¹ The term “antitrust” is a popularization of the thrust of the Sherman Act. Competing corporations pooled their shares into a trustee corporation. Markets were then divided, prices rigged, etc., and competition eliminated. State laws were ineffective against the trusts, and there was an increasing clamour for Federal legislation. (See infra p. 309 ff. for further discussion). The Sherman Act, 26 Stat. 209, 15 U.S.C. 1 ff. (1890) U.S.A. was the result. It attacked “Every contract, combination in the form of trust or otherwise ... “. For the early effect of this broad language, see infra p. 311. Originally entitled “An Act to protect trade and commerce against unlawful restraints and monopolies”, The Hart, Scott Radino Antitrust Improvements Act of 1976, included, inter alia, provisions giving short titles to certain legislation. Thus the popular term, “Sherman Act” is now the official designation of the statute: see Pub. Law 94-435, sec. 305(a) 90 Stat. 1397 (94th Cong. 2nd Sess. 1976) (U.S.A.).

² 26 Stat. 209, 15 U.S.C. 1 ff. (1890, as amended) (U.S.A.).

³ A.G.P.S., Canberra, 1979.

⁴ So far as is material, section 46 provides that “A corporation that is in a position substantially to control a market for goods or services shall not take advantage of the power in relation to that market that it has by virtue of being in that position ... “

⁵ See the suggestion of the Commonwealth Attorney-General, Senator Durack, that explanatory memoranda be added to complex legislation to aid in construing its intent: the Australian Financial Review, Sept. 22, 1980, 1.

⁶ Letwin, , Law and Economic Policy in America (New York, Random House, 1965) Ch. 3Google Scholar. The first two sections of this Article owe much to his very accurate and readable book. The Americans imported an ingrained mistrust of monopolies. But the concept was given legal recognition, as in fact United States corporations up to the end of the 1700’s were individually chartered by State legislation, and could not do business without such a charter. This was, in a sense, a grant of monopoly, and in fact many of the chartered corporations were given extreme privileges, further inflaming public opinion against them. Although economists might argue with great force that this meant nothing in terms of whether such a firm actually was a monopoly, people sometimes make more sense than economists.

⁷ Id. 58.

⁸ Id. 69 ff.

⁹ (1890) 8 Mo.App. 522.

¹⁰ (1887) 106 N.Y. 473.

¹¹ Allen, , “Criminal Conspiracies In Restraint of Trade at Common Law” (1910) 23 Harvard Law Review 531.CrossRefGoogle Scholar

¹² These concepts have fascinating histories. Forestalling literally meant the purchase of merchandise (usually provisions) before it reached the market stall, with the intention of reselling it at a higher price. Engrossing was simply the obtaining of large quantities of victuals, again with an intent to resell, in other words, retailing. Regrating was about the same thing, but added the idea of resale in the same or a nearby market: 4 Bl. Comm. 158.

¹³ Things take time. Sherman Act violations are now felonies, punishable by a one million dollar fine for corporations, and a one hundred thousand dollar fine or three years gaol for individuals: Antitrust Procedures and Penalties Act, 88 Stat. 1706, 15 U.S.C. 1, 2, 3 (U.S.A.).

¹⁴ By tradition, although not by House or Senate Rule, Judiciary Committee members are lawyers.

¹⁵ Letwin, op. cit. 96.

¹⁶ Ibid.

¹⁷ Supra n. 12.

¹⁸ Letwin, op. cit. 52.

¹⁹ See Part V of this Article, infra p. 331 ff.

²⁰ Letwin, op. cit. 106.

²¹ United States v. Jellico Mountain Coal & Coke Co. (1890) 43 Fed. 898, (1891) 46 Fed. 432 (C.C.M.D. Tenn.).

²² (1891) 46 Fed. 432, 433.

²³ This might be of interest to those who argue that a “restraint of trade” is not legally recognizable as a “restraint” unless it cuts down an existing freedom. This quaint notion survives in the Stourport Garage case (Esso Petroleum Co. Ltd v. Harper’s Garage (Stourport) Ltd [1968] A.C. 269).

²⁴ (1891) 46 Fed. 432, 434. He declined to rule on the constitutionality of the statute and easily found the required interstate commerce.

²⁵ Id. 436.

²⁶ Id. 436-437.

²⁷ He treated the contract as the attempt, precisely the reverse of Judge Lacombe’s approach in In re Terrell (1892) 51 Fed. 213 (C.C.S.D.N.Y.) in which he held the restraint was not prohibited, but the contract providing it was.

