(Australia) The operation of section 46 of the 1974 Act, is predicated on the assumption that competition is a means to the end of protecting the interests of consumers: ‘Competition by its very nature is deliberate and ruthless. Competitors jockey for sales, the more effective competitors injuring the less effective by taking sales away. Competitors almost always try to ‘injure’ each other in this way. This competition has never been a tort (see Keeble v Hickeringill (1809) 11 East 574) and these injuries are the inevitable consequence of the competition section 46 is designed to foster. In fact, the purpose provisions in section 46(1) are cast in such a way as to prohibit conduct designed to threaten that competition – for example, section 46(1)(c) prohibits a firm with a substantial degree of market power from using that power to deter or prevent a rival from competing in a market. The question is simply whether a firm with a substantial degree of market power has used that power for a purpose proscribed in the section, thereby undermining competition, and the addition of a hostile intent inquiry would be superfluous and confusing.’
Judges:
Mason CJ and Wilson J
Citations:
(1989) 167 CLR 177
Statutes:
Trade Practices Act 1974 46 (Australia)
Cited by:
Cited – Carter Holt Harvey Building Products Group Ltd v The Commerce Commission PC 14-Jul-2004
(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Commercial
Updated: 30 April 2022; Ref: scu.199228