Anti-competitive agreements: section 45 of the Trade Practices Act 1974 (Cth)

Anti-competitive agreements: overview of section 45 of the TPA, remedies and recent judicial observations

Benjamin Fitzmaurice, Barrister-at-Law, Foley's List, Melbourne Chambers

This paper is intended to provide a focal point for discussion at the Legalwise seminar to be conduct on 21 November 2007. The paper will focus on the construction of section 45 (which concerns the making of anti-competitive agreements) of the Trade Practices Act 1974 (Cth) ("the TPA") and judicial comments in sentencing in light of the recent decisions of the Federal Court in Seven Network[1] and Visy[2].

The overall objective of the TPA is to enhance the welfare of Australians through by promoting competition and fair trading and providing consumer protection: section 2 of the TPA. The provisions of Part IV of the TPA are directed at procuring and maintaining competition in trade and commerce: Trade Practices Commission v CSR Ltd.[3]

Section 45 of the TPA

The following sub-sections of section 45 of the TPA contain emphasis which has been discussed below. The words discussed have been underlined and placed in bold text.

Section 45(2) of the TPA states:

(2) A corporation shall not:

(a) make a contract or arrangement, or arrive at an understanding, if:
i. the proposed contract, arrangement or understanding contains an exclusionary provision; or
ii. a provision of the proposed contract, arrangement or understanding has the purpose, or would have or likely to have the effect, of substantially lessening competition; or
(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision:
i. is an exclusionary provision; or
ii. has the purpose, or has or is likely to have the effect, of substantially lessening competition.

Sections 45(3) and (4) relevantly state:

(3) For the purposes of this section... competition , in relation to a provision of a contract, arrangement or understanding of a proposed contract, arrangement or understanding, means competition in any market in which a corporation that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a corporation, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.

(4) For the purposes of the application of this section in relation to a particular corporation, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition if that provision and any one or more of the following provisions, namely:

(a) the other provisions of that contract, arrangement or understanding or proposed contract, arrangement or understanding; and
(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the corporation or a body corporate related to the corporation is or would be a party;

together have or are likely to have that effect.

Interpretation of key words contained in section 45
"corporation": A corporation in section 9 of the TPA is a body corporate but also includes a foreign, trading or financial corporation, a body corporate incorporated in a Territory or a holding company of a foreign, trading or financial corporation[4].
"contract": It is accepted that a contract is an agreement enforceable at law.[5] The elements of contract will evidence the arrangements and understanding the subject of complaint under the section.
"arrangement[6] or understanding": In ACCC v Amcor Printing Papers Group Ltd[7] Sackville J stated:
"An arrangement or understanding for the purposes of s 45(2) of the TP Act is apt to describe something less than a binding contract or agreement: Top Performance Motors Pty Ltd v Ira Berk (Qld) Pty Ltd (1975) 5 ALR 465; 24 FLR 286 at 290-1 (Aust Ind Ct, FC) per Smithers J. However, in order for there to be an arrangement or understanding for the purposes of s 45(2), there must be a meeting of the minds of those said to be parties to the arrangement or understanding. There must be a consensus as to what is to be done and not merely a hope as to what might be done or happen: Trade Practices Commission v Email Ltd (1980) 43 FLR 383 at 385 (Lockhart J); Ira Berk at FLR 291 per Smithers J. Ordinarily, an arrangement or understanding involves communication between the parties arousing expectations in each that the other will act in a particular way: Email at 395. There is no necessity for an element of mutual commitment between the parties to an arrangement or understanding, although in practice such an arrangement or understanding would ordinarily involve reciprocity of obligation: Trade Practices Commission v Service Station Association Ltd (1993) 44 FCR 206 at 230-1... per Lockhart J."
In Seven Network, Sackville J referred to the decision of Frank J in Trade Practices Commission v TNT Management Pty Ltd[8] in stating:
"The words ‘arrangement' and ‘understanding' are usually treated as more or less synonymous, although it has been suggested that the requirements for arriving at an understanding may be ‘somewhat different and more easily satisfied than the requirements for making an arrangement'.[9]

"exclusionary provision": The definition of an ‘exclusionary provision' is set out in section 4D of the TPA. Section 4D states:

(1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if:

(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any 2 or more of whom are competitive with each other; and

(b) the provision has the purpose of preventing, restricting or limiting:

(i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or

(ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions;

by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.

