Research Paper 23 1995-96

The Super League Case

Mark Leeming
Consultant to the Law and Public Administration Group

Contents

Historical Background

The origins of Super League

Part IV of the Trade Practices Act

Market Definition

The argument in the Super League case

The exclusionary provision argument

Economic duress

Consequences of News Limited's failure

Breach of Fiduciary Obligations

Consequences for sporting associations

Consequences for political parties and other associations

Conclusion

Endnotes

Major Issues

This paper deals with three questions. First, how did this come about? Secondly, what was the reasoning in the judge's 220 page judgment? Thirdly, and most importantly, what are the consequences of the decision, not only for the League, but also for other sporting bodies and, more widely, for non-sporting associations formed to promote a common purpose, such as political parties and employer and union federations?

This paper contends that there are two principal consequences of the decision (assuming that it is not disturbed on appeal). On the one hand, the decision stands for the proposition that the provisions in Part IV of the Trade Practices Act 1974 (Cth) (the Trade Practices Act) will not have the same impact on professional sport in this country as similar provisions have had in the United States, principally because of the wide definition of 'market' that has been adopted. That means that, in general, the controlling bodies of professional sports will be able to continue to exercise their powers over clubs, particularly in the area of competition restructuring and club expulsion, without regard to any anticompetitive consequences which the Trade Practices Act might otherwise render unlawful - even though the same conduct in the United States would be unlawful. If this is thought undesirable, attention should be given to amending the legislation, although it might be overhasty to do so before the decision of the Full Court has been delivered.

On the other hand, while those controlling bodies are, on the whole, unaffected by the Trade Practices Act, they will be constrained by fiduciary obligations which may be found to exist between themselves and the clubs. Ironically, this judge-made law may do more to restrict the conduct of sports associations than the statute. Moreover, while the Trade Practices Act generally applies only to corporations, fiduciary obligations arise between unincorporated associations and individuals. This paper contends that, on analogous reasoning to that in the Super League case, fiduciary obligations may arise between political parties and their branches, between union federations and particular unions, in fact, wherever an association is formed to promote a common goal. It may be that an unincorporated political party wishing to disendorse or expel a member or deregister a branch may now have to consider carefully whether it is complying with its fiduciary obligations to that member or branch.

Historical Background

In 1983, the League decided to exclude the Western Suburbs club, which was experiencing financial difficulty, from the competition. The club was successful in having the decision set aside, on the basis that the League's Constitution did not authorise it to exclude a team from the competition.(4) Four weeks later, the League became incorporated as New South Wales Rugby League Limited, this time with express provision in its Memorandum and Articles of Association to determine which clubs should be entitled to enter teams in the competition. After the 1984 competition, the League again decided not to admit Wests, and this time its decision, which again was challenged by the club, was upheld by the High Court.(5)

While the League(6) was successful before the High Court under its new corporate constitution, one further consequence (whose full ramifications may not have been clearly perceived at the time) was that it became subject to the Trade Practices Act, which applies to corporations but not to unincorporated associations.(7) Throughout the 1980s, the clubs in the competition were also incorporated. The litigation in the Super League case was primarily based on the Trade Practices Act, which as will be described below provides much more stringent restrictions on anticompetitive behaviour by corporations than the common law notion of restraint of trade. The Super League(8) case could never have happened but for the decision by the League to incorporate in 1983.

The origins of Super League

The rumours reached Mr Ken Arthurson, Chairman of the League, while he was in the United Kingdom. His response was to arrange for documents which became known as the 'Commitment Agreements' to be sent to each of the clubs in the League. Shortly after he returned to Australia, each of the clubs executed the Agreement, whose principal provisions were:

1. the Clubs agreed to participate in the national competition for the playing seasons 1995, 1996, 1997, 1998 and 1999, and not to participate in any other competition not approved by the League; and

2. the League agreed to admit the Clubs to the national competition for the playing seasons up to 1999.

