Firebelt Pty Ltd v Brambles Australia Limited Trading as 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)), specifically relating to alleged contraventions of section 46 concerning misuse of market power. The respondents were Brambles Australia Limited trading as Cleanaway and others.

The primary legal issue before the High Court 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*. This involved considering whether the respondents had taken advantage of their substantial market power for the purpose of damaging a competitor, preventing the entry of a competitor, or deterring or preventing competitive conduct. The Court also had to consider the proper construction of the elements of section 46, particularly the requirement of "taking advantage" of market power.

The High Court, in dismissing the application for leave to appeal, found that the Full Federal Court had correctly applied the established principles of section 46. Their Honours noted that the applicant had not demonstrated that the Full Federal Court had made any error of law in its assessment of the evidence or its application of the statutory provisions. The reasoning of the Full Federal Court, which focused on the absence of evidence demonstrating the requisite purpose or intent on the part of the respondents to misuse their market power, was upheld.

Leave to appeal was refused.