Contender 1 Ltd v Lep International Pty Ltd

Contender 1 Ltd (the applicant) sought leave to appeal to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned the interpretation and application of section 45D of the *Trade Practices Act 1974* (Cth) (now section 45DB of the *Competition and Consumer Act 2010* (Cth)), which prohibits secondary boycotts. The applicant alleged that the respondent, Lep International Pty Ltd, had engaged in conduct that constituted a secondary boycott by inducing or encouraging persons to refuse to do business with the applicant. The Full Federal Court had overturned a decision of a single judge, finding that the respondent's conduct did not fall within the scope of section 45D.

The central legal issue before the High Court was whether the respondent's actions, which involved communicating with third parties about their business dealings with the applicant, constituted the necessary "unreasonable obstruction" or "hindrance" to trade or commerce for the purposes of section 45D. Specifically, the court had to determine if the respondent's conduct, in urging third parties to cease or reduce their business with the applicant, was capable of being characterised as conduct that would have the purpose or effect of preventing or hindering the applicant from carrying on its business.

The High Court, in a joint judgment, held that the conduct of the respondent did not satisfy the requirements of section 45D. Their Honours reasoned that while the respondent had communicated with third parties, this communication did not, in itself, constitute an "unreasonable obstruction" or "hindrance" to trade or commerce. The court emphasised that section 45D requires more than mere persuasion or communication; it necessitates conduct that actively prevents or hinders the carrying on of a business. The communication by the respondent, while intended to discourage business with the applicant, did not amount to the level of obstruction contemplated by the legislation.

Leave to appeal was granted, but the appeal was dismissed. The High Court affirmed the decision of the Full Federal Court, finding that the respondent's conduct did not contravene section 45D of the *Trade Practices Act 1974* (Cth).