Eastern Express Pty Limited v General Newspapers Pty Limited

[1992] HCATrans 368

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S58 of 1992

B e t w e e n -

EASTERN EXPRESS PTY LIMITED

Applicant

and

GENERAL NEWSPAPERS PTY LIMITED,

DOUBLE BAY NEWSPAPERS PTY

LIMITED, BREHMER FAIRFAX PTY
LIMITED, JOHN B. FAIRFAX,
JOHN HANNAN. FRANK HANNAN and

NICKELBY PTY LIMITED

Respondents

Application for special leave

to appeal

BRENNAN J
DAWSON J

McHUGH J

Eastern 1 11/12/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1992, AT 10.06 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR J.S. HILTON for the

applicant. (instructed by Solomon Partners)

MR R.J. ELLICOTT, QC:  Your Honour, I appear with

MR D.M. YATES	for the respondents. (instructed by
Phillips Fox)

BRENNAN J:	Mr Jackson.
MR JACKSON:	Your Honours, may I hand to the Court a copy of

an outline of submissions. The relevant issues,

Your Honours, appear in the last two paragraphs.

BRENNAN J: Yes, Mr Jackson?

MR JACKSON:  Your Honours, as is apparent from the outline

of submissions, two issues arise in relation to the

application for special leave. The first concerns

the test to be applied under section 46(1), and the

second concerns the approach taken by the

Full Court in the present case in relation to that

issue, and the consequences of the court's view.

Your Honours, section 46 is set out at page 33

of the application book, and may I take

Your Honours to it for just a moment.

Your Honours, as is apparent from the opening

words of section 46(1), the terms of the provision
require a consideration of the question whether the

corporation has, to use the words in the section,

"a substantial degree of power" in a market. If it

does, it may not take advantage of that power for
one of the three purposes listed in paragraphs (a),

(b) and (c). Now, Your Honours will see that

paragraphs (a), (b) and (c) deal with different

aspects of competition, and may I ask Your Honours

to note particularly, that whereas paragraph (b) is

concerned with preventing entry into markets,

paragraph (a) is concerned with the use of market
power for eliminating or substantially damaging

competitors within markets, and it was (a), rather

than (b) with which the case was concerned.

Your Honours, that that is so may be seen from

the reasons for judgment of the primary judge at

page 43, line 19 through to page 44, line 1. I

wonder if I might take Your Honours to that for a

moment.

At page 43 in the last paragraph on the page,

Your Honours will see that he says the real issue:

Eastern 2 11/12/92

is whether ESN has taken advantage of its

market power for one of the purposes -

And then at line 21:

And that issue comes down to para (a);

whatever its hopes may have been, ESN did not
succeed in preventing the entry of "Eastern

Express" into the market (para (b) and the

applicant does not suggest -

et cetera. Your Honours will see what the case is

about in the last three lines on that page and at

the top line on the next page. So it was a case

relating to paragraph (a) in circumstances where

the applicant and the respondent were in the

market, the applicant having entered the market.

BRENNAN J:  So you are talking about the period after

February 1990?

MR JACKSON:  Yes. That is what His Honour is talking about,

and he was correct in saying that is the real issue

in the case whatever might have been the other

issues.

Your Honour, may I just add one, not

qualification, but observation if I may, in

relation to that. That does not mean, of course,

that evidence relating to conduct before that date

might not be germane to a resolution of a question

of matters happening after that date, but it is

evidence rather than the issue.

BRENNAN J: But it does mean this, does it not, that you

must accept the burden of showing that as from

February 1990, the respondent enjoyed substantial market power?

MR JACKSON:  Indeed, Your Honour, and that is what the

primary judge found, and that is what I am about to

come to next.

Now, Your Honours, in that context, the first

question which arose was whether, in the market in

which they had become competitors, the respondents

had a substantial degree of power. And,

Your Honours, the primary judge held that in that

market the respondents had had earlier a

substantial degree of power and retained it.

