GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
Matter No A197/2003
RURAL PRESS LIMITED & ORS APPELLANTS
AND
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION & ORS RESPONDENTS
Matter No A203/2003
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION APPELLANT
AND
RURAL PRESS LIMITED & ORS RESPONDENTS
Rural Press Limited v Australian Competition and Consumer Commission
Australian Competition and Consumer Commission v Rural Press Limited
[2003] HCA 75 11 December 2003 A197/2003 and A203/2003
ORDER
1.Appeal No A197 of 2003 dismissed with costs.
2.Appeal No A203 of 2003 allowed.
3.Set aside par 3 of the orders made by the Full Court of the Federal Court of Australia on 16 July 2002 as amended on 18 October 2002, and in lieu thereof, substitute the following:
"3. Set aside the orders made by the Federal Court on 23 March 2001, and in lieu thereof, order that the following orders be made:
(a)Declare that the First, Second and Fifth Respondents contravened section 45(2) of the Trade Practices Act by making and giving effect to an arrangement that contained provisions under which:
(i)the Fifth Respondent agreed to cease soliciting advertising and newsworthy information from the Mannum area for inclusion in its regional newspaper, the River News, and to cease promoting the sale of the River News in the Mannum area; and
(ii)the First and Second Respondents agreed not to publish a regional newspaper in the Riverland area.
(b)Declare that each of the Third and Fourth Respondents were knowingly concerned in or party to the First and Second Respondents' contraventions of section 45(2) of the Act as set out in sub-paragraph (a) above.
(c)Declare that the Sixth Respondent was knowingly concerned in or party to the Fifth Respondent's contravention of section 45(2) of the Act as set out in sub-paragraph (a) above."
On appeal from Federal Court of Australia
Representation:
Matter No A197/2003
F M Douglas QC with T D Blackburn and R C Scruby for the appellants (instructed by Blake Dawson Waldron)
N J Young QC with M H O'Bryan for the first respondent (instructed by Australian Government Solicitor)
No appearance for the second and third respondents
Matter No A203/2003
N J Young QC with M H O'Bryan for the appellant (instructed by Australian Government Solicitor)
F M Douglas QC with T D Blackburn and R C Scruby for the first to fourth respondents (instructed by Blake Dawson Waldron)
No appearance for the fifth and sixth respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Rural Press Limited v Australian Competition and Consumer Commission Australian Competition and Consumer Commission v Rural Press Limited
Trade practices – Exclusionary provisions – Arrangement between regional newspaper publishers providing that one would withdraw newspaper services from the prime circulation area of the other – Whether provision had purpose of preventing, restricting or limiting supply of services to, or acquisition of services from, particular persons or classes of persons – Trade Practices Act1974…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75
Case
[2003] HCA 75
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals from the Full Court of the Federal Court of Australia concerning alleged contraventions of the *Trade Practices Act 1974* (Cth) by Rural Press Limited and related entities. The dispute arose from an arrangement between regional newspaper publishers, where one publisher allegedly withdrew services from the prime circulation area of another. The Australian Competition and Consumer Commission (ACCC) alleged breaches of provisions relating to exclusionary provisions, substantial lessening of competition, misuse of market power, and accessorial liability for company officers.
The High Court was required to determine whether an arrangement existed between the publishers that had the purpose or effect of preventing, restricting, or limiting the supply or acquisition of services. Specifically, the court had to consider if the arrangement constituted an exclusionary provision under section 4D of the Act, or if it had the purpose or effect of substantially lessening competition under section 45(2). Furthermore, the court needed to assess whether company officers were knowingly concerned in or party to the alleged contraventions, and whether a publisher had misused its market power in contravention of section 46.
The High Court reasoned that an arrangement had been made, involving the cessation of circulation of the *River News* in the Mannum area by Waikerie Printing House Pty Ltd, in return for Rural Press Limited ceasing to publish a regional newspaper in the Riverland area. The court found that this arrangement contained provisions under which Waikerie Printing agreed to cease soliciting advertising and news from the Mannum area and promoting the *River News* there, while Rural Press and its subsidiary agreed not to publish a regional newspaper in the Riverland. The court determined that these provisions contravened section 45(2) of the *Trade Practices Act* as they had the purpose of preventing, restricting, or limiting the supply of services to persons in the Mannum area and the acquisition of services from persons in the Riverland area. The court also found that certain officers of Rural Press were knowingly concerned in these contraventions.
The High Court dismissed Rural Press's appeal, upholding the finding of contravention of section 45(2) and accessorial liability. However, the High Court allowed the ACCC's appeal, setting aside the Full Federal Court's orders and substituting declarations that Rural Press and its subsidiaries contravened section 45(2) by making and giving effect to the arrangement. The court also declared that certain officers were knowingly concerned in these contraventions. The High Court did not find a contravention of section 46.
