Australian Competition and Consumer Commission v Apco Service Stations Pty Ltd

[2006] HCATrans 272

[2006] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M116 of 2005

B e t w e e n -

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

and

APCO SERVICE STATIONS PTY LTD

First Respondent

PETER JOSEPH ANDERSON

Second Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 JUNE 2006, AT 12.14 PM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   If the Court pleases, I appear with my learned friend, MS E.A. STRONG, SC, for the applicant.  (instructed by Australian Government Solicitor)

MR A.J. SULLIVAN, QC:   May it please the Court, I appear with my learned friend, MR S.G. O’BRYAN, for the respondents.  (instructed by Alan Williamson)

GLEESON CJ:   Yes, Mr Burnside.

MR BURNSIDE:   If the Court pleases, this application raises a short but very important point concerning the meaning of the word “understanding” in section 45 of the Trade Practices Act.  Various Full Court decisions, including the decision below, interpreted the word “understanding” as requiring a commitment, at least a commitment by one, if not both parties, to the alleged understanding.

GLEESON CJ:   I suppose, you first of all have to ask understanding about what.

MR BURNSIDE:   That is true.  The case below was run on the footing that it was an understanding to fix prices or to provide for the fixing of prices.  His Honour found that there was an understanding which provided for the fixing of prices, that is to say an understanding of a mechanism by which prices could be fixed.  His Honour found a meeting of minds on the essential ingredients of the mechanism by which prices could be fixed. 

GLEESON CJ:   The second way of putting it is that you do not use the word “understanding” to mean comprehension, do you?

MR BURNSIDE:   No, a meeting of minds, a synchronicity of thinking on the relevant subject. 

GLEESON CJ:   But when you say an understanding as to a mechanism by which prices could be fixed, that does not mean an awareness or a comprehension of how it could be done?

MR BURNSIDE:   It included an awareness of how it could be done and his Honour so found.  The market is a market in which the product is highly price sensitive.  The Ballarat market was characterised by this feature, that prices would gradually drift downwards over a course of a week or two and then would suddenly jump by a range of 10 or 12 cents to what now seems like a modest price of 70 or 80 cents a litre.  The jump was the result of what his Honour found to be a contravening arrangement between other participants. 

The way the arrangement was implemented was by one party, fed up with low prices, telephoning others and various people in the industry would then contact their most available competitor, advise them in coded language that the prices were going up, and a feature of the market his Honour found was that unless the high volume discount outlets followed the price increase within a relatively short time, approximately two to six hours, then the price increase would collapse because the market would inevitably go to those who had stayed down. 

His Honour found as a fact that the respondent understood the existence of that price‑fixing arrangement, understood that when he was called in Geelong and was told something like, “Go for a drive”, he understood that to mean, “We are trying to implement a co‑ordinated increase in prices”.  He thereupon checked with his own outlets, two of them, in Ballarat to see whether he was being misled or not and he would then determine whether he would increase his prices or not.  He also understood that if he did not increase his prices, then the price increase would likely collapse within a few hours. 

Now, his Honour found as a fact that those circumstances were understood by him and it was understood by his competitors who rang him that his going along with the thing was, generally speaking, crucial to it succeeding.

GLEESON CJ:   Understood in the sense of comprehended?

MR BURNSIDE:   Comprehended, yes.  They knew that it was ‑ ‑ ‑

GLEESON CJ:   There is that ambiguity about the word “understanding”.

MR BURNSIDE:   That is true, but the two, in our submission, overlap on the facts of the case.  If they understand what is going on, that is very close to finding an understanding that that is the way it will work.  In our submission, what the Full Court did and what other Federal Courts have done is to determine in substance that an understanding is no different to an arrangement or with some of the characteristics of an agreement.  The search appears to be for marks of a commitment and there is discussion about whether the commitment needs to be mutual or not. 

Now, if the commitment is mutual, it is difficult to see that that is any different from an agreement.  It is certainly difficult to distinguish that from an arrangement.  In our submission, to equate an understanding and an arrangement is to leave the word “understanding” with no work to do at all.

GLEESON CJ:   I would have thought that the difference between an understanding and an arrangement – agreement, arrangement and understanding are really in descending orders of formality, are they not?

MR BURNSIDE:   We agree with that.

