Mallonland Pty Ltd Acn 051 136 291 & Anor v Advanta Seeds Pty Ltd Acn 010 933 061

Mallonland Pty Ltd and another (the applicants) sought judicial review of a decision by Advanta Seeds Pty Ltd (the respondent) to refuse their application for a licence to cultivate and sell a particular variety of genetically modified (GM) cotton. The applicants had sought to cultivate and sell a GM cotton variety known as 'WideStrike 3' (WS3), which had been developed by Dow AgroSciences LLC and was licensed to Advanta Seeds. The dispute arose because Advanta Seeds, as the exclusive licensee of WS3 in Australia, refused to grant Mallonland a licence, citing concerns about Mallonland's financial capacity and its ability to comply with the terms of the licence. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether Advanta Seeds' refusal to grant a licence to Mallonland was an abuse of its dominant position in the market for the supply of WS3 cotton seed, contrary to section 46 of the *Competition and Consumer Act 2010* (Cth) (formerly section 46 of the *Trade Practices Act 1974* (Cth)). Specifically, the court had to consider whether Advanta Seeds had taken advantage of its alleged dominant position in the market for WS3 seed to prevent Mallonland from engaging in the cultivation and sale of that seed, and whether this conduct had the purpose, effect, or likely effect of substantially lessening competition.

The High Court, comprising Kiefel CJ and Steward J, found that Advanta Seeds had not engaged in conduct that contravened section 46 of the *Competition and Consumer Act 2010* (Cth). Their Honours reasoned that the evidence did not establish that Advanta Seeds held a "dominant position" in the relevant market, which was defined as the market for the supply of WS3 cotton seed. Furthermore, even if dominance were established, the court found that Advanta Seeds' refusal to grant a licence was based on legitimate commercial considerations, namely concerns about Mallonland's financial viability and its capacity to meet the licence conditions, rather than an intention to misuse its market power. The court applied the principles established in competition law jurisprudence regarding the assessment of market dominance and the prohibition of anti-competitive conduct.

The High Court dismissed the application for judicial review.