Orders
Orders of the court
1. Appeal No A197 of 2003 dismissed with costs.
2. Appeal No A203 of 2003 allowed.
3. Set aside par 3 of the orders made by the Full Court of the Federal Court of Australia on 16 July 2002 as amended on 18 October 2002, and in lieu thereof, substitute the following:
"3. Set aside the orders made by the Federal Court on 23 March 2001, and in lieu thereof, order that the following orders be made:
(a) Declare that the First, Second and Fifth Respondents contravened section 45(2) of the Trade Practices Act by making and giving effect to an arrangement that contained provisions under which:
(i) the Fifth Respondent agreed to cease soliciting advertising and newsworthy information from the Mannum area for inclusion in its regional newspaper, the River News, and to cease promoting the sale of the River News in the Mannum area; and
(ii) the First and Second Respondents agreed not to publish a regional newspaper in the Riverland area.
(b) Declare that each of the Third and Fourth Respondents were knowingly concerned in or party to the First and Second Respondents' contraventions of section 45(2) of the Act as set out in sub-paragraph (a) above.
(c) Declare that the Sixth Respondent was knowingly concerned in or party to the Fifth Respondent's contravention of section 45(2) of the Act as set out in sub-paragraph (a) above."
Background
Background to the litigation
Two appeals have been brought from those orders. The Rural Press parties take three points: that there was insufficient evidence to find an arrangement, that there was no purpose or effect of substantially lessening competition, and that McAuliffe and Law had insufficient knowledge to make them liable for ancillary contraventions. The Commission appeal contends that the Full Federal Court should have found that s 46 was contravened and should have found that the arrangement contained an exclusionary provision.The facts The pre July 1997 position: the Standard's monopoly. Rural Press was a publisher of regional newspapers in many parts of Australia. One of its wholly-owned subsidiaries, Bridge, published a regional newspaper called the Murray Valley Standard ("the Standard"). It was published in Murray Bridge (a township of about 13,000 population one hour's drive east of Adelaide on the River Murray). It was sold on Tuesdays and Thursdays at a price of ninety cents. On Tuesdays its circulation was about 4,000-4,500; on Thursdays it was 4,500 or perhaps more. It circulated in, published news and advertising about, and solicited advertising from, the Murray Bridge district. Within the prime circulation area of the Standard was the township of Mannum (of about 3,000 population, located thirty kilometres north of Murray Bridge), together with the townships of Sedan, Cambrai and Palmer, and smaller rural settlements. There were regional newspapers published in areas adjacent to the Murray Bridge district – the Leader, the River News, the Southern Argus, the Times and the Courier. But until July 1997 few copies of those other regional newspapers were sold in the Murray Bridge district. Further up the River Murray from Mannum was the Riverland area. In it was Waikerie (a township of about 1,800 population) where Waikerie Printing House Pty Ltd ("Waikerie Printing") published a regional newspaper, the River News. It was sold weekly on Wednesdays at a price of sixty cents. It had a circulation of 2,000-2,500 copies. Before July 1997 it circulated around Waikerie, west to Morgan and south to Nildottie and Swan Reach — about halfway between Murray Bridge and Waikerie. It sold a few copies in Cambrai, Sedan and Mannum, but Mannum was not regarded as part of its prime circulation area. Still further up the River Murray were Loxton and Renmark. At Loxton, Loxton News Pty Ltd published another small regional newspaper, the Loxton News, and at Renmark, Murray Pioneer Pty Ltd published the Murray Pioneer. Paul Taylor and Darnley Taylor were directors and controllers of Waikerie Printing, Loxton News Pty Ltd and Murray Pioneer Pty Ltd. John Pick ("Pick") was Managing Editor of the River News, made most day-to-day decisions about it, and was also a director of Waikerie Printing. The River News was printed under arrangement with Murray Pioneer Pty Ltd, which operated a printing press at Renmark. The events of and following 1 July 1997: the River News expands south. On 1 July 1997 the structure of Councils in the area changed. A new Council called the Mid Murray Council was established. Its northern and central areas were in the prime circulation area of the River News; but it extended into the Mannum area, part of the prime circulation area of the Standard. The new Council area was serviced by the Standard in the south, the River News in its northern and central parts, and the Leader (published in the Barossa Valley) in the central and eastern parts.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
CALLINAN J
GUMMOW, HAYNE AND HEYDON JJ
KIRBY J
(dissent)
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
CALLINAN J,
GUMMOW, HAYNE AND HEYDON JJ,