ACCC v Baxter Healthcare

Snapshot

Federal Court
High Court

Applicant/Appellant
ACCC

Respondents
Baxter Healthcare Pty Ltd
State of WA
State of SA
State of NSW

High Court

Year
2007

Citations
[2007] HCA 38

Judges
Chief Justice Gleeson
Justice Gummow
Justice Kirby
Justice Hayne
Justice Callinan
Justice Heydon
Justice Crennan

Issue
Exclusive dealing
Misuse of Market Power

Counsel the Appellant
LG Foster SC
AI Tonking
JS Gleeson

Solicitor for the Appellant
Australian Govt Solicitor

Counsel for the First Respondent
DM Yates SC
IS Wylie

Solicitor for First Respondent
Blake Dawson Waldron

Counsel for the Second Respondent
RJ Meadows QC
JC Pritchard

Solicitor for Second Respondent
State Solicitor's Office (WA)

Counsel for the Third Respondent
CJ Kourakis QC
GF Cox
SA McDonald

Solicitor for Third Respondent
Crown Solicitor's Office (SA)

Counsel for the Fourth Respondent
MG Sexton SC
SJ Gageler SC
NL Sharp

Solicitor for Fourth Respondent
Crown Solicitor for NSW

Full Federal Court

Year
2007 and 2008

Citations
[2008] FCAFC 141

Judges
Justice Mansfield
Justice Dowsett
Justice Gyles

Issue
Exclusive dealing
Misuse of Market Power

Counsel the Appellant
LG Foster SC
AI Tonking

Solicitor for Appellant
Australian Govt Solicitor

Counsel for the First Respondent
DM Yates SC
IS Wylie

Solicitor for First Respondent
Blake Dawson Waldron

Federal Court

Year
2005

Judge
Justice Allsop

Citation
[2005] FCA 581

Issue
Exclusive dealing
Misuse of Market Power
Derivative Crown Immunity

Counsel the Applicant
AI Tonking

Solicitor for Applicant
Australian Govt Solicitor

Counsel for the First Respondent
IS Wylie

Solicitor for First Respondent
Blake Dawson Waldron

Counsel for the Fourth Respondent
Ms K Kerr (solicitor)

Solicitor for First Respondent
NSW Crown Solicitor

Expert evidence

Led by ACCC

Prof Barry Nalebuff
Rhonda Smith
Ms Tamara Lindsay (accountant)

Led by Baxter

Henry Ergas

Facts and summary

This case involved supply by Baxter Healthcare Pty Ltd to a number of State purchasing authorities of sterile fluids used for dialysis treatment. Baxter manufactures and supplies intravenous (IV) solutions, peritoneal dialysis (PD) fluids and parenteral nutrition (PN) products. It has an effective monopoly in relation to sterile fluids but faced real competition in relation to PD fluids. During the relevant time Baxter tendered for the supply of sterile and PD fluids to State Purchasing Authorities (SPA's). If offered products either as (prohibitively) high item-by-item prices or 'bundled' at significantly lower prices. The 'bundled' price was only available on condition Baxter was the sole supplier of both sterile and PD fluids to the SPA's.

Allegation

The ACCC alleged that Baxter had contravened the exclusive dealing and misuse of market power provisions of the Act by using the market power it enjoyed in relation to sterile fluids to effectively compel the SPAs to enter into exclusive supply contracts including the PD products

Application of the Act (derivative Crown immunity)

It was conceded by the ACCC that the SPAs were not ‘carrying on a business’ for purposes of the Act and therefore had Crown immunity from Part IV.  The issue then became whether Baxter benefited from ‘derivative’ Crown immunity in its dealings with these authorities.  At first instance and on appeal to the Full Court, it was held that they did benefit from derivative immunity (based on the earlier High Court decision in Bradken v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107).  The majority of the High Court held that parties did not benefit from derivative Crown immunity when dealing with Crown authorities.

Exclusive dealing

The majority of the Full Federal Court held that Baxter had contravened s 47; in particular, it had the purpose and effect of substantially lessening competition.

Misuse of market power

The Full Court unanimously held that Baxter had substantial market power in relation to sterile fluids and that it had taken advantage of this power. The majority (Dowsett J dissenting) also held that Baxter had a prohibited purpose (s 46(1)(c)) and therefore contravened s 46.