Your Honours, may I take Your Honours to the

findings in that regard? They commence relevantly

at page 38, and at lines 19 to 20 where - and

Your Honours, this a prefatory matter leading to

the relevant conclusion - His Honours says:

Eastern 11/12/92
There is no doubt that before the advent

of "Eastern Express", ESN had a high degree of

market power.

And then he discusses his reasons for that. He

then goes on to say on the next page, commencing at

line 10, in a passage which goes through to the

next page, line 7 - he describes the nature of the

power before February 1990, and Your Honours will

note, if I might invite Your Honours to, that

between lines 15 to 20 he says that the factors,

which he specifies, and Your Honours will see the

references to vertical-integration:

constituted formidable barriers to entry, the

presence of which are a key component of

market power:

He then discusses in the second half of that

paragraph on page 39, that is from about lines 17

onwards, discusses the extent to which the agents

had their presence and their ability to start up

another paper, was an aspect of the power in the

market, and Your Honours will then see at the

bottom of page 39, line 25 and then going to the

top of the next page, he says that:

Even today ..... given the advantages of -

the matters he specifies:

ESN has a degree of market power, however the

relevant market be defined.

And then he poses the question, "Is it

substantial?" and he answers that question,

Your Honours, at page 43 lines 7 to 17 where he makes a finding - and Your Honours, there was a lot

of evidence about this topic - that "ESN retained

substantial market power" and, Your Honours, that

was the finding which he made in our favour.

Now, His Honour then proceeded to hold that we

had failed on the question whether that power had

been used in the market for the purpose specified

in section 46(l)(a) and, Your Honours, may I
indicate where His Honour's findings in that regard

may be found? They are page 61 lines 9 to 11

where, speaking of predatory pricing, he says:

If they make one thing clear -

that is American principles

it is that a charge of predatory pricing must

be related to the costs incurred by the price

cutter.

Eastern 11/12/92

Then on the same page, Your Honours, lines 18 to

the bottom of the page, Your Honours will see the

allegations that were made, and Your Honours will

see - I only want to take a moment on this -

that he refers to the allegations as being (a)"to prices less than the cost", paragraph (b) "prices

equivalent to the cost", paragraph (c) "price which

returns to them less profits" in effect.

Then His Honour says on the next page,

page 62, lines 8 to 11, that:

reading the paragraph as a reference to

display advertisements only, the evidence

clearly establishes ..... sub-para (c) -

which is the paragraph on the bottom of the

preceding page.

And finally, Your Honours, at page 69,

lines 16 to 21, he expresses the view that, if I

could paraphrase it, although it had been

established that they were selling at a price

which, of course, resulted in diminution of profit,

because it had not been established that there was

a sale at a price below or at cost, that we failed,

in effect.

Now, Your Honours, that was an issue. The

matters to which I have just been referring were

matters which were, of course, in issue in the Full

Court. But, Your Honours, in the Full Court, the

basis on which the matter was decided was not by a

final determination of the issues on which we
failed before the primary judge. What happened was

that the members of that court treated the primary

judge as having omitted consideration of one aspect

which was regarded by them as critical to the

question of the degree of market power, so that we

failed on an issue anterior to the issue on which

we failed before the primary judge.

Now, Your Honours, the aspect which the

members of the Full Court treated as being critical

was the ability of the real estate agents in the

eastern suburbs to combine to form a rival

newspaper to the Wentworth Courier. And,

Your Honours, if I could just say one thing about

that. It is apparent, of course, that it is a

matter to which the primary judge had given some

attention, because Your Honours will recall in a

passage to which I referred earlier at page 39, the second half of page 39 and the top of page 40, that His Honour had taken into account in determining

the market power of Wentworth Courier the fact

that, as Your Honours will see at line 18, for

example, on page 39:

Eastern 11/12/92

It is significant that ..... Mr Solomon and

Mr Spira -

et cetera. So, it was not a matter His Honour had

not taken into account. I think, Your Honours, if

I could come to the Full Court.

