The Restrictive Practices Court and “Purchasers as A Collective Whole”
| Published date | 01 November 1964 |
| Date | 01 November 1964 |
| Author | James. P. Cairns |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02248.x |
THE RESTRICTIVE PRACTICES COURT AND
“
PURCHASERS AS
A
COLLECTIVE WHOLE
”
THE Restrictive Trade Practices Act,
1956,’
states, in section
21,
that
‘‘
a restriction accepted in pursuance of any agreement shall
be deemed to be contrary to the public interest unless the court is
satisfied
’’
of one
or
more of certain specified circumstances. One
such circumstance is given in section
21
(1)
(b):
“
that the
removal of the restriction would deny to the public as purchasers,
consumers
or
users
of
any goods other specific and substantial
benefits
or
advantages enjoyed
or
likely to be enjoyed by them as
such, whether by virtue of the restriction itself
or
of any arrange-
ments
or
operations resulting therefrom.”
If
the restriction passes
through this
or
any other
‘‘
gateway,” the
“
tailpiece
”
or
balanc-
ing
procedure must still be faced, as the court must be
“
further
satisfied (in any such case) that the restriction is not unreasonable
having regard to the balance between those circumstances and any
detriment to the public
or
to persons not parties to the agreement
(being purchasers, consumers
or
users of goods produced
or
sold by
such parties,
or
persons engaged
or
seeking to become engaged in
the trade
or
business of selling such goods
or
of producing
or
selling
similar goods) resulting
or
likely to result from the operation of
the restriction.” Thus, if an agreement convinces the court it
meets the
“
specific and substantial benefits
or
advantages
’’
requirement of section
21
(1)
(b),
it
will be found not contrary to
the public interest only
if
it also survives the balancing test in
which any public detriments resulting from the agreement are to
be taken into consideration.
Consider
in
the light of the above a restrictive agreement which
is
found to provide benefits
or
advantages to some group of pur-
chasers, consumers
or
users, but not to all,
so
that the removal of
the restriction, whilst
denying
benefits
or
advantages to this group,
would
confer
benefits
or
advantages on some other group of
purchasers, consumers
or
users. Expressed somewhat differently,
some purchasers would be made
worse
00
by the removal of the
restriction, others would be made
better
00.
How is this type of
problem to be dealt with? The Restrictive Practices Court has
stated that, in any such situation, it will consider purchasers
(‘
as
a collective whole
”
or
“
as a class
”
or
‘‘
as
a single category.”
These not over-informative phrases acquire meaning only as they
are intmpreted by the court and it is the purpose of this article to
analyse the approach employed by the court in those cases in which
4
&
5
Elk
2,
c.
68.
643
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