Despite the Commitment Agreements, work continued at News Ltd on the planning of Super League. Some clubs were approached in confidence and given details of the proposal. On 30 January and 6 February 1995, the Super League proposal was outlined more widely, first to the League and then to the representatives of the clubs. No support was expressed at either meeting for the proposal. Nevertheless, because the Commitment Agreements had been prepared in some haste, at the meeting on 6 February the League proposed that all clubs sign new, more detailed agreements, known as the 'Loyalty Agreements'. A motion was then passed:

That it be recommended to the Board of Directors of the League that any clubs not signing the new Agreement by 9am on 8 February 1995 ... be expelled from the 1995 competition.

The new agreements not only recited the Commitment Agreements, but also made further, more specific provisions, in substantially the following terms:

1. the Clubs would use their best endeavours:
   1. to assemble, train and field the best possible teams to compete in each grade of the National Competition;

   2. to maintain the services of their contracted players, and obtain the services of the best available players, until 1999; and

   3. to assist the League to maintain and enhance the viability of the National Competition;

2. the Clubs would have no direct or indirect involvement in any rugby league competition which might undermine the quality, competitiveness and geographical reach of teams in the National Competition, or which might adversely affect the number of well known and experienced players competing in the National Competition; and

3. the Clubs would not release or otherwise permit players who were presently contracted to play for them to play in any competition other than the National Competition approved by the League.

At the same time, on 30 March 1995, News Limited commenced proceedings in the Federal Court seeking to set aside the Commitment and Loyalty Agreements because they contravened Part IV of the Trade Practices Act. The clubs aligned with News Limited also sought to have the Loyalty and Commitment Agreements set aside for economic duress. For its part, the League cross-claimed against News Limited and the 'rebel' clubs, alleging breach of contract, the tort of inducing breach of contract, and breach of fiduciary duty. The action was heard by Burchett J. over the last 11 weeks of 1995. His Honour's 220 page judgment was delivered on 23 February 1996, a week before the scheduled starting date of the rival competitions. Final orders were made on 11 March 1996. The operation of some of those orders, which were intended to compel players to participate in the League's competition, was stayed by the Full Court on 13 March, pending an appeal which will be heard by the Full Federal Court from 23 May 1996. After an attempt by the players to organise a competition, under the name of 'Global League', was blocked by the Federal Court, it appears that the 1996 competition organised by the League will proceed. The appeal is unlikely to be decided before the latter half of 1996.

Part IV of the Trade Practices Act

On the other hand, Part IV prevents corporations from engaging in anticompetitive forms of conduct known generally as 'restrictive trade practices' (in America, 'antitrust law'). The general purpose and scope of the Part is to enhance competition by proscribing and regulating agreements and conduct, such as exclusive dealing, secondary boycotts, resale price maintenance, predatory price discrimination and monopolisation, which is perceived to be inherently anticompetitive.(12) Actions to enforce Part IV must be brought in the Federal Court.(13)

Dissatisfaction with the common law's inadequacy in preventing the anticompetitive practices of large corporations, trusts and monopolies led to the enactment of restrictive trade practices legislation roughly a century ago: the Sherman Act 1890 and the Clayton Act 1914 in the United States, and the Australian Industries Preservation Act 1906 (Cth) in Australia, the latter modelled on the former.(14) While the United States legislation was actively enforced, its Australian counterpart fell into disuse as a consequence of narrow decisions of the courts.(15) Not until 1965 was further legislation passed, and constitutional doubts remained until 1970.(16) The present legislation was enacted in 1974, and substantially amended in 1977. However, despite the divergent patterns of legislative history, decisions of courts in the United States and elsewhere remain influential in the continuing interpretation of the Australian Act.

News Limited alleged that the League had breached s.45 and s.46 of the Act. Section 46 prevents a corporation with a substantial degree of market power from taking advantage of that power by eliminating or substantially damaging a competitor, or preventing the entry of a new competitor into the market.(17) Section 45 prohibits a corporation from making a contract or arrangement or arriving at an understanding, which contains an 'exclusionary provision' or which has the purpose, or would be likely to have the effect of substantially lessening competition.(18) An exclusionary provision is a defined term,(19) but amounts in substance to certain types of collective boycotts.

