.

The central legal issues before the High Court were whether the conduct of the respondents in entering into agreements with pharmacists constituted exclusive dealing, and whether this conduct, or other aspects of their market behaviour, amounted to a misuse of market power. The Court was required to interpret the relevant provisions of the *Trade Practices Act 1974* concerning exclusive dealing and the prohibition against misuse of market power, and to determine whether the facts established breaches of these provisions.

The High Court, in its joint judgment, analysed the nature of the agreements between the respondents and pharmacists. It found that the agreements did not, on their proper construction, impose conditions that prevented the pharmacists from acquiring goods from Alphapharm or dealing with competitors of the respondents. Consequently, the Court held that the conduct did not amount to exclusive dealing under the Act. Furthermore, the Court found no evidence to support the claim of misuse of market power, concluding that the respondents' actions were not such as to substantially lessen competition in the relevant market. The appeal was therefore dismissed.