Overview of the various decisions

1. The matter first came before Justice Allsop in the Federal Court. His Honour held that:

   • The Act did not apply to Baxter's conduct because they had the benefit of derivative Crown immunity

   • If the Act did apply to Baxter their conduct:

     • contravened s 46 in relation to one of the transactions involved

     • contravened s 47 in relation to all transactions involved

2. The ACCC appealed to the Full Federal Court.

   • The Court dismissed the appeal, agreeing with the Primary Judge that Baxter benefited from derivative Crown immunity. The Court did not consider the other grounds of appeal (the ss 46 and 47 claims)

3. The ACCC appealed to the High Court on the issue of immunity

   • The majority of the High Court (Justice Callinan dissenting) upheld the appeal, finding Baxter did not benefit from derivative Crown immunity. They remitted the matter to the Full Federal Court to consider the ss 46 and 47 claims.

4. The Full Federal Court then considered the ss 46 and 47 claims

   • On misuse of market power the Court unanimously held that Baxter had substantial market power and had taken advantage of this power. The majority (Dowsett J dissenting) also held that Baxter had a prohibited purpose (s 46(1)(c)) and therefore contravened s 46.

   • On exclusive dealing the majority (Dowsett J dissenting) found that the various 'bundled' contracts contravened s 47; in particular, they had the purpose and effect or likely effect of substantially lessening competition

5. The issue of penalties was subsequently considered by Justice Mansfield. His Honour ordered pecuniary penalties totaling $4.9million against Baxter as well as imposing cost orders.

Case links

• ACCC v Baxter Healthcare Pty Ltd [2005] FCA 581 (16 May 2005) (AustLII) (first instance)

• ACCC v Baxter Healthcare Pty Ltd [2006] FCAFC 128 (24 August 2006) (AustLII)

• ACCC v Baxter Healthcare Pty Ltd [2007] HCA 38 (29 August 2007) (AustLII) (High Court on immunity)

• ACCC v Baxter Healthcare Pty Ltd [2008] FCAFC 141 (11 August 2008) (AustLII) (Full Federal Court - following remission)

• ACCC v Baxter Healthcare Pty Ltd [2010] FCA 929 (26 August 2010) (AustLII)

Jump to

• Federal Court at first instance (2005)

• Full Federal Court (2006)

• High Court (2007)

• Full Federal Court on remission (2008)

• Federal Court (penalty) (2010)

• Media and commentary

Justice Mansfield

Justice Dowsett

Justice Gyles

Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2006] FCAFC 128

The Full Federal Court agreed with the primary Judge that Baxter benefited from derivative Crown immunity and therefore did not consider the substance of the s 46 and s 47 claims (see below the Court's discussion following remission from High Court)

(On remission from High Court)

Justice Mansfield

Justice Dowsett (dissenting)

Justice Gyles

ACCC v Baxter Healthcare Pty Ltd [2008] FCAFC 141

Justice Mansfield

Justice Mansfield agreed with the conclusions of Justice Allsop at First Instance; in particular, there was a misuse of market power contravening s 46 and exclusive dealing conduct which contravened s 47 of the Act.

Misuse of market power

Substantial market power

Justice Mansfield agreed with the primary judge's conclusion on the issue of market power - in particular, that Baxter did have a substantial degree of power in the Australia-wide sterile fluids market.

Taking advantage of market power

Both the ACCC and Baxter appealed on this point; the former because Justice Allsop concluded that only one of the agreements satisfied this element. His Honour noted that he did not:

[para 133] consider that the absence of analysis of Baxter’s item-by-item prices as monopoly prices is, in the circumstances of this case, an evidential impediment to concluding that Baxter, by its alternative offer strategy, took advantage of its substantial degree of power in that market.

His Honour concluded that Baxter had taken advantage of its market power.

