IN THE FEDERAL COURT OF AUSTRALIA)
)
NEW SOUTH WALES DISTRICT REGISTRY) NG 197 of 1995
)
GENERAL DIVISION )
BETWEEN: NEWS LIMITED
Applicant
AND: AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED & OTHERS
Respondents
CORRIGENDA
JUDGMENT OF BURCHETT J. DELIVERED 23 FEBRUARY 1996
Errors not going to the substance of the judgment have been detected at pages 24 (date in eighth last line), 41 (quotation attributed to President Nixon), 56 (typing of name Broken Hill Proprietary Company), and 220 (appearance of solicitors Colin W Love & Co).
The pages should be replaced and for convenience double pages are attached hereto for substitution.
Associate to Hon Justice Burchett
1 March 1996
1 at 11; Weissensteiner v R (1993) 117 ALR 545 at 550-552, per Mason C.J., Deane and Dawson JJ; and Rivarola v Sunbeam Corporation Limited (N.S.W. Court of Appeal - Kirby P., Meagher and Sheller JJ.A. - unreported, 2 September 1992).
At 4.00 pm on Monday 14 November 1994, Mr Arthurson chaired a meeting at the League's premises attended by very senior representatives of each of the clubs except the Auckland Warriors, which sent apologies. The meeting had been called at short notice. Mr Arthurson reported, with reference to his conversation before the meeting with Mr Cowley: "[H]e did say to me today that he appreciated that, if there was a move towards Superleague, they would accept the fact that it would be controlled by the Australian Rugby League." By the time the meeting was held, the Commitment Agreements that had been sent out had been signed on behalf of 16 of the 20 clubs, while a further three clubs were only awaiting the holding of formal board meetings before also having Commitment Agreements executed. A Commitment Agreement had not been sent to the Brisbane Broncos, but straight after the meeting of 14 November 1994, an agreement in the same form was proffered to that club, and it was executed and returned to the League by 29 November 1994. At the meeting, Mr Arthurson explained why the Broncos had not previously been approached on this matter. He said: "[W]e were looking for immediate expressions of loyalty towards the game and, I must say, that from the newspaper reports we had received, we weren't absolutely certain we could get that immediate support from the Broncos
preparation of sample questions and answers, to be suggested to players who signed contracts with companies controlled by News Limited. The object was plainly to prolong deception. Players were to be encouraged to dissemble their involvement with Superleague. If asked by a journalist: "Are you in negotiations with News Limited?" it was urged that the answer be given: "There is no point in that, when I have a current contract which I am obliged to honour."
It is not in doubt that the objective of signing up so many players, at very great expense, together with coaches, and the making of secret arrangements with senior officials of clubs, was to put the clubs and the League itself in a position where there would be nothing they could do but capitulate. The evidence of Mr Arthurson was unchallenged that Mr Cowley later said to him: "We thought that after we had bought your players that it would have such an effect on you that we would be better able to negotiate with you and come through the front door." One of the planners engaged by News Limited, Mr Orlay, regarded the descent upon the League's players as an "incentive" for it to accept the terms offered by News Limited and to join in Superleague. The theory seems to have been precisely that espoused with some pride by President Nixon's special counsel, Charles Colson, in the infamous statement: "When you got 'em by the balls, their hearts and minds will follow".
The policy proved successful in the case of a number of the clubs. They were totally without recourse, having lost
In Queensland Wire Industries, where the power of Broken Hill Proprietary rendered precise definition unnecessary since, however widely the market boundaries might be set, the company had overwhelming market power, the judgments in the High Court make it quite clear that the Act is concerned with markets that are real and are the source of liability. They are not just theoretical models. Toohey J. put it explicitly (at 209):
"The existence of a market is vital to anyone seeking to invoke s. 46. Unless a corporation takes advantage of the power it holds in a market, there can be no contravention of the section."
Similarly, Dawson J. (at 200) said "the extent of market power cannot be assessed otherwise than by reference to a market". See also the remarks of Gummow J. in General Newspapers Pty Limited v Telstra Corporation (1993) 45 FCR 164 at 198.
The term "market" encapsulates the area within which competitive forces operate upon an undertaking (the subject of the enquiry), and its use implies the deployment of a method of economic analysis for the better understanding of those forces in order to solve the problem at hand. Just because it is of this nature, the concept can only be understood in relation to the idea of competition, itself a complex notion in this field of law and economics. The interaction between the ideas of competition and market is starkly revealed in the following passage from the Tribunal decision (Keely J., Deputy President; Shipton and Brunt, Members) in Application by Tooth
Counsel for the Applicant in the main proceedings (NG 197 of 1995) and for the First to Thirtieth Cross-Respondents to the First Cross-Claim:
Mr R.V. Gyles Q.C. with Mr P.G. Hely Q.C.,
Mr J.D. Heydon Q.C., Mr C.P. Comans,
Mr I.M. Jackman, Mrs J.E. Stuckey-Clarke,
Mr T.D. Castle and Mr R. Cobden
Instructed by: Atanaskovic Hartnell
Counsel for the First and Second Respondents in the main proceedings (NG 197 of 1995) and for the First and Second Cross-Claimants in the First Cross-Claim:
Mr R.J. Ellicott Q.C. with Mr D.K. Catterns Q.C.,
Mr D.M. Yates, Mr A.J.L. Bannon, Mr R.J. Weber,
and Mr D.B. Studdy
Instructed by: Gilbert & Tobin as agents for Colin W Love & Co.
Counsel for the Seventh and Ninth to Nineteenth Respondents in the main proceedings (NG 197 of 1995), who are also Cross-Claimants in the Second Cross-Claim:
Mr J.J. Spigelman Q.C. with Mr A.J. Payne
Instructed by: Gilbert & Tobin
Dates of hearing: 25-29 September, 3, 10-13, 16‑20, 27, 30, 31 October, 1‑3, 6-10, 13-17, 20-24, 27-30 November, 1, 4-8 and 11-15 December 1995
Date of judgment: 23 February 1996
