30 Oct 2009
Leave to appeal was granted to determine whether the Court of Appeal erred in applying a counterfactual test and thereby wrongly concluded that Telecom had not abused a dominant position by introducing the 0867 service.
4 Aug 2009
The Court upheld the High Court: although Telecom was dominant in the relevant terminating access market, the 0867 conduct was not unlawful under s36 because a properly constructed counterfactual showed a non-dominant firm in the assumed competitive market could rationally have introduced 0867 to address termination arbitrage and congestion; therefore Telecom did not 'use' its dominance for an anti-competitive purpose and the appeal is dismissed.
18 Apr 2008
Telecom did not contravene s36 because the court found Telecom was dominant only in the fixed-line retail residential market, not in wholesale terminating access, and a counterfactual analysis established a non-dominant firm in Telecom's position could have lawfully introduced the 0867 package to address PSTN congestion and termination payment imbalances; no anti-competitive purpose was established.