²⁸ United States v. Greenhut (1892) 50 Fed. 469 (D.C. Mass.). Mr Justice Holmes, who had a deep antipathy to the antitrust laws(“... but I don’t disguise my belief that the Sherman Act is a humbug based on economic ignorance and incompetence” Holmes-Pollock Letters, Vol. 1, Howe, ed. Harvard Univ. Press, 163 (1942)) helped nail the coffin in attempt cases with his decision in Swift & Co. v. United States (1905) 196 U.S. 375. While conceding Congress’ power over commerce, his restrictive reading of the attempt count in Swift has stalked United States attempt cases ever since. His rationale was based inter alia on Commonwealth v. Peaslee (1901) 177 Mass. 267, 59 N.E. 55 which concerned a Massachusetts night-time burglary. That has about as much to do with restrictive trade practices as does the adultery case cited in C.S.B.P.: see infra p. 321 n. 73.

²⁹ As a procedural matter this was not necessarily so. The judges could have ruled only on the validity of the extradition papers, leaving the defendants to contest the validity of the indictment in Boston. However, the defendants had refused to give appearance bonds.

³⁰ In re Corning (1892) 51 Fed. 205 (N.D. Ohio); In re Greene (1892) 52 Fed. 104 (C.C.S.D. Ohio); In re Terrell (1892) 51 Fed. 213 (C.C.S.D.N.Y.).

³¹ United States v. Greenhut (1892) 50 Fed. 469 (D.C. Mass.).

³² (1892) 52 Fed. 104 (C.C.S.D. Ohio).

³³ This is incorrect. If one goes back far enough, some of the restraints noted in n. 12 supra were indictable, although they were later repealed. Many were mis-demeanours.

³⁴ (1892) 52 Fed. 104, 114.

³⁵ Id. 115.

³⁶ Ibid. This is the Stourport Garage [1968] A.C. 269 reasoning: see supra n. 23.

³⁷ (1892) 52 Fed. 104, 118.

³⁸ Id. 119 The use of the word “consideration” raises more questions than it answers. In three consecutive sentences, Jackson, Circuit Judge uses the word in three different contexts.

³⁹ [1892] A.C. 25.

⁴⁰ (1892) 52 Fed. 104, 119.

⁴¹ lbid.

⁴² In re Corning (1892) 51 Fed. 205 (N.D. Ohio) and In re Terrell (1892) 51 Fed. 213 (C.C.S.D.N.Y.). See also In re Greene (1892) 52 Fed. 104 (C.C.S.D. Ohio).

⁴³ United States v. Nelson (1892) 52 Fed. 646, 647 (D.C. Minn.).

⁴⁴ (1913) 18 C.L.R. 30.

⁴⁵ [1892] A.C. 25. This case held that activities by a group of competing carriers, complete with a 5 per cent rebate for shippers who shipped only with the cartel members, market and port allocations and the dismissal of agents representing competing shipowners, amounted merely to lawful protection and the extension of trade and profit. Counsel for the appellant cited a number of American cases for the proposition that the joint activity was illegal. He relied also on Mitchel v. Reynolds (1711) 1 P. Wms. 181; 24 E.R. 347, Dier’s case Y.B. 2 Hen. 5, fol. 5, pl. 26 and the Ipswich Tailors’ case: see infra n. 44. But the judges were looking for acts of violence, molestation and the like, whereas the plaintiff relied primarily on the fact that the respondent sent ships to Hankow in competition with the appellants and with the knowledge that respondents would bid for the freight at unprofitable rates. In sum, it was an allegation of predatory pricing.

⁴⁶ Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Company Ltd [1894) A.C. 535. This case involved an arms merchant who agreed not to compete with the company that purchased his business. The covenant not to compete (as modified by the Courts below) was upheld. The covenant ran for twenty-five years and was ’’unrestricted as to space”. This was held reasonable because of the “nature of the business” (at 550) and the limited number of customers-the respondent sold only to governments.

⁴⁷ United States v. Greenhut (1892) 50 Fed. 469 (D.C. Mass.).

⁴⁸ United States v. E.C. Knight Co. (1894) 60 Fed. 306 (C.C.E.D.Pa), affirmed (1894) 60 Fed. 934 (3d. Cir.), affirmed (1895) 156 U.S. 1.

