In this session we discuss the important role of section 45 of the TPA. I mention that we devote three of our e-tutorials to this section which alone is indicative of it significance.

The section operates to both ban (unless authorised) exclusionary provisions and horizontal price-fixing. We discuss the breadth of the term CAU as extending well beyond contracts (see British Slag) and indicate that an old friend from contract days, the Rose and Frank* “binding in honour only” case, would have qualified as a CAU under the TPA.

We note that s45 defers to those arrangements better dealt with under ss 47,48 and 50 respectively. Thus the general provisions of s45 operate in a somewhat residual fashion and only if the purpose or effect (actual or likely) is to substantially lessen competition. This brings in the importance of correct market definition-including in cases such as Rural Press, appreciating the restricted regional nature of some markets. Our survey concludes with an emphasis on the fact that some agreements or failures to agree can have “pro-competitive synergies” (.Tyree Transformers), legitimate purposes (Dowling v Dalgetty), whereas others are unduly self-protective (ASX v Pont Data) or lurk behind ethical rhetoric (Media council and Engineering cases mentioned and the position of AMA and Pharmacists discussed).

* Rose & Frank Co v Crompton Bros Ltd [1925] AC 445

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