(2) A person shall be deemed to be competitive with another person for the purposes of subsection (1) if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.
"provision": When considering whether there is a contravention of sections 45(2)(a) or s45(2)(b) of the TPA, it is necessary to isolate and identify a ‘provision' of the contract, arrangement or understanding that is said to have the purpose of substantially lessening competition[10]. The word "provision" is used in a comprehensive, rather then technical, sense reflecting usage in contract law[11]. It invites attention to the content of what has been, or is to be, agreed, arranged or understood, rather than any particular form of expression of that content adopted, or to be adopted, by the parties.[12] Further, a ‘provision' in relation to an ‘understanding' means any matter forming part of the understanding.[13]
"purpose": A reference to the definition of ‘purpose' is set out in section 4F of the TPA namely that the ‘purpose' was or is a substantial purpose. In Seven Network[14] His Honour did not prefer or approve of the construction of ‘purpose' in section 45(2) to be construed by an assessment of the ‘subjective purpose'[15]. His Honour stated that "a process of judicial exegesis has taken the rather curious statutory language to refer to a subject purpose". In Seven Network[16] His Honour preferred a construction limiting "the operation of section 45(2) to cases where the substantial purpose of each of the parties responsible for including the relevant provision in a contract is to substantially lessen competition."
In Seven Network[17] Sackville J went on to state:
"There is no shortage of difficult judgments the TP Act requires the Court to make. But any assessment of the substantiality of a particular subjective purpose held by some, but not all, parties to a contract necessarily moves away from any meaningful assessment of subjective purpose. Inevitably it must rely on objective criteria such as (in Seven's language) ‘the degrees of responsibility of the various parties for the inclusion of the provision'. It is difficult to see how an assessment of this kind can be reconciled with the insistence of the High Court in News v South Sydney that s4D (and, accordingly, s 45(2)) is concerned with the subjective purpose of those parties to a contract responsible for the inclusion of a particular provision in the contract."
"likely to": The definition of ‘likely to' or ‘likely' has not been defined in the TPA. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union[18] Bowen CJ said:
"The word ‘likely'...may mean ‘probable' in the sense of ‘more probable then not' - ‘more than a fifty percent chance'. It may mean ‘material risk': as seen by a reasonable man ‘such as might happen'. It may mean ‘some possibility' - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified." (emphasis added)
In Seven Network Sackville J did not necessarily agree with what the Chief Justice said in Tillmanns Butcheries. His Honour said:
"The trend of authority in the Federal Court is that, in determining whether a provision is likely to have the effect of substantially lessening competition, the word ‘likely'' does not mean ‘more probable than not'.[19] (emphasis added)
In Seven Network, Sackville J preferred the judgment of French J in Australian Gas Light Co v ACCC[20] where the following was stated:
"The meaning of "likely" reflecting a "real chance or possibility" does not encompass a mere possibility. The word can offer no qualitative guidance but requires a qualitative judgment about the effects of an acquisition or proposed acquisition. The judgment it requires must not set the bar so high as effectively to expose acquiring corporations to a finding of contravention simply on the basis of possibilities, however plausible they may seem, generated by economic theory alone. On the other hand it must not set the bar so low as effectively to allow all acquisitions to proceed save those with the most obvious, direct and dramatic effects upon competition...The assessment of the risk or real chance of a substantial lessening of competition cannot rest upon speculation or theory.[21]
Finally Sackville J in Seven Network stated:
"...it is enough for Seven to show that there is or was a real chance that the impugned conduct will or would have the effect of substantially lessening competition in a market."
It was recorded in the judgment of Seven Network that the Respondents on appeal would argue that ‘likely' means ‘more probable than not'.
"substantially lessening competition": For the purposes of the TPA, section 4G has defined ‘lessening competition' to include references to preventing or hindering competition. In terms of the word ‘substantial', Sackville in Seven Network preferred the construction of the majority[22] of the High Court in Rural Press Ltd v ACCC[23] where their Honours identified the relevant question in a case of section 45(2) of the TPA as the following:
"whether the effect of the [impugned] arrangement was substantial in the sense of being meaningful or relevant to the competitive process."[24]
In the assessment of whether conduct substantially lessens competition was explained by Burchett and Hely JJ in Stirling Harbour Services Pty Ltd v Bunbury Port Authority[25]:
"in determining whether the proposed conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition in the relevant market, the Court has to:

consider the likely state of future competition in the market "with and without" the impugned conduct; and
on the basis of such consideration, conclude whether the conduct has the proscribed anti-competitive purpose or effect.

