Football Queensland Limited - [2012] ACompT 15

AUSTRALIAN COMPETITION TRIBUNAL
Football Queensland Limited [2012] ACompT 15

Citation: Football Queensland Limited [2012] ACompT 15

Review from: Australian Competition and Consumer Commission

Parties: QUEENSLAND FOOTBALL LIMITED

File number: ACT 1 of 2012

Judge: MANSFIELD J (PRESIDENT)

Date of Ruling: 25 July 2012

Catchwords:
NOTIFICATION OF EXCLUSIVE DEALING – withdrawal of notification by Australian Competition and Consumer Commission under s 93(3) of the Competition and Consumer Act 2010 – application to Australian Competition Tribunal for review of decision – review fixed for hearing – application for leave to withdraw application for review – procedural power of Tribunal – public interest – leave to withdraw granted

Legislation:
Trade Practices Act 1974
Australian Competition and Consumer Act 2010 (Cth)

Cases cited:
Trade Practices Act 1974
Australian Competition and Consumer Act 2010 (Cth)
Re Freight Victoria Ltd [2002] ACompT 1; (2002) ATPR 41-884
In the matter of an application for review by Lakes R Us Pty Ltd [2006] ACompT 3

Date of hearing: 25 July 2012

Place: Adelaide

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicant: D Skenner

Solicitor for the Applicant: Noel Woodall & Associates

Counsel for the Australian Competition and Consumer Commission: J Baartz

Solicitor for the Australian Competition and Consumer Commission: Baker & McKenzie

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 1 of 2012

RE:
APPLICATION FOR REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER S 93(3A) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93402
Applicant

BY:
FOOTBALL QUEENSLAND LIMITED
Applicant

TRIBUNAL:

MANSFIELD J (PRESIDENT)

DATE OF ORDER:

25 JULY 2012

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The applicant be granted leave to withdraw the application for review.
2.The application is treated as withdrawn.
3.The date for return or destruction of confidential documents for the purposes of paragraph 8 of the Confidentiality Undertaking attached to the Tribunal’s orders of 17 April 2012 is 5 September 2012.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

ACT 1 of 2012

RE:
APPLICATION FOR REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER S 93(3A) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93402
Applicant

BY:
FOOTBALL QUEENSLAND LIMITED
Applicant

JUDGE:

MANSFIELD J (PRESIDENT)

DATE:

25 JULY 2012

PLACE:

ADELAIDE

REASONS FOR RULING

The applicant is an Australian public company limited by guarantee. It is responsible for the administration of football (soccer) in Queensland. It is a “not for profit organisation”. Its income is used to meet operating expenses, and any surplus for the promotion of the sport of football.
The applicant conducts a “Teamwear” program in relation to football apparel. It requires its member clubs to use only Teamwear purchased from suppliers which it licenses during competitions conducted by it. All Teamwear has the applicant’s “Q logo” on it. It is possible for a player to obtain Teamwear products either direct from a licensed or supplier or from a retailer. If a club or team does not comply with the Teamwear program, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] ACompT 15
Decision Date: 25 July 2012

CaseChat Overview and Summary

The Australian Competition Tribunal dealt with an application by Football Queensland Limited in relation to a decision made by the Australian Competition and Consumer Commission (ACCC) to withdraw a notification of exclusive dealing under section 93(3) of the Competition and Consumer Act 2010. Football Queensland Limited had initially applied to the Tribunal for a review of the ACCC's decision to withdraw the notification. Subsequently, Football Queensland Limited sought leave to withdraw its application for review of the ACCC's decision. The Tribunal was required to determine whether it had the procedural power to grant leave to withdraw the application and, if so, whether it was in the public interest to do so.

The Tribunal considered whether it had the procedural power to grant leave to withdraw the application for review and whether such a grant was in the public interest. The Tribunal noted that it has the power to control its own procedure and that it should exercise that power in a way that is consistent with the public interest. The Tribunal also noted that there are circumstances in which it is in the public interest to allow an application to be withdrawn, such as where the party seeking leave to withdraw has acted reasonably and there has been no significant detriment to the other party or to the public interest. The Tribunal concluded that it had the procedural power to grant leave to withdraw the application and that it was in the public interest to do so in this case.

Accordingly, the Tribunal granted leave to Football Queensland Limited to withdraw its application for review of the ACCC's decision to withdraw the notification of exclusive dealing. The Tribunal noted that the ACCC had no objection to the withdrawal and that there had been no significant detriment to the public interest as a result of the withdrawal. The Tribunal also noted that Football Queensland Limited had acted reasonably in seeking to withdraw the application. The Tribunal concluded that it was in the public interest to allow the application to be withdrawn.

The Tribunal granted leave to Football Queensland Limited to withdraw its application for review of the ACCC's decision to withdraw the notification of exclusive dealing.

Orders