Market Definition

There is no unambiguous procedure for determining the appropriate market in any particular case. As Deane J. has said, 'the word [market] is not susceptible of precise comprehensive definition when used an as abstract noun in an economic context' (21) However, the approach sanctioned by the courts is to select what emerges as the clearest picture of the competitive processes in the light of commercial reality and the purposes of the law.(22) The characterising feature of a market is the existence of close competition between firms. Within a market there will be substitution on the supply and demand side: buyers will switch to another equivalent product if offered sufficient incentive, and suppliers too will substitute one product for another in their output mix, if sufficient profits can be made selling the new product. On many occasions, courts have approved this test:(23)

It is the possibilities of such substitution which set the limits upon a firm's ability to 'give less and charge more'. Accordingly, in determining the outer boundaries of the market we ask a quite simple but fundamental question: If the firm were to 'give less and charge more' would there be, to put the matter colloquially, 'much of a reaction?' And if so, from whom?

A vast number of firms might have some actual or potential effect on a defendant's behaviour. Many of them, however, will not have a significant effect and we attempt to exclude them from the relevant market in which we appraise a defendant's power. We try to include in the relevant market only those suppliers - of the same or related product in the same or related geographic area - whose existence significantly restrains the defendant's power. This process of inclusion and exclusion is spoken of as market definition.

1. the market for ski boots in Australia, not the broader markets for sports gear or ski gear, nor the narrower market for Salomon ski boots;(25)

2. the national market for biscuits, not the broader markets for confectionary or foodstuffs;(26)

3. the market for advertising real estate in local newspapers circulating in the Eastern suburbs of Sydney, not the total Sydney market for advertising Eastern suburbs real estate,(27) and

4. the European market for bananas, not the market for fruit.(28)

1. the market throughout Western Australia in which cricketers sell their skills or services and clubs buy the skills and services of cricketers;(29)

2. the market throughout Australia in which AFL clubs compete with each other to attract professional footballers;(30) and

3. the market for the acquisition of services of rough riders by entities conducting rodeos.(31)

The argument in the Super League case

1. a market for the supply of a national rugby league competition for viewing by the public;

2. a market for the supply of television and radio broadcast rights for that competition;

3. a market for the supply of pay television transmission rights for that competition;

4. a market for sponsorship rights in respect of the rugby league competition; and

5. a market between clubs for the supply of teams to compete in the national competition, each club competing in seeking players, sponsorship, supporters and purchasers of merchandise.

Burchett J. rejected the existence of all the markets News Limited contended for. Without defining it with precision, the judge identified a number of factors including the as indicating that the true market, for the purposes of the Trade Practices Act, was broader than rugby league, including at least the other major sports played in winter. The factors identified included:(34)

1. There was evidence that the clubs were concerned to keep their admission prices to levels comparable to those charged by the other football codes and basketball.

2. Crowd statistics revealed that when attendance at Sydney Swans Australian Rules matches at the Sydney Cricket Ground rose, attendances at rugby league matches for nearby league clubs Easts and Souths decreased. In other areas, matches were scheduled so as not to compete with soccer or basketball.

3. Although there was a core body of supporters for whom no other form of entertainment substitutes for rugby league, there were also significant supporters who would be lost to the code if prices increased or quality diminished.

4. The fact that the national soccer competition was transferred to the summer indicated that its administrators recognised that it competed with league.

5. Advertisers such as Coca-Cola Amatil treated a large number of sports as part of the one sponsorship market.

6. Channel Nine was able to substitute effectively with alternative programming when Channel Ten held the television rights in Sydney.

7. The evidence suggested that participants in the broader market, such as the Queensland Rugby Union, perceived themselves to be competing against the league for sponsorship.