Dandy Power Equipment Pty Limited v Mercury Marine Pty Limited [1982] ATPR 40-315 at 43,887; (1982) 64 FLR 238 at 259; Outboard Marine Limited v Hecar Investments No 6 Pty Limited (1982) 44 ALR 667 at 669-670. The test is not a "before and after" test, although, as a matter of fact, the existing state of competition in the market may throw some light on the likely future state of competition in the market absent the impugned conduct."

Further, in Seven Network, Sackville J accepted the following principle stated in Stirling Harbour Services[26]:

"Conduct has the effect of lessening competition in a market only if it involves a reduction in the level of competition which would otherwise have existed in that market but for the conduct in question. The mere fact that one can conceive of other less restrictive alternatives by which a commercial objective might be achieved is not sufficient of itself to lead to a conclusion that the conduct has the effect of lessening competition...The comparison required is between practical alternatives likely to be adopted; not between mere theoretical models."

"effect": The Respondents in Seven Network argued that the ‘effect' referred to in section 45(2) was restricted to ‘the direct and immediate effect of the agreement or provision'.[27] This submission was not supported by His Honour. His Honour stated the following:

"Whether a provision has or is likely to have the effect of substantially lessening competition is a factual question. It should not be resolved by introducing artificial limitations into the statute."[28]

"market": Section 4E of the TPA defines ‘market' as the following:
"For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods and services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned good and services."
The definition of ‘market' in section 45(3) has been construed plainly by Sackville J in Seven Network[29] to be concerned with conduct undertaken with the purpose of substantially lessening competition in an existing market, not in an imaginary market. His Honour went on to say the following:
"It is also difficult to determine how the purpose of substantially lessening competition in a non-existent market could be established. It is hard enough to make judgments about the characteristics or boundaries of a market on the basis of orthodox evidence, such as the behaviour of market participants or the expert opinions of economists. To attempt the exercise on the basis of the subjective thought processes (or, possibly, the conflicting thought processes) of corporate decision-makers would seem to present virtually insoluble problems. How is the Court to determine the boundaries of the market if the decision-maker has not given any clear thought to that issue? How is the Court to assess the extent to which competition would have been lessened in a market which, by hypothesis, never existed? A market, after all, is an instrumental concept, designed to assist analysis of the processes of competition and the sources of market power.[30]
Construction issues discussed in Seven Network
There is a divergence in the language between sections 45(2)(a) and 45(2)(b) of the TPA. This divergence may be simply explained in the opening words ‘make a contract' as opposed to ‘give effect to a provision of a contract'. The plain words of section 45(2)(a) of the TPA seeks to prevent a contract, understanding or arrangement being made which contains an exclusionary provision or substantially lessens competition. Section 45(2)(a)(ii) is ‘predicated upon the existence of a contract, arrangement or understanding'.[31] In comparison, section 45(2)(b) seeks to prevent the giving of effect to a provision in a contract which has the characteristics complained about in section 45(2)(a).
In section 45(2)(b)(ii) the present tense is used. In the Seven Network case, the present tense was understood to operate where a corporation "gives effect to a provision of an existing contract (or arrangement or understanding)."[32] His Honour went on to state the following:
"In contrast to s 45(2)(a)(ii), s 45(2)(b)(ii) assumes that a contract is in force at the time the proscribed conduct (giving effect to a provision of the contract) takes place. Indeed, the paragraph expressly contemplates that the contract might even have been made before s 45(2) of the TP Act was itself enacted. Consequently, the proscribed conduct may take place long after the contract itself was made...The drafting of s 45 (2)(b)(ii) proceeds on the basis that giving effect to a provision of a contract constitutes a contravention of the subparagraph in two situations (leaving aside the case where the provision has the proscribed purpose):

first, where the provision, in the light of events which have occurred at the time the proscribed conduct takes place, already has had or is having the effect of substantially lessening competition; and
secondly, when the provision, in the light of those same events, is likely in the future to have the effect of substantially lessening competition.

