Visy Paper Pty Ltd v Australian Competition and Consumer Commission

The High Court of Australia heard an appeal from Visy Paper Pty Ltd concerning arrangements for the collection of waste paper. The Australian Competition and Consumer Commission (ACCC) was the respondent. The dispute centred on whether certain non-competition provisions in proposed agreements between Visy Paper and NPP, a waste paper collector, contravened the *Trade Practices Act 1974* (Cth).

The legal issues before the Court were whether the non-competition provisions had a dual character, preventing both the acquisition of goods from and the supply of services to particular persons, and if so, whether both aspects of these provisions contravened section 45(2)(a)(i) of the Act. A further issue was whether one aspect of these provisions would have contravened section 47, and if section 45(6) precluded the application of section 45(2)(a)(i) to both aspects or only that aspect covered by section 47.

The Court reasoned that the collection of waste paper could be characterised as both the provision of a service (waste collection) and the acquisition of goods (title to the waste paper). The Court found that the proposed agreements contained provisions that restricted NPP from acquiring waste paper from Visy Paper's customers and from supplying waste collection services to those same customers. These restrictions were held to be primarily referable to the horizontal relationship between Visy Paper and NPP as competitors in the waste collection market, rather than their vertical supplier-purchaser relationship. Consequently, these restrictions fell under section 45(2)(a)(i) of the Act, which prohibits corporations from making contracts or arrangements that have the purpose or effect of restricting the supply or acquisition of goods or services to or from particular persons. The Court determined that section 45(6) did not preclude the application of section 45(2)(a)(i) to both aspects of the non-competition provisions.

The appeal was dismissed with costs.