RP Data Limited (ACN 087 759 171) v State of Queensland [2007] FCA 1639 (30 October 2007)

TRADE PRACTICES – section 46 Trade Practices Act 1974 (Cth) – respondent State collects and maintains valuations and sales data for real property in Queensland – respondent supplies bulk valuations and sales data for real property in Queensland to the applicant pursuant to a licence agreement – whether respondent has engaged in or proposes to engage in conduct for a proscribed purpose in breach of section 46 Act because of the terms on which the respondent proposes to renew its licence agreement with the applicant – respondent proposing to exclude certain information from the data provided – respondent claims purpose of removal of data is to prevent direct marketing using respondent’s data – whether respondent State is bound by section 46 – meaning of "carrying on a business" – application of Act to State – nature of the "market" as contemplated by section 46 and section 4E Act – existence of a Market for the supply of the Collected Data or, alternatively, a Wholesale Market and a Retail Market for the Collected Data and Real Estate Agents’ Services Markets – nature and scope of the relevant market(s)

TRADE PRACTICES – MARKET POWER – does the respondent have a substantial degree of power in any of those markets as contemplated by section 46 – taking advantage of substantial degree of power in a market – is the conduct of the respondent in refusing to renew the current licence held by the applicant on the same terms, in particular excluding the excluded data, conduct which can be characterised as the respondent taking advantage of a substantial degree of power in the Wholesale Market – purpose of respondent in excluding relevant information from data – whether for a purpose alleged by the applicant in contravention of section 46 – whether conduct for the purpose of eliminating or substantially damaging the applicant in the Retail Market – whether conduct for the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market – whether conduct for purpose of deterring or preventing real estate agents from engaging in competitive conduct in the Real Estate Agents Services Markets

Held: The application is dismissed. In so far as the respondent is selling bulk data in the Wholesale Market, the respondent is "carrying on a business" and is bound by section 46. However, the respondent is not bound by section 46 in respect of fulfilling its statutory function of providing individual over the counter searches to the Retail Market and in any event applicant has not discharged its onus of proof in respect of any claim that respondent has a substantial degree of market power in the Retail Market. Existence of and nature of Wholesale Market, and that the respondent has substantial power in this market not in dispute. Respondent held to have taken advantage of its substantial market power in the Wholesale Market but not in contravention of section 46, namely, not for proscribed purpose. Respondent’s purpose in excluding information from the data, being to prevent the use of Departmental data for direct marketing purposes and not for anti-competitive purposes as alleged by applicant clear on the evidence. No contravention of section 46.

Privacy Act 1988 (Cth)
Trade Practices Act 1974 (Cth) ss 2B, 4(1), 46
Land Legislation Amendment Act 2003 (Qld) s 27
Land Titles Act 1994 (Qld)
Local Government Act 1993 (Qld) s 995, 1004, 1006, 1006A
Valuation of Land Act 1944 (Qld) ss 37, 47, 73, 76, 77, 81
Valuation of Land Amendment Bill 1992
Valuation of Land Regulation 2003 (Qld)

Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169 cited
Adamson v West Perth Football Club (1979) 27 ALR 475 considered
Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 cited
Australian Competition and Consumer Commission v Boral Ltd (1999) 166 ALR 410 applied
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149; (2003) 129 FCR 339 cited
Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525 cited
Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497 considered
Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374 applied
Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280; (2000) 104 FCR 448 cited
Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 cited
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 cited
Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 cited
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1 cited
General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164 cited
John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 cited
JS McMillan v Commonwealth (1997) 77 FCR 337 distinguished
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13; (2001) 205 CLR 1 applied
Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 cited
NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 applied
Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 distinguished
Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 cited
Plume v Federal Airports Corporation [1997] 1019 FCA distinguished
Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 cited
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd [1989] HCA 6; (1989) 167 CLR 177 applied
Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 cited
Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Toohey J, 3 August 1983 cited
Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 cited
Singapore Airlines Limited v Tabropane Tours WA Pty Ltd (1991) 33 FCR 158 distinguished
Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 cited
Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 cited
State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1 cited
Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 distinguished
Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146 cited
Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385 cited
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 cited
United States v Columbia Steel Co (1948) 334 US 495 cited
Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 cited

Corones S, Competition Law in Australia (4th ed, Lawbook Co, 2007)
Miller R, Miller’s Annotated Trade Practices Act (28th ed, Thomson, 2007)

RP DATA LIMITED ACN 087 759 171 v STATE OF QUEENSLAND
QUD75 OF 2005

COLLIER J
30 OCTOBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD75 OF 2005

BETWEEN:	RP DATA LIMITED ACN 087 759 171 Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	30 OCTOBER 2007
WHERE MADE:	BRISBANE

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD75 OF 2005

BETWEEN:	RP DATA LIMITED ACN 087 759 171 Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	COLLIER J
DATE:	30 OCTOBER 2007
PLACE:	BRISBANE

1 These proceedings concern a claim by RP Data Limited ACN 087 759 171 ("the applicant"), which for a number of years has received data from the respondent pursuant to a licence agreement between the parties, that the respondent has engaged in or proposes to engage in conduct in contravention of s 46 Trade Practices Act 1974 (Cth) ("TPA") because of the terms on which the respondent proposes to renew its licence agreement with the applicant.

2 By amended statement of claim filed 12 October 2006 the applicant in this matter has sought:

• a declaration that the respondent had engaged in or proposed to engage in conduct in contravention of s 46 TPA

3 The applicant has been in the business of collating, packaging and on-selling real property data throughout Australia and New Zealand since 1992 when it was first supplied bulk data by the respondent. During this time the applicant has sourced bulk data (specifically, Valuation and Sales data known also as "QVAS data" and also referred to as "Collected Data" by the parties throughout this case) referable to real property in Queensland from the respondent, through the Department of Natural Resources and Mines ("the Department").

4 Mr Raymond Catelan, director of the applicant, described the function of the applicant under that agreement as that of a non-exclusive data broker for the Department, whereby the applicant reformats data supplied by the Department into a commercially user-friendly format and markets the data to its customers through either online computer access or an in-house package (affidavit of Raymond David Catelan sworn 28 March 2006 paras 2-3). It is clear from Mr Catelan’s evidence that real estate agents are a major customer of the applicant, although he also deposed that government instrumentalities including the Australian Tax Office are customers (Catelan affidavit paras 4-5).

5 The applicant is one of eight business organisations holding a licence from the respondent in relation to QVAS data (affidavit of Geoffrey Arthur Oakley sworn 16 January 2006). Nonetheless, I understand that the applicant is a dominant force in respect of distributing the data with something in the order of 70% of the market share in terms of the end users (submission of Mr Jackson QC TS p 7 ll 4-5).

6 The Department collects and maintains Queensland real property valuation information pursuant to the Valuation of Land Act 1944 (Qld) ("VL Act"), and Queensland real property title information pursuant to the Land Titles Act 1994 (Qld) ("LT Act"). The VL Act in particular details the role of the Department, and its duties and obligations in relation to collection and maintenance of real property data.

7 The VL Act requires the chief executive of the Department to make annually a valuation of the unimproved value of all land in local government area (s 37 VL Act). The VL Act also mandates the preparation of a valuation roll for each local government area in the State with the following details required in respect of each valuation:

8 Further, the legislation contains provisions with respect to supply of data collected by the Department, and distinguishes between:

• requirements under the VL Act to supply the data, and powers of the chief executive to supply the data

• provision of bulk data such as found on the valuation roll or on a part of the valuation roll, and particulars of specific valuations.

• the chief executive of the Department is required to give a copy of the valuation roll to the Commissioner of Land Tax, the local government for the area and any authority or person administering any Act and requiring the roll for a purpose of or connected with the administration of that Act (s 73 VL Act)

• the chief executive of the Department is required to supply a certified copy of the particulars of a valuation entered on a valuation roll to a person who prescribes the fee (s 76(1) VL Act)

• the chief executive of the Department is entitled to supply to any person particulars or information contained in any s 81 notice upon payment of the prescribed fee (s 76(5) VL Act)

• the chief executive of the Department is entitled to enter into a contract to supply information in the form of bulk data, defined as valuation roll information for at least 20% of all parcels of land in the State or at least 20% of all s 81 information for parcels of land in the state (s 81(5) VL Act), and microfiche data, which means information capable of delivery in microfiche form in notices given under s 81 in relation to parcels of land (s 77 VL Act).

10 Mr Geoffrey Oakley, the Principal Marketing Officer of Product Services in the Department, deposed, inter alia, that the Department made available QVAS data, which was comprised of two distinct yet related data sets (the Valuations data set and the Sales data set) (Oakley affidavit para 3). Mr Oakley further deposed that the Department makes QVAS data available in three different ways:

(a) searches from Department public counters or through online licensees as a basic formatted print of register information

(b) raw data provided in bulk to business licensees for the creation of their own value added product or to government departments for statutory functions and other purposes

(c) a value added product with graphics and colours from Department counters or licensees of the SmartMap system (Oakley affidavit para 4).

11 In this case the data has been supplied by the Department to the applicant in accordance with s 77 VL Act, pursuant to written contracts between the applicant and the respondent described as "licences". The most recent such contract is dated 1 July 2003.

13 The respondent submitted, and I accept, that s 77 VL Act has five relevant features, namely:

1. It gives the chief executive a discretionary power to supply information in the form of bulk data.

2. It does not limit the persons or bodies to whom such information may be supplied.

3. The fees and charges for the supply are not those prescribed for access to single parcels but are those agreed in the contract.

4. Unlike with respect to information obtained for a single parcel under s 76(1) or s 76(5), the contract may limit the use to which the information supplied may be put: s 77(3).

5. Section 77(3A) mandates two contractual provisions which allow the chief executive to exclude from the information supplied particulars of information, and to prohibit disclosure or limit distribution or use of such particulars if already supplied.

14 Mr Catelan deposes that, prior to 1992, the real estate industry in Queensland did not have facilities whereby agents could obtain sales and ownership data to assist in the conduct of their businesses, other than over the counter searches at the Department’s offices (Catelan affidavit para 14). It is clear that s 77 VL Act was inserted into the legislation to facilitate the proposed sale of bulk data by the Department to entities such as the applicant (Second Reading speech, Valuation of Land Amendment Bill, The Hon AG Eaton Minister for Land Management, Legislative Assembly, 10 March 1992, p 4019).

15 The most recent licence agreement between the applicant and the respondent is entitled "Queensland Valuations & Sales Data Licence Agreement for Value Adding between the State of Queensland and RP Data Limited, QVAS VA Licence No: 2003/007". According to its terms it commenced 1 July 2003. The expiry date of the agreement was 30 June 2005.

17 "Licensed Data" is defined by the agreement as Queensland Valuations & Sales Data (QVAS) (Sch A item 4), and QVAS in turn is defined by the agreement to mean:

18 The 2003 agreement contemplated that licensed data would be used by the licensee to create a new "Licensed Data Product", defined in cl 2.1(k) as meaning any value added product derived from or based on the Licensed Data or any Licensed Data Products.

19 I understand that, in return for Collected Data supplied by the respondent, the applicant currently pays a flat fee of $158,749 per annum. Mr Oakley further deposed that, under the proposed licence with a royalty cap, the applicant could pay either:

(ii) a licence fee of $3,078 per annum plus data access fees of $9,234 per annum plus $12,312 and a royalty fee of 20% of invoices with a cap on the total royalty fees payable of $134,125 (minimum cost $24,624 per annum and maximum cost $158,749 per annum) (Oakley affidavit para 27).

20 I understand that, under the current arrangement, all licensees pay the same flat fee as the applicant.

21 At the hearing, Mr Catelan gave evidence that in 1992 when negotiations first commenced between the applicant and the respondent in relation to the provision of bulk data by the respondent, officers of the respondent were prepared to contemplate direct marketing activities associated with the data in the form of using the names on the valuations register for mailing out and for normal real estate related purposes (TS p 46 ll 44-47). Whether or not that was the policy of the Department in 1992 – although Mr Colin Witt, Principal Marketing Officer of Product Services of the Department, one of the respondent’s witnesses, believed that it was the case (TS p 222 ll 46-48 and p 223 ll 1-3) – it was clear that views in the Department as to the use of Departmental data in direct marketing had changed considerably by 2002. Mr Wayne Fry, Director Product Services of the Department deposed that in or about October 2002 the Department announced that it would be withdrawing names and addresses from the bulk data sets to be supplied from 1 July 2003, however after receiving submissions from licensees (including the applicant) the Department determined that, rather than pursuing this course, the Department would include strict direct marketing clauses in licence agreements (affidavit of Wayne Bradley Fry sworn 24 January 2006 paras 6-8).

