Application for a review of a determination by the Trade Practices Commission dated 30 July 1993 granting authorization in relation to applications A40059, A40060 and A40061 (proposed newsagency distribution system... - [1994] ATPT 1

TRADE PRACTIES TRIBUNAL

JUDGMENT NO. ...I

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TRADE PRACTICES - Victorian Newsagents - review of the Trade Practices Commission authorization of a newsagency distribution system in Victoria - whether the proposed conduct including territorial monopolies of authorized newsagents would substantially lessen competition - whether public benefit outweighs public detriment from the lessening of competition - jurisdiction of the Tribunal under s.88.

I	Trade Practices Act 1974, ss. 45, 88, 90, 101, 102
Q1 of 1993
V3 of 1993 NSWl of 1993
Lockhart J. (President), Professor M Brunt, Dr B I Aldrich 11 November 1994

COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL

Nos. Q1 of 1993

V3 of 1993

NSWl of 1993

APPLICATION FOR A REVIEW OF A DETERMINATION BY THE TRADE PRACTICES COMMISSION DATED 30 JULY 1993 GRANTING AUTHORIZATION IN RELATION TO APPLICATIONS A40059, A40060 AND A40061 (PROPOSED NEWSAGENCY DISTRIBUTION SYSTEM FOR VICTORIA)

LOCKHART J. (President); PROFESSOR M BRUNT and DR B I ALDRICH

(Members

)

11 November 1994

MINUTE OF ORDER

THE TRIBUNAL DETERMINES THAT: the determination of the Trade

Practices Commission dated 30 July 1993 be set aside.

IN THE TRADE PRACTICES TRIBUNAL

Nos. Q1 of 1993

V3 of 1993

NSWl of 1993

APPLICATION FOR A REVIEW OF A DETERMINATION BY THE TRADE PRACTICES COMMISSION DATED 30 JULY

1993 GRANTING Authorization IN RELATION TO - - - - - - -

APPLICATIONS ~40059, A40060, AND A40061 (PROPOSED NEWSAGENCY DISTRIBUTION SYSTEM FOR

LOCKHART J. (President); PROFESSOR M BRUNT and DR B I ALDRICH

(Members

)

11 November 1994

REASONS FOR DECISION

INDEX

INTRODUCTION

GLOSSARY OF TERMS. PARTICIPANTS AND WITNESSES

Terms

Participants before the Tribunal

Witnesses

DETERMINATION AND WHAT THE PARTIES. ONF AND

INTERVENERS SEEK

S	D
STATUTORY TESTS
g
NSW draft determination of 1979 NSW final determination of 1980 The 1982 determination
The 1993 determination
The Australian pattern The scope of the Victorian system Arrangements for governance Publication and primary distribution The operation of the newsagency The newsagency as a viable business Home delivery of newspapers Sub-agents Directions of change in the system Enforcement of newsagency obligations

ANALYSIS OF THE PRESENT SYSTEM

Markets and market power

The horizontal and vertical restrictions

The potential for public benefit from the present

system

Efficiency effects in the present system

Anti-competitive detriment

Inefficiency

Denial of commercial freedom and economic

opportunity

Defensible elements of the system

BENEFIT AND DETRIMENT FROM THE 1993 DETERMINATION

The 1993 determination

Tribunal's assessment

CONCLUSION

1.	INTRODUCTION These are three applications for review under s. 101 of

the Trade Practices Act 1974 (the Act) of a determination of the Trade Practices Commission (the Commission) dated 30 July 1993 (the 1993 determination). The applicants for review are 7-Eleven Stores Pty ~imited (7-Eleven) (V3 of 1993), Australian Association of Conveniences Stores Incorporated (AACS) (NSW1 of 1993) and Queensland Newsagents Federation (QNF) (Q1 of 1993). A fourth application for review of the 1993 determination was made to the Tribunal by Independent Newsagents Association (NSW 2 of 1993); but, on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application for a review of a determination by the Trade Practices Commission dated 30 July 1993 granting authorization in relation to applications A40059, A40060 and A40061 (proposed newsagency distribution system... [1994] ATPT 1
Case: [1994] ATPT 1
Decision Date: 11 Nov 1994

CaseChat Overview and Summary

The Trade Practices Tribunal was called upon to review a determination of the Trade Practices Commission which authorized a newsagency distribution system in Victoria. The applicants for review were 7-Eleven, the Australian Association of Convenience Stores (AACS) and the Queensland Newsagents Federation (QNF). The applicants challenged the system on the basis that it substantially lessened competition and that the benefits to the public did not outweigh the detriment to the public. The applicants sought either to have the determination set aside or for the determination to be varied to remove certain restrictions. The Trade Practices Commission (TPC) and the Newsagency Council of Victoria (NCV) and Victorian Authorized Newsagency Association (VANA) supported the determination. The Tribunal held that the determination should be set aside. The Tribunal found that the system substantially lessened competition, and that the public benefits did not outweigh the detriment to the public. The Tribunal found that the system was inefficient and denied commercial freedom and economic opportunity. The Tribunal found that the proposed changes to the system were unlikely to effect an improvement in terms of net public benefit. The Tribunal found that the proposed changes would have the effect of patching up a system that was ripe for fundamental change.

Orders