The Full Court appears to have held that the

ability of the agents to enter into the market of a

competing vehicle for advertisements was a feature

which demonstrated a lack of relevant market power

on the part of the respondent in circumstances once

the applicant had entered the market.

Your Honours, I suspect I am not putting it

entirely clearly. What I am endeavouring to say is

this: what the Full Court treated as being

significant was the power of the agents to combine,

in effect, to enter the market.

DAWSON J; What is the point of time at which you look at

market power? After the new newspaper has entered

the market or before, or both as the trial judge seems to think?

MR JACKSON:	Your Honour, the situation, we would say, is that the issue which had to be decided was what the
market power was at the relevant time. Now, what
the relevant time means, one has to look to see
what the conduct is, and if the conduct relied on
is conduct which is being engaged in at a time when
the market, or the participants in the market,
consist of not one but two, one has to look at it
as at that time. That is the point I am seeking to
make.

Now, Your Honours, undoubtedly, evidence

relating to the nature of the market, to the power

of a single participant, the power prior to the

entry of another person into it is a matter which

is germane to the resolution of the ultimate

question, but it is not decisive of the matter.

The point that I was seeking to make about it,

Your Honours, is this, that in dealing with the

approach to the question of power, what the

Full Court seemed to have done is really two

things: one is to have treated, not merely as

irrelevant, but rather as a dominant consideration,

the question whether there were any barriers to

entry. Having treated that as the dominant

consideration, what the Full Court then did was to

say, "Well, there was no relevant barrier to entry

and therefore no substantial degree of market

power, because, look at the agents, the agents

could and did enter into the market."

Well, Your Honours, what we would say is in relation to the second of those aspects, even if

Eastern 6 11/12/92

one assumes the first, that is really looking at it

at the wrong time. One is looking at a market -

one should have been looking at it in terms of a

market in which there had been the entry and one

had to look at the degree of market power, as the

primary judge did, in those circumstances.

DAWSON J: In other words, the rival newspaper had not

finished the process of entering the market, as it

were, it was an ongoing process, and you look at
the whole picture because the retaliatory action

was part of the process of entering the market, as

it were?

MR JACKSON:	Yes, Your Honour, and the situation one had, of course, was that we could not establish - our side
I should say, did not and I suppose, in the event,
could not establish that there was conduct of the
kind referred to in 46(l)(b) because it has not, in
fact, prevented, and the judge was not satisfied of the matters necessary to establish that. But,
what he was then looking at was a situation where
there was a market which we had entered and, no
doubt, there were participants. There were two
participants in the market.  The question was (a),
whether they had the requisite degree of power? If they did, were they exercising it for a proscribed purpose. Your Honours, in relation to the first of those matters, we would submit that the court went
wrong.

DAWSON J: Entry into the market is one thing; sustaining

that entry is another.

MR JACKSON:  Indeed, Your Honour. Yes, and section 46 is

directed to allowing there to be competition, of

course, but competition in a market which has

standards imposed upon it by the legislature.

Now, Your Honours, the discussion by the Full Court commences at page 143 at about line 18,

and Your Honours will see that what Their Honours

said was that:  Market power is concerned with power

which enables a corporation to behave

independently of competition and of the

competitive forces in a relevant market.

Now, Your Honours, as a very broad statement,

perhaps with some qualifications, one would not

cavil with that, with respect. But Their Honours

then go on to regard the primary criteria as being: whether there are barriers to entry into the

relevant market.

Eastern 11/12/92

Your Honours, that that is so appears first at

page 143 commencing at line 21 where they say:

The primary consideration in determining market power must be taken to be whether there

are barriers to entry into the relevant

market.

This is the fundamental point made in

Queensland Wire. Then they say:

To what extent is it rational or possible for

new entrants to enter the market in this case?