GLEESON CJ:   I do not want to sound incredibly old-fashioned, but you can talk of a young man and a young woman having an understanding.  That is not a reference to their awareness of anything. 

MR BURNSIDE:   That is true and there is a danger of confusing, on the one hand, the legal fact which needs to be established and, on the other hand, the forensic markers of that fact because by its nature an understanding will not be recorded in writing – it would be astonishing if it were, especially prohibited understandings – and so the existence of an understanding is to be found from outward manifestations of it, fairly clearly set out in the passage from Northern Collieries that we include in our written outline. 

If the outward signs are there which demonstrate that two minds are, if I can put it colloquially, on the same wavelength in relation to the relevant subject matter, then, in our submission, that is sufficient to show an understanding, even if it remains the fact that either or both stand ready to not give effect to that understanding on a particular occasion, or not match the other person’s wishes or desires or expectations.

GLEESON CJ:   Mr Burnside, did the evidence show in this case or was there a finding that the practice was that the other people in the market would not move their prices without notifying Apco?

MR BURNSIDE:   No.

GLEESON CJ:   I could understand, for example, an understanding between people in a market that they would do certain things before they put up their prices.

MR BURNSIDE:   In some markets that may be a necessary ingredient of an understanding that could or would have the prohibited effect.  In this market, the reason for the chain of correspondence by phone between the parties was the nature of the market itself.  This was a market where, if you increased even by 1 or 2 cents, your customers will drive straight past to the next outlet whose price they could see prominently displayed.  So there would be no point in this to telephone and say, “Well, we need to do this, let us do it and let us do it at such‑and‑such a time”, although there was evidence that on occasions they did say to each other, “We are going to such‑and‑such a price at such‑and‑such a time”. 

The evidence did not show that Mr Anderson, of the respondent, was ever told a specific time or a specific price.  The evidence was that he was relatively difficult to deal with, but his Honour found that when Mr Anderson received the calls which he did receive he knew why they were being made, he knew what the coded message meant and he acted on it knowing that he could then make up his own mind whether or not to join in the general price increase or stand back from it.  He gave evidence that, of course, it was in his interest to follow the price increase because it is much better for his margin and by matching the others he will not lose volume, but he gave evidence that he would wait until the Indians got restless before moving his prices, that meaning he knew that his competitors would not hold out for terribly long before coming back.

GLEESON CJ:   I am not sure whether this is for you or against you, but as a matter of common sense his competitors would let him know in advance what they were doing in the hope that he would see it as in his business interests to follow them, but their motive for letting him know is fairly obvious.

MR BURNSIDE:   That is true and he received the information knowing it was part of a collusive arrangement.  There are other ways of knowing what the prices are.  The evidence was that people in the industry tended to drive around the streets of Ballarat fairly often checking other people’s board prices, and there is no secret about what the board prices are from time to time.  But the reason for the collusive arrangement was that the time it would take to drive around and check everyone’s prices was greater than the time that was necessary for everyone to go up before the increase itself would collapse.  So the only explanation for this collusive arrangement which he understood was that his quick falling into step was necessary if the price increase was going to work at all. 

GLEESON CJ:   In order for him to comply with the Act, what should he have done differently from what he did?

MR BURNSIDE:   He should have made it clear he did not wish to receive collusive information about prices.

GLEESON CJ:   “I don’t want to hear that”?

MR BURNSIDE:   Something like that.  His knowledge that was part of a collusive arrangement is an important element of his Honour’s findings about the meeting of minds.

HAYNE J:   Take it back to the Act, what was it said that he had done or his company had done?  He had arrived at an understanding, had he?

MR BURNSIDE:   At an understanding, yes.

HAYNE J:   The statutory words are important, are they not?  Which statutory words did you depend on?

MR BURNSIDE:   An understanding which provided for the fixing of prices.  The provision for the fixing of prices was, “When we are going up, we will let you know quickly” ‑ ‑ ‑

HAYNE J:   Slowly, Mr Burnside.  Section 45A deems some things to be the consequence, namely, deemed substantial lessening of competition, true?

MR BURNSIDE:   Yes.

HAYNE J:   But we are in 45(2) territory, are we not?

MR BURNSIDE:   Yes, we are. 

HAYNE J:   What is it he was or the company was said to have done that constituted the contravention?

MR BURNSIDE:   In the language of 45(2)?

HAYNE J:   Yes.