[149] [Baxter] … had been using that strategy [of alternative tenders; item by item or bundled] for the best part of a decade, if not longer.  As a general proposition, Baxter could have made alternative item-by-item tenders and exclusive supply bundled tenders even if it did not have market power:  see e.g. per Gummow, Hayne and Heydon JJ in Rural Press at [52].  However, it is not merely the fact of alternative tenders which is significant.  It is that the item-by-item prices were relatively so high compared to the alternative bundled offer, and were also so much higher than had previously been paid by any relevant SPA that Baxter did not regard those prices as "serious". [emphasis added]

[150] In my view, that feature of the item-by-item pricing tends to indicate that Baxter was taking advantage of its market power.  Had there been any serious competitor in the sterile fluids market, Baxter could not rationally have made what appears to have been an unrealistically high item-by-item price for sterile fluids.  It would have been constrained from doing so by the competition in the market.  … [emphasis added]

[152] … in my view the pricing structure of the item-by-item bids as part of Baxter’s alternative offer strategy involved it taking advantage of its substantial degree of market power in the sterile fluids market.  On the evidence, it created that dramatic price differential without reference to its costs of production.  It suggested no economic foundation for its item-by-item pricing.  Its item-by-item prices or "cherry pick" prices … were always substantially above what the particular SPA was then paying, in some instances or items by more than 100 per cent.  None of the itemised prices had ever been paid by any of the Hospital facilities of the States or the ACT.  Baxter did not expect any of the SPAs to seriously consider accepting those prices; only that they be seen as credible.  It was not merely its general economic status which enabled it to engage in the impugned conduct.  It was able to do so because it had no real competitors in the sterile fluids market. [emphasis added]

[153] In my view, Baxter therefore took advantage of its substantial degree of market power in the sterile fluids market by engaging in its alternative offer strategy, including in particular by its pricing level for sterile fluids in its item-by-item bids.

Prohibited purpose

His Honour considered that the trail judges findings should be upheld; in particular, his Honour's 'conclusion that Baxter’s purpose was not within s 46(1)(a) should be upheld' [para 174] and 'Baxter’s purpose in engaging in the impugned conduct fell within s 46(1)(c), so that it contravened s 46(1) of the Act.'

Exclusive dealing

His Honour noted that there was

[at 193] ‘no dispute that Baxter’s impugned conduct amounted to conduct that fell within s 47(2).  That is quite clear:  its alternative offer strategy included offering to supply sterile fluids and PD fluids on the condition that the relevant SPAs would not acquire, or would acquire only to a limited extent, PD fluids from any competitor of Baxter in the PD fluids market.

[194] Consequently, its impugned conduct contravened s 47(1) provided it also came within s 47(10).’

His Honour agreed with the primary judge's approach

[241] In my judgment, the primary judge was correct to look at the purpose and effect of Baxter’s conduct by reference to the tender process or processes and their potential or actual outcomes.  The focus of s 47(2) relates to particular transactional behaviour by a participant in a market.  It is accepted that, by engaging in its alternative offer strategy, Baxter did engage in the practice of exclusive dealing.  Section 47(10) then directs attention to the purpose or effect of the exclusive dealing:  does it have the purpose or effect of substantially lessening competition?  By reason of s 4G, that means asking whether it has the purpose or effect of preventing or hindering competition.  Then s 47(13)(b) makes it clear that the reference to "competition" is a reference to competition in any market in which either Baxter or any person whose business dealings are limited or restricted by the conduct participates.  Relevantly, that is principally the PD fluids market.

[242] Those provisions direct attention to the purpose or effect of the impugned conduct upon competition in the market for the supply of PD fluids.  That market, at the times of the impugned conduct, included the market for the supply of PD fluids to the several SPAs.  In fact, it is clear that the supply of PD fluids to the SPAs represented a significant part of the market.  By its impugned conduct, Baxter sought to cut its competitors in that market out of the opportunity to supply PD fluids to the SPAs.  That is, Baxter sought, by engaging in exclusive dealing, to prevent or hinder its competitors competing to supply PD fluids to that part of the market.  The proscription of exclusive dealing is precisely to prevent that from happening which did happen, provided s 47(10) is satisfied.  The immediate competition in the market for the supply of PD fluids at the time of the proscribed conduct was for the opportunity to supply PD fluids to the relevant SPA.  That competition was affected by Baxter’s exclusive dealing.  It was Baxter’s purpose to do so:  it wanted to win that competition in the market by exclusive dealing, that is by making its competitors’ tenders for the supply of PD fluids realistically unacceptable to the SPAs by bundling its tenders and by its alternative offer strategy.

[243] In my view, it was appropriate for the primary judge to consider whether Baxter’s conduct had the purpose or effect of preventing or hindering Gambro and Fresenius from competing in the market for the supply of PD fluids to the SPAs.  Of course, it may have done so legitimately.  It may have done so by price, quality or service differentials in relation to PD fluids.  But it could not lawfully do so by engaging in exclusive dealing, if its conduct had the quality described in s 47(10).

