Asia Pacific Transport Pty Limited

[2003] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL

Asia Pacific Transport Pty Limited [2003] ACompT 1

TRADE PRACTICES – application for review of the declaration of a service by the designated Minister – no party places any material before the Tribunal – the National Competition Council does not seek to support the declaration – declaration set aside

Trade Practices Act1974 (Cth) Part IIIA, s 44H(4), 44K(1), 44K(6), 103(1)

Sydney International Airport (2000) ACompT 1
Re Mortgage Guarantee Insurance Corporation of Australia Ltd and Australian Mortgage Insurance Corporation Ltd (1984) ATPR ¶40-494

MATTER NO 7 OF 2002

RE:  APPLICATION FOR REVIEW OF THE DECLARATION BY THE PARLIAMENTARY SECRETARY TO THE TREASURER PUBLISHED ON 4 SEPTEMBER 2002 OF THE SERVICE PROVIDED BY THE WIRRIDA TO TARCOOLA RAIL TRACK

JUSTICE HELY, PROFESSOR D ROUND & MR G LATTA
10 MARCH 2003
SYDNEY

IN THE AUSTRALIAN COMPETITION TRIBUNAL MATTER NO 7 OF 2002

RE:

APPLICATION FOR REVIEW OF THE DECLARATION BY THE PARLIAMENTARY SECRETARY TO THE TREASURER PUBLISHED ON 4 SEPTEMBER 2002 OF THE SERVICE PROVIDED BY THE WIRRIDA TO TARCOOLA RAIL TRACK

BY:

ASIA PACIFIC TRANSPORT PTY LIMITED

Applicant

AND

NATIONAL COMPETITION COUNCIL

First Respondent

AND

AUIRON ENERGY PTY LTD

Second Respondent

MEMBERS:

JUSTICE HELY, PROFESSOR D ROUND & MR G LATTA

DATE OF DETERMINATION:

10 MARCH 2003

WHERE MADE:

SYDNEY

THE TRIBUNAL ORDERS THAT:

1.The declaration made by the Parliamentary Secretary to the Treasurer published on 4 September 2002 be set aside.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

MATTER NO 7 of 2002

RE:

APPLICATION FOR REVIEW OF THE DECLARATION BY THE PARLIAMENTARY SECRETARY TO THE TREASURER PUBLISHED ON 4 SEPTEMBER 2002 OF THE SERVICE PROVIDED BY THE WIRRIDA TO TARCOOLA RAIL TRACK

BY:

ASIA PACIFIC TRANSPORT PTY LIMITED

AND

NATIONAL COMPETITION COUNCIL

First Respondent

AND

AUIRON ENERGY PTY LTD
Second Respondent

MEMBERS:

JUSTICE HELY, PROFESSOR D ROUND & MR G LATTA

DATE OF DETERMINATION:

10 MARCH 2003

WHERE MADE:

SYDNEY

REASONS FOR DECISION

THE TRIBUNAL:

1. On 12 September 2001 AuIron Energy Ltd applied to the National Competition Council (“NCC”) pursuant to Part IIIA of the Trade Practices Act1974 (Cth) (“TPA”) for a declaration of the point-to-point rail track service between Wirrida and Tarcoola in South Australia provided by the use of facilities under lease to Asia Pacific Transport Pty Ltd (“APT”). The application asserted that the railway would be used to transport bulk iron ore and coal from the Lake Phillipson region in South Australia, to various destinations.

2. In July 2002 the NCC issued its final recommendation which was in favour of making the declaration sought by AuIron Energy. 

3. On 4 September 2002 the designated Minister (Senator the Hon Ian Campbell) announced his decision to make the declaration which became effective on 27 September 2002 for a period of five years.

4. On 24 September 2002 APT applied to the Tribunal under s 44K(1) of the TPA for a review of the declaration made by the designated Minister. The Tribunal gave directions designed to put the matter in a position where it could proceed to a hearing, and fixed today and ensuing days for the hearing.

5. When the matter came on for hearing, Mr Manousaridis appeared on behalf of AuIron Energy, Mr Scerri QC appeared on behalf of APT and Mr Gaegler SC appeared with Mr Henry on behalf of the NCC. Mr Manousaridis informed the Tribunal that his client did not wish to place any material before the Tribunal, nor did his client wish to make any submissions to the Tribunal or otherwise participate in the proceedings. Mr Manousaridis then withdrew from the hearing. Mr Manousaridis took that course in the knowledge that there had been foreshadowed an application by APT to revoke the Minister’s determination, upon the ground that there is no probative material before the Tribunal which would enable the Tribunal to be affirmatively satisfied of each of the matters set out in s 44H(4) of the TPA cf: Sydney International Airport (2000) ACompT 1.

6. Mr Scerri QC informed the Tribunal that his client’s preferred position was not to place any material before the Tribunal. Mr Gaegler informed the Tribunal that that was his client’s preferred position as well, although he indicated that if a request was made of the NCC in terms of s 44K(6) of the TPA that request would be complied with. Mr Gaegler informed the Tribunal that in the particular circumstances of the case the NCC did not seek to uphold the Minister’s declaration.

7. It is clear that the fact that AuIron Energy has withdrawn from the proceedings is not a matter which has any necessary practical consequences. The Tribunal has a general discretion to control and regulate its own proceedings in accordance with s 103(1) of the TPA and the Tribunal may if it considers it to be appropriate, require the NCC to give information and provide other assistance to the Tribunal in terms of s 44K(6).

8. Neither AuIron Energy, nor APT nor the NCC has sought to place any material before the Tribunal.  No other person has exhibited any interest in the proceedings before the Tribunal.  In these circumstances, the Tribunal does not consider that it should take the initiative to procure that material is placed before the Tribunal when the participants have decided not to place any material before us.

9. That being so, the Tribunal is not affirmatively satisfied of the matters of which it must be satisfied in terms of s 44H(4) before it can affirm the Minister’s decision. The decision of the Tribunal in Re Mortgage Guarantee Insurance Corporation of Australia Ltd and Australian Mortgage Insurance Corporation Ltd (1984) ATPR ¶40-494 is authority for the proposition that the Tribunal should set aside the declaration made by the Minister in circumstances such as the present upon the basis that there is no probative material before the Tribunal which would justify it in concluding that the requisite statutory elements have been established.

10. The order of the Tribunal is that the declaration made by the Minister published on 4 September 2002 be set aside.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely, Professor D Round and Mr G Latta.

Associate:

Dated:            14 March 2003

Counsel for the Applicant:	Mr Scerri QC
Solicitor for the Applicant:	Blake Dawson Waldron
Counsel for the First Respondent:	S Gaegler SC, M Henry
Solicitor for the First Respondent :	Clayton Utz
Counsel for the Second Respondent:	Mr Manousaridis
Solicitor for the Second Respondent:	Baker & McKenzie
Date of Hearing:	10 March 2003
Date of Judgment:	10 March 2003