Firebelt Pty Ltd v Brambles Australia Limited T/a Cleanaway and Ors B52/2001

Firebelt Pty Ltd (the applicant) sought leave to appeal to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the interpretation and application of certain provisions of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) in relation to alleged anti-competitive conduct by Brambles Australia Limited trading as Cleanaway and others (the respondents). The applicant alleged that the respondents had engaged in conduct that contravened section 46 of the Act, which prohibits misuse of market power.

The primary legal issue before Gummow J, sitting in chambers, was whether the Full Federal Court had erred in its determination that the applicant had failed to establish a contravention of section 46 of the *Trade Practices Act 1974*. Specifically, the court was required to consider whether the applicant had demonstrated that the respondents had taken advantage of their substantial market power for the proscribed purpose of damaging a competitor or preventing entry into a market.

Gummow J reviewed the findings of the Full Federal Court, which had concluded that the applicant had not adduced sufficient evidence to establish the necessary elements of a section 46 contravention. The reasoning focused on the applicant's failure to prove that the respondents had acted with the requisite anti-competitive purpose, and that any actions taken were a consequence of the respondents' substantial market power rather than legitimate commercial conduct. The principles applied involved the established interpretation of section 46, requiring proof of both substantial market power and a proscribed purpose.

Leave to appeal was refused.