find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (3-5 PAE)
Category: Insurance and Superannuation Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Dynamic organisation ·
View details
Real Estate & Projects Lawyer (6+ years PAE)
Category: Property Law | Location: Sydney CBD, Inner West & Eastern Suburbs Sydney NSW
· Top tier firm with offices nationally · High profile clients
View details
TPA tinkering must end

TPA tinkering must end

ACADEMICS AND legal practitioners are keeping their fingers crossed that the latest package of proposed amendments to section 46 will be the last.The competition law community has been waiting…

ACADEMICS AND legal practitioners are keeping their fingers crossed that the latest package of proposed amendments to section 46 will be the last.

The competition law community has been waiting patiently for post Boral developments in the courts. Unresolved issues impeding the court’s interpretation of the provisions include the definitions of cost, market share and predatory pricing.

Clayton Utz partner Michael Corrigan believes the government needs to stop tinkering with the section in order to allow it to “settle” in the courts.

“I think the Act has been amended many times in the last three to five years, and we really need to allow the thing to settle and allow some cases to be tested to work out whether it is getting results or not,” he said.

Corrigan said that, above all, it was time to put politics aside and allow the trade practices Act time to fulfil its pro-competitive policy purpose.

“I’m not a fan of this constant tinkering every year, because of some particular lobbying that goes on, to be adding new sections without even stopping to think whether the previous reforms may have delivered the results,” he said.

Dr Caron Beaton-Wells, Senior Lecturer Melbourne Law School, agreed that the courts need to be given the time and opportunity to consider the provisions of section 46 on the basis of some “real facts”.

“I think what we need to see is for the courts to have a further opportunity to explore the provision in the predatory pricing area. Boral is a case that had real problems for the ACCC from the outset. I don’t think Boral is a case that you’d point to, to say section 46 isn’t working. I think you need some further cases to gain a better informed view about that,” Beaton-Wells said.

“If anything, by virtue of having a specific section in there now dedicated to predatory pricing, it just highlights the fact that there are elements of such a claim that the ACCC has to prove that are highly contentious like recoupment.”

The latest amendment by the Assistant Treasurer and Minister for Competition Policy & Consumer Affairs, Chris Bowen, stipulates there should be no element of recoupment in a predatory pricing case in Australia.

Corrigan, however, argued against the striking out of the recoupment element, citing its inclusion in the definition of predatory pricing in overseas jurisdictions such as the United States.

“That’s his view,” Corrigan said in response to Bowen’s move, pointing to the High Court’s ruling in Boral as a confirmation of the importance of recoupment to a predatory pricing action. “Even Justice Kirby accepted it, and he was a dissenter. Kirby said that when you look at that, case recoupment is an important [even] if not essential part of any predatory pricing case. So the government’s gone against the Justice Kirby line as well as the majority, without any real satisfactory explanation.”

Dr Beaton-Wells also tabled criticism of the minister’s interpretation of the High Court’s past rulings, focussing on its interpretation of the test for ‘taking advantage’.

“Bowen, the minister, says in his speech that in Rural Press, the court endorsed a test which inquired whether the corporation could have undertaken the [anti-competitive] conduct without a relevant degree of market power, but … he’s just wrong about that: the court didn’t endorse that test.

“In my view, if you read from the first major decision in this area [which is] Queensland Wire, then you read Boral, Melways, and Rural Press: the real question is would the corporation have done the same as a matter of commercial reality in a competitive market?”

Despite the good intentions of the government in reversing the Birdsville amendment, it seems that the same old controversies and confusions will continue to dog section 46 in its new incarnation.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

TPA tinkering must end
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
Scales of Justice, Victorian County Court, retiring judges
Aug 21 2017
Replacements named for retired Vic judges
Two new judicial officers have been appointed in the Victorian County Court, following the retire...
Applauds
Aug 21 2017
LCA applauds proposed Modern Slavery Act
The Law Council of Australia has welcomed new recommendations for the development of a Modern Slaver...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...