Now, Your Honours, if I could just say two things

about that. The first is - and I will come to the

relevant parts of Queensland Wire in just a

moment - the case to which Their Honours refer is a

case where the issue was one whether there was or

was not conduct related to section 46(l)(b),

prevention of entry to into a market. And it is

apparent enough, we would submit with respect, that

if one looks at the passages in decisions of

members of the Court in that case, the Court was

dealing with that issue and was not attempting to
say that all cases falling within section 46(1),

the question of absence of market power is to be

determined by the application of a primary

criterion of the question whether there were

barriers to entry.

Your Honours, that is the first thing we would

say about it. But one then goes on to see that on
the next page, page 144, Their Honours quote, in

the parts that have got the dots on the side of the

page, some criteria which presumably Their Honours

regard as being relevant and one of them,

Your Honours will see, for example, is at line 7:

- "the ability of a firm to raise prices above

the supply cost -

Your Honours, this is really to obverse of a case	like this where one was talking about the ability
to lower prices to prevent competitive conduct.

Your Honours, as it apparent, we would submit,

from the observations of members of the Court in

the Queensland Wire case, (1989) 167 CLR 177, one

has to look at the issue in relation to the

particular circumstances, and may I take

Your Honours to that case for just a moment. Can I

give Your Honours copies of it. What Your Honours

will see is that, if I can go first to what was

said by Your Honour Justice Dawson at page 200, and

Your Honour said at about point 4 on the page:

Eastern 11/12/92

The term "market power" is ordinarily taken to

be a reference to the power to raise price by

restricting output in a sustainable manner.

Your Honour said about point 6 on the page:

But market power has aspects other than

influence upon the market price. It may be

manifested by practices directed at excluding

competition such as exclusive dealing, tying

arrangements, predatory pricing or refusal to

deal ..... The ability to engage persistently -

et cetera. Your Honours, if one goes to the other

part of the case which deals with the concept of

market power, that appears in the joint judgment of

Chief Justice Mason and Justice Wilson at pages 188

to 200, and the relevant passage commences in the

last paragraph on page 188 and goes over to

page 190, about three quarters of the way down the

page.

Now, Your Honours, true it is that if one

looks at some parts of the observations in that

passage and, in particular, at the bottom of
page 189 that one might say Their Honours placed

importance on the question of barriers to entry,

but what has to be borne in mind, of course, is

that that was the case with which the Court was

dealing.

Your Honours, if I could go back then to the

approach taken by the Full Court in this case.

What Your Honours will see is that the importance

of the question of barriers to entry was then

raised specifically by the court at p~ge 146 about

line 19, and they said:

There is one element highly relevant to

the consideration of any market power of the

respondents which His Honour did not consider

and which we regard as critical.

That is at line 21. And then what Your Honours

will see is that at line 26 they speak of:

The capacity of those agents or some of them

to combine ..... is an inherent element in the

market forces at all relevant times.

Your Honours, that is the aspect which they

treat His Honour as not having considered and, as

Your Honours have seen at page 39 and page 40,

His Honour, in fact, did take that into account.

Now, Your Honours, the Full Court then went on

to discuss that issue. May I take Your Honours to

Eastern 9 11/12/92

what appear to be the central parts of it. First,

at page 147 commencing at about line 30, where they

speak of the potentiality of the agents becoming a

reality in June 1988, and that is a passage which

goes through to page 148 about line 16, and

Your Honours will see, at page 148 about line 22,

that Their Honours particularly refer to events

before our entry into the market, and then at

page 149 about line 22 they say:

From at least November 1988 onwards the

respondents did not have a substantial degree

of market power in the relevant market.

Now, Your Honours, they reached their conclusion at

page 150 line 18 through to page 151 line 10

and, may I say, Your Honours, that if one goes

particularly to the start of that passage they say

about line 22 on page 150:

To what extent is it rational or possible for

new entrants to enter the relevant market?

This is the primary consideration in determining market power.

Your Honours will see at the top of··the next page

in the second line, they say:

This is precisely what they did. It is

therefore not rational to say that new
entrants were unable to enter the market and

participate in it.