22 Similarly it is clear that the insertion of s 77(3A) into the VL Act by s 27 Land Legislation Amendment Act 2003 (Qld) resulted from the concerns of Parliament as to direct marketing activities using Departmental data. Introducing the legislation the Minister for Natural Resources and Minister for Mines, the Hon S Robertson said:

23 The respondent submits, and I accept, that the 2003 licence agreement prohibits the use of Collected Data for direct marketing purposes pursuant to s 77(3A). This is made clear by, for example:

• clause 4.4.2 which states that the licensee acknowledges and agrees to be bound by the restrictions in Sch A to the agreement, and Sch A item 6.1 which provides that the licensee must not allow the use of licensed data or licensed data products consisting of details identifying individuals (that is, names and addresses) to be used by any person for direct marketing

• clause 4.5.2 which states that the licensee must not distribute licensed data to any licensee’s consultant or third party for direct marketing

• clauses 4.10.2 and 4.11 and Sch B, which provide, inter alia, that the licensee must not distribute licensed data products to an end user unless the end user has entered into an agreement with the licensee whereby the end user agrees not to use the licensed data or licensed data products for direct marketing.

25 It is not contended by the applicant that the prohibitions on the use of names and addresses contained in the 2003 licence contravenes s 46 TPA.

26 Notwithstanding the intention to prevent direct marketing using licensed data, as reflected in the Minister’s second reading speech and required by the licence agreement between the applicant and the respondent, it appears that a number of Departmental officers – and the Minister responsible for the Department – were concerned that direct marketing activities using the respondent’s data were continuing beyond 1 July 2003. This concern is clear from, inter alia:

• Evidence of Mr Graeme Rush, General Manager Land Management and Use in the Department, that:

o the Department continued to receive a volume of complaints from real estate agents complaining about the actions of their competitors in using Departmental data for direct marketing, thus disadvantaging real estate agents who "did the right thing" (affidavit of Graeme James Rush sworn 16 January 2006 para 18)

o the Department received a volume of complaints from managing agents of unit complexes (Rush affidavit para 18)

o the Department has received 219 written complaints and numerous telephone complaints between 2003 and 2006 (Rush affidavit para 19)

• A Briefing Note for Information to the Minister for Natural Resources and Mines approved 23 December 2003 by Mr Rush, informing the Minister that despite dialogue between the Department and key stakeholders there was still widespread ignorance of what could and could not be done with Departmental electronic data and that some real estate agents who were compliant were identifying non-compliant firms and lodging complaints with the Department. Interestingly however in that briefing note it was noted that a number of local governments were also in the business of selling real property data, including the Gold Coast where "direct marketing from real estate agencies (was) prolific", and it was very difficult to establish whether base data originated from local government or Departmental records (exhibit 139, annexure GJR-07 to Mr Rush’s affidavit).

• An answer to a question on notice in the Legislative Assembly from the Minister on 18 March 2004, where the Minister said in relation to the continuation of unauthorised direct marketing:

• A Briefing Note for Approval to the Minister approved by Mr Rush 5 June 2004 advising the Minister of a proposal of the Real Estate Institute of Queensland ("REIQ") to allow it to manage direct marketing, using its own database, and noting that while "many agents started out with good intentions to abide by the new rules there is evidence this is no longer the case" (annexure GJR-12 to Mr Rush’s affidavit). The recommendation was that the Minister not approve the REIQ’s proposal, and I understand this recommendation was approved by the Minister on 5 June 2004.

• A Briefing Note for Approval to the Director-General of the Department approved by P Woodward in the Department dated 13 July 2004 informing the Director-General of on-going concerns by members of the public relating to the use of departmental data for direct marketing purposes by certain real estate agents, and requesting approval for a standard form letter to be sent to complainants (annexure GJR-11 to Mr Rush’s affidavit).

• A Briefing Note for Approval to the Minister approved by Mr Rush on 1 December 2004 seeking the Minister’s approval to remove ownership and service address information from bulk data supplied to bulk data licensees from 1 July 2005 (annexure GJR-13 to Mr Rush’s affidavit). I understand this recommendation was approved by the Minister on 2 December 2004.

27 Apparently unrelated to the concerns of the respondent with respect to direct marketing activities involving data sourced from the respondent, the Department’s Information Access and Pricing Policy was implemented 1 March 2004 with the stated purpose of providing:

28 A copy of the policy, entitled "Information Access and Pricing" (IMP/2003/1389 - Version 2) Endorsed 18/12/2003 by Director-General, Department of Natural Resources and Mines, was annexed to Mr Fry’s affidavit (WBF-9).

29 In its terms, the policy states that it applies to all information items collected, stored and distributed by the department, and assists the department to meet its requirements related to Information Standard 33, a whole-of-government information standard on information access and pricing.

30 The policy recognises that the Department "is required by statute and the needs of government to acquire a wide range of information" and that "the costs to the department to acquire, maintain and manage this information are substantial". While the costs would be in the main met by funding from Government, the policy recognises that:

31 According to the policy, pricing decisions for departmental information would be guided by the following criteria:

• the extent to which use of the information creates a private benefit compared with a public benefit

• charges should be economically efficient and equitable, eg whether it is cost effective to administer the collection of a fee for the particular information, information product or service

• the impact that pricing and charging for supply may have on the use of particular information

• the availability of non-price consideration such as reciprocal information sharing and

• compliance with legislative requirements, including the National Competition Policy implementation in Queensland and Trade Practices Act 1974.

32 Under the policy there would be four pricing categories to appropriately set the price for access to the department’s information which was not subject to statutory fees:

• partial cost of provision – that is, cost of replicating the CD-ROM or DVD and associated staff costs, material consumed and accounting costs (applies to Packaged Basic Digital Information)

• up to Full Cost of Provision – which applies to Enhanced/Rich Digital Information

• up to Full Cost/Market Rate – which applies to Information Products and Services.

33 The policy also contemplates that a royalty fee and/or upfront fee approved by an authorised Delegated Officer of the Department would be sought for applications involving "distribution" of information and "development" of information.

34 The policy contemplates distribution of information by "Distributor Agreements" which permit a person or organisation to distribute departmental information without change to customers and would be implemented on an organisational basis. Similarly, the policy contemplates development of departmental information by "Developer Agreements" which permit value-adding of the information and provision of value-added information and/or services to customers, and would be implemented on an organisational basis.

35 In the case of both Distributor Agreements and Developer Agreements the policy provides that a royalty fee and/or upfront fee approved by an authorised Delegated Officer of the Department will be sought. In the case of Developer Agreements, the policy provides that, unless approved by the Delegated Officer, the royalty would be 20% of the invoice price charged by the Developer to its customers, where the invoice price includes both information/data and any service offered.

36 An Information Paper entitled "Access to valuation and sales information beyond June 2005" was drafted for the licensees (including the applicant) by Mr Fry and is annexed to Mr Fry’s affidavit (WBF-08). Implications for licensees, including the applicant, of the proposal were summarised in the Information Paper as follows:

• It was proposed to introduce one new packaged data product, and two new comprehensive data products (a valuations data offering and a sales data offering). The two comprehensive data products would collectively replace the bulk data arrangements in place at that time.

• Licensees (including the applicant) would require a developer licence to continue to receive Collected Data.

• The paper stated that the new model would result in lower upfront fees, however a royalty structure would be introduced, being 20% of the invoice price licensees charge their customers. This fee structure was consistent with the way all bulk data was now being licensed. As part of introducing a royalty component, the department would undertake annual audits.

• There were some omissions from what had previously been available as Collected Data:

37 Mr Fry deposed in his affidavit that, following receipt of feedback from licensees in relation to the proposal, the Department determined to proceed as follows:

• The financial impost would not be increased by the introduction of the royalty arrangement and the record keeping requirements would be mitigated under certain circumstances. That is, licensees would be given a choice as to whether they wished to nominate to pay the maximum royalty (and therefore not be required to produce on a quarterly basis all the royalty return records as required under the proposed new licence) or they could choose to pay the royalties as they went. This would require them to produce the quarterly documentation in respect to invoicing (Fry affidavit para 22).

38 Following consultation with licensees (including the applicant) an Information Paper, also entitled "Access to valuation and sales information beyond June 2005" (WBF-10), was released on 4 April 2005, which is after this action was commenced. A key modification reflected in the revised proposal was that the pricing was clarified. Specifically:

• "Comprehensive data products" were rebadged "Bulk digital data" in the 2005 Information Paper, however the concept of two separate products, namely valuations data product and property sales product remained the same. The pricing for the bulk digital data was stated, including that the department would cap the level of fees payable to no more than the current licence fee (increasing by CPI each year) during the term of the licence.

• The concept of a packaged data product remained unchanged from the earlier information paper. The current access fee for the data, being a CD based product, was identified as $99.

• A range of searches would be available through both the service centres of the Department and online distributors of the Department. Searches identified by the paper, which were stated to have been available to online distributors for a number of years were valuation searches, sales searches and abbreviated sales searches. Specific prices were identified as:

39 On the first morning of the hearing Mr Jackson QC for the applicant sought leave to file an amended statement of claim. This application was not opposed by the respondent.

1. The respondent had dealt with the applicant in a business relationship over a number of years in the respondent’s capacity as the Department.

2. In performing its function of collecting and maintaining information relating to the address, real property description, sales, valuation and ownership (including historical information as to the names and addresses of vendors and purchasers) of real property interests in Queensland (the "Collected Data"), the respondent also on-sells that Collected Data to third parties, including end users of the data (such as, for example, members of the public), and distributors of information such as the applicant pursuant to licences granted by the respondent.

3. The applicant is in the business of, inter alia, electronically supplying data throughout Queensland using the Collected Data provided to it by the respondent and together with other data sourced by it from other sources ("the Bundled Data").

4. At all material times there existed a market ("the Market") in Queensland for supply, by sale and purchase, of the Collected Data. Characteristics of this market are that:

• supply directly by the respondent to persons making application to it - for example, members of the public

• supply by licensees to persons making application to them - again, for example, members of the public

b. customers for the Collected Data are real estate agents, valuers, banks, developers, solicitors and others who apply to either the respondent or the licensees of the respondent for the data.

5. Alternatively at all material times there existed markets in Queensland for supply by sale and purchase of the Collected Data to distributors such as the applicant ("the Wholesale Market") and supply directly to end users ("the Retail Market").

6. At all material times there existed various geographical markets in Queensland for the supply of services by real estate agents to property owners and prospective buyers, in connection with sales and lettings of real property ("the Real Estate Agents’ Services Markets").

7. The applicant and the respondent compete in the market for the supply to end users of the Collected Data or parts of it.

8. The respondent has a substantial degree of power in the Market, or the Wholesale Market and the Retail Market.

9. The respondent has taken or threatened to take advantage of its market power as follows:

a. it has announced that it will not review the current licence held by the applicant on the same terms, and has not done so

b. it proposes on and from 1 July 2005 that a licensee described by the respondent as a developer or a distributor will be required to pay it:

c. it proposes on and from 1 July 2005 that a licensee described by the respondent as a "user" will receive data released annually for $99 per CD, and further proposes at some later time when the respondent’s computing infrastructure is suitable to do so to make the same data available for download from the internet free of charge

d. it proposes on and from 1 July 2005 not to provide data-sets to the licensees which contain the name of the owner of any property or the names and addresses of the vendors and purchasers of any property ("the Excluded Data")

e. it proposes on and from 1 July 2005 to provide the ability to allow searches of the names and addresses of owners of any property of the names and addresses of the vendors and purchasers of any property online for a fee payable to the respondent of $5.70 per search

o the respondent will receive annual licence fees, data access fees and royalty fees

o the respondent will be entitled to a royalty expressed as a percentage of the invoice issued by the licensee to its customer, without regard to whether the invoice relates to the provision only of data sourced from the respondent or also relates to the provision of other services by the licensee

o the inability of the licensee to access the Excluded Data will mean that all persons seeking that information will be obliged to access it online with the respondent and pay the respondent the fee nominated

o in order to continue to provide a commercially saleable service, licensees will have to provide the electronic links at no cost to enable their customers to make on line searches with the respondent of the Excluded Data

o in refusing to supply Excluded Data other than for the fixed price of $5.70 per search the respondent intends to and will prevent the distributors, including RP Data, from competing in any market for supply of the Excluded Data

o the applicant will not be able to access the Collected Data except on the terms outlined in the proposal

o the applicant will not be able to continue to provide the services which it presently provides to its customers, namely the Collected Data and the Bundled Data, by reason of its inability to provide the Excluded Data

o customers of the applicant are unlikely to continue to purchase its services relating to Queensland properties, or alternatively are likely to purchase significantly less of its services relating to Queensland properties by reason of the applicant’s inability to provide the Excluded Data

o the applicant will be obliged to pay the respondent a royalty calculated on the sum invoiced by it to its customers for the provision of the Bundled Data and not solely by reference to the charge for the Collected Data

o the combination of payment of the $5.70 fee for access to the Excluded Data and the payment of a 20% royalty fee will render the provision of data by the applicant of the Excluded Data unprofitable or uncompetitive

h. the purpose of the respondent in acting or threatening to effect these proposals is to, in contravention of s 46:

o eliminate or substantially damage the applicant in the Market or the Retail Market

o deter or prevent the applicant from engaging in competitive conduct in the Market or the Retail Market

o deter or prevent real estate agents from direct marketing to owners of real property using the Excluded Data

o deter or prevent real estate agents from engaging in competitive conduct in the Real Estate Agents’ Services Markets.

b. it is the Crown in right of the State of Queensland within the meaning of and for the purposes of s 2B TPA and pursuant to s 2B the Crown in right of the State of Queensland is only bound by s 46 to the extent that it "carries on a business, either directly or by an authority of the State"

2. The respondent denies that it carries on the business of supplying the Collected Data for reward, but rather that it supplies such information on the terms prescribed by ss 73, 76 and 77 of the VL Act.