MR BURNSIDE:   He arrived at an understanding, a provision of which had the purpose or be likely to have the effect of substantially lessening competition by virtue of providing for the fixing of prices.

GLEESON CJ:   What was the provision?

MR BURNSIDE:   The providing for the fixing of prices was the mechanism by which speedy information would be fed to him, he knowing that it was part of a collusive arrangement between the initiating participants, and he would then check immediately, rather than waiting until the lunchtime check or the end of day check, to see what in fact the prices were in Ballarat and would then determine to increase his prices to match that increase that he had observed having been alerted to it.

HAYNE J:   Is the understanding an understanding about provision of information?  Is the understanding about provision of information plus subsequent conduct?  What is the understanding that was alleged?

MR BURNSIDE:   It is an understanding concerning provision of information and subsequent conduct, although the provision of information rather carries with it the inference of following conduct.  The information is price increase is happening right now, the background knowledge of all is that the price increase has to be matched quickly if it is going to work at all, and the following conduct is for him to make up his mind about whether or not to support that price increase and the steps involved in that. 

HAYNE J:   There seems to be a conflation of several ideas apparently reflecting the argument advanced in the Full Court that the Full Court deals with at page 218 of the application book in paragraphs 43 and 44.  It rather seems to reflect the course that argument took that at the start of what is paragraph 44, line 35:

These findings lead to the unavoidable conclusion that Apco was not a party to any understanding that it would fix –

and the findings that are said to lead to that conclusion are absence of commitment – see lines 20 to 26.  Now, that casts the understanding in a particular way and, as I say, for the moment I assume that the Full Court casts the understanding in that way reflecting the way the Commission put its case.

MR BURNSIDE:   No, with respect, not.  We did not say that a commitment was necessary.  That was the crucial point ‑ ‑ ‑

HAYNE J:   I understand that, but the Commission put its case that the understanding was an understanding about not only information but conduct.

MR BURNSIDE:   Information and conduct, that is right, but the question is ‑ ‑ ‑

HAYNE J:   If you say it is conduct, does not the case then collapse, because there is no understanding about conduct beyond that Apco will consult its own commercial interests?

MR BURNSIDE:   With respect, his Honour’s findings did go further than that.  His Honour’s findings were that there was a consensus about the way the price increases would be implemented and that consensus, albeit not a commitment on the part of Anderson, was set out at paragraph 330 of the trial judgment’s reasons.

HAYNE J:   But do you accept there was no understanding about Apco’s conduct?  Apco would consult its own commercial interests.

MR BURNSIDE:   That is part of it, your Honour, but not all of it, because the understanding as to conduct crucially involves this, that Apco would, on receiving the information, check the other board prices then and there rather than waiting until the next time the commission agents would go out on the road to check board prices.  Timing was crucial in this market.  The evidence was that the commission agents would go out, they would look at the boards on their way into work, they would maybe go out in the middle of the day and they would look at the boards as they went home at night, and that would be their source of information.  If they waited for those regular times for checking prices, then an attempted increase may already have failed by the time the message gets back to Mr Anderson about what has happened on the streets. 

So what was a crucial part of the understanding was that Mr Anderson would receive the call that communicated to him in coded form the fact that there was an attempted price increase on foot and he would then make sure his commission agents checked the prevailing prices then and there and report back to him straightaway.

GLEESON CJ:   Does that mean that on your case at least the conduct to which Apco committed itself was to consider the matter of its pricing promptly?

MR BURNSIDE:   Yes, to consider the matter of its pricing by checking promptly on what was actually happening.  It was substantially concerned with activating the matter in a timely way rather than waiting for the regular times at which the commission agents would check prices, and his Honour found that that is what Mr Anderson did and that he understood why he was in effect being prompted to do it.

GLEESON CJ:   I imagine that part of the concept of an agreement or an arrangement or an understanding is that if one of those three things exists, the other party or the other parties to the agreement, arrangement or understanding can complain legitimately – not necessarily legally by an action in a court of law, but have a legitimate complaint if you do not act in a particular way.

MR BURNSIDE:   I understand the way the question is put and the answer is probably yes, and can I say that his Honour did find that Mr Anderson did complain at times that other board prices had not increased after he received the call telling him to go for a drive.

GLEESON CJ:   But what is it that Mr Anderson might have done or failed to have done that could have caused reason for complaint in the other parties to this understanding?

