Eastern Express Pty Limited v General Newspapers Pty Limited

Eastern Express Pty Limited sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia. The dispute concerned allegations that General Newspapers Pty Limited and other respondents had engaged in conduct that contravened section 46(1) of the Trade Practices Act 1974 (Cth). The applicant argued that the Full Court had erred in its approach to determining whether the respondents had taken advantage of a substantial degree of market power for a proscribed purpose.

The High Court was required to consider two principal legal issues. The first concerned the correct test to be applied under section 46(1) of the Act, specifically in relation to whether a corporation possesses "a substantial degree of power" in a market. The second issue related to the approach taken by the Full Court in applying this test and the consequences of its interpretation. The applicant contended that the case primarily concerned paragraph (a) of section 46(1), which deals with the use of market power to eliminate or substantially damage competitors, rather than paragraph (b), which concerns preventing entry into a market.

The applicant's submissions focused on the interpretation of section 46(1) and its application to the facts. It was argued that the section requires a corporation to have a substantial degree of power in a market before it can contravene the provision by taking advantage of that power for one of the specified purposes. The applicant highlighted that the case was concerned with the use of market power for the purpose of eliminating or substantially damaging competitors, as evidenced by the primary judge's reasons. The High Court was therefore asked to consider whether the Full Court had correctly applied the relevant legal principles in assessing the existence of substantial market power and its use for the proscribed purpose.