8. The clubs and News Limited itself in their internal documents had referred on occasion to the competition posed by other codes of football, and basketball.

...that at least the rugby union, soccer, Australian rules football and basketball against which, the evidence shows, rugby league sees itself as competing for spectators, would attract a significant proportion of rugby league's crowds if the League chose to attempt to assert market power by significantly raising prices or giving less; and the sports which would attract persons away from rugby league in those circumstances belong in the same market with it. Both because those other sports would, as competitors, be able to take advantage if the League did act in that way, and also because the League, as I have said, does see itself as in competition with those other sports, it is as a matter of fact constrained in its commercial conduct from acting in the manner of a monopolist.

It is apparent from the breadth of material that needs to be taken into account in a market definition case that the evidence in such cases will be considerable and often disputed. Such cases are long and expensive. Unfortunately, although an extremely expensive case has been fought, with vast amounts of evidence from both sides, there is still no judicial determination of the market. However, on Burchett J.'s reasoning, it seems likely that the conduct of the bodies administering rugby union, Australian rules football, soccer and basketball will not be subject to the provisions of Part IV of the Trade Practices Act which are only triggered by having substantial market strength.

The exclusionary provision argument

In general terms, an exclusionary provision is a provision of a contract, an arrangement or an understanding between two or more competitors which has the purpose of preventing or restricting the supply or acquisition of goods or services to or from some other person or class of persons.(36) The American terminology is descriptive: a 'concerted refusal to deal'. Loosely, it amounts to a collective boycott.(37) So, for example, the practice whereby 145 carriers of readymix concrete agreed among themselves to restrict the size of the fleet and to equalise their earnings by rostering trucks was held to constitute an exclusionary provision.(38)

Although contracts, agreements and understandings which fall within this category are unlawful irrespective of their anticompetitive effect,(39) two prerequisites remain: (a) the agreement or understanding must be between competitors, and (b) the agreement must have the requisite purpose. News Limited could not argue that the clubs and the League were competitors in any relevant sense. Instead, it argued that the Agreements contained exclusionary provisions with respect to:

1. the clubs competing to supply their services to competition organisers and to acquire the services of competition organisers, and

2. the clubs competing to supply the services of premium players.

Moreover, with respect to the competition for the supply of the services of premium players, this fell within a specific exception in the Act, which excludes from the operation of the Act the performance of work under a contract of service.(43) All the clubs signed up players on standard contracts which had been deliberately cast in such a way as to take them outside the Trade Practices Act. Accordingly, both limbs of the exclusionary provision argument failed.

In any event, Burchett J. found that the Commitment and Loyalty Agreements had not been entered into for the unlawful purpose of preventing, restricting or limiting supply or acquisition. He found that the purpose of the League was to preserve the quality of the competition, while the clubs were actuated by their desire for greater security within the competition.

In the case of all breaches of the Trade Practices Act, the Court retains a discretion to grant a remedy. Burchett J. stated that, had he found that s.45 or s.46 had been breached, he would nevertheless not have ordered the Loyalty and Commitment Agreements set aside. That was because News Limited had 'engaged in self-help in an extreme form'.(44) Its conduct in inducing and 'corrupting' players and club officials to breach their contracts made the situation exceptional, so much so, that any remedy would have been withheld even had the case been made out.

Economic duress

The League will view the failure of any club to sign and Deed by the deadline (45) as an act of gross disloyalty

I also refer you to yesterday's meeting of the League which passed a resolution to recommend that the Board of the League consider the expulsion of any club which fails to sign and return the Deed by the deadline.

Similarly, Burchett J. held that the League - which in the past had only accepted clubs on the basis of an application renewed annually - would have been entitled to exclude a club which did not sign the Commitment Agreement, because it would have enfeebled the competition by its gross disloyalty.(48) Again, threatening to do what the League was entitled to do could not amount to economic duress. A second reason for the letter not amounting to duress was that Burchett J. found that the threats did not in fact significantly induce the clubs to sign. There was evidence that the clubs perceived advantages in signing, because they would enjoy greater security within the competition.

