Australian Competition and Consumer Commission v Visy Paper Pty Ltd [2000] FCA 1640

Australian Competition and Consumer Commission v Visy Paper Pty Ltd [2000] FCA 1640

Section 45(6) of the Trade Practices Act applied to the non-competition clauses in the draft agreements, as giving effect to those provisions would have constituted exclusive dealing under section 47. As section 45(6) excludes such conduct from the absolute prohibition in section 45(2)(a)(i), the respondents did not attempt to contravene section 45(2)(a)(i) nor attempt to induce its contravention, and accordingly, the application must be dismissed.

Jurisdiction
Australia
Judgment Date
20 November 2000
Procedural Posture
Civil / Judgment
Outcome
dismissed
Legal Topics
['exclusive Dealing' 'exclusionary Provisions' 'attempt' 'statutory Interpretation' 'vertical Restraints' 'section 45(2) Trade Practices Act' 'section 47 Trade Practices Act']
['competition Law' 'trade Practices Law'] ['exclusive Dealing' 'exclusionary Provisions' 'attempt' 'statutory Interpretation' 'vertical Restraints' 'section 45(2) Trade Practices Act' 'section 47 Trade Practices Act']

Case Brief

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Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 ['Whether Visy attempted to contravene section 45(2)(a)(i) of the Trade Practices Act by proffering draft agreements containing exclusionary provisions' 'Whether Visy attempted to induce NPP to contravene section 45(2)(a)(i)' 'Whether section 45(6) operates as a defence by taking certain conduct outside the scope of section 45(2)(a)(i)' 'Whether the non-competition clauses in the draft agreements were exclusionary provisions under section 4D' 'Whether NPP and Visy were competitive for the purposes of section 4D']

Ratio Decidendi

Section 45(6) of the Trade Practices Act applied to the non-competition clauses in the draft agreements, as giving effect to those provisions would have constituted exclusive dealing under section 47. As section 45(6) excludes such conduct from the absolute prohibition in section 45(2)(a)(i), the respondents did not attempt to contravene section 45(2)(a)(i) nor attempt to induce its contravention, and accordingly, the application must be dismissed.

Court Disposition

dismissed

Orders

  • ['The application be dismissed.' 'The applicant pay the costs of the respondents.']