3. The respondent denies the existence of the Market, namely the market in Queensland for supply, by sale and purchase, of the Collected Data. Rather, there exist statutory obligations on the chief executive pursuant to s 76(1) VL Act to supply certain information to a person who pays the prescribed fee, and statutory powers in the chief executive:

4. The respondent does not dispute the existence of the Wholesale Market and the Retail Market. It also admits the allegation that it has a substantial degree of power in the Wholesale Market. However:

5. The respondent claims that the Collected Data is also available from local governments, which have access to information concerning the sale, valuation and ownership of real property interests in Queensland pursuant to ss 1004, 1006 and 1006A Local Government Act 1993 (Qld).

6. The respondent claims that, contrary to the claims of the applicant, the respondent is constrained by the terms of ss 75B, 77(3) and 77(3A) VL Act as to the terms upon which licences may be granted.

7. The respondent denies that it has taken or threatens to take advantage of any market power it may have.

8. The respondent states that pursuant to cl 7 of the licence agreement between the applicant and the respondent, the respondent is not obliged to renew the agreement on the same terms.

9. In relation to specifics of the applicant’s claims concerning fees proposed by the respondent in relation to data access, the respondent:

10. The respondent denies that its proposals are made to advantage it for reasons particularised by the applicant.

11. The respondent claims that the Excluded Data will remain available to the applicant under its licence from the respondent, and that the applicant is not now and will not in the future be unable to provide Excluded Data to its customers.

42 In my view critically, in the context of s 46 TPA, the respondent claims that its purpose in proposing to exclude the Excluded Data from the bulk data available under future licences is to ensure that such information in bulk data form is not available for direct marketing purposes. This aspect of the defence of the respondent is summarised in its Amended Defence as follows:

• the respondent is entitled, under s 77 VL Act, to take steps to ensure that bulk data supplied under a licence agreement is not used for purposes which are extraneous to the purposes for which such data is given to the respondent under the VL Act

• the purposes for which the names and addresses of landowners and vendors and purchasers are required under the VL Act do not include the purpose of providing a database of such information which is able to be used for direct marketing

• the excluded data will remain publicly available, but not in a bulk form which is capable of being used for direct marketing purposes

• the respondent’s purpose in putting forward the proposals is a lawful purpose which it is entitled to give effect to under s 77 VL Act.

43 Section 46 TPA prohibits misuse of market power in defined circumstances. It provides as follows:

1. There must be a corporation or the entity must fall within the extended application of s 46 – in particular as contemplated by s 2B.

3. The corporation or entity must have a substantial degree of power in a market.

4. The corporation or entity must take advantage of that substantial degree of power in the market.

5. The corporation or market must exercise that power for one of the prescribed purposes in s 46 (1)(a),(b) or (c).

45 The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13].

46 In light of the claims of the applicant, matters raised in defence by the respondent, the background facts as pleaded by the parties, and the elements of s 46 TPA, issues which in my view require decision are as follows:

2. What is the nature of the "market(s)" as contemplated by s 46 and s 4E? In particular,

3. Does the respondent have a substantial degree of power in any of those markets as contemplated by s 46?

4. Is the conduct of the respondent in refusing to renew the current licence held by the applicant on the same terms, in particular excluding the Excluded Data, conduct which can be characterised as the respondent taking advantage of a substantial degree of power in a relevant market?

5. If the conduct can be characterised as the respondent taking advantage of a substantial degree of power in a relevant market, was it for a proscribed purpose?

47 In deciding this matter, I propose to deal with each of these issues in turn.

48 The extent to which the respondent is subject to s 46 TPA is a threshold issue in these proceedings. As was explained by McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90 at 116-117:

• while the conduct proscribed by the TPA, if it is to fall within s 2B, must be engaged in in the course of the entity carrying on a business, the conduct need not itself be the actual business engaged in

• had s 2B not been enacted, the impugned conduct would not be examinable in circumstances where the entity is the Crown in right of a State or Territory

• rather than examining specific conduct and then examining whether that contravention can be described as carrying on a business (as was unsuccessfully argued in NT Power [2004] HCA 48; 219 CLR 90), the correct approach is to first ascertain whether the entity "carries on a business". As the majority explained in NT Power [2004] HCA 48; 219 CLR 90, it is necessary to do this because:

49 As was also observed by the majority in NT Power [2004] HCA 48; 219 CLR 90, it is also important not to substitute the question of defining markets for the question of whether a business is being carried on (at 117). Their Honours pointed out:

50 Prima facie, s 46 applies only to corporations, defined by s 4 TPA to mean bodies corporate that are:

(b) trading corporations formed within the limits of Australia or are financial corporations so formed

(d) are holding companies of bodies corporate of a kind referred to in paras (a), (b) or (c).

51 Clearly the respondent is not a corporation. However Pt 1 TPA makes provision for the extended application of certain parts of the Act. Of particular relevance in these proceedings is s 2B TPA. This section provides:

(1) The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:

(2) Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an authority of a State or Territory.

52 Section 46 is found in Pt IV TPA. However the extended application only operates if the Crown in right of the relevant State or Territory is carrying on a business, either directly or by an authority of the State of Territory. As is clear from such cases as NT Power 219 CLR (particularly at 116) and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 (particularly at 526-527), this condition is strictly applied.

53 In the amended statement of claim, the applicant claimed that the respondent had at all material times carried on, and continues to carry on, the business of supplying Collected Data for reward to entities including the applicant pursuant to licences granted by the respondent for on supply to end users of the Collected Data, and to end users of that data. On behalf of the applicant, Mr Jackson QC submitted in summary:

• although it is not in dispute that the respondent has a statutory obligation to maintain a valuation roll which contains some of the QVAS data, s 77 VL Act empowers the chief executive of the Department to enter a contract to supply information in the form of bulk data or microfiche data, with applicable fees and charges being those agreed to in the contract (s 77(2)(b))

• section 77 is independent of the chief executive’s power and obligation to compile, update and provide relevant copies of the roll or to supply parts of it to relevant government authorities or to provide the facility of a public search under s 76

• the power of the chief executive to supply the QVAS data pursuant to s 77(1) VL Act is an additional commercial power, not conferred for any particular "public" purpose or function

• the supply of information for a profit, pursuant to a contract, under the supervision of Departmental officers with titles including "marketing officer, general manager and director of product marketing" are consistent with the conduct of a business

• Mr Oakley deposed that eight business organisations (including the applicant) held a licence for QVAS bulk data pursuant to contracts with the Department

• the respondent’s accounts show that in the years since the year ending 2003 the respondent has earned between $1 million and $1.2 million in respect of sums payable as licence fees under its contracts with licensees for QVAS data and statutory search fees under s 76, and since the year ending 2003 the respondent has received an annual sum varying between $276,000 and $538,000 in respect of another product which it supplies using the QVAS data, described as "SmartMap"

• the respondent is engaged in the commercial venture of supplying the QVAS data by contracts for a substantial return and is therefore carrying on a business.

54 In response, Mr Hinson SC for the respondent submitted in summary as follows:

• In light of principles relevant to determination of whether an entity is "carrying on a business", it is apparent that the Department was not carrying on a business when supplying the data it collects under the VL Act and in removing the Excluded Data.

• In relation to the Retail Market, the Department only provides its data by way of individual searches as it is required to do by s 76(1) VL Act, and the fee it charges is set by the Valuation of Land Regulation 2003 (Qld). There is nothing in the nature of a business in the provision of such a service – rather it is the discharge of a statutory obligation at a prescribed and regulated fee.

• In relation to the Wholesale Market, the provision of Collected Data is the consequence of the exercise of a statutory power in s 77(1)VL Act, which is limited by s 77(1) and (3A) to being exercised by way of contract and with specific contractual terms. Further the removal of the names and addresses from the Collected Data was undertaken pursuant to a specific statutory power in s 77(3). This suggests that the Department is simply fulfilling its statutory obligations in providing the Collected Data.

• In substance however, it was not a major part of the respondent’s case that the respondent was not carrying on a business for the purposes of s 2B, and the respondent has proceeded on the basis that the provision would otherwise apply (TS p 385 ll 39-43).

55 Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows:

1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116.

2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794).

3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280; (2000) 104 FCR 448 at 451.

4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90]. So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" (Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre (Corrections Corporation of Australia [2000] FCA 1280; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne’s Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd [2003] NSWCA 54; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services.

5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53].

56 In my view, it is clear that the respondent is carrying on a business with respect to the supply of bulk data to licensees including the applicant. My reasons for this finding are as follows:

• As indicated by s 77(1) VL Act the decision to provide Collected Data by the respondent to the applicant and other licensees is at the discretion of the respondent, and does not constitute fulfilment of a statutory obligation.

• While s 77(3A) VL Act imposes limitations on the contents of any contract entered into by the chief executive and a licensee, the limitations are minimal and do not derogate from the power of the chief executive to enter into a relevant contract, such as the licence agreements relevant in this case.

• The purpose of the legislature in enacting s 77 was to facilitate the Department entering into business relationships in relation to the sale of Collected Data. As the Minister said in the Second Reading Speech introducing the Valuation of Land Amendment Bill 1992,

• The supply of Collected Data was not an ad hoc act by the respondent. The contractual relationship between the respondent and the applicant has existed since 1992 (licence agreement dated 11 May 1992, annexure RDC-1 to Mr Catelan’s affidavit), and since then the parties have entered subsequent agreements.

• The applicant is but one of eight licensees to whom the respondent has supplied the bulk data for reward since 1992.

• I agree with Mr Jackson’s submission that the supply of the Collected Data by the respondent under the supervision of Departmental officers with titles including "marketing officer, general manager and director of product marketing" is consistent with the conduct of a business.

57 Accordingly, while it is clear that the Collected Data is collected by the respondent pursuant to statutory obligations in the VL Act, and accordingly it could not be said that the respondent in collecting the data was carrying on a business, nonetheless it is equally clear that the sale of the Collected Data to licensees such as the applicant constitutes the carrying on of a business by the respondent.

58 Similarly, I note that the respondent supplies the value-added product "SmartMap", which is available over the counter and which, inter alia, provides information as to sales in an area on a yearly basis. Little evidence was produced to me as to the activities of the respondent in relation to its supply of SmartMap, however it appears that SmartMap is supplied on a commercial basis. From the limited information before me, it appears that the respondent is "carrying on a business" in relation to its supply of SmartMap.

59 However, the position appears quite different with respect to the supply by the respondent - to end users - of data in response to individual over the counter searches. In particular, I note:

• There is a clear legislative delineation between the commercial contracts concerning bulk data sanctioned by s 77, and the compulsory provision of information required s 76.

• The supply by the respondent of s 76 data does not form any part of its business relationship with the licensees, who receive bulk data from the respondent.

• Obligations of the respondent in relation to valuation of land throughout Queensland, the collection of data, the maintenance of valuation records and the supply of the data are mandated by the VL Act. As Mr Hinson SC for the respondent submitted, the Department is required by s 76(1) VL Act to supply a certified copy of the particulars of a valuation entered on a valuation roll, to a person who pays the prescribed fee. I note the prescribed fee is found in the Valuation of Land Regulation 2003 (Qld). Indeed, I note that the long title of the VL Act is "An Act to make better provision for determining the valuation of land for rating and taxing purposes, and for matters incidental thereto or consequent thereon". I accept the evidence of Mr Rush that the QVAS data is the point of truth source for sales data, that is, how much a property was sold for at a particular date (Rush affidavit para 10). In my view, the supply of data by the respondent in respect of individual searches is an act of government and carrying out of the functions of government in the performance of its statutory duty, similar to the provision of a certificate by the municipal council in Mid Density Development Pty Ltd 39 FCR 579.