Consequences of News Limited's failure

Breach of Fiduciary Obligations

In the light of Burchett J.'s finding, it is worth pausing a moment on the notion of a fiduciary relationship. A fiduciary relationship is one of trust and confidence. A fiduciary is in a position, by his or her own actions, to injure another. In these circumstances, the courts impose a fiduciary obligation which prevents that party from being free to act in his or her own best interests. Instead, his or her own interests must be subjugated to those of the other party. The courts apply stringent rules to ensure that fiduciaries conduct themselves 'at a level higher than that trodden by the crowd' (50) Not only must the fiduciary not profit from the relationship, but also must not put himself or herself in a position of conflict. The clearest examples of fiduciary relationships are those of trustee and beneficiary, solicitor and client, senior employee and employer, and between partners in a partnership. So, a solicitor may not make a profit from an opportunity which came to his or her knowledge through administering a trust, even if the beneficiaries could never have exploited the opportunity, and even though the solicitor acted bona fide and in the interests of the trust.(51) Nor may a senior employee appropriate for himself or herself the company's clients, even if the company was in the process of moving out of that line of business anyway.(52)

A plaintiff who can show that the defendant has breached a fiduciary, rather than a merely contractual, obligation is in an advantageous position in respect of the remedies a court may grant. In contract, the ordinary remedy is for the defendant to pay the damages the plaintiff has suffered by reason of the breach. In the case of breach of a fiduciary obligation, a similar and in some ways more generous compensation is available.(53) However, three further remedies are also available, for which there is no ordinary counterpart for purely contractual breaches. First, if the defendant has made profits out of the breach of fiduciary duty, the plaintiff can recover those profits too. Secondly, if the defendant is impecunious, but the property taken in breach of its fiduciary obligations is now held by or can be traced to some other person, in many circumstances the plaintiff can recover that property from the other person. And finally, where a third person has assisted the fiduciary to breach his or her obligations, in circumstances where the third person knows of the breach, then the third person will be liable for all the damage suffered by the plaintiff, even if the third person never received any of the plaintiff's property. Once it was found that the clubs aligned with News Limited had breached not only contractual but also fiduciary obligations, it was a very short step indeed to find that News Limited had knowingly assisted them so to breach, and was accordingly liable. Burchett J. so found.(54)

This is a novel form of fiduciary relationship. For if one partner in a partnership is disliked by the rest, but is unwilling to depart, it is ordinarily necessary to dissolve the entire partnership. However, of course, the League could under its Memorandum and Articles of Association - and did in fact - exclude clubs, against their will, from the competition. The League excluded Newtown, one of the founding member clubs of the League, while another founding club, Western Suburbs, was forced to relocate to Campbelltown, under threat of expulsion. A third club, North Sydney, was threatened with expulsion when it objected to the advertising of the League's principal sponsor. Under the law of partnership, even where there is express power to expel a partner, the power must be exercised in good faith, which includes the obligation to give the partner who is to be expelled the opportunity to be heard. That certainly does not appear to have been considered in the expulsion threat of 6 February 1995.

Burchett J. wrote that 'partnerships also have partners retire and new partners join them'.(55) But the examples taken from the history of the League in the last decade are analogous not to the voluntary retirement of partners, but to their forcible expulsion. It appears that the analogy with a partnership or a joint venture is, at best, strained.

In the appeal (to be heard in May), it is likely that the reasoning supporting the fiduciary relationship will be subject to scrutiny. However, the ramifications are sufficiently significant to warrant some consideration below.

Consequences for sporting associations

On the other hand, if the clubs do owe fiduciary obligations to the League because all pursue a jointly held objective, it is unescapable that the League also owes fiduciary obligations to the clubs. Indeed, being more powerful than the clubs, and thus more able to cause harm to them, it should follow that its fiduciary obligations will be correspondingly greater. For example, the League could not refuse to admit a club to the next season's competition at will. Burchett J. accepted the following evidence of Mr Arthurson:(57)

One of the matters on which he insisted, with some fervour, was the view that no club which maintained its ability to comply with the general requirements would be forced out of the competition.

