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reason of its market power, to engage more readily or effectively in conduct directed to one or other of the objectives in paragraphs (a), (b) and (c);

it is better able, by reason of its market power, to engage in that conduct;

its market power gives it leverage which it is able to exploit and this power is deployed so as to 'take advantage of' the relative weakness of other participants or potential participants in the market.

Whether this is so in a particular case is a matter to be inferred from all the circumstances. In so doing, three critical points must be made:

i) In determining whether there has been an objective taking advantage of market power, the phrase is not meant to imply that there must be a hostile or malicious intent to the use of the market power. There is to be no ‘indefinite moral qualification' to the phrase ‘taking advantage'. Section 46 is not dealing with social policy.

ii) To answer the question whether there has been a taking advantage, the counterfactual is explored, - that is, would the regulatory authorities have acted in the same way in competitive conditions. Conduct that may not normally be of concern, can “take on exclusionary connotations when practiced by a monopolist.”

iii) The final critical point is that it is not permissible to establish a proscribed purpose and then to reverse engineer from this to find that there has been a taking advantage of market power. Taking advantage is a separate element that must be proven exclusively of any proscribed purpose. To do something other than this is to flaw the analysis. It is not possible to conclude that because one has the proscribed purpose of eliminating a competitor, that they have taken advantage of market power.

“Competitors almost always try to ‘injure' each other…This competition has never been a tort… and these injuries are the inevitable consequence of the competition s46 is designed to foster.”

With these principles in mind, would (or could) Golf Australia have acted in a different way, if the market conditions were competitive? Arguably, the answer is no. Golf is a global sport at both professional and amateur level and with the control, financial influence, and contemporary dominance of the USGA and the R&A, Golf Australia would have to act the same way in a competitive market. The potential for Australia, despite our relative success on the world stage, to develop or go it alone in terms of equipment and rule regulation would not exist. With major American companies dominating world golf club manufacture, the presence of a second regulatory body, competing with Golf Australia would not alter the fact that sporting equipment regulation would still be mandated by overseas entities. A new entity, (as with Golf Australia) simply would not have the political or financial strength to act differently than that dictated by the USGA and the R&A.

Assuming that market power and the taking advantage of this was established, the third element is that Golf Australia would have had to have acted for a proscribed purpose. Can it be said that Golf Australia (a non-profit entity) has objectively acted to eliminate, hinder or somehow prev本论文由英语论文网提供整理，提供论文代写，英语论文代写，代写论文，代写英语论文，代写留学生论文，代写英文论文，留学生论文代写相关核心关键词搜索。