• In light of the foregoing, the fact that the Department would undoubtedly enter into many transactions of this nature does not mean that the Department is "carrying on a business" of supplying data in response to individual searches.

• Although the respondent has submitted that local governments and the applicant can supply data in response to individual searches, in my view this does not derogate from the fact that the activities of the respondent in this regard constitute a function of government in the performance of its statutory duty rather than "carrying on a business". Indeed in this respect I note that:

60 It follows that, in my view, the supply of data by the respondent in response to individual searches is not, as was the case in Paramedical Services [1999] FCA 548 or JS McMillan 77 FCR 337, an activity for reward which could be performed by any citizen or private trader, and thus potentially "carrying on a business" by the respondent.

61 Although "business" in this context is wide and general word, and, as I have already noted, "carrying on a business" is to be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, the supply of data by the respondent in response to individual over the counter searches is not part of a broader "business" of supply of valuation data by the respondent. It would not represent the true position with respect to the conduct of the respondent to find that, because it had engaged in some commercial activities with the applicant and other licensees, its entire operation with respect to supply of valuation data to members of the public, local government authorities and others had become a "business" which it was conducting.

62 The result of this finding is that s 46 TPA applies only to conduct of the respondent in the course of its carrying on of a business of supply of bulk data. The section does not apply to conduct of the respondent carrying out its statutory function of supplying data in response to individual searches.

63 Notwithstanding this finding, I note that the respondent’s case was predicated on the basis that s 46 potentially applied to all conduct of the respondent relevant to these proceedings (submission of Mr Hinson SC TS p 385 ll 30-43). Accordingly, in the interests of completeness, and in case I am in error with respect to my conclusions concerning the application of s 46 to the conduct of the respondent, I shall consider the claims of the applicant and the submissions of the parties concerning conduct of the respondent relevant to individual searches of data.

65 The necessity for competition to exist before a "market" is constituted was emphasised in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5; (2003) 215 CLR 374. As Gleeson CJ and Callinan J observed:

66 In the amended statement of claim the applicant alleged that at all material times there existed four possible markets. They were:

• alternatively to such Market, a Wholesale Market for supply of Collected Data to intermediaries including the licensees and a Retail Market for supply of Collected Data or parts of it to end users (para 5A)

• additionally, Real Estate Agents’ Services markets involving the supply of services by real estate agents to property owners and prospective buyers, in connection with sales and lettings of real property (para 5B).

67 It is not in dispute that, for the purposes of these proceedings, there exist a Wholesale Market, a Retail Market and Real Estate Agents’ Services Markets. Further, I note that:

• the expert witnesses – Mr Jon Norling, Director of Urban Economics, for the applicant and Mr Philip Williams, Executive Chairman of Frontier Economics Pty Ltd, for the respondent – agreed as to the existence of the Wholesale Market and the Retail Market (Joint Expert Statement of Areas of Agreement and Disagreement, 4 September 2006), and the existence of markets in which real estate agents compete (report of Frontier Economics Pty Ltd "Competition among real estate agents: a report prepared for ClarkeKann", comment of Mr Williams TS p 72 ll 34-35, evidence of Mr Norling, TS p 100 ll 25-35); and

• in the applicant’s outline of submissions the applicant noted that the parties agreed, on the pleadings, as to the existence of the Wholesale and Retail and Real Estate Agents’ Services Markets (Applicant’s Outline of Submissions para 72).

68 The respondent however disputed the existence of a Market for the supply of Collected Data. At the hearing the applicant did not press its claim as to the existence of that Market. Accordingly, I make no findings as to para 5 in the amended statement of claim that at all material times there existed a Market in Queensland for supply (by sale and purchase) of the Collected Data.

69 I note that in the Joint Expert Statement of Areas of Agreement and Disagreement, the following propositions were agreed by the expert witnesses:

• The Wholesale Market is the market in which the Department produces and supplies QVAS data in bulk form to licensees.

• The Retail Market consists of the supply of real property data to end users. Suppliers include the licensees in the Wholesale Market, the respondent and local government authorities.

• They understood that the respondent had a statutory obligation to supply data in the Retail Market and is also empowered, at its discretion, to supply QVAS data in bulk form. It operates in both the Wholesale Market and in the Retail market.

71 Fundamentally, the characteristics of the Wholesale Market are not in dispute between the parties. Those characteristics appear to be as follows:

• The product the subject of this market is QVAS raw data in bulk form, consisting of information about the physical dimensions and location of property, data of valuation and sales, address of the property and names of owner (Oakley affidavit para 3, Norling expert report para 2.1, Williams expert report paras 78 and 81).

• The respondent is the only supplier of the QVAS raw data in bulk form (Norling expert report para 2.1, Williams expert report para 79).

• While local government authorities provide details of property ownership to members of the public, they do not provide bulk data, nor data outside the boundaries of the relevant authority. Further, local government authorities do not provide data as to property transfer (Norling expert report para 2.1, Williams expert report para 79).

• The market has existed since 1992, and consists of the respondent and eight licensees (including the applicant) (Norling expert report para 2.1, Williams expert report para 81).

72 Similarly, the characteristics of the Retail Market are not in dispute between the parties, and appear as follows:

• The subject of this market ranges from base data supplied over the counter by the respondent to processed QVAS data including value-added products supplied by retailers to end users.

• There are approximately 166 retailers in this market and an indeterminate number of customers (Norling expert report para 2.2). The retailers in this market are:

• Although it seems the parties agree that there is one Retail Market and both the applicant and the respondent are suppliers in that market, it is clear that the applicant and the other seven licensees package products which are much more sophisticated than the information supplied by the respondent in this market, and pursuant to a very different structure than that in which the licensees operate in the Retail Market.

• The eight licensees (including the applicant) create value-added products on the basis of the QVAS data, they do not redistribute the raw data to end-users (Williams expert report para 83, Oakley affidavit para 2(b)).

• In relation to the activities of the respondent – the respondent is a supplier to the Retail Market, however the data supplied is in a relatively basic format with little bundling, namely:

• In relation to the activities of the applicant – as explained by Mr Kris Matthews, State Manager Queensland for the applicant, in his affidavit sworn 16 October 2006, the value-adding supplied by the applicant includes the ability to interrogate the applicant’s database to produce a range of information concerning a property including:

• Aspects of the applicant’s business include (RP Data Information Memorandum Document No 1 February 2006 (exhibit A1), Norling expert report para 2.2, Williams expert report paras 82-84):

• In relation to the activities of the local government authorities – they do not provide sales data, but rather supply one-off, over the counter searches for names, addresses, valuation and size of blocks within the boundaries of the local government authority. Prices vary across authorities. Major users are property owners, real estate agents, valuers, mortgage brokers and developers. (Norling expert report para 2.2 and Table 2.1, Williams expert report para 79).

• Total revenues earned by licensees across Australia amounted to approximately $51 million in 2006 (Williams expert report para 84).

73 Although it appears that the parties agree that these markets exist, the nature of these markets was the subject of minimal attention either in the pleadings or at the hearing. The characteristics of these markets appear to be as follows:

• the subject of these markets is services by real estate agents to property owners and prospective buyers in connection with sales and lettings of real property (evidence of Mr Norling, TS p 100 ll 25-35)

• the geographical limits of each market varies depending on the precise activities of the real estate agent in question (report of Frontier Economics Pty Ltd "Competition among real estate agents: a report prepared for ClarkeKann")

• the competitive conduct of some of the agents in each of these markets involves direct marketing, including marketing for clients (report of Frontier Economics Pty Ltd "Competition among real estate agents: a report prepared for ClarkeKann", and evidence of Mr Williams TS p 73 ll 1-10).

DOES THE RESPONDENT HAVE A SUBSTANTIAL DEGREE OF POWER IN ANY OF THOSE MARKETS AS CONTEMPLATED BY SECTION 46?

74 In order for there to be a breach of s 46, a corporation or other bound entity must have "a substantial degree" of "power in a market". Section 46 itself provides only minimal assistance in interpreting these phrases – s 46(3) for example provides only that:

75 The notion of "market power" in the sense of capacity to act in a manner unconstrained by the conduct of competitors has been the subject of frequent judicial consideration. The leading case in this context is Queensland Wire [1989] HCA 6; 167 CLR 177. Usefully, Lockhart J in Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 at 138 summarised from the judgment of Mason CJ and Wilson J in Queensland Wire 167 CLR at 188-190 the following factors as relevant in defining and identifying market power:

77 The comments of his Honour were adopted by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13; (2001) 205 CLR 1 at 21 and 27, where their Honours said:

78 Further light is cast upon the meaning of "market power" by s 46(4) which provides:

79 The reference in s 46(1) to a "substantial degree" of market power was considered by the Full Court in Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 at 63 where Lockhart and Gummow JJ said:

80 Finally, as was explained in the Trade Practices Amendment Bill 1985 Explanatory Memorandum:

• "Market power" is a recognised economic concept which has been subject to considerable analysis in economic literature (at [40]).

• The use of the word "degree" in the expression "degree of power in a market" reflects the fact that "market power" is a relative concept. All participants in a market possess a degree of market power which may range from negligible to very great (at [41]).

• The circumstances which give rise to absence of competitive constraint upon a corporation are diverse. They are not confined to size or market share in relation to competitors, or to those matters combined with technical knowledge, raw materials or capital. Other matters such as easier access to supplies or government controls on the market are relevant if they bear upon the extent to which the corporation can act without being constrained by competition (at [45]).

81 In the Wholesale Market in the case before me, it is not in contention that the respondent has not only market power, but a substantial degree of market power. Both the applicant and the respondent, and their respective experts, are in agreement on this point. I accept that the respondent has a substantial degree of market power in this market. It is therefore appropriate to consider the claim of the applicant that the respondent has taken advantage of that power for a purpose proscribed by s 46 TPA.

82 I have observed earlier in this judgment that the respondent is a supplier of data in the Retail Market. The supply of individual over the counter searches appears to be the primary activity of the respondent in this market.

83 However I have already found that, in supplying over the counter information in response to individual searches, the respondent is not "carrying on a business" within the meaning of s 2B, and is thus not bound by s 46. It therefore follows that the activities of the respondent in the Retail Market, in relation to supplying over the counter information by way of responses to individual searches, as required by statute, are not subject to s 46. Accordingly, any claims by the applicant concerning such conduct of the respondent for breach of s 46 must fail. (This can be distinguished from the supply by the respondent of SmartMap, which does appear to be conduct constituting "carrying on a business".)

84 However, in the interests of completeness, and in case I am in error in relation to this finding that the respondent is not bound by s 46 in relation to its supply of data in response to individual searches in the Retail Market, I make a number of observations concerning whether the respondent has substantial power in the Retail Market, and the manner in which this issue has been put before me at the hearing.

85 First, it is a fact not in dispute that the very existence of the Retail Market derives from the conduct of the respondent in the Wholesale Market – namely:

• the collection of data by the respondent in accordance with its statutory mandate; and

• the continued provision of data by the respondent to the other retail suppliers, namely the local government authorities in accordance with legislative requirements, and the eight licensees in the Wholesale Market in accordance with the relevant license agreements.

86 A hypothetical refusal by the respondent to supply any information to retailers other than those to whom it is statutorily obliged – namely the local government authorities – would inevitably have a significant effect upon the functioning of the Retail Market. Indeed, Mr Jackson QC so submitted in his opening statement (TS p 7 ll 19-23).

87 Second, the applicant has not unequivocally abandoned its claim that the respondent had a substantial degree of power in this market, including with respect to information supplied by the respondent in response to statutory searches.

88 However, with respect there is little material presented before me upon which I can find that the respondent does have a substantial degree of market power in the Retail Market. In particular, I note the following:

• In the Joint Expert Statement of Areas of Agreement and Disagreement, the expert witnesses for both parties agreed that, because of the respondent’s substantial degree of market power in the Wholesale Market, "it is able to substantially influence patterns of competition in the Retail Market". The respondent points out however, that the experts do not say that the respondent has a "substantial degree of market power" in the Retail Market. This is in contrast with their agreement as the respondent’s substantial degree of power in the Wholesale Market. Indeed Mr Williams gave evidence at the hearing that he was not an expert in the Retail Market (TS p 88 ll 40-42) and that he had not put his mind to whether the applicant had a substantial degree of power in the Retail Market (TS p 78 ll 3-4).