Moreover, difficulties may also arise if the League attempts to impose a multi-tiered Division A/Division B structure. Drummoyne District Rugby Club, which competes in the competition organised by the New South Wales Rugby Union, finished last in 1993, but objected to being dropped to the second division. It was successful in the courts, relying not on the Trade Practices Act or any fiduciary obligation, but a separate legal doctrine known as estoppel.(58) The point to be observed is that a club which feels itself disadvantaged by changes sought to be imposed upon it by the controlling body now has, after the Super League decision, an additional potential remedy in court. At the same time, it seems likely that the rate of change in organised sport, and the need for restructuring, is growing. The unhappy prediction is that the number of cases in the courts will increase.

Consequences for political parties and other associations

It seems probable that the reasoning of Burchett J. in the Super League case in relation to fiduciary obligations is equally, if not more, applicable to political parties, which were likewise formed to promote an object shared by all the members. The fiduciary analogy may be even stronger, because there is (at least in theory!) more communality of interest between different branches of a political party than between different sporting clubs which do in fact compete with each other each weekend. It follows that disaffected members of a political party may therefore:

1. take their grievances to a court (which will not decline to exercise jurisdiction); and

2. claim that a fiduciary obligation has been breached, in addition to any other arguments that might exist.

Likewise, Burchett J.'s reasoning may have application to other associations formed to promote a common objective, including other sporting associations, recreational and social organisations such as the RSL, and union and employer groups. It may arguably extend to religious organisations.(62)

In all these areas, analogous reasoning suggests that the controlling body of an association formed to promote a cause may be less free to restructure or expel its member clubs or branches. Even if it has explicit power to do so under its Constitution, that power must be exercised by the controlling body in a manner consistent with its fiduciary obligations. What precisely that means is unclear from the Super League judgment because the judgment deals with the issue only briefly. Once the court accepted that the clubs owed fiduciary obligations to the League, there was no doubt that their conduct breached those obligations However, two tentative suggestions may be made. First, it is suggested that a threshold test would be that the exclusion or restructuring can only occur if the belief is genuinely and reasonably held that it is in the best interests of the common interests for which the association was formed. Secondly, it is very likely that it would also be necessary to comply with strengthened natural justice requirements.

Conclusion

Secondly, assuming Burchett J.'s reasoning is upheld on appeal, there can be little application of the protective provisions of Part IV of the Trade Practices Act in professional sports. That may be a matter of concern to be addressed by the Parliament.

Thirdly, and again if Burchett J.'s approach to identifying fiduciary relationships is maintained on appeal, the judgment may have wide application to organisations including political parties, union and employer groups, other sporting bodies, recreational and social associations - in short, potentially any grouping formed to pursue a joint objective. If those bodies seek to restructure or expel their members, they will have to have regard to the fiduciary obligations owed. The precise content of those obligations is not yet clear, but if the restructuring or expulsion disadvantages a club or branch or member, there will be every incentive to apply to the courts for redress.

