Rural Press Ltd v Accc;Accc v Rural Press Ltd

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Callinan J,Gummow,Hayne,Heydon JJ,Kirby J
• Judgment Date: 11 December 2003
• Neutral Citation: [2003] HCA 75,2003-1211 HCA A
• Docket Number: A197/2003 and A203/2003
• Date: 11 December 2003

[2003] HCA 75

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ

A197/2003 and A203/2003

Rural Press Limited & Ors

Appellants

and

Australian Competition and Consumer Commission & Ors

Respondents

Australian Competition and Consumer Commission

Appellant

Rural Press Limited & Ors

Respondents

Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii), 46(1), 75B(1), 76(1), 80(1).

Rural Press Limited v Australian Competition and Consumer Commission Australian Competition and Consumer Commission v Rural Press Limited

Trade practices — Exclusionary provisions — Arrangement between regional newspaper publishers providing that one would withdraw newspaper services from the prime circulation area of the other — Whether provision had purpose of preventing, restricting or limiting supply of services to, or acquisition of services from, particular persons or classes of persons — Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(b)(i).

Trade practices — Where regional newspaper publisher threatened to circulate new newspaper in prime circulation area of a second regional newspaper publisher, unless second publisher ceased circulation of its own newspaper in first publisher's prime circulation area — Where second publisher subsequently ceased circulation of newspaper in first publisher's prime circulation area — Whether an ‘arrangement’ — Whether arrangement had purpose or effect of substantially lessening competition — Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(2)(b)(ii).

Trade practices — Accessorial liability — Whether officers of newspaper publisher were ‘involved in’ publisher's contraventions — Whether officers participated in or assented to contraventions with actual knowledge of essential elements constituting the contraventions — Trade Practices Act 1974 (Cth), ss 75B(1), 76(1), 80(1).

Trade practices — Misuse of market power — Whether publisher took advantage of market power in its prime circulation area in threatening to enter prime circulation area of second publisher — Trade Practices Act 1974 (Cth), s 46(1).

Practice and procedure — Orders — Form of declarations.

Words and phrases — ‘arrangement’, ‘involved in’, ‘take advantage of’, ‘purpose’, ‘particular persons or classes of persons’.

1 Gleeson CJ and Callinan J. The facts, and the issues, in these appeals are set out in the reasons for judgment of Gummow, Hayne and Heydon JJ (‘the joint reasons’). We agree with the orders they propose.

Gleeson CJ

2 As to the issues in relation to ss 45(2)(a)(ii), 45(2)(b)(ii), and 46 of theTrade Practices Act 1974 (Cth) (‘the Act’), accessorial liability, penalties, and the form of orders, we agree with the joint reasons, and have nothing to add.

3 As to the issues in relation to ss 4D, 45(2)(a)(i) and 45(2)(b)(i), we agree with the joint reasons given for allowing the appeal of the Australian Competition and Consumer Commission (‘the ACCC’) against the decision of the Full Court of the Federal Court1. However, we wish to add some brief observations, not because they determine the outcome of the present case, but because of the wider implications of some of the propositions advanced in argument.

4 The legislative history of s 4D is set out in the reasons of the Full Court2. That history is significant in the light of s 15AB of the Acts Interpretation Act 1901 (Cth). After the decision of the Full Court, this Court dealt with certain aspects of s 4D, and ss 45(2)(a)(i) and 45(2)(b)(i), in News Ltd v South Sydney District Rugby League Football Club Ltd3.

5 In applying s 4D, courts have had to consider the statutory concept of a provision (of a contract, arrangement or understanding) which has the purpose of preventing, restricting or limiting supply to or acquisition from particular persons or classes of persons. This is a compound concept involving a certain kind of purpose, having as its object particular persons or classes of persons4. The particularity of the persons or classes of persons who are the objects of the purpose as defined and proscribed is essential to the concept of an exclusionary provision5. The significance of a finding that a provision is an exclusionary provision within s 4D and ss 45(2)(a)(i) and 45(2)(b)(i) is that such a finding engages a per se legislative prohibition. It becomes unnecessary to consider

whether it has the purpose or effect of substantially lessening competition in a market.

