RP Data Limited v State of Queensland

Federal Court of Australia
[2007] FCA 1639 (30 October 2007)
Justice Collier

Issue

misuse of market power

Catchwords

TRADE PRACTICES – section 46 Trade Practices Act 1974 (Cth) – respondent State collects and maintains valuations and sales data for real property in Queensland – respondent supplies bulk valuations and sales data for real property in Queensland to the applicant pursuant to a licence agreement – whether respondent has engaged in or proposes to engage in conduct for a proscribed purpose in breach of section 46 Act because of the terms on which the respondent proposes to renew its licence agreement with the applicant – respondent proposing to exclude certain information from the data provided – respondent claims purpose of removal of data is to prevent direct marketing using respondent’s data – whether respondent State is bound by section 46 – meaning of "carrying on a business" – application of Act to State – nature of the "market" as contemplated by section 46 and section 4E Act – existence of a Market for the supply of the Collected Data or, alternatively, a Wholesale Market and a Retail Market for the Collected Data and Real Estate Agents’ Services Markets – nature and scope of the relevant market(s)


TRADE PRACTICES – MARKET POWER – does the respondent have a substantial degree of power in any of those markets as contemplated by section 46 – taking advantage of substantial degree of power in a market – is the conduct of the respondent in refusing to renew the current licence held by the applicant on the same terms, in particular excluding the excluded data, conduct which can be characterised as the respondent taking advantage of a substantial degree of power in the Wholesale Market – purpose of respondent in excluding relevant information from data – whether for a purpose alleged by the applicant in contravention of section 46 – whether conduct for the purpose of eliminating or substantially damaging the applicant in the Retail Market – whether conduct for the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market – whether conduct for purpose of deterring or preventing real estate agents from engaging in competitive conduct in the Real Estate Agents Services Markets

Legislation

Trade Practices Act 1974 (Cth) ss 2B, 4(1), 46

Summary of finding

Application dismissed. Respondent found to be relevantly carrying on business and subject to s 46 in relation to selling bulk data in the Wholesale Market, but not in respect of ‘fulfilling its statutory function of providing individual over the counter searches to the Retail Market …’. Further, no substantial market power established in Retail Market. No dispute about SMP in Wholesale Market. Respondent found to have had SMP in that market and to have taken advantage of that SMP, but it was not established they had a proscribed purpose. No contravention.