Your Honours, that seems to be the essential

passage of Their Honours' reasoning on the

question and, Your Honours, we would submit that to
adopt the approach of saying that at the relevant

times the question was whether new persons could or

could not enter the market, and that was the only
question, and to say that was the dominant

question, as it were, is it rational or possible to

enter the market and then to say it always was

because they did, does not touch on, we would

submit with respect, what was the correct question

for the court to answer.

BRENNAN J: What was your case, Mr Jackson? That they

exercise such market power as they had by lowering

prices, not below cost, so as to diminish their

profits?

MR JACKSON:  Yes.

BRENNAN J: Where does that cross the line between

legitimate competition and a breach of section 46?

Eastern 10 11/12/92

MR JACKSON: Well, Your Honour, what Your Honour said is not

quite our case. It is the essence of it, but there

is just a little more to it. What we would say is

this: one had a situation where they were not just

a publisher of a newspaper, they were a printer and

had a degree of, as was said, vertical-integration

and also a number of other quite disparate

activities, so they had, as we would say, a

considerable degree of market power and, in effect,

a fair bit of, if I can use the expression, fact

that could be used to sustain any battle in which
they chose to engage.

What we are saying is this, Your Honour, that section 46(l)(a) says that if you have a

substantial degree of market power, you cannot use

it for the proscribed purpose. Because of the

matters to which I have referred, they did have

substantial degree of market power which they were

able to use to price the advertisements in their

paper at a level such that would inevitably attract

a considerable amount of custom and make it more

difficult for us to compete by having prices at

higher levels, for example, or at the same level.

BRENNAN J:	Does section 46(l)(a) prohibit the exercise of competitive strength to diminish an opponent's
profitability?

MR JACKSON:  Well it does, Your Honour. If one looks at the

terms of section 33, what it says is that one shall

not take advantage of the power for a particular

purpose, and what the purpose that is referred to

in the section is, is this:

·eliminating or substantially damaging a

competitor.

Could I just say, Your Honours, that the things

that section 46(1)(a) looks to are, existence of

substantial power, it looks to the purpose of the

taking advantage of that power, and the purpose

which is proscribed by the sub-section is the

particular one of eliminating or substantially

damaging a competitor.

Now, Your Honour, if one has circumstances

where there are, as the section requires, people in

competition, relevantly, then one of the most

normal ways in which a purpose of the proscribed

kind might be demonstrated would be by what is

sometimes described shortly as being predatory

pricing. Now, predatory pricing, Your Honour, is

something that involves pricing at a level which

has, often speaking, a relationship to cost, which

may be below cost, at cost or it may be somewhat

above cost, but it is the purpose with which it is

Eastern 11 11/12/92

engaged in that is the relevant one.	Your Honour,
that is what the legislature - - -

McHUGH J: But there is this vital but subtle distinction

between purpose and effect in this section, is

there not?

MR JACKSON: Yes, Your Honour.

McHUGH J: And the effect of what was done here was to

damage a competitor, but the trial judge found, and

the Full Court appears to have been prepared to
uphold, that the purpose of the conduct of the

respondent was to protect its commercial interest

against the competition offered by your client.

MR JACKSON: 

Your Honour, could I just say this in relation to that. The first thing is this: Your Honour is

right in saying that what was found by the primary

judge, that is the issue which we were seeking to have found in our favour in the Full Court. Now, the Full Court was - I am conscious in what I am about to say, that the Full Court expressed some

views on the question, but may I come to that in

just a moment.  We would say that we did not have,

in effect, a "proper" - I use the expression in

inverted commas of course - determination of that
issue by the Full Court, because the Full Court was
diverted from the issue by the view which it took
on the question of market power, the degree of

market power. And, because of the view which the

court took on that, we did not, to put it shortly,
obtain a proper hearing of the other issues and

that is why, if we were to obtain special leave and

ultimately to succeed in an appeal in setting aside

the Full Court's view, the appropriate thing might
well be for the matter to go back to a Full Court

to be determined.

