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Arnotts Limited v Trade Practices Commission

Arnotts Limited v Trade Practices Commission

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Case Copied 29 November 1990 73 min read

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C A T C H W O R D S

TRADE. PRACTICES - Merger provisions - Acquisition by one biscuit manufacturer of business of a competitor - Whether the acquirer would be, or be likely to be, in a position to dominate a particular market; or, if the acquirer was already in that position, whether the acquisition would, or would be likely to, substantially strengthen its market power - Definition of the product market - Whether wider than biscuits

- Whether there are separate markets for different types of

biscuits - Substitutability - Whether Arnotts dominates Australian biscuit market - Criteria for determination of dominance - Whether acquisition would substantially strengthen Arnotts' position in the market.

EVIDENCE - Expert evidence - Nature of admissible evidence - Necessity to call expert evidence - Evidence of perceptions of facts - Reliance to be placed on statements in documents by

market research material.

unidentified authors - Admissibility and significance of of unnecessary evidence - Application to call fresh evidence on appeal.

Trade Practices Act 1974, ss.4, 4E, 50

Federal Court of Australia Act 1976, ss.27, 50

Evidence Act 1905, Part IIIA

Judiciarv Act 1903, s.79

Federal Court Rules 0.33,52

Arnotts Limited/Arnotts Biscuits Limited/~leds~ac

Limited/~he

D i c k e n s

C o r p o r a t i o n

P t v L i m i t e d v

T r a d e

P r a c t i c e s

C o m m i s s i o n

NO.

6 7 7 / 6 7 8 / 6 7 9 / 6 8 0

1 9 9 0

Arnotts

L i m i t e d / A r n o t t s

B i s c u i t s

L i m i t e d / F l e d s p a c

L i m i t e d / T h e

D i c k e n s

C o r p o r a t i o n

P t v L i m i t e d

T r a d e

P r a c t i c e s

C o m m i s s i o n

LOCKHART, WILCOX AND GUMMOW JJ

SYDNEY

29 NOVEMBER

1 9 9 0

IN THE FEDERAL COURT OF AUSTRALIA

) 1

NEW SOUTH WALES DISTRICT REGISTRY

) No. ~77/G78/~79/

)	G80 of 1990

)

GENERAL DIVISION

ON APPEAL FROM A JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:

ARNOTTS LIMITED

First Appellant

ARNOTTS BISCUITS LIMITED

Second Appellant

FLEDSPAC LIMITED

Third Appellant

THE DICKENS CORPORATION

PTY. LIMITED

Fourth Appellant

AND:	TRADE PRACTICES COMMISSION

Respondent

COURT :	Lockhart, Wilcox and Gummow JJ.
DATE :	29 November 1990
PLACE :	Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The appeals be dismissed.

Note :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE…

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

Case: [1990] FCA 847
Decision Date: 29 Nov 1990

CaseChat Overview and Summary

This case involved an appeal against the decision of Beaumont J, who found that the acquisition by Arnotts of the biscuit business conducted by Nabisco would contravene s.50 of the Trade Practices Act 1974. The appellants argued that the relevant market was not the Australian biscuit market, that Arnotts did not dominate that market, and that the acquisition would not substantially strengthen its market power. They also challenged several evidentiary rulings made by the trial Judge. The court found that the definition of the relevant market adopted by the trial Judge was correct, and that Arnotts was in a position to dominate the market. The court also found that the acquisition by Arnotts of the shares in Nabisco would substantially strengthen its market power. The court rejected the appellants' complaints about the evidentiary rulings made by the trial Judge, and dismissed the appellants' application to call fresh evidence on appeal. The appeals were ultimately dismissed.

Orders