• Conduct in a wholesale market which in turn affects levels of competition in a "downstream" retail market is a relatively common phenomenon, and issues relevant to this phenomenon have been considered in this court, for example, in the context of claims of alleged anti-competitive conduct in Pt XIB TPA (Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493), in relation to claims for access to services under Pt IIIA TPA (Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146), and in the context of acquisitions claimed to result in a substantial lessening of competition (Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525). However, the ability of an entity to "substantially influence patterns of competition" in a retail market because of its market power in a wholesale market, as agreed by the experts, is not, in my view, necessarily tantamount to "a substantial degree of market power" in the Retail Market or even, as submitted by the respondent, "market power" within the meaning of the s 46 TPA.

• As I have already noted, the activities of the applicant and the respondent in the Retail Market are quite different, supplying different services to different customers. It is not in contention before me that there is "a" Retail Market in which both the applicant and the respondent are supplying information. However, whereas it is clear that the respondent supplies base data to members of the general public who pay the prescribed statutory fee and makes available its SmartMap product, it is also clear that the applicant offers a much greater range of sophisticated products to a different customer base, namely parties who are prepared to subscribe to the applicant’s services, as distinct from any members of the public who seek information over the counter. It is also apparent from the evidence before me that the applicant does not view the respondent as a significant competitor in its area of the Retail Market (RP Data Information Memorandum Document 1 pp 14, 15; evidence of Mr Catelan TS p 57 ll 37-42). In this respect, the "market power" of the respondent in the Retail Market, viewed in light of its activities in this broad Retail Market, is not obvious. Even if the respondent had market power in its area of the Retail Market in respect of its supply of raw data to end-users, it has not been demonstrated that such market power extends throughout the entire Retail Market as was the subject of consideration by the Full Court in Singapore Airlines Limited v Tabropane Tours WA Pty Ltd (1991) 33 FCR 158.

• I note the submission of Mr Hinson SC for the respondent that the evidence fell short of establishing that the respondent had any market power – let along any substantial degree of market power – in the Retail Market. Further, I note that, notwithstanding para 7 of the amended statement of claim, Mr Hinson SC also submitted – and this was not contested by Mr Jackson QC at the hearing – that the respondent did not understand the applicant’s case to assert that the respondent had a substantial degree of power in the Retail Market (note TS p 370 ll 12-17).

• I have carefully reviewed the transcript and after submissions in the opening statement, I can identify no subsequent submissions made on behalf of the applicant that the respondent had a substantial degree of power in the Retail Market.

• As pointed out in Queensland Wire, the existence of market power is identifiable by reference to factors including pricing, barriers to entry, market share. However in this case I note, for example, that:

89 I have spent some time considering the issue whether the respondent has a substantial degree of market power in the Retail Market for reasons I outlined earlier. However, on the basis of the evidence before me, in particular the lack of evidence on this point and the submissions of the parties, it is not possible for me to make any conclusive findings as to the market power of the respondent in the Retail Market.

90 I make this point particularly in light of the onus of proof which rests on the applicant to demonstrate that the impugned conduct breaches s 46 (Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR |P41-318 at 42,237, Stirling Harbour [2000] FCA 1381 at [13].)

91 Accordingly, there is no reason for me consider whether the respondent has taken advantage of such market power (if any) in the Retail Market, for a purpose proscribed by s 46.

92 In relation to the Real Estate Agents’ Services Markets, the applicant does not allege that the respondent had a substantial degree of market power in these markets (I also note TS p 369 ll 44-47 and p 370 ll 1-2). Accordingly, I need make no findings in this regard.

IS THE CONDUCT OF THE RESPONDENT IN REFUSING TO RENEW THE CURRENT LICENCE HELD BY THE APPLICANT ON THE SAME TERMS, IN PARTICULAR EXCLUDING THE EXCLUDED DATA, CONDUCT WHICH CAN BE CHARACTERISED AS THE RESPONDENT "TAKING ADVANTAGE" OF ITS SUBSTANTIAL DEGREE OF POWER IN THE WHOLESALE MARKET?

93 In this case the submissions and evidence have focused extensively on the conduct of the respondent and the claimed purpose of the respondent in engaging in that conduct. I have already found that the respondent has a substantial degree of market power in the Wholesale Market, but have made no such findings in relation to either the Retail Market or the Real Estate Agents’ Services Market, and indeed have held that to the extent that the respondent is supplying data in a retail environment in response to over the counter searches, it is not bound by s 46.

94 The notion of "taking advantage of" in s 46(1) is closely related to the proscribed purpose in the section (Melway 205 CLR at 16-17). As the majority observed in Melway,

95 So for example, in Queensland Wire [1989] HCA 6; 167 CLR 177 Deane J held that the identification of the proscribed purpose in that case led directly to the conclusion that BHP was taking advantage of its market power, because the nature of the purpose was such that, in the circumstances of that case, it could not have been achieved by the conduct impugned had it not been for the existence of the market power (Queensland Wire 167 CLR at 197-198, Melway 205 CLR at 17). The majority in Melway at 18 also noted comments of Scalia J in the Supreme Court of the United States when his Honour said:

96 Similarly, the Privy Council in Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385 at 402 observed that use and purpose, though separate requirements, will not be easily separated.

97 However as was pointed by the High Court in Queensland Wire [1989] HCA 6; 167 CLR 177, and subsequently reiterated by the majority of the High Court in Melway 205 CLR at 17, "take advantage of" does not mean anything materially different from "use" and does not require conduct which is predatory or morally blameworthy: per Mason CJ and Wilson J at 191, Deane J at 194, Dawson J at 198, Toohey J at 212-214 (cf also the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 at [137]). In terms of s 46 it does, however, entail an analysis of actions in the context of a competitive environment, and identification of a determinative approach in the entity with the substantial market power to achieve an outcome proscribed by s 46. So, as Heerey J said in ACCC v Boral Ltd (1999) 166 ALR 410 (at 440), subsequently approved by the majority of the High Court in Boral Besser [2003] HCA 5; 215 CLR 374 (at 434):

98 In summary, para 8 of the Amended Statement of Claim alleges conduct constituting a taking advantage of market power for a proscribed purpose in the following forms:

• proposed changes to fee structure pursuant to which the respondent supplied bulk data to the applicant and other licensees

• the exclusion of names and service addresses from the bulk data supplied to the applicant and other licensees.

99 I note however that the expert witnesses in para 14 of the Joint Expert Statement of Areas of Agreement and Disagreement agree that the changes in pricing structure from a fixed wholesale price to a fixed and variable wholesale price (excluding the new fee to access names and addresses which is to be incurred as these searches will need to be done directly through respondent on an individual basis) do not constitute a taking advantage of market power. I note further that at the hearing, the applicant did not press its claim with respect to proposed changes to the fee structure other than issues with respect to the fixed price of $5.70 per search for the Excluded Data, and that in closing submissions no reference was made by Counsel for the applicant as to the respondent having purportedly taken advantage of its market power in relation to this issue.

100 Accordingly, in my view, no case is made by the applicant that the respondent has taken advantage of its market power in relation to changes in pricing structure from a fixed wholesale price to a fixed and variable wholesale price (excluding the new fee to access names and addresses).

• the exclusion of names and service addresses – ie, the Excluded Data – from the bulk data supplied to the applicant and other licensees; and

• the new fee to access names and addresses, which were originally supplied and now form a key part of the Excluded Data.

102 In essence, the applicant’s case focuses on the withdrawal of the Excluded Data from the bulk data supplied by the respondent.

103 Extensive evidence has been presented by the parties as to the relevant limbs in s 46 of "taking advantage" and the relevant purpose of the respondent. As both limbs were the subject of extensive submissions and cross-examination at the hearing, I will consider each in turn.

Evidence of expert witnesses - in refusing to supply the Excluded Data is the respondent "taking advantage" of its market power?

104 As demonstrated by the Joint Expert Statement of Areas of Agreement and Disagreement, the expert witnesses agreed on a number of propositions, namely:

• that implementation of the refusal to supply the names and addresses in bulk form is facilitated by the Department being the only supplier in the wholesale market

• that implementation of the refusal to supply the names and addresses in bulk form is sourced from the regulatory powers of the Department granted by the VL Act

• that changes in pricing structure from a fixed wholesale price to a fixed and variable wholesale price (excluding the new fee to access names and addresses) do not constitute a taking advantage of market power.

105 Mr Norling also agreed that the respondent’s claimed reason for refusal to supply names and addresses in bulk form (namely, to reduce the incidence of misuse of the data for direct marketing purposes) was a rational business reason, whereas Mr Williams expressed no opinion on the basis that he was not in a position to evaluate the claimed reasons of the respondent.

106 However, the expert witnesses disagreed with respect to three primary propositions, namely:

• that it was more likely than not that the exclusion of names and addresses from the data supplied would be conduct expected to occur within a workably competitive market due to the majority of suppliers being subject to the Privacy Act 1988 (Mr Norling agreed with the proposition; Mr Williams disagreed on the basis that he did not see a nexus between there being a workably competitive market and the suppliers in that market being subject to the provisions of the Privacy Act)

• that the refusal to supply names and addresses in bulk form did not constitute a taking advantage of market power (Mr Norling agreed with the proposition; Mr Williams disagreed)

• that the new fee to access names and addresses could constitute a taking advantage of the respondent’s market power because it may cause licensees to pay substantially more for the same data that they acquired previously (Mr Norling disagreed with the proposition on the basis that all licensees were subject to the same terms, that the fees would be passed on to the end users, and that the conversion of a significant proportion of the fixed fee to a variable fee was consistent with economic efficiency and improved competitiveness. Mr Williams agreed with the proposition).

107 In forming their views, the witnesses addressed two competing hypotheses, namely:

• that the proposed conduct of the respondent reflected the exercise of market power, and was in fact conduct of the respondent "taking advantage" of its market power; or

• that the proposed conduct of the respondent is of a kind that one would find even if the wholesale market were workably competitive.

108 In relation to the allegation that the respondent had "taken advantage" of its market power in this context, Mr Williams in his report stated, in summary:

• data on names and addresses are critical for a number of users in the Retail Market, and removal of data on names and addresses is likely to lead to a substantial reduction in end-users’ willingness to pay for data from the applicant and the other licensees

• had the Wholesale Market been competitive, the conduct of the respondent in withdrawing this data would have been unlikely, because any refusal to supply by the respondent would have been met by a third party (either an existing wholesaler or a new entrant)

• there is little reason to conclude that the respondent’s decision is a reflection of efficiencies forced by competition - rather it seems more appropriate to characterise such behaviour as the exercise of market power through a refusal to supply

• the only other possible reason for the respondent’s conduct could be that it is required to safeguard privacy.

109 Under cross-examination by Mr Hinson SC, Mr Williams agreed that, while he could see no economic efficiency reason or other competitive reason for the respondent engaging in the conduct, similarly the respondent had not nominated such reason (TS p 86 ll 5-8).

110 Mr Williams also opined that the conduct of the Department constitutes a use of its market power because, without its market power, it is very unlikely that it could, in a commercial sense, refuse to supply the bulk names and addresses, because if there alternative suppliers of bulk names and addresses it is very likely that entities such as the applicant would go to that alternative supplier, and the threat of going to that alternative supplier would, in an effective sense, force the respondent to offer the bulk names and addresses (TS p 89 ll 2-8).

111 In relation to the allegation that the respondent had "taken advantage" of its market position in this context, Mr Norling in his report stated, in summary:

• a workably competitive market is one in which there would be a significant number of suppliers, of which none would dominate the market, unlike the Wholesale Market in this case

• suppliers in a workably competitive market would not comprise multiple statutory bodies, that is the majority of suppliers would be private businesses which would be subject to the provisions of the Privacy Act 1988 (Cth)

• it therefore follows that it is more likely than not that the exclusion of names and addresses from the data supplied would be conduct expected to occur within a workably competitive market due to the majority of suppliers being subject to the Privacy Act

• the implementation of the refusal to supply the Excluded Data was facilitated by the respondent being the only supplier in the Wholesale Market, however this facilitation falls short of the market power "materially facilitating the conduct".

112 In this case it is clear that, in the Wholesale Market, the respondent is a monopoly supplier. Although there was some discussion throughout the hearing as to local government authorities in Queensland being a source of data, it is clear that they are not a source of Bulk Data. It is also not in contention that the reason for this monopoly is because of the statutory function of the respondent, which, as stated by Mr Rush in his affidavit, is the point of truth source for sales data. However as pointed out by the majority in Melway 205 CLR at 27:

113 So, to paraphrase Heerey J in ACCC v Boral 166 ALR 410 as adopted by the majority of the High Court in Boral Besser [2003] HCA 5; 215 CLR 374, was the conduct of the respondent taking advantage of its market power in withdrawing the supply of the Excluded Data, such that an entity with no substantial degree of market power in the Wholesale Market would not, as a matter of commercial judgment, engage in that conduct?