But, Your Honour, the view taken by the Full Court on the particular questions - and

perhaps I can come to that immediately - appears to

have been this, that the Full Court took the view

that the primary judge's approach to the whole
matter had been one which was incorrect because of

his view of market power. Then, they proceeded to

deal with the remainder of the appeal, and the way

in which they dealt with it, Your Honours, can be

seen in an effect, two passages.

The first is at page 152, and at the bottom of

the page Your Honours will see that they expressed
their conclusion on the degree of market power
question and they say at the top of the next page
that the question whether they:

Eastern 12 11/12/92

engaged in the activity thus did not properly

arise before the primary judge.

They say they heard full argument on that question and they say:

Nevertheless, there is a conceptual difficulty

in our expressing any concluded views upon

this branch of the case because both the

findings of the primary judge upon the

question of misuse of market power and the

criticism by the appellant of those findings

are posited upon the existence of a

substantial degree of power in the relevant

market, contrary, as we have held, to the

fact.

Now, Your Honours, they then, however, as page 153, say that they will briefly state what

their position would have been if they concluded

there did exist the relevant power.

Your Honours will see that they deal with that

issue over some pages, and then at page 159

lines 10 to 20, having referred to the various

passages in the evidence, they say that they would

characterize statements that were made whether

considered individually or collectively, "as

relevant rather than compelling evidence upon the

issue of proscribed purpose" and, Your Honours,

even if one accepts that as being a definitive view

against us, one comes to the next part of it which

is the question of the evidence relied upon by us

of the price cuts themselves, to put it shortly,

and Their Honours do not reach a view on that

question.

The discussion commences at page 159 line 22. They set out the question, then, Your Honours, they

come at page 161 line 20 to say that:

it is unnecessary to rule upon these rival

contentions.

Then, Your Honours, there is a discussion of

American cases which does not really resolve the matter.

So, Your Honours, the final thing I would say

is this, that some observations I made at page 167

concerning the form of relief that was sought but,

of course, the case was one which, in any event,

involved damages as well.

Your Honours, could I just say on the question of purpose, if one were to look at the evidence to

Eastern 13 11/12/92

seek to deal with the question whether there was an

arguable case form our side on it, could I just

refer to page 129 and to the statement at the

bottom of page 128 to the top of page 129 by

Mr Fairfax who was one of the principals of one of the respondents, and -

BRENNAN J: Whereabouts in 129, Mr Jackson?

MR JACKSON:  I am sorry, Your Honour, it is between lines 5

and 10 first of all.	You will see that he is
saying:

The Wentworth Courier is produced on

newsprint ..... charging advertising rates which

we really can't afford ..... we will charge

those rates simply because it's a bigger

company ..... Therefore we can afford to take it

on the nose.

And he agreed with the proposition there was

a discount war going and they could last longer.

Your Honour, all I am seeking to say about

that is that if one were arguing the question of

purpose, there is certainly material upon

which -

BRENNAN J: But, Mr Jackson, are not the questions of the

degree of market power and the purpose for which

market power is exercised related issues?

MR JACKSON:  I am sorry, did Your Honour say, "are" or "are

not"?

BRENNAN J: Are related issues.

MR JACKSON:  Yes, Your Honour, yes. Could I say two things

about it, Your Honour. The first is that there is

a substratum of fact on which various aspects are

germane to both.

BRENNAN J: Yes.
MR JACKSON:	The second thing is that the various paragraphs

of 46(1) relate to aspects of market power.

BRENNAN J: 

I was not thinking so much in terms of the facts

of the particular case, but as a general
proposition of the subject-matter to which

section 46 relates. It may be that whatever market

power is possessed by one competitor in the market,

it is exercised to protect its interests, even

though that the exercise of such power as it

possesses does adversely affect the other
competitors. That is in the nature of competition.

Eastern 14 11/12/92

MR JACKSON:  Yes.