⁴⁹ United States v. Trans-Missouri Freight Assn (1892) 53 Fed. 440 (C.C.D. Kan.), affirmed (1893) 58 Fed. 58 (8th Cir.). To the same effect was United States v. Joint Traffic Assn (1896) 76 Fed. 895 (C.C.S.D.N.Y.), affirmed (1897) 89 Fed. 1020 (2d Cir.). The “reasonable price” versus per se illegality for price-fixing has an interesting historical background. The Trans-Missouri and Joint Traffic judgments read the phrase “Every contract” in the Sherman Act very literally. A contract restrained; all contracts restrain. Taken to its logical conclusion, such a reading would have meant that any contract violated the Sherman Act. These cases, however, involved railroads, which were not at all popular with farmers. Historians will enjoy researching the conflict between the philosophies of Justice Peckham and Justice White. The latter’s Rule of Reason analysis post-dated the farmer’s more literal view. Had it been the reverse, United States courts would have been mired in the bog of determining a “reasonable” price. As it developed, the Rule of Reason was used to analyse .conduct, rather than reasonability of price. Precedent forced the circumlocution; antitrust law is the better for it.

⁵⁰ (1897) 166 U.S. 290. The Joint Traffic case was reversed at (1898) 171 U.S. 505.

⁵¹ (1893) 55 Fed. 605 (C.C. Mass.).

⁵² United States v. Jellico Mountain Coal & Coke Co. (1890) 43 Fed. 898, (1891) 46 Fed. 432 (C.C.M.D. Tenn.).

⁵³ For example, Wellcome Foundation Ltd v. Commissioner of Patents (1980) 30 A.L.R. 510 but cf. the recent decision on a somewhat similar issue by the United States Supreme Court in Dawson Chemical Co. v. Rohm & Hass Co. (1980) 448 U.S. 176. The Australian decision is far better, and more competition oriented.

⁵⁴ Top Performance Motors Pty Ltd v. Ira Berk (Qld) Pty Ltd (1975) 5 A.L.R. 465.

⁵⁵ Ah Toy J. Pty Ltd v. Thiess Toyota Pty Ltd (1980) 30 A.L.R. 271.

⁵⁶ Walker, , “Top Performance Motors Pty Ltd v. Ira Berk (Qld) Pty Ltd” (1976) 50 A.L.J. 89.Google Scholar

⁵⁷ (1975) 5 A.L.R 465, 473.

⁵⁸ Id. 472-473.

⁵⁹ The purchaser would not forgo the rebate unless he were stupid, and he probably could not buy from anyone else, but mere reality did not bother the judge.

⁶⁰ (1980) 30 A.L.R. 271, 274 (italics added).

⁶¹ See e.g. the Automobile Dealers Day in Court Act, 70 Stat. 1125, 15 U.S.C. 1221 et seq. (1956) and more recently, the Petroleum Marketing Practices Act 15 U.S.C. 2801 et seq. (1978). In Australia, the Petroleum Retail Marketing Franchise Act 1980 (Cth).

⁶² (1980) 30 A.L.R. 271, 274-275.

⁶³ (1978) 20 A.L.R. 129.

⁶⁴ Id. 131.

⁶⁵ In discussing the relationship between the Egg Board’s prices and costs, Bowen C.J. cited United States v. Corn Products Refining Co. (1916) 234 Fed. 964, 1012-1013 (D.C.S.D.N.Y.) for the proposition that sporadic price cuts, not intended to be permanent, may be an indication of a predatory practice. Some economists would argue that sporadic changes in price may be an indicium of healthy competition, depending. on the structure of the market. As well, Corn Products was one of the early United States “trust” cases, and it involved numerous allegations apart from predatory pricing. Nevertheless, given the suddenness and depth of the Egg Board’s cut, the. Corn Products language is quite relevant.

⁶⁶ [1980] A.T.P.R. para. 40-151.

⁶⁷ Both counts were based on the language of the Act as it stood in 1974.

⁶⁸ [1980] A.T.P.R. para. 40-151, 42,163. Things become clearer if this is read together with the 23 January 1975 letter from Wilkins (C.F.L.’s chief executive) to C.S.B.D.: id. p. 42,159. An even clearer view is obtained from the trial transcript.

⁶⁹ [1980] A.T.P.R. para. 40-151, 42,161. See also trial transcript at pp. 314, 320 et seq., 348.

⁷⁰ The term “predatory” is not here used in its technical price-below-some-calculated-cost sense. I do not think the judgment intended such a strict usage either: see [1980] A.T.P.R. para. 40-151, 42,162. See also the comments of Bowen C.J. in the Victorian Egg Board case supra p. 319.

