Vol 7 No 1 - Roger Williams University School of Law

to oust competitors, there was nothing wrong with what they haddone—in fact, it was simply a normal business decision.243 Theeconomic effect of Melway’s action and ultimate consumer welfare(from an economic sense) seemed to be in harmony. Melway’s wassuccessful in having their action vindicated.Judge Kirby’s dissent was geared toward guaranteeing andensuring diversity of suppliers and access to the informationalproduct. He explained:The respondent’s primary submission was that,properly analysed, Queensland Wire stands for only onerelevant legal proposition applicable to this case. Thiswas that “take advantage of” means no more than “use.”In determining whether a corporation has “take[n]advantage of “its market power for a proscribed purpose,the respondent argued that all that was necessary wasproof that, as a matter of fact, the corporation, havingsuch power, had refused supply for a proscribed purpose.Upon this view, it was unnecessary to pose hypotheticalquestions (sometimes difficult to resolve) as to whethersuch corporation could or would, acting rationally, haveengaged in the forbidden conduct if it were subject toeffective competition. My own opinion is that this iscorrect analysis of s 46(1) of the Act. I also consider thatit is what the decision in Queensland Wire stands for as abinding principle of law. There is nothing in thelanguage of the section itself that obliges theascertainment of an answer to a hypothetical question.If, as was held in Queensland Wire, “take advantage of”means no more than “use”, that presents a purely factualquestion to be answered. In short, if the supplier enjoys asubstantial degree of market power, the grant or refusalof supply is necessarily, as a matter of fact, takingadvantage of (sc “using”) such market power. It is doingso because the power to grant, or refuse, supply is part of243. Id. at para 67. The majority explained:But it does not follow that because a firm in fact enjoys freedom from competitiveconstraint, and in fact refuses to supply a particular person, there is a relevantconnection between the freedom and the refusal. Presence of competitive constraintmight be compatible with a similar refusal, especially if it is done to secure businessadvantages which would exist in a competitive environment.Id.