Freight Victoria Limited - [2002] ACompT 1

AUSTRALIAN COMPETITION TRIBUNAL
Freight Victoria Limited [2002] ACompT 1
PRACTICE AND PROCEDURE – trade practices – access to services – application for stay of proceeding until determination of application for certification of access regime – where proceeding relates to review of decision of Minister not to declare as a service rail line services provided by facilities leased to applicant – where access regime found not an effective access regime – Tribunal should determine matter on basis of law at time of determination – consideration of prejudice to parties if application for stay granted or refused.
Trade Practices Act 1974 (Cth): ss 44G, 44H, 44K, 44M, 44N
Hughes Motor Service Pty Ltd v Wang Computer Pty Ltd (1978) 35 FLR 346 considered
Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 considered
Ramsey v Aberfoyle Manufacturing Company (Australia) Pty Ltd (1935) 54 CLR 230 applied
R v Whiteway; Ex parte Stephenson [1961] VR 198 applied
Matter No 1 of 2002
IN THE MATTER OF FREIGHT VICTORIA LIMITED (ACN 075 295 644)
(TRADING AS FREIGHT AUSTRALIA)
GOLDBERG J (Deputy President), MISS M M STARRS & DR J E WALKER
27 MARCH 2002
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

No 1 of 2002

IN THE MATTER OF:
FREIGHT VICTORIA LIMITED (ACN 075 295 644)
(trading as FREIGHT AUSTRALIA)

THE TRIBUNAL:

GOLDBERG J (Deputy President), MISS M M STARRS &

DR J E WALKER

DATE OF ORDER:

27 MARCH 2002

WHERE MADE:

MELBOURNE

THE TRIBUNAL ORDERS THAT:
1.ATN Access Pty Ltd be given leave to intervene.
2.The application by the State of Victoria for a stay of the proceeding, alternatively a postponement of the final hearing of the proceeding, be dismissed.

3.Each intervening party file and serve a statement of the facts and contentions upon which it relies giving particular attention to the matters set out in s 44H(4) of the Trade Practices Act 1974 (Cth) by 4.00pm on 10 May 2002.

4.The applicant and intervening parties (other than the National Competition Council) file and serve a list of documents they consider to be relevant to the application for review before the Tribunal in addition to those on the list provided by the National Competition Council by 4.00pm on 10 May 2002.

5.All parties (other than the National Competition Council) file and serve statements of all non‑expert witnesses proposed to be called to give evidence together with copies of all documents proposed to be tendered or otherwise relied on at the hearing by 4.00pm on 7 June 2002.

6.The National Competition Council file and serve statements of all non‑expert witnesses proposed to be called to give evidence together with copies of all documents proposed to be tendered or otherwise relied on at the hearing by 4.00pm on 21 June 2002.

7.All parties (other than the National Competition Council) file and serve statements of any expert witnesses proposed to be called to give evidence by 4.00pm on 19 July 2002.

8.The National Competition Council file and serve statements of any…

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: [2002] ACompT 1
Decision Date: 27 MARCH 2002

CaseChat Overview and Summary

The Australian Competition Tribunal heard an application by Freight Victoria Limited (trading as Freight Australia) for a review of the decision by the Minister not to declare as a service the rail line services provided by facilities leased to Freight Australia. The State of Victoria sought a stay of the proceedings until the determination of an application for certification of an access regime. The Tribunal considered whether it should grant a stay of proceedings and if so, for what period. The Tribunal found that the application for a stay should be dismissed. The Tribunal exercised its discretion to control and regulate its proceedings in accordance with s 103(1) of the Trade Practices Act 1974 (Cth). It considered that the circumstances did not justify a stay because it would provide a tactical advantage to the State of Victoria. The Tribunal emphasised that it should determine the matter on the basis of the law as it exists at the time of its determination. The Tribunal also found that the potential prejudice to Freight Australia if a stay of proceedings is granted or if there is a postponement of the final hearing, is significantly greater than any prejudice to the State of Victoria if the application for the stay or postponement of the final hearing is not made. The Tribunal dismissed the application for a stay of proceedings. The final orders of the Tribunal included granting leave to ATN Access Pty Ltd to intervene, dismissing the application for a stay or postponement of the final hearing, and setting down a tentative hearing date of 11 September 2002.

Orders