The Australian Competition and Consumer Commission will appeal the judgment of the Federal Court made on 20 November 2000.
The Federal Court dismissed an application made by the Australian Competition and Consumer Commission for an alleged breach of a restrictive trade practices provision of the Trade Practices Act 1974 by Visy Paper Pty Ltd and two individuals.
While the Court was satisfied that there was evidence to substantiate relevant factual issues within this case, it was dismissed on an interpretation of Section 45(6) of the Act.
This provision has the function of determining the part of the Act under which the legality of certain types of business conduct is considered.
The ACCC's factual claims having been accepted by the Court, the outcome of the case depended upon the interpretation of Section 45(6). The Court held that the effect of Section 45(6) was to treat the conduct as being covered by the provisions of Section 47 (with a substantial lessening of competition test) rather than by the relevant provisions of Section 45 concerning exclusionary behaviour where the test is less stringent.
"There are strong public policy reasons why the ACCC should seek clarification of this point of law, and the most appropriate way to do this is by appealing the decision to the Full Federal Court", ACCC Chairman, Professor Allan Fels, said today.