Competition Law: Discussion on Three Recent Decisions

Abstract

This review discusses developments arising from three recent decisions in the field of competition law.The first is the High Court of Australia's decision in NT Power Generation Pty Ltd v Power & Water Authority [2004] HCA 48 ("NT Power"). That decision relates to the application of monopolisation laws in circumstances where there is a denial of access to a so-called "essential facility". The focus of the discussion of this case here is upon the "taking advantage" limb of the monopolisation test under s 36 of the Commerce Act 1986. This inquiry is of particular importance because it establishes whether there is a causal connection between the existence and relevant use of monopoly power.The second topic is the Court of Appeal's discussion of the "purpose test" under Part II of the Commerce Act in ANZCO Foods Waitara Ltd v AFFCO NZ Ltd (CA 181/04 23 June 2005).This review concludes with a discussion of the principles applying to the variation and revocation of authorisations as enunciated in the Commerce Commission's most recent OMV/Shell/Todd ("Pohokura") decision (Decision 581 2 June 2006).