The Federation Press

Proof of Antitrust Markets in Australia

Overview

This book examines the evidence involved in proving the existence of an antitrust market under the Australian Trade Practices Act 1974. An antitrust market is a complex eco-legal concept. Proof of such a market is a critical issue that must be tackled in assessing whether business conduct is anti-competitive for the purposes of the Act. It is an issue that arises in most jurisdictions in which competition legislation exists, including New Zealand, the United States and the European Community.

Proof of Antitrust Markets in Australia is the first comprehensive analysis of the evidentiary dimensions of this important issue. It provides significant practical insights for lawyers, economists, judges, regulators and business people concerning the evidence required to establish antitrust markets to the satisfaction of the courts. The challenges involved in presenting evidence from industry, consumers, statistical studies, and expert witnesses are each explored in detail.

The insights conveyed in the book indicate that while the approach taken by Australian courts to the evidence on this issue may be correct in principle, it lacks rigour in practice. The author makes a range of recommendations as to how the approach could be improved. This particular aspect of the book should be of interest to scholars in the field of competition law generally.

Reviews

The Federation Press has developed an interesting niche market in recent years in the highly competitive world of trade practices publications, with a series of texts which deal with various aspects of the Trade Practices Act 1974 in some depth. Proof of Antitrust Markets in Australia by Caron Beaton Wells joins this list and is a welcome addition to it. ...
There are many enjoyable features of this book. In many instances, the author marshals her arguments in semi-point form (eg pp9-10) so that each support for her reasoning is clearly able to be followed. Her explanations are particularly lucid (eg “Principles underlying proof of a market”, Ch 2) and thus the attention span of the economically illiterate (including this reviewer) will be fully engaged. Most importantly, she uses a cross-disciplinary approach in explaining how consumers or industry might view the term “market” in a different light to the economist. A study of these aspects cannot but help the practitioner understand where the client is ‘coming from’. Even the world of econometrics is clearly explored and explained.
There is lengthy analysis of the various cases from the evidentiary point of view, and substantial quotations from the judgments dealing with this particular aspect. This is unquestionably welcome in assisting the practitioner in compiling his or her own list of “do’s and don’t’s”. In addition there is a wealth of referencing to other source material ...
So who should be the “market” for this text? Many advanced practitioners will undoubtedly be aware of the difficulties Caron Beaton Wells has pointed out. This text discusses both the rules of evidence generally and the particular problems they pose in this area. I would therefore suggest this is the perfect text for those commencing to practise in Pt IV matters. It should be a mandatory pre-read for any lawyer transferred to the competition section of his or her firm, as well as for those freshly assigned to handle such matters in the ACCC. It will also form an invaluable tool for those at the Bar receiving their first competition brief. ...
The work is a substantial contribution to the literature on Part IV of the Act and is to be warmly welcomed. - David Melz, Trade Practices Law Journal, Vol 12, 2004

This is a timely publication. ... Each of the four different categories of evidence regularly employed in market abuse cases is examined: industry evidence, consumer evidence, quantitative evidence and opinion evidence. The strengths and weaknesses of each are also considered. The book provides both a very useful introduction to those unfamiliar with the topic and a guide through the evidentiary maze. - Australian Banking & Finance Law Bulletin, (2004), Vol 20(2)

Table of Contents

Foreword by Professor Stephen Corones
Preface and Acknowledgments
Table of Cases
Table of Statutes
Focus on Proof of a Market
Principles Underpinning Proof of a Market
Context and Process for Proof of a Market
Industry Evidence
Consumer Evidence
Quantitative Evidence
Expert Opinion Evidence
Conclusions
Appendices
References
Index

Of interest...