MR BURNSIDE:   If he did not go out and check the prices and simply let the attempted increase collapse, then he would very likely have received a great deal of complaining from the other participants, because if he had done that, the prices could not rise, and if he had done that consistently, then prices presumably would stabilise at an economically efficient and sustainable level.

HAYNE J:   Does it come then to this, that inquiries about commitment turn in critically important respects upon the content of what is said to be the understanding?

MR BURNSIDE:   No, your Honour, we would not agree with that.  The commitment really is the level to which a person feels bound to give effect to the understanding, arrangement or agreement, and we can understand that in some circumstances only commitment will give you an indication that there has been the requisite meeting of minds.  But, in our submission, if there is a consensus of views between the relevant participants of how things will work, then if how things will work is a contravention, that will satisfy the section.  In our submission, special leave should be granted.  It is an important question.

GLEESON CJ:   Thank you, Mr Burnside.  We will adjourn until 2.00 pm.

AT 12.36 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.58 PM:

GLEESON CJ:   Yes, Mr Sullivan.

MR SULLIVAN:   Your Honours, in our respectful submission, this is a case where special leave is not warranted because of the correctness of the decision below and also because it is not a proper vehicle for matters that I will explain in one moment.  First, may we say that we adopt what fell from your Honour the Chief Justice in discussion about what “understanding” means by reference to the example of the young man and woman. 

The Act only reads sensibly if the word “understanding” has involved in it the concept of some sort of moral commitment.  That is the way the Full Federal Court and the Federal Court at first instance has consistently interpreted the provision for the past 35 years and how, of course, businesses and corporations have ordered their affairs in that time.  Moreover, it is the way this case was conducted. 

Now, my learned friend was right to say that the ACCC did not ever assert that there had to be a commitment to price fixing as such, but the ACCC did assert and did concede before the Full Court that there had to be a commitment at least to what they termed the price fixing mechanism or process.  On the facts of this case, even as found by his Honour the trial judge, there was no such commitment. 

His Honour the trial judge was at pains to differentiate the situation of what he called the initiating respondents, those who made the calls, and those such as my client who were called participating respondents.  He found in respect of three aspects of the initiating respondents’ conduct set out in paragraph 330 of his judgment that they did have a commitment to that process.  When he came to deal with my client, Apco, he deliberately eschewed any finding of commitment but rather found in terms of an expectation which was generated, which, in our respectful submission, was a factual expectation, in other words, what is a likely result of something happening from a commercial point of view.

The situation on the evidence before his Honour and before the Full Court and which is unchallenged here, when one looks at the ingredients of the so‑called price fixing mechanism as such, was that on the 69 price‑fixing days which the ACCC focused upon, on no fewer than 10, and probably 17, of those these calls were not even made to Apco.  How can one say rhetorically in that circumstance there was any commitment on the part of the initiating respondents to make the calls to Apco. 

Further, the unchallenged evidence was – and this is set out in the Full Court’s judgment at paragraphs 27 and 28 of AB 211 – the trial judge’s findings were supported and concurrently held by the Full Court – was that Apco and Anderson were not told of future increases; they were only told when the prices had in fact started to move.  Next, as I said, the evidence was that even on those occasions when the prices had started to move it was not on every occasion my clients were contacted.  Further, even when they were contacted, the manner of their contact clearly contraindicated any sort of obligation to contact them or commitment to contact them because it was done in a secret or furtive manner.  Two trusted individuals, friends of Mr Anderson who had other reason to ring him on a daily basis, would ring him from time to time and in the course of those normal conversations slip in a reference to price fixing.

GLEESON CJ:   “The red fox is running tonight”.

MR SULLIVAN:   Well, what my learned friend says is code is not code.  It is a jargon, a jargon which is used on a daily basis, the evidence shows, in the service station industry:  “Go for a drive”.  That is what they all did every day of the week:  go for a drive around the other service stations to see what the price boards said.  It is a service station jargon, just as we as lawyers often use a shorthand jargon to say something.  It was not some sort of furtive code.