The divergence in language between s 45(2)(a)(ii) and b(ii) does not include, in my opinion, an intention to introduce what can be described as a retrospective causation test of the kind suggested by Mr Sumption. Use of the word ‘has' in s 45(2)(b)(ii) acknowledges that, once a contract is in force, it may be possible to determine, be reference to a particular time, that a provision of the contract already has the effect of substantially lessening competition. (The use of the word ‘has' instead of ‘has had' reflects the fact that a provision may have a continuing effect on competition.) The expression ‘is likely to have' indicates an intention to prohibit a corporation from giving effect to a provision in a contract where the provision, at the time the corporation engages in the conduct, is likely to have the effect of substantially lessening competition."[33]

The assessment date by which the allegedly contravening conduct takes place for the purposes of section 45(2)(b)(ii) shall be the date the corporation gives effect to a provision of the contract or arrangement.[34]

Ascertaining whether the ‘purpose' of an alleged contravenor is to substantially lessen competition may be proven by inference having regard to all the circumstances of the case including objective evidence.[35] Further, even if the ‘alleged contravenor could never have effectuated its objective, for example because the regulator had already intervened or because target corporations were resistant to threats or blandishments, is not necessarily fatal to the existence of the practice proscribed by s 45(2).'[36] Helpfully, in Seven Network, Sackville J set out the following matters with respect to section 45(2):

"The question posed by s 45(2)(a)(ii) and (b)(ii), in my view, is whether the object sought to be achieved by the alleged contravenor, if effectuated, is capable of substantially lessening competition. If so, a contravention of s 45(2) may be made out regardless of whether the alleged contravenor appreciated that the objective, if achieved, would substantially lessen competition in any existing market. On the other hand, if the objective, even if achieved, was incapable of substantially lessening competition in an existing market, no contravention of s 45(2)(a)(ii) or b(ii) will be established.

It follows, in my opinion, that in a case where an issue arises as to whether the alleged contravenor had the purpose of substantially lessening competition, the Court should deal with the issue in two stages:

First, the Court must identify the object the alleged contravenor sought to achieve by including the relevant provision in the contract. As New v South Sydney explains, the purpose with which s 45(2) is concerned is the end sought to be achieved. The end sought to be achieved will not usually be framed by the alleged contravenor in terms of a particular market. More commonly, the objective will be framed more prosaically, such as deterring retailers of recordings from lawfully engaging in parallel importation of the product.
Secondly, the Court must inquire whether the object sought to be achieved, if effectuated, was realistically capable of substantially lessening competition in any relevant market. If so, a contravention of s 45(2) may be made out. If not, no contravention can be established"[37]

Remedies and matters discussed in Visy[38]

A breach of Part IV of the TPA may have the following consequences:

section 76 - the commission may apply to the Court for a pecuniary penalty;
section 80 - a person may seek injunctive relief (except with respect to anti-competitive mergers or acquisitions: section 50);
section 80 - the commission may seek injunctive relief in relation to anti-competitive mergers or acquisitions;
section 81 - the commission may seek divestiture in relation to anti-competitive mergers or acquisitions;
section 86C - the commission may seek non-punitive orders;
section 86D - the commission may seek punitive orders;
section 82 - a person may seek damages; and
section 87 - a person may seek ancillary orders.

In Visy the Respondents admitted, for the purposes of the proceeding liability for activities in breach of section 45 of the TPA. In that regard the Respondents agreed to the tendered statements of fact tendered to the Court. His Honour in accepting the agreed facts from the parties stated:

"I am not bound to accept facts merely because they have been agreed between the parties. Also I can draw inferences from such of the agreed facts as are accepted."[39]

In Visy the ACCC sought pecuniary penalties under section 76 of the TPA. Section 76(3) of the TPA provides that a person is not liable for more than one pecuniary penalty in respect of the same conduct. The net result being that for the 37 contraventions of the TPA Heerey J imposed one penalty.

Under section 76 of the TPA, from 1 January 2007 the penalties for a corporation increased from $10,000,000 to the greater of:

$10,000,000 (where the Court can determine the benefit obtained as a result of the contravening)[40];
three times the value of the benefit obtained by the corporation; or
if the Court cannot determine the value of the benefit received, 10% of the annual turnover of the corporation of the previous 12 months in which the act or omission occurred.

Section 76(1) of the TPA expressly refers to 4 matters appropriate in the determination of the quantum of the penalty, namely:

the nature and extent of the act or omission constituting the contravening conduct;
the nature and extent of any loss or damage suffered as a result of the contravening conduct;
the circumstances in which the act or omission took place; and
whether the contravenor has previously been found by the Court to have engaged in similar conduct.

