June 2008 Archives
Never let it be said that Finkelstein J lacks a sense of humour: from Direct Share Purchasing Corporation Pty Ltd v AXA Asia Pacific Holdings Ltd [2008] FCA 935:
Companies have always been required to keep registers of their members. The register is a public document which is open for inspection by a member without charge and by any other person upon payment of a fee. When copies are requested they must be provided in exchange for a fee. The provisions dealing with the maintenance of and access to registers are currently found in Chapter 2C of the Corporations Act 2001 (Cth). According to the Attorney-General these provisions were intended to facilitate "rapid and easy access" by the public to a company's register and to do so "at reasonable cost": Second Reading Speech, First Corporate Law Simplification Bill 1994 (Cth) (House of Representatives, Parliamentary Debates (1995) vol HR 199), pp 709, 712. The issue in this case is about the quantum of the fee that can be charged for a copy of the register. Each side engaged senior counsel to put its case. Experts have been called to give their views. Witnesses have been examined and cross-examined. The cost to each party is in the tens of thousands of dollars. So much for easy access at a reasonable cost.
It's official, the ACCC announced late yesterday that they propose to revoke the exclusive dealing notification made by eBay in relation to their plans to force Australian buyers and sellers to exclusively use PayPal for making payments. The ACCC has issued a draft notice to this effect and is calling for further submissions from all interested parties (i.e. eBay, and the several hundred people who made submissions denouncing eBay's plans) on that draft. They may or may not hold a public meeting known as a "pre-decision conference".
It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.
The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.
It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.
The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.