114 In my view, it is clear that the respondent was taking advantage of its market power in the Wholesale Market in its proposals to withdraw the Excluded Data from supply to the applicant and the other licensees. I form this view for the following reasons.

115 First, there is a clear connection between the substantial degree of market power of the respondent in the Wholesale Market, and the exclusion of the Excluded Data. Irrespective of the purpose motivating the respondent, which I shall consider shortly, the outcome admitted by the respondent of ensuring that no commercial entity could be in possession of bulk data including the Excluded Data was dependent upon the monopolistic position of the respondent and its withdrawal of the Excluded Data from the market. In circumstances where the respondent withdrew supply of the Excluded Data from the bulk data, there was no other source of supply.

116 Second, I am not satisfied on the evidence that, in the hypothetical workably competitive Wholesale Market where there were multiple suppliers of the Collected Data including, potentially, the Excluded Data, the respondent would have engaged in its conduct of withdrawing the Excluded Data. Clearly the circumstances of this case cannot be equated with a more conventional commercial environment where a supplier is predominantly motivated by, inter alia, profit and its position in the market. In this case the supplier is a State government department which, while undoubtedly motivated to some extent by cost and profit, is also motivated by broader policy imperatives of community interest. However, in a hypothetical environment where the Excluded Data being information identifiably sourced from the respondent could be obtained elsewhere, I am not satisfied that the respondent would have engaged in the relevant conduct, because it is clear that the outcome the respondent sought in the case at hand (namely to prevent data it collected being used for direct marketing) could not in such circumstances have been achieved. It is possible that, as a matter of principle, the respondent would nonetheless have engaged in the relevant conduct in pursuance of its policy objectives, but I am not persuaded that that would be the case. In my view, this doubt underlines the strong connection in this case between the substantial degree of market power of the respondent in the Wholesale Market, and the conduct complained of.

117 Third, I am not persuaded by the submissions of the respondent, or the evidence of Mr Norling, that the removal of names and addresses from the Bulk Data would be conduct expected to occur within a (hypothetical) competitive wholesale market because suppliers other than the respondent in such a wholesale market would be subject to the Privacy Act 1988 (Cth). To paraphrase comments of the majority in Melway 205 CLR at 22 in a similar context, the evidentiary basis for that conclusion is not entirely clear, and not everyone would agree that, as a proposition of fact, it is self-evidently correct. Irrespective whether the information supplied by the respondent was as a matter of law a generally available publication and not subject to the Privacy Act – as was submitted, in my view correctly, by the applicant:

• the assumption that the Privacy Act would compel suppliers in the hypothetical Wholesale Market from withholding the Excluded Data was not proven;

• there is no basis in fact or in law made out for assuming that the QVAS data and the supply thereof by a hypothetical competitor in the Wholesale Market is something that would be subject to the Privacy Act; and

• depending on the identity of such hypothetical competitors they might or might not be organisations subject to the Privacy Act with the result that it was questionable whether the Privacy Act would have any application in any event.

118 Fourth, I do not accept as material the distinction drawn by the respondent between the facts of this case and other refusal to supply cases such as Melway [2001] HCA 13; 205 CLR 1 and Queensland Wire [1989] HCA 6; 167 CLR 177, in that in those cases there was a refusal to supply one of several acquirers of goods and services. Whether or not all licensees were being treated equally in this case is not germane to the issue of whether the respondent, for reasons of its own, was taking advantage of its market power. (Whether it is relevant to purpose is a different question, which I shall consider shortly). In, for example, a hypothetical situation where a wholesale supplier formulated a strategy of itself entering the retail market and as part of that strategy informed its customers who were retailers in that retail market of its decision to henceforth refuse supply of its products, the fact that all retailers were equally disadvantaged does not mean that the wholesale supplier has not taken advantage of its market power.

119 Finally, in my view the power used by the respondent in withdrawing the Excluded Data from supply was not regulatory power, but market power. I have already found that, although the collection of data by the respondent was pursuant to statutory obligations, the supply of Collected Data by the respondent to the applicant and the other licensees was in the course of carrying on a business by the respondent. In my view this case is distinguishable from Stirling Harbour [2000] FCA 1381 and Plume v Federal Airports Corporation [1997] 1019 FCA where the Court found that relevant entity was exercising regulatory authority rather than market power:

• In Stirling Harbour [2007] FCA 1381, the function of the port authority under the relevant statute was to arrange for port services to be provided, including towage, and did so by tender. The Full Court in that case was satisfied that the port authority had assumed the role of a market regulator.

• Similarly in Plume [1997] 1019 FCA, the court was satisfied that the conduct of the Federal Airports Corporation was properly characterised as use of a regulatory power designed for the benefit of the members of the public who had occasion to use the facilities of the airport at Alice Springs.

120 The role of the port authority in Stirling Harbour [2007] FCA 1381and the Federal Airports Corporation in Plume [1997] 1019 FCA can be contrasted with the role of the respondent in its supply of Collected Data to the applicant and the other licensees, namely that of a wholesaler of information on commercial terms dictated by the respondent, in an environment where the respondent was also a supplier of data in the Retail Market. While the regulatory power of the respondent to collect data and enter licence agreements clearly assisted its commercial position in entering such agreements (cf comments of the majority in NT Power 219 CLR at 142) the conduct of the respondent in withdrawing the Excluded Data but continuing to supply other data on commercial terms was a market, rather than a regulatory, issue.

IF THE CONDUCT CAN BE CHARACTERISED AS THE RESPONDENT TAKING ADVANTAGE OF ITS SUBSTANTIAL DEGREE OF POWER IN THE WHOLESALE MARKET, WAS IT FOR A PROSCRIBED PURPOSE?

121 Irrespective whether the respondent has taken advantage of its substantial degree of market power in the Wholesale Market, as a matter of law it will only be in breach of s 46 if it has done so for a purpose proscribed by s 46(1). That this is so is demonstrated by the unambiguous terms of s 46(1), and decisions in Australia at the highest level confirming this principle (for example Queensland Wire [1989] HCA 6; 167 CLR 177, Melway 205 CLR at 22).

a. eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market

c. deterring or preventing a person from engaging in competitive conduct in that or any other market.

123 In relation to identifying the "purpose" of the respondent, as illustrated by the cases listed in Miller’s Annotated Trade Practices Act 28th edition para 1.46.65, the weight of authority indicates that the relevant purpose is to be identified on the basis of a subjective test rather than objectively, although purpose may be established by inference from the conduct of the respondent (s 46(7)). As Toohey J observed in Queensland Wire 167 CLR, the reference to "for the purpose of" carries with it the notion of an intent to achieve the result spoken of in each of the paragraphs in s 46(1) (at CLR 214). I note that the subjective nature of the relevant intent was also endorsed by the High Court in Boral Besser 215 CLR at 484.

124 The principle that the relevant purpose is to be determined subjectively is not in contention between the parties. The parties however differed slightly in their submissions as to whether "purpose" was synonymous with "motive":

125 The applicant submits that purpose is not motive, but rather is the object in view or sought to be achieved by the conduct whereas the motive may be no more than the spur for it. Authority for this proposition derives from comments of the Full Court in General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164 at 187.

126 The respondent relied on comments of Lockhart J in Dowling v Dalgety 34 FCR at 143 where his Honour said that "purpose" in s 46 "is not concerned directly with the effect of conduct, but with the purpose in the sense of motivation and reason, though, as mentioned earlier, purpose may be inferred from conduct".

127 The applicant in para 10 of the amended statement of claim alleges that the respondent has so acted for the following purposes:

128 The respondent in its amended defence denied that it has acted in the manner alleged by the applicant, and states in para 42 that its purpose in proposing to exclude the Excluded Data from the Collected Data available under future licences is to ensure that such information in bulk data form is not available for direct marketing purposes.

129 The applicant in its amended statement of claim alleges that the respondent has engaged in conduct in contravention of s 46 TPA without reference to any particular paragraph in s 46 (1).

130 Although not specified in the amended statement of claim, it appears that the applicant is claiming that the conduct pleaded in para 10(a) of the amended statement of claim breaches s 46(1)(a), whereas the conduct pleaded in paras 10(b), (ba) and (bb) allegedly breaches s 46(1)(c).

131 Further, it appears from the amended statement of claim that paras (ba) and (bb) are read together – para (bb) appears, by use of the word "thereby" to refer back to the conduct pleaded in para (ba). Accordingly, I shall consider these two paragraphs together.

Purpose of eliminating or substantially damaging the applicant in the Retail Market: section 46(1)(a)

133 Section 46(1)(a) contemplates circumstances where an entity, through its substantial degree of market power in a market, takes advantage of that power for the purpose of eliminating or substantially damaging another entity which is its competitor in another market. This is plain from the terms of the section itself, and follows, for example, from observations of McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power at 219 CLR at 114-115, 145. Accordingly, the respondent would have acted in breach of s 46(1)(a) TPA if it took advantage of its power in the Wholesale Market for the purpose of eliminating or substantially damaging the applicant in the Retail Market, if the applicant was a competitor of the respondent in that Retail Market.

134 The applicant conceded that there was no direct evidence that the respondent’s purpose was to substantially damage the applicant in the Retail Market. The applicant invited the court to draw the inference that this was the purpose of the respondent, and referred in particular to the change in the products to be offered by removal of the Excluded Data, and the simultaneous change in pricing under the proposed fees structure. In summary, the applicant contended:

• The removal of the Excluded Data will make the applicant’s products less attractive to its existing customers in comparison to the existing offerings of the applicant.

• The result of a proposed licence fee incorporating a royalty would result in a licence fee payable by the applicant to the respondent in excess of $1 million in contrast with the current flat fee, which proposal has not been adequately explained. The respondent did not produce one document evidencing the way in which the pricing for either the access fee or the royalty fee was worked up for these particular products.

• The removal of the Excluded Data was allegedly precipitated by complaints concerning direct marketing activities by real estate agents, but this does not explain the basis of the particular pricing provisions.

• In any event, the respondent’s witnesses exaggerated the number and account of complaints concerning direct marketing activities by real estate agents, and in fact the number of complaints received was minor (a total of 139 written complaints discovered between 1997 and 2006), which would not justify substantial overhaul to contractual arrangements in place since 1992.

• The evidence is overwhelming that the only purpose of the respondent in implementing its proposals concerning the Excluded Data and the pricing structure was to prevent the misuse of the Excluded Data for direct marketing.

• There is no evidence that the respondent had the purpose of substantially damaging the applicant in the Retail Market.

• For s 46(1)(a) TPA to apply the applicant and the respondent must be competitors in a market, and the only market in which the applicant alleges it competes with the respondent is the Retail Market: para 6 of the amended statement of claim.

• The applicant and the respondent are not competitors in the Retail Market. There are substantial differences between the data offerings to end users made by the applicant and the respondent, namely:

• There is no evidence that the proposal is part of some grand conspiracy by the respondent to "get back" at the applicant.

• In 1997 the respondent was encouraging more licensees to come into the Retail Market and reduced its fees to allow that to occur. The unchallenged evidence is that all licensees were treated equally.

• Mr Fry deposed that he had told the applicant that if it did not agree to the new licence conditions and refused to enter into a licence agreement, it would not be able to receive licensed data after 30 June 2005, and deposed further that this would also apply to the other seven licensees.

136 As I have already observed, s 46(1)(a) is enlivened when a corporation (or other entity deemed by the TPA) engages in relevant conduct for the purpose of eliminating of substantially damaging a competitor of that corporation or other relevant entity.

137 The word "competitor" is not defined in the TPA. The Macquarie Dictionary defines it to mean:

138 Although the term "competitor" has received no judicial attention that I can identify, the word "competition" has, in the context of Pt IV TPA. So in Adamson v West Perth Football Club (1979) 27 ALR 475 at 502, Northrop J said:

139 I have already expressed the view that the respondent is not "carrying on a business" within the meaning of s 2B TPA in relation to its supply of data in response to individual searches, which forms the primary activity of the respondent in the Retail Market. If the respondent is not carrying on a business, the question immediately arises whether the respondent is capable of being a "competitor" of the applicant in the Retail Market for the purposes of s 46(1)(a), in respect of this particular conduct of the respondent. In my opinion, the obvious answer in this case is that the respondent is not – the respondent is fulfilling a statutory function in supplying that data, and is subject to legislative control in respect of prices charged and product quality. There are, however, some elements of "competition" as between the applicant and the respondent as submitted by the applicant, particularly in relation to issues of product substitution. In the event that I am in error in relation to whether the respondent is carrying on a business in relation to its supply of data, then – as I have done elsewhere in this judgment – I propose to continue to consider whether, within the meaning of s 46(1)(a), the applicant is a "competitor" of the respondent in the Retail Market.