Endnotes

1. Although referred to in some News Limited documents and throughout the judgment of Burchett J. as 'Superleague', the company incorporated to manage the competition was 'Super League Pty Limited'. The correct term is 'Super League', which is used throughout this paper.
2. Hawick v. Flegg (1958) 75 WN (NSW) 255.
3. Buckley v. Tutty (1971) 125 CLR 353.
4. Unreported, Helsham C.J in Eq., 22 November 1983.
5. Wayde v. New South Wales Rugby League Ltd (1985) 180 CLR 459. Deane J. was appointed to the High Court in 1983 and was a member of the majority in Wayde. He was appointed Governor-General in. 1996.
6. In 1986 another company, Australian Rugby Football League Limited was incorporated. Throughout this paper, both it and New South Wales Rugby League Ltd are referred to as 'the League'.
7. In fact, it applies only to trading, financial and foreign corporations, because of the limits of Commonwealth legislative power: see Constitution, s.51(xx), Trade Practices Act, s.4. However, the High Court has held that the Western Australian National Football League (and by analogy, similar bodies such as the League) is a trading corporation: R v. Federal Court of Australia; ex parte Western Australian. National Football League (1979) 143 CLR 190.
8. News Limited v. Australian Rugby Football League Limited & Ors (1996) 135 ALR 33. Orders made 11 March 1996.
9. See report compiled by Chris Masters shown on Four Corners on 22 May 1995.
10. Subject to certain reservations by the Brisbane Broncos and the Canberra Raiders not relevant to this paper. The Broncos in fact executed the Loyalty Agreement shortly after the nominated time limit.
11. 'A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.'
12. See Refrigerated Express Lines (Australia) Pty Ltd v. Australian Meat and Livestock Corporation (1980) 44 FLR 455 at 460.
13. They are 'special federal matters': see Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss.3(1), 6.
14. For historical background, see Heydon, Trade Practices Law (1989, Law Book Company), pars. [1.30]-[1.220]; Areeda and Turner, Antitrust Analysis (4th ed 1988, Little Brown & Co).
15. Huddart Parker & Co Pty Ltd v. Moorehead (1909) 8 CLR 330; Adelaide Steamship Co Ltd v. The King (1912) 15 CLR 65, (1913) 18 CLR 30.
16. Resolved by Strickland v. Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
17. Section 46 provides:
    1. A corporation that has a substantial degree of power in a market shall not take advantage of that power for the purpose of -
       1. eliminating or substantially damaging a competitor of the corporation ... in that or any other market;
       2. preventing the entry of a person into that or any other market; or
       3. deterring or preventing a person from engaging in competitive conduct in that or any other market...
18. Section 45 provides:
    1. A corporation shall not -
       1. make a contract or arrangement, or arrive at an understanding, if -
          1. the proposed contract, arrangement or understanding contains an exclusionary provision; or
          2. a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or
       2. give effect to a provision of a contract, arrangement or understanding ... if that provision -
          1. is an exclusionary provision; or
          2. has the purpose, or has or is likely to have the effect, of substantially lessening competition.'
19. See s.4D (reproduced at footnote 36 below).
20. Gardiner, 'The Continuing Saga of Market Definition: QIW Retailers Ltd v. Davids Holdings Pty Ltd' (1995) 3 Trade Practices Law Journal 177 at 178.
21. Queensland Wire Industries Pty Ltd v. Broken Hill Proprietary Company Ltd (1989) 167 CLR 177 at 195.
22. Singapore Airlines Ltd v. Taprobane Tours WA Pty Ltd (1992) ATPR 41-159 at 40,172 per French J.
23. Re Queensland Co-operative Milling Association Ltd (1976) 8 ALR 481; 25 FLR 169; (1976) ATPR 40-012, approved in Queensland Wire Industries Pty Ltd v. Broken Hill Proprietary company Ltd (1989) 167 CLR 177; Arnotts Ltd v. Trade Practices Commission (1990) 24 FCR 313 at 328-329; Davids Holdings Pty Ltd v. Attorney-General of the Commonwealth (1994) 49 FCR 211 at 225, and many other decisions.
