Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd
(1987) 74 ALR 581; (1987) ATPR 40–089;  FCA 282
Bursill was a ski boot supplier who refused to supply to Mark Lyons after it engaged in price discounting in warehouse and through town hall sales. Mark Lyons alleged the supplier's conduct would substantially lessen competition in the market.
In assessing whether competition had been lessened, Mark Lyons argued that the relevant product market was for a particular brand of ski boot (Salomon ski boot). Bursill argued it was either sportsgear generally or ski gear.
Held (Justice Wilcox)
Refusal to supply a dealer who was offering vigorous competition would result in a removal of significant competition. Bursill had contravened s 47.
In relation to market definition, Bursill's claimed market definition was too broad. Sportsgear was too broad because, for example, tennis shoes are not substitutable for ski boots. Similarly, ‘ski gear’ was too broad because ski boots are not substitutable for ski’s, for example. Consequently both definitions were too broad.
On the other hand, Mark Lyons' definition (of a particular brand) was too narrow. There was little evidence of ‘brand interchangeability’ but the Court did not consider that the particular brand of boot involved was ‘so distinctive as to be free of effective competition’.
The Court observed that the best evidence of market dimensions ‘may be the behaviour of people in the particular trade.’ (at 591) Their records should show figures relating to competitors’ and customers’ behaviour, potential customers being visited, ‘products against which advertising is directed’, etc (referring to Donald and Heydon (p 92)).
In this case Bursill 'was obliged, by a condition of its distribution agreement, to forward to Salomon, in France, each year a report, inter alia, upon the sales and promotion of Salomon products. In its 1986 report Bursill referred to competitors. Comments were made, in relation to the sx91 model, regarding concern "about competition from the many copies". Reference was made to two particular competitors, Munari and Nordica. The report also referred to competition from Nordica regarding the sx61 boot.' [at 591]
These comments, which were considtent with affidavit and oral evidence received in the case, suggested that Nordica and Saloman, at least, competed at all price levels. Consequently, although Salomon was possibly the 'leading brand', they were not 'so distinctive as to be insensitive to price competition from other brands.' The market was therefore defined as the 'Australian ski boot market'. [at 591].