⁷¹ Jbid.

⁷² This is derived from Judge Hand’s judgment in United States v. Aluminium Co. of America (1945) 148 F. 2d 416 (2d Cir.). In many ways, the facts are far stronger in C.S.B.P. than were those in “Alcoa”. Further, “arrangement” is, contrary to the language of the Court in the British Basic Slag Agreements case (see infra n. 82), very much a term of art. It should be construed as the rough equivalent of the much under-used word “combination” in the Sherman Act.

⁷³ The Commission conceded too much in relying on “meeting of the minds” and “raised expectations” cases such as Briginshaw v. Briginshaw (1938) 60 C.L.R. 336. Briginshaw is an adultery case, and whatever may have been “raised” therein has nothing whatever to do with monopoly analysis. Further, the presence or absence of a “formal” termination is irrelevant. If business continues in the same manner, what is the difference?

⁷⁴ [1980] A.T.P.R. para. 40-151, 42,164.

⁷⁵ Id. 42,164-165.

⁷⁶ Areeda, and Turner, , “Predatory Pricing and Related Practices Under Section 2 of the Sherman Act” (1975) 88 Harvard Law Review 697CrossRefGoogle Scholar. An oblique reference to this article lies buried in page 743 of the C.S.B.P. transcript. See the extensive discussion in e.g. William Inglis & Son Baking Co. v. ITT Continental Baking Co. [1981-82] Tr. Cas. (U.S.) para. 64,229, 73,906 (9th Cir.).

⁷⁷ [1980] A.T.P.R. para. 40-151, 42,166.

⁷⁸ (1980) 31 A.L.R. 53.

⁷⁹ Although section 45 is concerned with horizontal behaviour, vertical restraints imposed (for example) on multiple downstream purchaser-competitors can result in horizontal collusion on that level; see e.g. United States v. Sealy, Inc. (1967) 388 U.S. 350.

⁸⁰ (1980) 31 A.L.R. 53, 55.

⁸¹ This raises the issue of collusive delivered pricing systems. The judgment does not discuss this.

⁸² [1962] 3 All E.R. 247; on appeal [1963] 2 All E.R. 807.

⁸³ [1962] 3 All E.R. 247, 255.

⁸⁴ Morphett Arms Hotel Pty Ltd v. T.P.C. (1980) 30 A.L.R. 88.

⁸⁵ (1980) 31 A.L.R. 53, 56.

⁸⁶ [1965] 1 W.L.R. 157.

⁸⁷ Id. 169.

⁸⁸ [1965] 1 W.L.R. 174.

⁸⁹ [1965] 1 W.L.R. 917.

⁹⁰ (1979) 26 A.L.R. 609.

⁹¹ Id. 635-636.

⁹² (1954) 346 U.S. 537.

⁹³ (1939) 306 U.S. 208.

⁹⁴ (1954) 346 U.S. 537, 540.

⁹⁵ (1939) 306 U.S. 208, 227.

⁹⁶ (1965) 340 F. 2d 1000 (9th Cir.).

⁹⁷ Id. 1008.

⁹⁸ (1949) 178 F. 2d 363 (8th Cir.), cert. denied (1950) 339 U.S. 942.

⁹⁹ (1969) 306 F. Supp. 1106 (E.D. Pa.).

¹ (1965) 340 F. 2d 1000, 1008.

² (1970) 317 F. Supp. 443 (E.D. Pa.) (Final Judgment).

³ (1969) 306 F. Supp. 1106, 1151-1152 (E.D. Pa.) (Opinion on Violation).

⁴ [1975] Tr. Cas. para. 60,284.

⁵ (1977) 561 F. 2d 434 (3d Cir.).

⁶ (1978) 434 U.S. 1086; 55 L.Ed. (2d) 791; 98 S Ct 1280.

⁷ (1980) 30 A.L.R. 88, supra n. 84.

⁸ (1980) 31 A.L.R. 53, 70.

⁹ Id. 59.

¹⁰ Id. 58 (italics added).

¹¹ Id. 59.

¹² Id. 68 (italics added).

¹³ Id. 61.

¹⁴ [1957] Tr. Cas. para. 68,890 (N.D. Ohio), affirmed per curiam (1958) 358 U.S. 38.

¹⁵ See e.g. United States v. Container Corporation of America (1969) 393 U.S. 333.

