Section 46 of the Trade Practices Act-has the High Court made a "u-turn" on "taking advantage"?

Brock, Margaret 2005, Section 46 of the Trade Practices Act-has the High Court made a "u-turn" on "taking advantage"?, Australian business law review, vol. 33, no. 5, pp. 327-342.

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Title Section 46 of the Trade Practices Act-has the High Court made a "u-turn" on "taking advantage"?
Author(s) Brock, Margaret
Journal name Australian business law review
Volume number 33
Issue number 5
Start page 327
End page 342
Publisher Lawbook Co
Place of publication Sydney, N.S.W.
Publication date 2005-10
ISSN 0310-1053
Summary Examination of High Court decisions on misuse of market power in regard to the element of "taking advantage" reveals inconsistency of application. Whilst being consistent regarding the need for a connection between the market power and the impugned conduct, the High Court has not been consistent regarding the degree of connection required. Two streams have developed, one supporting a high degree of connection, the other a lower degree before a firm is found to have "taken advantage" of its market power. Added to this has been the development of the "rational business explanation" which, it is argued, is either used as a defence to a s 46 action or is premised on the higher threshold of connection. Initially the high Court supported the lower threshold. In later decisions, whilst expressing support for the earlier decisions, in application the High Court favoured the higher threshold and at one point the rational business explanation. This trend appears to have been reversed with the most recent High Court decision which indicates substantive support for the earlier s 46 decisions.
Language eng
Field of Research 180105 Commercial and Contract Law
HERDC Research category C1 Refereed article in a scholarly journal
Copyright notice ©2005, Lawbook Co.
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Document type: Journal Article
Collections: Faculty of Business and Law
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