24. Areeda and Kaplow, Antitrust Analysis, (4th ed, Little Brown & Co, 1988), p.572; approved in Singapore Airlines Ltd v. Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 at 178; Davids Holdings Pty Ltd v. Attorney-General of the Commonwealth (1994) 49 FCR 211 at 234.
25. Mark Lyons v. Bursill (1987) 75 ALR 581, (1987) ATPR 40-809.
26. Arnotts Ltd v. Trade Practices Commission (1990) 93 ALR 657, (1990) ATPR 41-002; (1990) 24 FCR 313.
27. Eastern Express Pty Ltd v. General Newspapers Pty Ltd (1991) 30 FCR 385, (1992) 35 FCR 43.
28. United Brands Company v. The Commission of the European Communities [1978] 1 CMLR 429.
29. Hughes v. Western Australian Cricket Association (1986) 19 FCR 10.
30. Adamson v. West Perth Football Club (1979) 39 FLR 199, 27 ALR 475.
31. McCarthy v. Australian Rough Riders Association (1988) ATPR 40-836.
32. See Re Queensland Independent Wholesalers Ltd (1995) ATPR 41-438, 132 ALR 225.
33. Including International Boxing Club of New York Inc v. United States 358 US 242 (1959); National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma 468 US 85 (1984), and decisions of other federal courts.
34. (1996) 135 ALR at pp.74-85.
35. (1996) 135 ALR at p.81.
36. The section provides:
    1. A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Act if -
       1. the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any two or more of whom are competitive with each other; and
       2. the provision has the purpose of preventing, restricting or limiting -
          1. the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or
          2. the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions,
       by all or any of the parties to the contract, arrangement or understanding or of the proposed parties to the proposed ccontract, arrangement or understanding, or, if a party or proposed party is a body corporate, by a body corporate that isis related to the body corporate.
37. See Report to the Minister of Business and Consumer Affairs ('the Swanson Report') (1976, AGPS); par. 44.116.
38. Gallagher v. Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159.
39. Subject to authorisation by the Trade Practices Commission (now the ACCC): s.88.
40. (1996) 135 ALR at p.94.
41. National Football League v. North American Soccer League 459 US 1074 at 1077 (1982).
42. (1996) 135 ALR at p.94.
43. Section 4(1).
44. At p.187.
45. Letter of 7 February 1995 (see (1996) 135 ALR at p.115).
46. Crescendo Management Pty Ltd v. Westpac Banking Corporation (1988) 19 NSWLR 40 at 45-46; Dimskal Shipping Co SA v. International Transport Workers Federation [1992] 2 AC 152 at 165-166. See generally Sindone, "The Doctrine of Economic Duress" (1996) 14 Australian Bar Review 34.
47. (1996) 135 ALR at p.115.
48. (1996) 135 ALR at pp.116-117.
49. (1996) 135 ALR at pp.122-127.
50. Meinhard v. Salmon 164 NE 545 at 546 (1928) per Cardozo CJ, approved in Warman International Ltd v. Dwyer (1995) 182 CLR 544.
51. Phipps v. Boardman [1967] 2 AC 46.
52. Warman International Ltd v. Dwyer (1995) 182 CLR 544.
53. See Re Dawson (decd) [1966] 2 NSWR 211; Witten-Hannah v. Davis [1995] 2 NZLR 141; cf. Target Holdings Ltd v. Redferns [1995] 3 WLR 352.
54. (1996) 135 ALR at p.126.
55. (1996) 135 ALR at p.124.
56. See Wood, 'How level is this new playing field?', The Australian, 26 March 1996.
57. (1996) 135 ALR at p.94.
58. Drummoyne District Rugby Club v. New South Wales Rugby Union (1994) Aust Contracts Rep 90-039. Very generally, the doctrine of estoppel may give rise to rights when one party makes representations by its words or conduct on which the other party relies to its detriment: see Commonwealth of Australia v. Verwayen (1990) 170 CLR 394; Waltons Stores (Interstate) Ltd v. Maher (1988) 164 CLR 387.
59. (1934) 51 CLR 358.
60. Baldwin v. Everingham [1993] 1 Qd R 10. See on this topic Forbes, 'Judicial Review of PoliticalParties', Research Paper, Parliamentary Research Service 1996 (forthcoming).
61. Thornley v. Heffernan (unreported, Brownie J, 25 July 1995; McLelland CJ in Eq, 12 September 1995).
62. Cf. Scandrett v. Dowling (1992) 27 NSWLR 483.
63. Hughes v. Western Australian

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