6 If attention were not paid to the compound nature of an exclusionary provision, and the requirement of particularity of its object or objects, there is a danger that s 4D would be given an operation that would greatly reduce the statutory significance of lessening competition, in relation to agreements between competitors generally. Contracts, arrangements or understandings between competitors commonly involve some form of prevention, restriction or limitation of supply or acquisition of goods or services. If two hairdressers in a suburban main street were to have an understanding that one would provide services to men, and one would provide services to women, it may be unlikely that their understanding would involve a substantial lessening of competition in a market. It would be surprising if it were held, nevertheless, to contravene the Act. To the extent to which it had an anti-competitive purpose, that purpose would not be ‘directed toward’6 particular persons or classes of persons.

7 In the past, judges have sought to elucidate the meaning of this concept by examining the legislative history. That process of construction is legitimate, provided it is not taken too far. The paradigm case, singled out for the purpose of parliamentary consideration, was that of a boycott. This has sometimes led to the treatment of the paradigm as if it were the only case to which the legislation applies. It has also driven courts to the unproductive and inappropriate task of seeking to construe the parliamentary materials and speeches rather than the statute. The precise meaning of boycott itself is far from clear. The emphasis placed upon boycotts in the development and explanation of the legislation reinforces the importance of the compound nature of the concept, and the necessity for particularity of objects, and to that extent it is useful in construing the legislation. But it cannot be permitted to divert attention from the text. We agree with Gummow, Hayne and Heydon JJ that there was sufficient particularity in the present case, but we can think of other cases in which it would be absent, notwithstanding the existence of a purpose of preventing, restricting, or limiting supply or acquisition. If it were not so, the references to particular persons or classes of persons would be redundant.

8 The Full Court referred to the changes that have taken place in the form of s 4D. In its original form, the proscribed purpose was of preventing, restricting or limiting supply to or acquisition from particular persons. The words ‘or classes of persons’ were added in 1986, following some decisions that were thought to reveal an undue narrowness in the legislation in its original form. Those words were clearly intended to widen the provision, but not to change its

entire character. The proscribed purpose must still be one that is directed toward particular persons or classes of persons. Parliament did not delete the word ‘particular’ and substitute the word ‘any’. Nor did it remove all reference to persons as objects of the proscribed purpose. The legislative history, as well as the text, tends strongly against a reading of the section which requires only that a provision of a contract, arrangement or understanding has the purpose of preventing, restricting or limiting, in any way, supply or acquisition. Supply or acquisition will always be to or from persons. Ordinary principles of construction require that the references to particular persons or classes of persons be given work to do; they are not mere drafting verbosity. A court construing a provision in an Act ‘must strive to give meaning to every word of the provision’7. A court will seek to avoid a construction of a statute that renders some of its language otiose. Here, that consideration is powerfully reinforced by the legislative history, which shows that the reference to particular persons was originally an essential feature of s 4D, and that the addition of the reference to classes was intended to expand it, not to make it superfluous.

9 In argument in the Full Court in the present case, the ACCC itself appears to have given some encouragement to what was identified inNews Ltd v South Sydney District Rugby League Football Club Ltd as an error of approach. The joint judgment of the Full Court records the following8:

‘[Counsel for the ACCC] accepted in principle that s 4D can properly be described as a primary boycott provision, and that breach of it requires that there be a target aimed at by the provision. He submitted, however, that the section should not be read down on this account, but must be given full effect according to its terms. If that is done, so he argued, the class identified by the primary judge could be said to be the target of a boycott.’

10 In the light of that argument, it is perhaps not surprising that the Full Court approached this aspect of the case as it did.

11 A danger in treating s 4D as concerned only with boycotts is that it fosters an assumption that the section applies only when there is some form of animus towards the object or objects of an exclusion. In the present case, the Full Court concluded9:

‘There is no reason to suppose that either party should have had any purpose to injure or disadvantage [readers or advertisers in the nominated geographic area].’

12 Section 4D does not require such a purpose, although it may sometimes...