Paul's Retail Pty Ltd v Sporte Leisure Pty Ltd & Ors [2012] HCATrans 219

Paul's Retail Pty Ltd sought special leave to appeal to the High Court of Australia from a decision of the Full Court of the Federal Court of Australia. The dispute concerned the interpretation and application of section 45 of the *Trade Practices Act 1974* (Cth) (now section 47 of the *Competition and Consumer Act 2010* (Cth)), specifically whether certain exclusive dealing arrangements entered into by Paul's Retail with its suppliers constituted a contravention of that provision. Sporte Leisure Pty Ltd and other parties were respondents to the application.

The primary legal issue before the High Court was whether the Full Court of the Federal Court had erred in finding that Paul's Retail had engaged in conduct that had the purpose or effect of substantially lessening competition in a market, thereby contravening section 45(2)(a)(ii) of the *Trade Practices Act 1974*. This involved determining the relevant market, assessing the competitive impact of the exclusive dealing arrangements, and considering whether the conduct was engaged in for the proscribed purpose or had the proscribed effect.

Gummow and Hayne JJ granted special leave to appeal, indicating that there were arguable grounds for review concerning the application of section 45. Their Honours noted that the Full Court's finding of substantial lessening of competition was based on a particular characterisation of the market and the impact of the exclusive arrangements. The grant of special leave suggests that the High Court considered the case to raise important questions about the assessment of competition in exclusive dealing cases under the *Trade Practices Act*.

The High Court ultimately granted special leave to appeal.