Next, of course, even when those messages were received, what then was the commitment that Mr Anderson made?  None.  What the trial judge found is that there was an expectation on those who had contacted him – Messrs Bentley and Carmichael – that he would take on board that information and check it out.  But that fell well short – and, with great respect, of course one can see that is a factual expectation, something a commercial businessman in his own commercial interests would be keen to do, to check out and see whether prices had moved, because it was in his interest in certain circumstances to follow that.  But the evidence shows that on not one occasion of course was there any complaint which would be the other side of an obligation when my client, Mr Anderson, or Apco did not move.  The evidence shows of course that only on 29 of 69 occasions in fact my client moved its prices on days which are said to be the ACCC’s price‑fixing days.

HAYNE J:   Now, these are submissions that deal with the existence of an overall arrangement or understanding.

MR SULLIVAN:   Yes, they are, your Honour.

HAYNE J:   What became of the alternative case recorded at page 33 of the application book, namely that there was a separate understanding on each separate occasion?

MR SULLIVAN:   Your Honour, that claim was dismissed by the trial judge.  It was raised ‑ ‑ ‑

HAYNE J:   And was it revived in the Full Court?

MR SULLIVAN:   Your Honour, it was revived in the Full Court – and I say this without any disrespect to my learned friend – merely by stating in five lines, “Well, as an alternative we say that we should look at this individually on the 29 days rather than 69 days without any further elaboration”.  With great respect, the Full Court dealt with that in appropriately brief terms, given the nature of the submissions which were made, in paragraph 56 on page 221 of the application book in a way which was, in our respectful submission, consistent with what the trial judge did.  It was “unreal and artificial” when the ACCC’s case was, “This was an overall scheme and that we want to rely upon the fact that it occurred on other days to say that it occurred on a particular day”.  It was a type of similar facts type approach that ‑ ‑ ‑

HAYNE J:   Well, leaving aside then the, as it were, individual occasion argument, was the case against you that recorded at page 28, which is the arrangements as at June 1999, varied apparently to some extent as recorded at 32?

MR SULLIVAN:   Yes, your Honour, that was the case at the Full Court level against us.

HAYNE J:   In particular, page 28, bullet point one, line 25, “could telephone”; bullet point two, line 39, on receiving in order to implement, and then could complain.

MR SULLIVAN:   Yes, your Honour, and on the evidence that case of course simply was not made out against us.  We were not a party to any arrangement that they would telephone or they were committed to telephone us, on the evidence on either side.  We were not a party to any arrangement that we would implement the price rise, on the evidence.  What happened was, as both the trial judge found and the Full Court found and as your Honours discussed already, that if it suited our commercial interests, we would move.

Now, my learned friend also said in that context to try to give some content to his submission that there was some form of commitment on our part that we did complain when there was a not moving up of prices but, with respect, that does not do justice to the findings or the evidence.  The Full Court deals with this matter and sets the evidence out in its judgment at application book page 211 at paragraph 26, and this is as high as the evidence got.  Mr Carmichael gave evidence at about line 13 that Mr Carmichael’s employer always said:

“Ian, can you ring Anderson, Ballarat is moving to X cents at Y o’clock”.  However, according to Carmichael, he would make calls to Anderson along the following lines “We have moved in Ballarat, what are you going to do?” or “The market has moved in Ballarat, what are you going to do?” and Anderson would say “I will look at it”.  He also made follow‑up calls to Anderson along the lines “You haven’t moved yet Peter, what are you going to do?” to which Anderson replied “I will look at it”.  Sometimes Anderson added “Anyway Shell (or Swift or Bentley) has not moved yet”.

So, in other words, Mr Anderson was giving a reason for why he was not doing anything at that time.  That was because, of course, on the majority of

times he did not move.  He was just trying to answer the question without saying that he was going to move or intending to move, but there was not being any complaint being made, as my learned friend would put it, that others had not moved.  All he was doing was an explanation why he was not going to join the price increase unless others were moving as well.  That was not going to be because he had an arrangement, because his commercial interests would only be suited if there was to be a price rise which was fixed.  That was not evidence in any shape or form of a commitment by Mr Anderson or Apco to any process. 

So, in our respectful submission, not only is there the requisite need for a commitment to be found in the sense which is explained by the authorities in a challenge sense, but also then, of course, one has to delve into the facts on all of these matters to determine whether those facts amount to that form of commitment.  Further, of course – and my learned friend did not address this but, in our respectful submission, it is correct – the Full Court was correct in saying that the commitment has to be, when one looks at the object and purposes of section 45(2) and also section 45A, either to fixing prices or increasing prices or at least to be means to an end to the process by which prices would be fixed.