140 Further, I have also said that the evidence before me does not support a finding that the respondent has a substantial degree of power in the Retail Market. Irrespective whether the respondent has any power in the Retail Market flowing from its power in the Wholesale Market as a monopoly supplier, this does not equate to the respondent being a "competitor" of the applicant in the Retail Market.

141 To date the activities of the applicant and the respondent have been at different points on an economic continuum, with different product offerings, different levels of sophistication of products, different client bases, and apparently minimal overlap. The value-added products of the applicant appear to have little in common with such products of the respondent as SmartMap, or the raw data supplied in response to statutory searches. The applicant and the respondent have not been "rivals" in the Retail Market in the sense of being entities who strive to outdo each other (see discussion by Professor Stephen Corones Competition Law in Australia (4th ed, Lawbook Co, 2007) at 5. Nor, as the respondent submitted with reference to statements of Mr Catelan and the applicant in its Information Memorandum, does the applicant perceive the respondent as its competitor in the Retail Market.

142 Nonetheless there is commonality in the activities of the applicant and the respondent in the Retail Market in that both supply data sourced from the respondent, and it appears that the Excluded Data at present can be obtained by customers of the applicant from either the applicant or the respondent. In that sense there is presently the potential of substitution between one source of supply and another of that data as contemplated in Adamson. Although the competition appears in the present environment to be minimal, leaving aside for the moment issues arising out of s 2B TPA, I am prepared to assume that the applicant is a "competitor" of the respondent in the Retail Market.

Can the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market be inferred?

143 However, irrespective whether applicant and the respondent are competitors in the Retail Market, in my view the alleged purpose of the respondent as claimed by the applicant is neither demonstrated by the evidence, nor can it be inferred from the respondent’s conduct. In fact, the evidence demonstrates unambiguously that the purpose claimed by the respondent in engaging in the conduct the subject of complaint was in truth its purpose. This is so on any view of the meaning of the word "purpose", and regardless whether the interpretation submitted by the applicant or the respondent as to the meaning of "purpose" in s 46(1) is accepted. The object in view or sought to be achieved by the conduct of the respondent was clearly to ensure that Collected Data could not be used by anyone for the purpose of direct marketing to consumers. It was for this reason, and this reason alone, that the respondent took advantage of its substantial degree of market power in the Wholesale Market. This purpose is not a proscribed purpose within the meaning of s 46(1)(a) TPA. The respondent did not engage in the relevant conduct for the purpose of eliminating or substantially damaging the applicant as a competitor in the Retail Market.

144 I form this view for the following reasons, taking into consideration relevant submissions of the applicant in relation to this claim.

145 First, although the effect of the removal of the Excluded Data may indeed be that the applicant’s products are less attractive to its existing customers in comparison to the its existing offerings, this in itself does not persuade me that the respondent’s purpose in excluding the Excluded Data is to either damage or eliminate the applicant in the Retail Market. I note that the proposal of the applicant applies to all licensees – the applicant is in no way distinguished. Impact on the business of the applicant is explicable as a potential consequence of the proposal, rather than a purpose.

146 Second, as I have already said, the clear weight of the evidence before me is that the only purpose of the respondent in implementing its proposals was to prevent the misuse of the Excluded Data for direct marketing. Earlier in this judgment I noted the clear Parliamentary intent, as reflected by the introduction of s 27 Land Legislation Amendment Act 2003 (Qld), to prevent licensees allowing the distribution of an owner’s name and address for any direct marketing purposes, and the subsequent insertion of clauses to that effect in the new contractual agreements with the licensees. I have also noted the Departmental correspondence, including Briefing Notes, annexed to Mr Rush’s affidavits, which support the existence of this purpose. Similarly the consistent evidence of the respondents’ witnesses at the hearing was that the only purpose of the respondent was to prevent direct marketing using data originally supplied by the respondent. So, for example:

• evidence of Mr Fry that the respondent wanted to make it such that the use of data sourced from the respondent in direct marketing would not occur (TS p 200 ll 5-15)

• evidence of Mr Witt, including that the previous inclusion of a prohibition on direct marketing clause in the licence agreements did not work out as well as the respondent had hoped, and that accordingly that the proposal had been introduced to stop real estate agents direct marketing (TS p 237 ll 40-45, pp 263-264)

• evidence of Mr Rush including that "All I’ve ever been trying to achieve is a situation where my Minister can get up in Parliament and say, ‘If you’ve been contacted by a direct marketer, they haven’t got your details from the data held in my Department’" (TS p 336 ll 10-12, and further evidence at p 301 ll 20-30).

147 While in some cases where an entity has used its dominant position it may, as the Privy Council said in Telecom Corporation of New Zealand Ltd [1995] 1 NZLR at 402 be hard to imagine a case in which it would have done so otherwise than for the purpose of producing an anti-competitive effect, and it will legitimate for a court to infer from the respondent’s use of its dominant position that its purpose was to produce the effect in fact produced, the respondent in this case is a government department under the direction of a State government Minister which, while engaged in supply of data for revenue, is also required to take into account broader community interests. In my view it is not difficult to accept that the public interest to ensure that its data base is not misused for direct marketing purposes is what has motivated the respondent to act in this case.

148 Third, from the consistent evidence of the respondent’s witnesses it could not be inferred that changes to the respondent’s pricing structure were implemented for the purpose of eliminating or damaging the applicant as a competitor. The respondent’s proposal was implemented in relation to all licensees, not only the applicant and in accordance with a Department wide approach. One possible explanation for this development is that the respondent was seeking to eliminate all possible competition in the Retail Market, including that posed by the applicant. However it is inconsistent with a deliberate attack on the applicant specifically as a competitor.

149 Fourth, according to evidence of Mr Witt, the current licence fees are considerably lower than they were in the late 1990s when the applicant paid $600,000 upfront plus $50,000 per month for five years for its licence (affidavit of Mr Witt para 13). The applicant currently pays $158,749 per annum in licence fees, and under the proposed new licence the applicant would pay a maximum of $158,749 comprising licence fees and a capped royalty fee (Witt affidavit para 13, Oakley affidavit para 27). The proposal of the respondent meant, at least in the foreseeable future, that the licensees would not pay more under the proposed licence than they were paying under the current arrangement (oral evidence of Mr Oakley TS p 279 ll 34-45), although clearly without receiving the Excluded Data, which is a key aspect of the applicant’s complaint.

150 Fifth, the earnings from the payment of licence fees by the eight licensees – in the order of $1 million per annum – are tiny in comparison with the total budget of the Department. I understand from evidence of Mr Rush that the earnings of the Department from statutory sales in, for example, the 2004-2005 financial year added only approximately $0.17 million to the Department’s revenue (TS p 296 ll 23-42).

151 These sums may be compared with the total Departmental budget allocation. According to evidence of Mr Rush, in terms of the departmental budget allocation drawn primarily from treasury allocations and a small amount of departmental revenue, the departmental revenue and expenditure allocations were of the order of just under $500 million in the 2003/2004 financial year, and $784 million or $787 million up until the 2006/2007 financial year (TS p 288 ll 6-10). From the respondent’s perspective the revenue earned from the licensees was not substantial or indeed a major issue (evidence of Mr Witt TS p 202 ll 5-15). This supports the respondent’s contention that its purpose related only to the prevention of direct marketing, not financial concerns and the elimination or damage of a competitor.

152 Sixth, the introduction of the new pricing structure was explained by Mr Fry as resulting from the introduction of the Department’s Information Access and Pricing Policy on 1 March 2004, between the previous licence (commencing on 1 July 2003) and the expiry of this licence on 30 June 2005. According to Mr Fry, that access and pricing policy changed dramatically the way in which the Department would in future provide access to information from the Department (TS p 206 ll 2-20). As I noted earlier in this judgment, in the case of "Developers" (including the applicant) the Information Access and Pricing Policy contemplated payment to the Department a royalty fee and/or upfront fee approved by an authorised Delegated Officer of the Department. This is exactly what is contemplated by the proposed licensing agreement in this case. There is no suggestion that the introduction of the Information Access and Pricing Policy itself was in any way part of a plan by the respondent to eliminate or damage the applicant. I also note that the Information Paper "Access to valuation and sales information beyond June 2005" dated 14 December 2004 (annexure WBF-08 to Mr Fry’s affidavit) prepared by the Department and distributed to licensees is compatible with the Information Access and Pricing Policy.

153 Finally, the respondent’s witnesses were unequivocal in their evidence, both affidavit and oral, that the move to exclude the Excluded Data was a direct response to the complaints the Department had received, and the failure of provisions in the agreements between the respondent and the licensees to prevent misuse of the Excluded Data through direct marketing. As Mr Fry deposed in his affidavit:

154 I also note that the complaints were significant in number – exhibits A6, 18, 19 and 20 are bundles of some of the written complaints received by the Department, and Messrs Fry, Witt and Oakley all said that there were in fact many more complaints made to them orally by telephone (TS p 95 ll 20-22, p 239 ll 19-21 and p 269 l 43). The complaints in the exhibits were a combination of complaints from consumers and those from real estate agents who were not engaged in direct marketing.

155 The applicant submitted that of the complaints received by the respondent the majority are from real estate agents and building managers, with 37% attributable to individuals, and in view of the number of transactions in Queensland every day the number of complaints is minor. However I accept the evidence of the respondent’s witnesses that there were many complaints by telephone. Further, I do not accept that, simply because a large number of complaints were from real estate agents and business managers, they were not "real" complaints as the applicant’s submissions seem to imply, and I do not accept the submission of the applicant that the number of complaints received by the respondent would not justify a substantial overhaul to contractual arrangements in place since 1992.

Purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market: section 46(1)(c)

156 Again, there appears to be no direct evidence of this purpose, rather the applicant submits the purpose is to be inferred from the factors particularised in the applicant’s amended statement of claim. Those factors are:

• The respondent’s purpose in refusing supply of the Excluded Data is clearly to require that end users who wish to obtain that data must do so from the respondent directly, using the respondent’s range of search products. Its purpose in doing so is to prevent the applicant and the other licensees from engaging in competitive conduct in supplying that information to its customers as part of the applicant’s own suite of licensed data products.

• The applicant objects to the admission of opinion evidence of Mr Norling as to the purpose of the respondent, primarily because the matter in issue is purpose under s 46 TPA which is a subjective purpose question, and Mr Norling’s opinion evidence as to the applicant’s purpose is not a matter within his expertise.

• Most of the applicant’s customers are real estate agents who, before listing any property for sale or lease, must take reasonable steps to identify or verify the property’s ownership and its description. It is inevitable that, as a result of the proposal, the respondent’s search fee income, whether by way of QVAS data searches or titles registry searches, will increase.

• Although the respondent’s witnesses claimed that the proposed changes were in response to privacy concerns, prevention of direct marketing by end users (specifically real estate agents) was in fact the motive not the purpose – the purpose was to prevent the applicant from engaging in the conduct of providing the Excluded Data in its existing products to end users. The conduct sought to be deterred or prevented was competitive with the conduct of the respondent in providing names and addresses in its statutory searches.

158 Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13).

(cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139], Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia, its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.

159 However, notwithstanding the submissions of the applicant, I am not persuaded that the purpose of the respondent was to deter or prevent the applicant from engaging in conduct which was competitive with the conduct of the respondent when it discharged its statutory function of providing names and addresses in response to statutory searches in the Retail Market. Similarly, it cannot be said that the proposal of the respondent had the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market to the benefit of other licensees – the proposal to exclude the Excluded Data from the data supplied by the respondent was identical in respect of all licensees. So, for example, in my view the purpose of the respondent in this case was not to gain a competitive advantage in the Retail Market over the applicant in relation to the Excluded Data or to deter the applicant from discounting prices of its product to competitors of the respondent (cf Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [2003] FCAFC 149; (2003) 129 FCR 339 at 355-356. I form this view for the following reasons.

160 First, while I accept that, as a result of the respondent’s proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent’s conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power & Water Authority [2002] FCAFC 302 at [17], although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.

