7-Eleven Stores Pty Ltd v Australian Competition and Consumer Commission

[1997] FCA 1571

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE -  costs - proceedings under Administrative Proceedings (Judicial Review) Act in respect of unreasonable delay in making decision - decision subsequently made - discretion

Administrative Decision (Judicial Review) Act 1977 (Cth) s 7

Australian Securities Commission v Aust-Home Investments (1993) 44 FCR 194 applied

Gribbles Pathology Pty Ltd v The Health Insurance Commission unreported, 10 December 1997 mentioned

7-ELEVEN STORES PTY LTD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

JUDGE:        HEEREY J
DATE;          16 DECEMBER 1997
PLACE:        MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 659  of   1997

BETWEEN:	7-ELEVEN STORES PTY LTD APPLICANT
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT
JUDGE:		HEEREY J
DATE OF ORDER:		16 DECEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

The respondent pay the applicant’s costs of the application including reserved costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 659 of 1997

BETWEEN:	7-ELEVEN STORES PTY LTD APPLICANT
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT

JUDGE:	HEEREY J
DATE:	16 DECEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant brought an application for judicial review under s 7 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That section, in effect, provides for review when there has been unreasonable delay in making a decision. The decision in question was whether or not the respondent Commission should exercise its discretion under s 91(4) of the Trade Practices Act 1974 (Cth) to revoke an authorisation relating to the sale and distribution of newspapers and other publications.

This matter has a history going back to 1982 when the applicant’s predecessor to the Trade Practices Commission granted an authorisation.  There was an application for a review of that determination in 1993.  The Trade Practices Commission determined not to revoke the 1982 determination.  The matter then went to the Trade Practices Tribunal which, after a lengthy hearing, handed down a decision on 11 November 1994, setting aside the 1993 determination and making a formal finding that there had been a relevant change of circumstances since 1982.  The Tribunal set out what might be called guidelines for the making of a fresh determination.

In June 1995 the Commission gave a notice under s 91(4)(a) requiring submissions on the issue of possible revocation of the authorisation. The notice required those submissions to be made by the end of August. In the meantime there was the Federal election campaign of February/March 1996 in which the then Coalition, as part of its policy, promised a retention of the existing system. In the middle of 1996 the Commonwealth Government made submissions to the Commission. No decision was made.

The correspondence leading up to the commencement of the present application commenced on 3 October 1997 when the applicant's solicitors wrote to the Commission and, after reciting the history of the matter stated: 

“More than two years have elapsed since both the giving of notice and closing dates for submissions and your Commission has failed to make a decision as to whether a determination revoking the existing authorisation should be made.  In our view, there has been a manifestly unreasonable delay on your part in making the decision.

We advise that when the Commission makes a decision in relation to the notice given pursuant to section 91(4) of the Trade Practices Act 1974 on or before 3 November 1997, our client will apply to the Federal Court of Australia pursuant to section 7 of the Administrative Decisions (Judicial Review) Act 1977 asking the Court to direct the Commission to make the decision to declare the rights of parties in relation to the making of the decision.”

The Commission replied on 20 October under a letter by the acting chairperson stating:

“I expect the Commission to conclude its considerations in respect of the above matters in late October or early November this year.  I will keep you informed of developments.”

Nothing further emanated from the Commission.  On 7 November a member of the staff of the applicant's solicitors received a telephone call from an officer of the Commission in response to a telephone call left earlier that day.  The Commission officer left a message saying that he was:

“Ninety-five per cent sure that a decision would be made by the ACCC within two weeks.”

That two week period expired on 21 November without any decision being made and on 26 November the present application was issued.  The first directions date was December 4.  On 1 December the Australian Government Solicitor on behalf of the Commission wrote to the applicant's solicitors stating, amongst other things:

“As previously advised, the Commission had, prior to institution of your client's proceedings, directed staff to prepare a draft of the determination for consideration at its next meeting on 3 December 1997.  In the usual course of these matters the Commission will consider the draft that day and direct staff to make such changes to it as may be required for issue of the final determination.”

As was pointed out by the applicant's solicitor in the course of the present hearing that letter falls short of saying what the outcome is likely to be. On 3 December Mr Sitesh Bhojani, a Commissioner of the Commission, swore an affidavit in which he said that he attended a meeting of the Commission on the previous day, at which the Commission considered a draft of Commission decisions in relation to the s 91(4) notices and deposing that at the meeting the Commission instructed the staff to prepare final decisions under section 91(4) of the Act to be issued by close of business Friday 12 December 1997 in respect of the authorisations.

As a result of that matter when the directions hearing came on before me on 4 December the matter was adjourned until today. 

In that setting the applicant says that it has achieved all the relief that was sought in the application.  The application was brought after a reasonably long delay in making the relevant decision, and with adequate warning given to the Commission.  I agree with those submissions.  I refer generally to the discussion of relevant principles applicable to the exercise of the discretion as to costs in these circumstances by Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 at 201.

“These cases seem to me to support the following propositions being made.

(1)Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order:  Stratford and the SEQEB case.

(2)It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial:  Stratford.  This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue.

(3)In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (SEQEB).

(4)In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation:  cf Sunday Times Newspaper Co Ltd v McIntosh (1933) 33 SR (NSW) 371.

(5)Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted:  cf  Re Asiatic Electric Co Pty Ltd [1973] 1 NSWLR 603 at 606, a case which, however, depended upon the specific wording of the statute under consideration.”

Those decisions were more recently applied by Finkelstein J in Gribbles Pathology Pty Ltd v The Health Insurance Commission (unreported, 10 December 1997).

It seems to me the clear policy behind s 7 of the ADJR Act is that persons aggrieved by administrative decisions should have a right of recourse to the Court not only as to the legal validity of decisions but when there has been unreasonable delay in the making of decisions. In the present case there was relevantly delay of over two years in the making of the decision. Further, there was, as I find, quite adequate notice of the intention of the applicant to bring this application and it was only brought after two promises by the Commission that a decision would be made were not fulfilled.

I do not think the present case is one where there has been no ultimate consideration of the merits of the case.  Obviously in such a case the Court would be extremely reluctant to have the case heard on the merits simply for the purpose of deciding what order for costs should be made.  Here it is rather the case that the whole relief which the applicant has sought has been achieved and, it might perhaps be inferred, in part at least because of the action that the applicant took in bringing this application.  I will order the respondent pay the applicant's costs of the application including reserved costs. 

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            16 December 1997

Counsel for the Applicant:	N Styant-Browne
Solicitor for the Applicant:	Slater & Gordon
Counsel for the Respondent:	P J Cosgrove
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 1997
Date of Judgment:	16 December 1997