[244] In answering that question, namely did Baxter’s conduct have the quality described in s 47(10), there is no reason to exclude the immediate effect of the impugned conduct from consideration of whether the purpose or effect of substantially lessening competition.  It would make no sense to do so, given s 47 proscribes exclusive dealing precisely because it may substantially lessen competition in a market in which the issue is the opportunity to supply to that market at that time.  … In the present circumstances, the real and immediate competition was (or included) the competition through the tender processes to supply PD fluids to the SPAs.  Indeed, I would take one step further than the primary judge.  The exclusive dealing did not come to an end by the making of the tenders.  It extended to the entering into each of the impugned Agreements (other than the 1999 ACT Agreement).  The entry into the sole supply agreements was the perfection of Baxter’s intention to secure that part of the market to itself by its exclusive dealing.

[245] The relevant control, in my view, is that imposed by s 47(10): the need for there to be a purpose or effect or likely effect of substantially lessening competition in a market.  Whether exclusive dealing does substantially lessen competition is a complex issue of fact to be decided in each case upon the whole of the evidence.  If a tender process is subverted by exclusive dealing, it may or may not have the specified quality depending upon a range of matters: the suppliers in the market and their relative positions and vulnerabilities; the acquirers in the market and their relative positions; the extent of the market on offer by the particular tender; and no doubt other matters.

[246] Once one moves then to consider that complex factual issue, in my view – provided it was legitimate to treat the impugned conduct in an aggregated way (as I think the primary judge may have done) – his Honour was clearly correct in the conclusion he reached.

[247] Baxter’s alternative offer strategy was to hinder or prevent Gambro and Fresenius from being able to compete in the tender processes of the SPAs and to secure that part of the market then on offer to itself.  Its purpose, to paraphrase in terms of s 47(10) and s 47(13), was to lessen the competition in the tender processes by making its rivals’ tenders unacceptable to the SPAs on economic grounds so as to restrict or limit the opportunity for Gambro and Fresenius to supply, or being likely to supply, PD fluids to the SPAs.  The effect or likely effect of Baxter’s conduct was that it would be awarded the contracts over the tenders of Gambro and Fresenius.  Its alternative offer strategy achieved its purpose and had that effect. … [emphasis added]

[252] It is clear that, in the market for the supply of PD fluids, the supply to the SPAs was an important component.  The evidence indicated that collectively that supply represented a very significant proportion of the market.  … because the opportunity to supply each SPA with sterile fluids did not occur simultaneously but occurred over a progressive period of time, each tender process represented an opportunity to supply to a significant acquirer of PD fluids in the Australia wide market.

[253] Consequently, even if for the purposes of s 47 each tender process should be viewed separately, in my view the primary judge could have decided, as he did, that the conduct of Baxter had the purpose or effect, or likely effect, of substantially lessening competition in the market for the supply of PD fluids.  I respectfully agree with the conclusion of the primary judge.

Justice Dowsett (dissenting)

Misuse of market power

Dowsett J dissented because he did not consider Baxter had the requisite prohibited purpose; however, his Honour generally agreed with Mansfield J on the issue of taking advantage [para 289].

On the issue of purpose his Honour agreed, for the reasons given by Mansfield J, that there was no purpose proscribed by s 46(1)(a). However, he also concluded there was no purpose proscribed by s 46(1)(c) - that of deterring or preventing competitive conduct. His Honour observed:

[305] I accept that there is a distinction between preventing competitors from tendering and preventing them from tendering so as to be successful. However I am unable to discern the difference between trying to win a tender and trying to prevent competitors from winning (or being "realistically competitive").

...

[324] If Baxter had such a proscribed purpose, one would have expected to be able to identify, at least in a generic way, the conduct which it proposed to deter or prevent. His Honour’s findings exclude the possibility that Baxter’s purpose was to deter or prevent its competitors from continuing to tender as and when tenders were called. As far as I can see, no other relevant conduct could have been the subject of such a purpose. Further, it is incorrect to describe Fresenius and Gambro’s bids as uncompetitive. Their bids may well have been competitive in that they influenced Baxter’s prices for PD fluids. The evidence indicates that local manufacture of PD fluids did not give Baxter a substantial advantage as to pricing. On at least one occasion Baxter’s bids for PD fluids were lower than a competitor’s but generally, the case seems to have been conducted on the basis that such bids were more or less comparable. Had the competitors’ bids been persistently and significantly lower than Baxter’s, the matter would have been rather more complicated than it seems to have been. In that sense competitors’ bids were "competitive" even if they did not succeed. Further, competitors would have been interested in the other sectors of the national PD fluids market to which I have referred.