BRENNAN J: There comes a point, one would think, where, if

the market power is so large, or the conduct of the

possessor of market power of any degree is so
predatory that one can characterize it as being in
breach of section 46, but the two things are

necessarily related, that is the degree of the

market power possessed and the manner of its

exercise.

MR JACKSON:  Your Honour, could I just say in relation to

what Your Honour put to me, one has to be careful,

of course, to bear in mind that section 46 is

looking, of course - if I could go to the terms of

it, looking to the use of power or the taking of

advantage of power for particular purposes. Now,

it may be that the purpose which motivates the

taking advantage is a proscribed purpose, but it

may be the taking advantage is not, in fact,

affected for perhaps a variety of reasons: even

misconceptions.

So that, Your Honour, what section 46 is

doing is to say in the sense that it does not

proscribe conduct which is competitive, conduct of
its nature being competitive is likely to have

adverse affects upon the profitability, for

example, and profits of competitors. But the

thing that it does say is that if you have power in
the market, then you may take advantage of it, but

you may not take advantage of it if your purpose of

doing so is one of the proscribed things.

BRENNAN J: Say section 46 was, in this case, applied as

against you? The question being, you would have

some market power, having entered the market with

the support of 23 real estate agents and a

purchasing power of some $4 million a year. The

result of your entry into the market and your

following of the practices that were followed was

to diminish substantially the profitability of the

Wentworth Courier, and that was an object of those	who supported the Eastern Express because they
could see that the profits were to be made through
their avenue rather than by paying for it to the
Wentworth Courier. Does section 46 apply?

MR JACKSON: Well, Your Honour, it would be possible it

would, but may I say that if one were to examine,

for example, our conduct, it would be necessary to

look at a number of matters because what

Your Honour will have seen from the material is

that at the time when the publication was mooted and the end came into being, the reasons for its

coming into being were not reasons which, in a

sense, were simply economic but some degree of

Eastern 15 11/12/92

dissatisfaction with service and so on, and if, at

the end, one came down to having to look at our

conduct, no doubt one would take into account

various factors. It may be that a finding would be

one which fell within section 46, but if it were to
appear, for example, that better facilities were

sought, and a lot of other things, Your Honour,

could be taken into account.

BRENNAN J:  I was only using it in order to highlight the

problem that seems to me to arise here, and that is that where it is not really possible to isolate the

two issues which you seek to isolate, as I

understand the argument, you have sought to

challenge the question of the finding of the trial

judge as to the purpose before the Full Court and

then in the Full Court, as you say, they

concentrated on the question of whether there was a

substantial degree of market power and suggest, as

I understand the argument, that that diverted the

Full Court from the consideration of the issue you

wished to raise.

I wonder whether the case really raises

anything more than a consideration of the facts

looked at from different viewpoints?

MR JACKSON: Well, we would submit it does, Your Honour, and

could I just say that we really put our application

in two ways: first, we submit, of course, there is

an issue about the meaning of section 46 in terms

of what is contemplated or what is the test for

taking advantage of the power. Having said that -

we would say that is an important issue, but if we

are right on that, Your Honours, one then comes to

the second aspect of the case and that is the way

in which it was treated by the Full Court is one

that has resulted in our, on that assumption, not being accorded a proper hearing in the Full Court

and the nature of the case being such that it would

be appropriate for this Court to entertain it. So

we put it on the two bases, and I accept there is a

degree of connection between the two, but the

second aspect, of course, goes to the interest of

justice approach; the first to the question of law.

Your Honour, those are our submissions.

BRENNAN J:  We need not trouble you, Mr Ellicott.

The Court is of the view that the result of

this case is not attended with sufficient doubt to

justify the grant of special leave. Accordingly,

special leave will be refused.

Eastern 16 11/12/92

MR ELLICOTT:  I ask for an order for cost, Your Honour.

MR JACKSON: There is nothing I can say about that,

Your Honour.

BRENNAN J: It will be refused with costs.

AT 10.50 AM THE MATTER WAS ADJOURNED SINE DIE

Eastern 17 11/12/92