Rural Press Ltd & Ors v Australian Competition and Consumer Commission

Rural Press Ltd and others (the appellants) appealed to the High Court of Australia against a decision of the Full Federal Court which had affirmed a finding by the Australian Competition and Consumer Commission (ACCC) that the appellants had contravened section 46 of the *Trade Practices Act 1974* (Cth) (the Act). The dispute concerned allegations that the appellants had misused their substantial market power in the regional newspaper market to engage in anti-competitive conduct.

The High Court was required to determine whether the appellants had taken advantage of their substantial degree of market power for the purpose of damaging a competitor, preventing the entry of a competitor, or hindering a competitor from engaging in competitive conduct in a market in which the appellants were not themselves operating. Specifically, the court considered the meaning of "taking advantage of" market power in the context of section 46 and the nature of the requisite anti-competitive purpose.

The High Court held that the Full Federal Court had erred in its interpretation of section 46. The majority reasoned that the contravention of section 46 requires proof that the conduct in question was engaged in for a proscribed purpose and that the conduct was only possible because of the existence of substantial market power. It was not sufficient for the conduct to be merely facilitated by market power; rather, the market power must have been the reason for the conduct. The court clarified that the "taking advantage of" limb of section 46 requires a causal connection between the substantial market power and the conduct, and that the purpose element must be demonstrably established.

The High Court allowed the appeal, setting aside the orders of the Full Federal Court and remitting the matter to the Federal Court for further consideration in accordance with the High Court's reasons.