In Visy Heerey J identified the following additional relevant factors:

the size of the contravening company;
the degree of its power, evidenced by its market share and the ease of entry into the market;
the deliberateness of the contravention that arose out of the conduct of senior management or at a lower level;
whether the company had a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention;
whether the contravenor had shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention;
similar conduct in the past;
financial position; and
deterrent effect.[41]

In terms of sentencing, Heerey J in Visy made two further comments:

section 76 imports into the penalty fixing process concepts of moral responsibility long known to the criminal law. Ordinary sentencing principles apply;[42]
the fact that the parties have proffered a penalty agreed as between themselves is relevant, although not of course conclusive, since the responsibility of imposing penalties is conferred by the TPA on the Court.[43]

Interestingly in Visy, the agreed statement of facts filed by the Commission made no allegation of loss arising from the contravening conduct. Heerey J in applying the principles above looked behind the agreed statement of facts and found loss would have been suffered and stated:

"Every day every man, woman and child in Australia would use or consume something that at some stage has been transported in a cardboard box. The cartel in this case therefore had the potential for the widest possible effect...The whole point of price fixing and market sharing is to obtain the benefit of prices greater than those which would be obtained in a competitive market. It must follow that customers pay more than they would in a competitive market, and so suffer loss. The conduct involved here was inherently likely to cause loss. The fact that no particular loss has been alleged in respect of any particular customer cannot alter that.

An important and tactical lesson to be learnt from Visy is where a positive defence is pleaded in the course of a proceeding and is later contradicted by an acceptance of liability, the sincerity of any plea in mitigation may be questioned. In summing up the principles to be applied to the sentencing of Visy Heerey J made the following statements:

"It is appropriate to make some allowance for the fact that the respondents have admitted liability and thus saved a great deal of public expense for a trial which could well have lasted six months or more. Traditionally criminal courts are inclined to give less weight to a plea of guilty when it does not result from genuine remorse, repentance or contrition: The Queen v Shannon (1979) 21 SASR 442 at 452-453, Warner, K, Sentencing in Tasmania, 2^nd ed, The Federation Press, 2002, at 3.603. Also the weight to be given to an admission of guilt might be less when it comes late, or when it is virtually bowing to the inevitable...

...In the meantime, I note that the principal positive defence pleaded, and maintained until recently, was that any communications between Visy and Amcor were "commercial tactics" against Amcor aimed at "camouflaging" what Visy was doing and a means of obtaining "market intelligence" from its rival ...

...In light of what is now admitted to the facts, it may be doubted that this John Le Carre defence had any prospects of success.

...None of the most senior people hesitated for a moment before embarking on obviously unlawful conduct. There was in evidence a Visy document entitled "Trade Practices Compliance Manual" dated February 1998. It was signed by Mr Pratt. It bears a distribution list, signed by Mr Debney, with the names of 50 or so personnel covering every State and Head Office...

...The Visy Trade Practices Compliance Manual might have been written in Sanskrit for all the notice anybody took of it..."[44]

Prior to sentencing Heerey J in Visy was informed that the penalties to be imposed against 2 of the Respondent would be borne by a Visy entity or related entity. It was noted by His Honour that by reason of sections 77A and 77B of the TPA such indemnities, applying to contraventions after 1 January 2007, are unlawful. However, since the conduct complained of in Visy concerned contraventions prior to 1 January 2007, His Honour referred to section 199A(2) of the Corporations Act 2001 (Cth):

(2) A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company:

(a) a liability owed to the company or related body corporate;

(b) a liability for a pecuniary penalty order under section 1317G or a compensation order under section 1317H or 1317HA;

(c) a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith.

Heerey J in Visy stated:

"This subsection [s199A(2) above] does not apply to a liability for legal costs.

Paragraph (a) would not be applicable. Paragraph (b) is concerned with pecuniary penalties payable under the Corporations Act. However par (c) would seem to apply to a liability to pay a pecuniary penalty to "someone other than the company" (ie the Commonwealth) under s 76 of the Trade Practices Act. Unlawful cartel conduct would not be "conduct in good faith". The section would seem to apply to the time when the indemnity is given and not to the time of the underlying conduct which gave rise to the indemnity. Anyway, Visy and any other related corporate entity will have to satisfy themselves that any indemnity to Messrs Debney and Carroll [the Respondents] is lawful."[45]

Summary

Arguably the language used in section 45 of the TPA has been over considered by parties and the judiciary in matters concerning anti-competitive agreements. The attempts to restrict the meaning of the section, in part, is perhaps unwarranted. What is clear from the decision in Seven Network is the reluctance of the Court to restrict the wording of the section. The writer understands that an appeal has been filed in the Seven Network case. It will remain to be seen whether the Full Court will leave some of the matters raised by His Honour in his judgment.