161 Second, in my view the "purpose" of the respondent, which as Toohey J observed in Queensland Wire [1989] HCA 6; 167 CLR 177 carries with it the notion of an intent to achieve a certain result, was to prevent the Excluded Data being used for direct marketing. The clear inference which can be drawn from the conduct of the respondent is that, despite publicly expressed concerns of the respondent concerning usage of its data for direct marketing, and although the licensees were required by the licence agreement between themselves and the respondent to ensure that end users had agreed not to use the data or data products supplied by the licensees for direct marketing, nonetheless end users (primarily some real estate agents) were engaging in direct marketing using data sourced originally from the respondent. I note that the possibility of the Excluded Data being withdrawn because of inappropriate use by end users had been anticipated by cl 9.11 of the 2003 licence agreement which provided:

162 It is because of the respondent’s view that Excluded Data was being misused for direct marketing that the respondent formulated its proposal to exclude the Excluded Data from the Collected Data it supplied the applicant and the other licensees. Excluded Data could still be obtained from the respondent, because the respondent was statutorily obliged to supply it. One obvious result of end users obtaining Excluded Data on the basis of individual searches is that the cost and process of so obtaining that information is a clear disincentive to direct marketing activities, which is compatible with the stated purpose of the respondent.

163 Third, the applicant made a number of claims in the amended statement of claim concerning the alleged intention of the respondent to harm the applicant. I make the following observations:

• In relation to the claim of the applicant that the respondent had an intention to harm and prevent the applicant competing in the market place by offering another party, Infopac, favourable terms in order to compete with the applicant (amended statement of claim para 10(b)(i)(B)(I)), no evidence is produced other than that of Mr Catelan in his affidavit, referring to alleged statements of Mr Witt in 1998. I note that these statements were allegedly made almost 10 years ago, and appear to bear little relationship to the complaint before me. Further, I note that Mr Witt was not cross-examined in relation to these statements, nor did any other person who could give direct evidence as to such an offer give evidence. I also note Mr Oakley was cross-examined in relation to a letter from Infopac received by him in 1998 (pp 278-279) however there was no substantiation that the respondent had sought to cause harm to the applicant in connection with an contractual relationship between the respondent and Infopac. I therefore give no weight to this aspect of the claim.

• Similarly Mr Witt was not cross-examined concerning the allegations of the applicant with respect to Mr Edwards and Residex (amended statement of claim para 10(b)(i)(B)(II)). No evidence was given by Mr Edwards, and Mr Edwards did not appear as a witness in these proceedings. I also give no weight to this aspect of the claim.

• In relation to the claim of the applicant that on 4 February 2005 Mr Fry and Mr Oakley said to Ms Jane Woodward of the applicant that if the applicant did not agree to the new licence conditions the applicant would not receive any Collected Data in the future, I note that:

164 Finally, I have formed this view without taking into consideration the opinion of Mr Norling on the issue. I agree with the applicant that the evidence of Mr Norling in relation to the purpose of the respondent is not an area within his expertise. An assessment of the purpose of the respondent is an issue for the court to decide, based on the evidence before it.

165 In my view, the purpose of the respondent in engaging in the conduct complained of was not that of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market.

Purpose of deterring or preventing real estate agents from direct marketing to owners of real property using the Excluded Data, and for the purpose of deterring or preventing real estate agents thereby from engaging in competitive conduct in the Real Estate Agents’ Services Markets: section 46(1)(c)

166 Although the respondent admitted the existence of these markets, this purpose as pleaded does not refer to competitive conduct in markets in which the applicant participates. Nonetheless, as I have already found, and indeed it is not in dispute, that the terms of s 46(1)(c) are sufficiently wide to include a claimed conduct which constitutes an entity taking advantage of its power for the purpose of deterring or preventing a person who is a stranger to the litigation, from engaging in competitive conduct in a market in which no party to the litigation is a participant.

167 As I have already indicated in my judgment there is little evidence before me as to the nature of this market including little evidence from the expert witnesses. It does not appear however to be in dispute between the parties that competitive conduct of real estate agents in these markets includes direct marketing activities to clients or potential clients.

168 In relation to the claims in paras 10(ba) and (bb) in the amended statement of claim the applicant submitted as follows:

1. The applicant alleges that the purpose of the respondent is to deter or prevent real estate agents from direct marketing to owners of real property using the Excluded Data. That is denied by the respondent, although the respondent concedes that its purpose in proposing to exclude the Excluded Data is to ensure that such information in bulk form is not available for direct marketing purposes.

2. The respondent’s witnesses clearly supported the inference that the purpose was to deter or prevent real estate agents in particular. The applicant refers to evidence of Mr Oakley as follows:

3. The applicant alleges that the respondent thereby has the purpose of deterring or preventing real estate agents from engaging in competitive conduct. The respondent denies that allegation also. However, the evidence supports the obvious inference that direct marketing by real estate agents is competitive conduct in the markets for their services. The respondent led no evidence to the contrary.

4. It follows that the proposal to exclude the names and addresses from Collected Data is conduct that the respondent proposes to engage in for a purpose proscribed by para 46(1)(c).

169 A number of submissions were made the respondent in relation to these claims. In particular:

1. The respondent’s proposal to withdraw the Excluded Data from the Collected Data supplied to licensees does not prevent real estate agents from engaging in direct marketing. The proposal merely prevents persons, including real estate agents, from using data collected by the Department being used for purposes other than those contemplated by ss 77(3) and (3A) VL Act. There is no deterrence on real estate agents and others direct marketing by, for example, newsletter drops, newsletters and so on.

2. Evidence of witnesses of the respondent was that the purpose of the respondent was to try and stop direct marketing using the Department’s data-sets rather than stop direct marketing activities of real estate agents per se. So, for example, at the hearing, evidence of Mr Rush was as follows:

3. On the evidence there appears to be no prohibition on anyone using information obtained directly from either the respondent or a third party (for example, local government authorities) in direct marketing activities. The effect of the prohibition is that a person cannot use for direct marketing purposes information obtained through a distributor such as the applicant.

4. A distinction needs to be made between the purpose of the proposal of the respondent and the effect of it if implemented. The sole purpose of the Department is the prevention of the misuse of the Excluded Data and the protection of privacy of individuals and businesses that have provided, compulsorily, information to the respondent. The proposal, if implemented, may have the effect of preventing or deterring certain competitive conduct such as direct marketing, by closing off one source of names and addresses, but that the proposal might have that effect is irrelevant if the purpose for its implementation was not to deter or prevent competition, which is the case here.

5. This case is no different to that encountered by the Full Court in Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497.

6. The respondent supplies a product, the QVAS database, which is compiled for purposes which do not include direct marketing. The respondent is entitled to prevent the misuse of its information for a purpose for which the information was not collected.

7. The licence agreement emphasises that data supplied may only be used for certain purposes. Clause 1.1 of the 2003 Licence states:

170 No evidence was produced at the trial demonstrating that real estate agents who are customers of the applicant and who engage in direct marketing activities utilise data sourced from the respondent. Indeed it would be difficult to produce such evidence – it is clear from the terms of the 2003 Licence Agreement that the applicant is contractually obliged to ensure that its customers (including real estate agents) do not use the information for such purposes, and presumably any direct marketing activity engaged in by real estate agents who are customers of the applicant would be in breach of their own agreement with the applicant.

172 First, as I noted earlier in this judgment, it is not contended by the applicant that the provisions in the 2003 Licence Agreements, prohibiting misuse of Collected Data (supplied by the respondent) for direct marketing purposes, contravene s 46 TPA. The claim of the applicant that the withdrawal of Excluded Data by the respondent to ensure that Collected Data supplied by the respondent is not misused for direct marketing purposes is somewhat difficult to reconcile with the position of the applicant with respect to the provisions of the existing agreement which are intended to ensure that the data is not so misused.

173 Second, I note the complaints made to the respondent and other Departments in relation to direct marketing activities of real estate agents. Several volumes of complaints have been accepted into evidence. They included a complaint concerning a direct marketing letter from a real estate agent addressed "Dear Name Suppressed" to a post office box at Robina, which clearly referred to data of the respondent. Two recurring themes in many of the complaints are:

• the belief of the complainant that certain real estate agents are engaging in direct marketing activities based on bulk data originally sourced from the respondent; and

• the request that the respondent address this misuse of data in some fashion.

174 As I have already found, the purpose of the respondent in proposing to withdraw the Excluded Data from supply to the applicant and other licensees is to prevent data supplied by the respondent being used for direct marketing purposes. I accept the evidence of witnesses for the respondent, including Mr Rush and Mr Fry, on this issue. While I note the applicant’s submission concerning evidence of Mr Oakley, I also note that the relevant statements of Mr Oakley were made in the course of a cross-examination concerning complaints received by the Department about the misuse of Collected Data, and consider his comments should be read in that light.

175 Third, while in the absence of evidence to the contrary I accept that the most likely persons affected in their direct marketing activities by the withdrawal of the Excluded Data would be real estate agents, I accept the respondent’s submission that this is an effect rather than the purpose of the respondent’s conduct. I also consider that principles articulated by the Full Court in Ceridale 97 ALR 497 are relevant here.

176 In Ceridale 97 ALR 497, the Australasian Performing Right Association Ltd ("APRA") owned copyright of public performances in nearly all current popular copyright music, and the respondents were all persons associated with premises within which the subject works had been performed without the licence of APRA. APRA would grant, inter alia, licences in respect of premises to play recorded music, the use of a background music system, and live performances with respect to works over which APRA held copyright. The respondents were persons associated with premises within which works over which APRA held copyright had been performed. The licence held by the first respondent was terminated by APRA on account of non-payment of outstanding licence fees. Further dispute between the parties led to APRA filing a notice of motion seeking summary judgment with injunctive relief. In relation to s 46, his Honour said that APRA had the monopoly control over the market concerning the supply of the performing rights of music played to patrons in nightclubs and discotheques, and the refusal to grant a customer such as the defendants a licence which would enable the customer to obtain that commodity was plainly an exercise of market power (at 508-509). His Honour also found that it was no answer to a complaint of a contravention of s 46 that the corporation was only taking advantage of a legal right (at 509) and in this case the proper characterisation of APRA’s actions was that it was taking advantage of its powers in the market to prevent the defendants from engaging in competitive conduct in another market simply in order to collect a disputed debt (at 509). The trial judge refused to grant an injunction, the object and effect of which was to force a business to pay a debt which was subject to a genuine dispute.

177 Wilcox, Spender and Pincus JJ allowed the appeal of APRA. In particular at 510-511 their Honours said:

178 In my view the comments of their Honours I have italicised are of particular relevance in this case before me. The evidence is overwhelming that the purpose of the respondent was to prevent misuse of its database, in circumstances where legislatively supported contractual provisions in the licence agreements appear not to have been successful in preventing that misuse. Indeed, in my view it is fair to say that as a general proposition, provided they did not misuse Departmental data, the respondent had nothing to gain by deterring or preventing the participants in the Real Estate Agents’ Services Markets from engaging in competitive conduct in those markets.

179 Fourth, irrespective whether during the 1990s the Department may have had no qualms concerning its database being used for direct marketing purposes by real estate agents as claimed by Mr Catelan (TS p 46 ll 44-46) and conceded by Mr Witt (TS p 222 ll 46-48 and p 223 ll 1-3), it appears that by October 2002 the Department was concerned about misuse of the data for direct marketing as a general proposition (for example, evidence of Mr Fry TS p 195 ll 13-14). This concern is reflected in the enactment of s 77(3A) VL Act, introduced into the VL Act in May 2003, which specifically required the inclusion in any contract for the supply of information a provision allowing the chief executive of the respondent to exclude particulars of valuation roll information if satisfied, on reasonable grounds, that inclusion of the particulars may result in the particulars being inappropriately disclosed or used. The clear purpose in the conduct of the respondent has been to ensure that the respondent’s database should not be misused, by anyone. While real estate agents may be the most affected group, in my view this does not mean that the purpose of the respondent is to deter real estate agents engaging in competitive conduct in the relevant market.

180 A threshold issue in these proceedings was whether the respondent was bound at all by s 46 TPA, because it is not a "corporation" as required by that section. I formed the view early in this judgment that:

(a) conduct of the respondent in the Wholesale Market in supplying Collected Data to the applicants and others did constitute the carrying on of a business by the respondent for the purposes of s 2B TPA, with the result that the respondent was bound by s 46 in respect of this conduct; but

(b) the supply by the respondent of data in response to individual searches in the Retail Market was not subject to s 46 TPA because, in so doing, the respondent was not "carrying on a business" as contemplated by s 2B.

181 Although the respondent clearly has a substantial degree of power in the Wholesale Market, and it did take advantage of that power, in my view it did not take advantage of that power for purposes proscribed by s 46(1) TPA.

182 Accordingly, the claim of the applicant fails, and is dismissed with costs.

THE COURT ORDERS THAT:

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Applicant:	D Jackson QC and M Martin

Solicitor for the Applicant:	ClarkeKann

Counsel for the Respondent:	M Hinson SC and D O'Brien

Solicitor for the Respondent:	Crown Law

Date of Hearing:	20 October 2006

Date of Judgment:	30 October 2007