Boral Besser Masonry Ltd v Australian Competition and Consumer Commission

The High Court of Australia heard an appeal concerning alleged breaches of section 46 of the *Trade Practices Act 1974* (Cth) by Boral Besser Masonry Limited (BBM). The Australian Competition and Consumer Commission (ACCC) alleged that BBM had misused its substantial degree of market power in the concrete masonry products market. The primary judge had found that BBM engaged in anti-competitive conduct with proscribed purposes, and the Full Court of the Federal Court had upheld this finding, concluding that BBM had breached section 46.

The central legal issues before the High Court were whether BBM possessed a substantial degree of market power in the concrete masonry products market and whether it took advantage of that power for a proscribed purpose, specifically to deter or prevent competition or eliminate a competitor. This involved an analysis of market definition, the substitutability of products, BBM's market share, barriers to entry, and its pricing behaviour, including whether it engaged in predatory pricing to recoup losses and consolidate its market power.

A majority of the High Court allowed the appeal, setting aside the orders of the Full Court. The majority's reasoning, though not fully detailed in the provided text, appears to have concluded that BBM did not possess the requisite degree of market power or did not take advantage of it in the manner proscribed by section 46. In contrast, the dissenting judgment argued that the evidence supported the findings of the Full Court, highlighting BBM's express purpose of deterring entry and eliminating competitors, its reduction of market players, and its consolidation of market power through short-term pricing sacrifices for long-term economic gain, which it considered precisely the type of conduct section 46 forbids.

The High Court allowed the appeal with costs and set aside the orders of the Full Court of the Federal Court, dismissing the ACCC's appeal to that Court with costs.