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Recent Developments in Market Definition

Justice Andrew Greenwood
Opening Address, 2010 Competition Law Conference, Sydney, 29 May 2010


From introduction

'1 In Stepping Stones (edited by Dennis O’Driscoll, faber and faber, 2008) the Nobel Laureate Seamus Heaney in discussing the influence of Beowulf on English literature noted the apocryphal story of the Irishman who, when asked by an Englishman in Magherafelt (which lies between Derry and Belfast), “How do you get to Dublin?”, gave the reply, “If you’re going to Dublin, I wouldn’t be starting from here” which Heaney says is an accurate way of saying that if you don’t start in the right place you won’t end up in the right place.

2 The right time and place to start a discussion of market definition is 5 March 1975 when the Tribunal published its reasons in its very first decision under the Trade Practices Act 1974 (Cth) in Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169 and what an influential decision it proved to be. The Tribunal was comprised of Woodward J, Mr Shipton and Professor Brunt. Mr Bob McComas who became Chairman of the Trade Practices Commission appeared for Queensland Co-operative Milling. Mr F.G. Brennan QC, as he then was, appeared for the Commission leading Mr I Gzell.

3 I mention Queensland Co-operative Milling not simply for historical reference but rather to address important questions of emphasis as a matter of principle. In C7, Sackville J placed great emphasis upon the distinction between competition (which he described as competition per se) and close competition which he said was a “critical” distinction. ...'



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