Sydney Airport Corporation Ltd v Australian Competition Tribunal & Ors

Sydney Airport Corporation Ltd (SAC) sought judicial review of a decision by the Australian Competition Tribunal (ACT) which had affirmed a determination by the Australian Competition and Consumer Commission (ACCC) that SAC had engaged in anti-competitive conduct by imposing a levy on airlines operating at Sydney Airport. The dispute concerned whether SAC's conduct in imposing this levy, which was not directly related to the cost of services provided by SAC to the airlines, constituted a contravention of section 46 of the *Trade Practices Act 1974* (Cth) (now section 46 of the *Competition and Consumer Act 2010* (Cth)). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether SAC had taken advantage of its substantial degree of market power in the market for airport services at Sydney Airport for the purpose of engaging in anti-competitive conduct. Specifically, the court had to determine if the levy imposed by SAC was a misuse of market power, and if so, whether it was imposed for a proscribed anti-competitive purpose. The interpretation of "taking advantage of" market power and the requisite "purpose" under section 46 were key to the determination.

The High Court, comprising Gleeson CJ and Callinan J, found that SAC had not contravened section 46 of the *Trade Practices Act 1974*. Their Honours reasoned that the imposition of the levy, while potentially impacting the competitive position of airlines, did not demonstrate that SAC had taken advantage of its market power in the relevant market for airport services. The court distinguished between the exercise of market power and the misuse of market power, concluding that SAC's actions, in this instance, did not meet the threshold for a contravention of the section. The appeal was dismissed.