Visy Paper Pty Limited and Ors v Australian Competition and Consumer Commission S209/2002

The High Court of Australia considered an appeal by Visy Paper Pty Limited and its related entities (the appellants) against a decision of the Full Federal Court. The dispute concerned alleged contraventions of section 46 of the *Trade Practices Act 1974* (Cth) (the Act), which prohibits misuse of market power. The Australian Competition and Consumer Commission (ACCC) had alleged that Visy Paper had engaged in conduct that had the purpose or effect of substantially lessening competition in contravention of section 46(1) of the Act.

The central legal issue before the High Court was whether the Full Federal Court had erred in its interpretation and application of section 46 of the Act, particularly concerning the concept of "taking advantage of market power." The appellants argued that the Full Federal Court had misconstrued the statutory test for misuse of market power, contending that the conduct in question did not amount to taking advantage of such power in the manner contemplated by the legislation.

The High Court, in a joint judgment, clarified that section 46(1) requires a finding that the corporation in question has a substantial degree of market power and that it has taken advantage of that power for a proscribed purpose or with a proscribed effect. The Court emphasised that the mere possession of market power is not sufficient; the conduct must be attributable to the possession of that power. The Court found that the Full Federal Court had correctly applied the statutory test and had not erred in its findings of fact or law.

The High Court dismissed the appeal, upholding the decision of the Full Federal Court.