[325] The learned primary Judge’s approach would mean that in any tendering process, a tenderer with market power would be obliged to ask, not only how it could give the most favourable price to a potential purchaser, consistent with its own desire to make a profit, but also whether or not such a bid might be seen as an intended discouragement to competitors. It is difficult to identify likely criteria for distinguishing between trying to win a tender and trying to make a competing bid uncompetitive. The primary Judge’s approach would affect suppliers other than monopolists or near monopolists. A supplier may not know whether it has market power in the relevant sense, or whether it is taking advantage of it. It is one thing to expect that a supplier who has the intention of deterring or preventing competition should look to the Act. It is quite another to expect a supplier, who wishes to bid so as to defeat a competitor’s tender, to ask whether it (the supplier) has market power and is exercising it in so bidding. It seems unlikely that Parliament had such an intention.

[326] I should make some other short points. ACCC sought to advance a case based upon an ongoing course of conduct over many years. I do not see justification for attributing greater significance to any aspect of Baxter’s conduct, when viewed as part of such a whole, than when examined separately, save as to questions concerning its perceptions and purposes. In my view his Honour’s findings excluded the possibility that Baxter had a proscribed purpose in any of the impugned transactions. It was open to the primary Judge to infer from Baxter’s conduct, including its repetition over time, that its purpose was to dissuade competitors from remaining in the market. As ACCC submitted, it is only a short step from finding that a commercial undertaking has acted repeatedly in a way which is capable of producing a particular result to finding that it has the purpose of producing that result. However his Honour did not reach that conclusion, ... my reasoning in connection with s 46(1)(c) applies in connection with all of the relevant agreements, including those entered into with Queensland, South Australia and the Australian Capital Territory.

[327] The evidence did not establish a purpose within s 46(1)(c). Although for different reasons, I consider that his Honour was correct to dismiss the s 46 case.

Exclusive dealing

His Honour did not consider that the requirements of s 47(10) had been satisfied in this case and would have set aside the primary Judge's finding on s 47.

[352] The primary Judge found that Baxter had the purpose of lessening, preventing or hindering competition in a relevant market, and that such conduct had that effect or likely effect. These findings were in no sense dependent upon a detailed examination of competition in any market as contemplated in the above authorities. They were based upon purpose and effect or likely effect in connection with competitors’ tenders in individual tender processes. His Honour found that Baxter’s purpose was to attract as much business as possible, not to lessen competition. However he also found that the states had selected the tender process as their method of awarding contracts. Bundling, with the purpose of defeating a competitor’s tender was, in his Honour’s view, for the purpose of ensuring "that the competitive process of the tender process would not bring about realistically competitive bids for PD products". His Honour concluded that such a purpose was proscribed by s 46(1)(c). His Honour also found that if bundling had the effect, or likely effect, of making a competitor’s tender uncompetitive, then it had the effect or likely effect of lessening competition in the relevant market. ...

[353] His Honour’s approach equates conduct with regard to one transaction in the relevant market (the tender process) with competition in that market. Yet, according to the decision in Dandy Power (at 259), competition in a market is "the sum of activity engaged in by persons in promoting the sale to potential buyers of the goods with which that market is concerned". The cases demonstrate that lessening of competition is to be determined by looking at the state of competition in the market before, and after, the relevant conduct or, in the case of proposed conduct, with and without it. In any event it is difficult to accept that hindering one transaction in a market necessarily involves hindering competition as a whole in that market. Baxter’s conduct may have produced the effect or likely effect that it won the tender and its competitors lost. However that did not necessarily lead to a finding that competition in the market was prevented or impeded.

