Feature
Issue No. 16 - April/May 2004
No agreements, but bullying is OK
This decision has a number of implications for businesses, both those trying to deal with new competitors and those trying to break into markets.
Facts
Bridge Printing (a subsidiary of Rural Press) published the Murray Valley Standard in the Murray Bridge region, which includes the township of Mannum. In the nearby Riverland area Waikerie Printing published the River News. Both papers had a small cover charge.
The River News expanded its circulation into the Mannum area. Bridge Printing, unhappy with this development, threatened to enter Waikerie’s traditional heartland with a free newspaper if Waikerie did not withdraw from Mannum. Given the cover charge for the River News, this free newspaper would have had a negative impact upon Waikerie’s circulation. Subsequently, the River News advised Bridge that it accepted the papers should return to their traditional circulation areas, and it withdrew from Mannum.
The Australian Competition and Consumer Commission (the ACCC) alleged that Rural Press/Bridge Printing had reached an agreement with Waikerie Printing, which contravened section 45 of the Act as it substantially lessened competition and contained an exclusionary provision. It was also alleged that they contravened section 46 of the Act, by taking advantage of the market power which they enjoyed in the Murray Bridge region, to eliminate Waikerie Printing as a competitor in that market or to deter Waikerie Printing from competing in that market.
Earlier Decisions
The trial judge found that the arrangement between Bridge Printing and Waikerie Printing amounted to a substantial lessening of competition and contained an exclusionary provision. He also found that Rural/Bridge had misused their market power in making the threats against Waikerie Printing2.
The Full Federal Court on appeal,3 while agreeing on the substantially lessening of competition point, disagreed on the other findings. Consequ...