HAYNE J:   Well, that casts the argument at a level of generality which may represent the greatest danger you have because if points of generality of that kind are decided in this case, that may be a matter of some importance, but if a particular understanding was alleged and disposed of in a particular way generating no point of general application, other considerations intrude.

MR SULLIVAN:   Yes.  Your Honour, there was a particular understanding which was dealt with and decided upon.  To the extent there was a general issue raised, as my learned friend says, in our respectful submission, it is not decisive for the very reason your Honour has raised and therefore this is not a proper vehicle for an appeal to be brought from these particular facts.  Unless your Honours have any further questions, that is all I wish to say.

GLEESON CJ:   Thank you, Mr Sullivan.  Yes, Mr Burnside.

MR BURNSIDE:   Your Honours, several observations have been made to the effect that there were no complaints by Mr Anderson.  That is contradicted by the findings of the trial judge.  If I could take the Court briefly to paragraph 340 of his reasons, when his Honour turned to look at the evidence tendered on the Ahern basis, at paragraph 340 he identified evidence given by one of the other participants, Mr Levick:

Palmer told Levick that Apco was “whinging” about particular sites that had not yet gone up.

At the second‑last bullet point on page 142:

On occasion, Palmer would tell Levick that, “Anderson won’t move until the road pantries go.”

And at paragraph 341 his Honour held that those statements were admissible against him.  At paragraph 346 he noted that:

on some occasions Anderson complained about some sites that had not increased their prices –

In our submission, your Honours, the simple fact of the matter is that the trial judge found that Mr Anderson understood his role in the overall price‑fixing scheme which had otherwise been proved.  He did complain if other people had not gone up.  He, himself, was the subject of reminder calls if he did not go up after he had been prompted by an earlier call.  Accordingly, it is not accurate to say that the case is put at its highest in paragraph 26 of the Full Court’s reasons, as our learned friends have suggested.

Your Honours, this is a case where the evidence against Mr Anderson was not just evidence to be inferred by observed conduct but evidence of things that he had said and evidence from himself about what he understood was going on and, in our submission, whilst his Honour did not find that Mr Anderson was committed to the idea of the larger price‑fixing arrangement, he nevertheless knew what it was and gave effect to it because he understood his role in it and, in our submission ‑ ‑ ‑

GLEESON CJ:   That seems to use the word “understand” in the meaning of comprehend.

MR BURNSIDE:   That is so.  In our submission, it is sufficient for the purpose of section 45 if he comprehends not only the other parties’ conduct but also how his own conduct is relevant to their conduct and understands that the combined conduct will have the effect either of fixing prices or providing for a way in which prices will be fixed.

HAYNE J:   Do you accept that the understanding that the Commission set out to establish included page 28 of the application book, the second‑last bullet point, namely, “any corporate respondent receiving such a call would telephone or contact the sites . . . in order to implement a similar board price increase at about the same time”?

MR BURNSIDE:   That was the existing arrangement which was modified somewhat, as set out at paragraph 330.

HAYNE J:   Yes, but was that an element of the ultimate understanding upon which you relied?

MR BURNSIDE:   Yes, it is, but can I say, your Honour, that it would be consistent with that understanding and it would fit section 45A even if Mr Anderson did not decide to put up his prices each time, because the point of the exercise was to at least enable some of them to put up their prices, which unquestionably they did.  But, yes, we accept that the arrangement or understanding in which he participated included that element, but, in our submission, his Honour the trial judge found facts which included that element.  Those facts were not challenged. 

The real question was:  if there is no commitment, whatever the word is intended to mean, can there be an understanding?  If there is no understanding, your Honours, then section 45 begins to look like a very weak provision, absent some plain indication that the parties have agreed to act in a particular way for a particular purpose.  In our submission, your Honours, this is an appropriate case for special leave.

GLEESON CJ:   Thank you, Mr Burnside.

The decision of the Full Court of the Federal Court turned not upon any controversial view of the meaning of the relevant provisions of the Trade Practices Act but upon the Full Court’s view of the facts in the light of the case as pleaded and argued by the Commission.  In the light of the facts as found, the case does not raise any issue of law suitable to a grant of special leave to appeal.  The application is dismissed with costs.

AT 2.18 PM THE MATTER WAS CONCLUDED