[354] ... the primary Judge observed that potential suppliers tendered upon the hypothesis that the tender process would be conducted "in such a way as would enable each, subject to price and quality conditions, to have a realistic prospect of success". Whilst fairness may be expected in public tenders, the real purpose, as I understand it, is to obtain, with probity, goods upon the best available terms from the purchaser’s point of view. As I have previously observed tenderers generally aim to maximize market share by defeating all competitors. Section 47 is not designed to ensure fairness to competitors but to protect competition in the market. [emphasis added]

[355] His Honour held that bundling with the purpose of defeating a competitor’s bid was, itself, sufficient to satisfy the purpose requirement of subs 47(10). I doubt whether s 47 was designed to produce that effect. It is difficult to believe that a supplier would engage in bundling for any purpose other than to maximize market share at the expense of competitors. If the intention underlying s 47 had been to outlaw bundling with that purpose, there would have been no need to construct the complex inter-relationship between subss 47(1), (2), (10) and (13). It would have been necessary only to outlaw bundling for the purpose of gaining a trading advantage. The authorities to which I have referred do not support his Honour’s view of the section. Further, the primary Judge’s approach overlooks the difference in focus as between s 46 and s 47. Section 46 focuses on purpose in connection with competitors or potential competitors, although with the ultimate purpose of protecting competition. Section 47 focuses on purpose, effect or likely effect in connection with competition in a relevant market. His Honour’s approach is more appropriate to the focus of s 46 than to that of s 47. I see no warrant for treating these different focusses as being the same.

[356] On the primary Judge’s approach at the "lower" level, identification of effect or likely effect becomes a very easy exercise. It requires no examination of the state of competition in the market. It is necessary only to identify an aspect of such competition which has been hindered, or is likely to be hindered, by the relevant conduct. In the present case, the primary Judge seems to have assumed that Baxter’s tender strategy probably hindered or prevented competition simply because it was likely to succeed.

[357] In my view the primary Judge’s approach, based upon purpose, effect or likely effect with regard to each individual tender process was incorrect. The proper approach was to assess those matters with regard to the identified markets, primarily the PD fluids market. As much appears from the cases to which I have referred. In Dandy Power, the relevant conduct was refusal of supply to a retailer. Smithers J looked to effect on competition in the market as a whole, not to the mere fact that a competitor had been excluded. In Outboard Marine, the conduct was, again, refusal of supply to a retailer. The alleged lessening of competition was that the conduct would deprive potential purchasers of the opportunity to compare rival products side-by-side. The paragraph on 670, commencing with the words "The weight of the authorities ...", is particularly relevant for present purposes. That paragraph is set out above. It suggests that effect upon an individual competitor is not sufficient to engage s 47. It is necessary to look to effect in the market as a whole. Similarly, consumer convenience is not an important feature. Each SPA’s choice of a particular method of acquiring supply falls into the category of consumer convenience.

[His Honour then discussed some s 47 authorities]

[362] In the present case the primary Judge’s finding that Baxter’s conduct had a proscribed purpose, effect or likely effect was based upon a misinterpretation of ss 47(10) and (13) and 46. That finding must be set aside.

Justice Gyles

Misuse of market power

Market power

[378] A substantial degree of power in a market is not the equivalent of monopoly power.  Indeed, the Act was deliberately amended in 1986 to lower the threshold.

Taking advantage

His Honour agreed that there was a taking advantage:

[379] … the facts compel the conclusion that Baxter’s conduct was taking advantage of its substantial degree of power in the market for sterile fluids to endeavour to achieve the prohibited purpose in the PD market.  As Mansfield J points out, the gist of the case was not that bundling per se was a breach of s 46, but that bundling in conjunction with the alternative offer strategy was.  That alternative offer strategy could only succeed because of the substantial market power Baxter held in the sterile fluids market.  The existence of any real competition in that market would have constrained Baxter from making the high offers for sterile fluids. 

Purpose

[380] The fact that the purchasing authorities, whether by tender arrangements or otherwise, accepted or facilitated the anti-competitive arrangements is beside the point. Each was confronted with the situation in which Baxter had a substantial degree of market power in relation to sterile fluids and had to deal with that situation as best they could. None of the purchasing authorities had anything to do with the prices offered by Baxter as part of its alternative bid strategy. Those prices were kernel of the breach of s 46(1)(c).

His Honour did, however, consider that the purpose should be made out in relation to all the impugned conduct - not just in relation to the South Australian deal.

Exclusive dealing

His Honour held that the impugned contracts breached s 47 (para 397).