Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law 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.
the power substantially to control the market.. . . .However, if I am wrong in the foregoing, it isappropriate to consider the alternative approach on thefooting that the hypothetical question forms part of therule for which Queensland Wire stands. If this is done, itwas certainly open to the majority judges in the FederalCourt to conclude that the impugned conduct on the partof the appellant involved its taking advantage of itsmarket power, in the sense that, acting rationally, itwould and could not (but for that power) have acted as itdid. Specifically, it would and could not have refused therespondent’s offer to purchase between 30,000 and 50,000copies of the Melbourne directory each year.244Judge Kirby’s judgement is to the effect that anyone who holdsmarket power and refuses to supply is taking advantage of thatmarket power. This is very much a diversity (or nondiscrimination)argument that requires the information to bedealt. It is tantamount to a right of access to information. JudgeKirby was not just looking at economic transaction costs but alsothe social innovation cost, remembering innovation has a social aswell as an economic aspect. The delivery of this information needsa diversity of pathways. The monopolisation of the delivery ofinformation to people is not good for them—socially. To thisextent, Judge Kirby perhaps showed a social approach tocompetition law and the notion of welfare.Another interesting issue arises from this case. Melway’sowns an informational product in which they claimed copyright.This case, in essence, defines the right of the copyright owner—the right to distribute or sell the copyright product to whomeverthey wish. Yet in this instance, competition law puts a gloss onthis right. In this case, we are really seeing the definitions ofcompetition and copyright law being conflated—because therefusal to deal is intimately connected with intellectual propertyrights.In summary, the power to make someone distribute aninformation product is contingent upon the power that they hold244. Id. at paras. 109, 112.
- Page 76 and 77: eproduced, though there be no ingen
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the power substantially to control the market.. . . .However, if I am wrong in the foregoing, it isappropriate to consider the alternative approach on thefooting that the hypothetical question forms part <strong>of</strong> therule for which Queensland Wire stands. If this is done, itwas certainly open to the majority judges in the FederalCourt to conclude that the impugned conduct on the part<strong>of</strong> the appellant involved its taking advantage <strong>of</strong> itsmarket power, in the sense that, acting rationally, itwould and could not (but for that power) have acted as itdid. Specifically, it would and could not have refused therespondent’s <strong>of</strong>fer to purchase between 30,000 and 50,000copies <strong>of</strong> the Melbourne directory each year.244Judge Kirby’s judgement is to the effect that anyone who holdsmarket power and refuses to supply is taking advantage <strong>of</strong> thatmarket power. This is very much a diversity (or nondiscrimination)argument that requires the information to bedealt. It is tantamount to a right <strong>of</strong> access to information. JudgeKirby was not just looking at economic transaction costs but alsothe social innovation cost, remembering innovation has a social aswell as an economic aspect. The delivery <strong>of</strong> this information needsa diversity <strong>of</strong> pathways. The monopolisation <strong>of</strong> the delivery <strong>of</strong>information to people is not good for them—socially. To thisextent, Judge Kirby perhaps showed a social approach tocompetition law and the notion <strong>of</strong> welfare.Another interesting issue arises from this case. Melway’sowns an informational product in which they claimed copyright.This case, in essence, defines the right <strong>of</strong> the copyright owner—the right to distribute or sell the copyright product to whomeverthey wish. Yet in this instance, competition law puts a gloss onthis right. In this case, we are really seeing the definitions <strong>of</strong>competition and copyright law being conflated—because therefusal to deal is intimately connected with intellectual propertyrights.In summary, the power to make someone distribute aninformation product is contingent upon the power that they hold244. Id. at paras. 109, 112.
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