¹⁶ The title of this Part belongs to a unique and largely unknown Australian. William Chidley strode the streets of turn-of-the-century Sydney preaching his unique solutions to the problems of mankind. His Grecian tunic and his message outraged a citizenry preoccupied with the morals and dress of Victorian England. When he published his views in a pamphlet entitled “The Answer”, and began selling it on the streets, the answer society gave him was fines, gaolings and confinements in a mental institution. His story is a good example of society imposing its arbitrary views on a harmless eccentric. Confined to an insane asylum for his “ridiculous views” as one court put it, he attempted self-immolation and died. His life story is the subject of the play, No Room for Dreamers, by George Hutchinson. Interested readers might want to see how the law dealt with Chidley at (1914) 14 S.R. (N.S.W.) 97 and (1915) 19 C.L.R. 712. Unfortunately the hero of this Part of the Article was on the wrong side of this case.

¹⁷ R. v. Associated Northern Colleries and Others (1911) 14 C.L.R. 387 (hereafter cited as Coal Vend).

¹⁸ (1912) 15 C.L.R. 65.

¹⁹ (1913) 18 C.L.R. 30.

²⁰ (1911) 221 U.S. I.

²¹ (1913) 18 C.L.R. 30, 53-54.

²² Isaacs J. spoke of a “vend” as being a group in which there was a price-fix, an output allotment, and a penalty and compensation scheme to enforce the latter. Evidently however, he considered the output allotment as determinative of the existence of a “vend’’: Coal Vend (at 435). By his terminology then, the facts in Jellico Mountain would not constitute a “vend” but would nevertheless, be unlawful.

²³ The.doctrine of per se illegality makes an examination of a collusively fixed price unnecessary under United States law: see e.g. United States v. Socony-Vacuum Oil Co., Inc. (1940) 310 U.S. 150. The doctrine applies to certain other practices as well. Australian law applies the same concept to certain practices by statute: e.g: section 48 of the Trade Practices Act (prohibiting resale price maintenance) and the deeming provision: of section 45A of the same Act, the “purpose” and “effect” language of which is derived from the Socony-Vacuum case.

²⁴ 15 U.S;C; 45 (1914 as amended}.. The Trade Practices Consultative Committee on Small Business and the Trade Practices Act (supra p. 309 n. 3), recommended against the re-enactment of “unfair trade practices” legislation, on extremely dubious grounds. Section 5 of the Federal Trade Commission Act is very much favoured by certain segments of American small business.

²⁵ Supra p. 311 ff. But see supra n. 22 above as to Isaacs J.’s definition of a “vend”.

²⁶ 266 pages lengthier, to be precise.

²⁷ See supra p. 312 ff.

²⁸ Coal Vend (at 406).

²⁹ Id. 400.

³⁰ [1980] A.T.P.R. para. 40-151, 42,164. The opinion states: “To the extent that the words amounted to admissions by C.F.L. of the existence of an arrangement, the making of such admissions was no part of the arrangement. (Cross on Evidence, 2nd Australian Edition at p. 519)”. Of course not. Conspirators are hardly likely to jointly admit their conspiracy. This is the confusion Isaacs J. spoke of. He solved it with the passage quoted at n. 32 infra.

³¹ Morphett Arms Hotel Pty Ltd v. T.P.C. (1980) 30 A.L.R. 88. See text supra n. 84.

³² Coal Vend (at 400).

³³ 7th ed., (1909) Vol. 1, 191 (references to footnotes have been omitted).

³⁴ Id. 401.

³⁵ (1851) 5 Cox C.C. 404.

³⁶ Coal Vend (at 401-402).

³⁷ Id. 446.

³⁸ Ibid.

³⁹ Id. 444, 452.

⁴⁰ Id. 452.

⁴¹ Id. 453-454.

⁴² Id. 454-455.

⁴³ [1892] A.C. 25. And see text supra p. 315.

⁴⁴ (1615) 11 Co. Rep. 53 (a); 77 E.R. 1218.

⁴⁵ (1711) 1 P. Wms. 181; 24 E.R. 347.

⁴⁶ United States v. Trans-Missouri Freight Association (1897) 166 U.S. 290.

⁴⁷ United States v. Joint Traffic Assn (1898) 171 U.S. 505. And see text supra p. 316.

⁴⁸ (1911) 221 U.S. 1.

⁴⁹ Coal Vend (at 463-464).

⁵⁰ Dr Miles Medical Co. v. John D. Park & Sons Co. (1911) 220 U.S. 373.

