Boral Besser Masonry Ltd (Now Boral Masonry Ltd) v Australian Competition and Consumer Commission M27/2001

The High Court of Australia considered an appeal by Boral Besser Masonry Ltd (now Boral Masonry Ltd) against a decision of the Full Federal Court concerning alleged contraventions of the *Trade Practices Act 1974* (Cth) (the Act). The Australian Competition and Consumer Commission (ACCC) had alleged that Boral Besser Masonry engaged in anti-competitive conduct by entering into exclusive dealing arrangements with its customers, thereby substantially lessening competition in the relevant market.

The primary legal issues before the High Court were whether Boral Besser Masonry had engaged in conduct that contravened section 47 of the Act, specifically concerning the supply of masonry products on the condition that the customer would not acquire goods of a like kind from a competitor, or would acquire them only from Boral Besser Masonry. The court also had to consider whether such conduct had the purpose or effect of substantially lessening competition in a market.

McHugh and Gummow JJ, in their joint judgment, focused on the interpretation of section 47 of the Act and the assessment of whether the alleged conduct had the purpose or effect of substantially lessening competition. Their Honours analysed the nature of the agreements between Boral Besser Masonry and its customers, and the market in which these agreements operated. The court applied established principles of competition law, considering the economic impact of the exclusive dealing arrangements and the degree to which they foreclosed competition.

The High Court allowed the appeal in part, finding that certain of the exclusive dealing arrangements did not contravene section 47 of the Act. However, the court upheld the Full Federal Court's finding that other arrangements did constitute a contravention. The specific orders made by the High Court reflected this partial success for Boral Besser Masonry.