APPEAL – TRADE PRACTICES – markets – alleged existence of a wholesale sports channel market – characteristics of “competition” and “markets” – relevant anti-competitive inquiry – application of the SSNIP test – alleged market not established
APPEAL – TRADE PRACTICES – section 45 – effect or likely effect – whether agreements entered into by various respondents had the effect, or likely effect, of substantially lessening completion in the retail pay television market – significance of Optus as a weak competitor – alleged effect or likely effect not established
APPEAL – TRADE PRACTICES – section 45 – purpose – multi-party contract – whether contract had the purpose of substantially lessening competition in the retail pay television market – consideration of “subjective purpose” – consideration of “substantial purpose” – whether all parties must share the impugned purpose – sufficient if only one party had the impugned purpose – whether knowledge of impugned conduct sufficient to establish a proscribed purpose – alleged purpose not established
APPEAL – TRADE PRACTICES – section 46 – taking advantage of substantial market power – the appropriate legal test – whether refusal to deal – whether Foxtel deterred or prevented Optus from engaging in competitive conduct in the retail pay television market – alleged abuse of substantial market power not established
APPEAL – Broadcasting Services Act 1992 (Cth) – whether breach of the anti-siphoning regime – whether sufficient evidence to establish breach – failure to put alleged breach to witnesses – whether standing to seek declaration – whether declaration would have utility – whether declarations should be made against non-parties – alleged breach not established
CROSS APPEAL – COSTS – whether costs payable on an indemnity basis – whether O 23 r 11(5) applies where applicant is wholly unsuccessful – whether Dukemaster Pty Ltd v Bluehive Pty Ltd [2003] FCAFC 1 (“Dukemaster”) plainly wrong – Dukemaster not plainly wrong – cross appeal dismissed
Tm Castle appeared for the first, second and third cross-appellants.