⁵¹ Coal Vend (at 469-470) (footnotes omitted).

⁵² See n. 48, above

⁵³ United States v. American Tobacco Co. (1911) 221 U.S. 106.

⁵⁴ 11 Co. Rep. 84(b) sub nom Darcy v. Allin (1602) Noy 173; 74 E.R. 1131; Coal Vend (at 472), The C.L.R. proofreader must have become tired, The footnotes are numbered 1, 2 and 3, while text reads 6, 7 and 8. And he has another .19S pages to proof.

⁵⁵ Coal Vend (at 458).

⁵⁶ Id. 459 (italics added).

⁵⁷ Id. 448 (italics added). The “agent” argument does not receive more than a mention in the C.S.B.P. judgment. It does in the transcript: see supra p. 321 n. 69.

⁵⁸ Id. 442.

⁵⁹ Id. 420-421.

⁶⁰ Id. 452.

⁶¹ (1948) 333 U.S. 683. One can argue with this statement. Addyston Pipe & Steel Co. v. United States (1899) 175 U.S. 211 dealt with a similar system in a different context.

⁶² (1933) 288 U.S. 344.

⁶³ [1879] 4 A.C. 674.

⁶⁴ Coal Vend (at 466) (italics added). The Privy Council held the contract illegal because the covenant referred to provided for a boycott of a ship not choosing to use the assigned stevedore.

⁶⁵ E.g. United States v. Terminal R.R. Assn (1912) 224 U.S. 383.

⁶⁶ E.g. the proceedings involving the Banana Growers Federation Co-op. (The prosecution has been deferred since 1978 on direction of the Minister: see T.P.C. Summary, November-December 1981 (19 February 1982) 151.)

⁶⁷ Coal Vend (at 482-483).

⁶⁸ Id. 486.

⁶⁹ Ibid.

⁷⁰ (1947) 332 U.S. 392. For the same thing in a farming context, see Wickard v. Filburn (1942) 317 U.S. 111, involving 11.9 acres of illegal “excess”. The Supreme Court in that case, inter alia.noted the Australian method of wheat control.

⁷¹ Coal Vend (at 509-510).

⁷² Id. 495-496.

⁷³ But see Appalachian Coals supra p. 340, and the decision by Mr Justice Holmes (no fan of the Sherman Act---see supra p. 313 n. 28 in National Assn of Window Glass Manufacturers v. United States (1923) 263 U.S. 403.

⁷⁴ Coal Vend (at 511-524).

⁷⁵ Id. 513.

⁷⁶ Id. 536 (italics added). His concept of “reasonable competition” pervades the opinion. There are a number of ways to determine a “reasonable” price, one being to determine its opposite. Isaacs J.’s approach throughout was to examine the state of competition as determinative of whether a price was non-collusively arrived at and thus “reasonable”.

⁷⁷ Id. 537. Interestingly, it is this argument which is frequently used against the concept of fluid recovery in a class action context. What would Isaacs J. have thought of the relief in Daar v. Yellow Cab Co. (1967) 67 Cal. 2d 695, 433 P. 2d 732, 63 Cal. Rptr. 724?

⁷⁸ Ibid.

⁷⁹ Id. 634-635.

⁸⁰ Id. 637 ff.

⁸¹ Id. 646 ff.

⁸² Id. 652.

⁸³ Id. 655.

⁸⁴ Id. 626 ff. Thus Cool & Sons Pty Ltd v. O’Brien Glass Industries Ltd [1981] A.T.P.R. para. 40-220 is not really Australia’s first price discrimination judgment.

⁸⁵ Id. 485, as an example.

⁸⁶ Supra pp. 336-337.

⁸⁷ Supra p. 337.

⁸⁸ Ibid. This, the two preceding footnotes and Coal Vend itself indicate that 1911 was a busy year for antitrust.

⁸⁹ Swift & Co. v. United States (1905) 196 U.S. 375.

⁹⁰ Supra p. 332 n. 23.

⁹¹ United States v. Trenton Potteries Co. (1927) 273 U.S. 392.

⁹² United States v. United Shoe Machinery Corp. (1953) 110 F. Supp. 295 (D. Mass.), affirmed (1954) 347 U.S. 521.

⁹³ United States v. Aluminium Co. of America (1945) 148 F. 2d 416 (2d Cir). But see Berkey Photo, Inc. v. Eastern Kodak Co. (1979) 603 F. 2d 263 (2d Cir).