Every effort is taken to ensure that the information contained in this article is accurate at the time of publication. The content of this article is not legal advice and should not be relied upon as legal advice. The content is designed as a guide only. If you require legal advice please contact a legal practitioner accordingly.

[1] Seven Network Ltd v News Ltd [2007] FCA 1062.

[2] ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007) per Heerey J.

[3] (1991) ATPR 41-076 at 52,151 (French J).

[4] Section 4 of the TPA.

[5] Hughes v Western Australian Cricket Assn (Inc) (1986) 19 FCR 10 at 32 (Toohey J).

[6] Also see Re British Basic Slag Ltd Agreements [1963 2 All ER 819; [1963] 1 WLR 727 at 746 - "'Arrangement' is not a term of art...it involves a meeting of minds...'between two or more persons' and...it involves mutuality in that each party assuming he is a reasonable and conscientious man, would regard himself as being in some degree under a duty whether moral or legal to conduct himself in a particular way or not to conduct himself in a particular way as the case may be, at any rate so long as the other party or parties conducted themselves in the way contemplated by the arrangement." Followed in Universal Music Australia Pty Ltd v ACCC (2003) 131 FCR 529; 201 ALR 636 [2003] FCAFC 193 per Wilcox, French and Gyles JJ.

[7] (2000) 169 ALR 344 at 359 to 360 [75].

[8] (1985) 6 FCR 1at 25.

[9] Supra footnote 7 at [2244].

[10] ACCC v Australian Safeway Stores Pty Ltd (No 2) [2001] FCA 1861 at [955].

[11] Seven Network Ltd v News Ltd [2007] FCA 1062 at [2204].

[12] Visy Paper Pty Ltd v ACCC (2003) 216 CLR 1 at 6 [7] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[13] Section 4 of the TPA.

[14] Seven Network Ltd v News Ltd [2007] FCA 1062.

[15] The assessment of ‘purpose' being the ‘subjective purpose' relevantly determined in Hughes v Western Australia Cricket Assn Inc (1986) ATPR 40-748 at 48,044-5; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1991) 27 FCR 460 at 475, 476 and 477; 97 ALR 513.

[16] Supra footnote 7 at [2403].

[17] Supra footnote 7 at [2408] to [2409].

[18] (1979) 27 ALR 367 at 375.

[19] Supra footnote 7 at [2231].

[20] (2003) 137 FCR 317.

[21] Ibid at 416-417. See also supra footnote 7 at [2232].

[22] Gummow, Hayne and Heydon JJ (with whom Gleeson CJ and Callinan J agreed).

[23] (2003) 216 CLR 53.

[24] Ibid at 71[41].

[25] [2000] ATPR 41-783 at 41,267 [12]. See also Seven Network at [2238].

[26] [2000] ATPR 41-783 at 41,276 [66].

[27] Supra footnote 7 at [2228].

[28] Ibid at [2230].

[29] Supra footnote 7 at [2425].

[30] See also ACCC v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 at 399 per Heerey and Sackville JJ.

[31] Supra footnote 7 at [2243].

[32] Supra footnote 7 at [2214].

[33] Supra footnote 7 at [2214] to [2216]. See also Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 134 Lockhart J noted that the ‘effect of a contract is a relatively simple concept requiring examination of the results'. [supra footnote 7 at [2226]].

[34] Supra footnote 7 at [2222].

[35] Universal Music Australia Pty Ltd v ACCC (2003) 131 FCR 529 at 588-589 [256], 589-590 [259-261]; Seven Network at [2428].

[36] Supra footnote 7 at [2429].

[37] Supra footnote 7 at [2430] to [2431].

[38] ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007) per Heerey J.

[39] Ibid at [1].

[40] Supra footnote 36 at [297].

[41] Supra footnote 36 at [303].

[42] Trade Practices Commission v Axive Pty Ltd (9194) ATPR 41-368 at 42,794; ACCC v J McPhee & Son (Australia) Pty Ltd (1998) ATPR 41-628 at 40,891; supra footnote 36 at [304].

[43] Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993; supra footnote 36 at [305].

[44] Supra footnote 36 at [316] to [319].

[45] Supra footnote 36 at [330] to[331].