Lawson and Australian Competition and Consumer Commission

[2000] AATA 1167

DECISION AND REASONS FOR DECISION [2000] AATA 1167

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/366

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      J. LAWSON            
  Applicant
           And    AUSTRALIAN COMPETITION AND CONSUMER COMMISSION  
  Respondent

REASONS FOR DIRECTION GIVEN ON 29 SEPTEMBER 2000

................(Signed)............
  SENIOR MEMBER EYRE

CATCHWORDS
Jurisdiction – Trade Practices Act 1974 – ACCC advises applicant conduct not misleading within Trade Practices Act and intends to take no further action – Ombudsman investigates and finds matter dealt with appropriately – Ombudsman suggests applicant may appeal to AAT – no jurisdiction
Administrative Appeals Tribunal Act 1975; s25
Trade Practices Act 1974; Part X
Ombudsman Act 1976; ss10A, 11

REASONS FOR DIRECTION GIVEN ON 29 SEPTEMBER 2000

Senior Member Eyre   

1. This application concerns the issue as to whether this Tribunal has jurisdiction to review the decision of the Australian Competition and Consumer Commission ("the respondent") as set out in its letter addressed to Mr Lawson ("the applicant") dated 20 January 2000.  The letter states:

   "I note your allegation that that your complaint has been 'swept under the carpet'.
   I have reviewed the material previously submitted, and the assessment made by my staff. I agree with the assessment that the lack of a clear date when the competition/promotion ceases is not helpful, but does not constitute misleading conduct as per the Trade Practices Act.
   I must stress that my opinion on this matter does not limit you seeking your own legal advice, although any decision to pursue this matter through private legal action would need to carefully consider the costs involved.
   Unless you have new material to present to my office on this subject, I do not intend taking any further action."

2. The respondent was represented by Miss Rositano, of counsel. The applicant was not represented and did not appear before this Tribunal.  The Tribunal received a letter from the applicant dated 19 September 2000 requesting that the Tribunal "hold the hearing in my absence", as the hearing would be "difficult to attend".  On 20 September 2000, the Tribunal wrote to the applicant to confirm that it would proceed with the hearing in his absence as requested, but informed the applicant of his right to use the Tribunal's telephone link-up facilities should he wish to participate in the hearing.  As the Tribunal did not receive a response from the applicant, the Tribunal proceeded with the hearing in his absence.

3. The Tribunal has considered all of the material before it, including three letters written by the applicant and addressed to this Tribunal, respectively dated 19 September 2000, 11 September 2000 and 2 August 2000.  The Tribunal also had before it the letter from the respondent addressed to the applicant and dated 20 January 2000 referred to in paragraph 1 above, and a letter from the Commonwealth Ombudsman's Office addressed to the applicant and dated 24 July 2000.

4. The Tribunal's jurisdiction to review certain matters is contained in part IV of the Administrative Appeals Tribunal Act 1975, which provides for "Reviews by the Tribunal of Decisions". Section 25 provides:

   "25. (1) An enactment may provide that applications may be made to the Tribunal:
   (a) for review of decisions made in the exercise of powers conferred by that enactment; or
   (b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment"

Section 25(4) then confers power on the Tribunal to "review any decision in respect of which application is made to it under any enactment." 

1. The issue under consideration is whether the decision made by the respondent under the Trade Practices Act 1974 ("the Act") on 20 January 2000 is reviewable by the Tribunal. The only jurisdiction conferred on the Tribunal by the Act is the review of reviewable decisions of the Registrar made under Part X, which Part is headed "International Liner Cargo Shipping". Decisions made pursuant to any section of the Act other than those sections contained in Part X are not reviewable by this Tribunal. As Part X of the Act is not relevant to these proceedings, the Tribunal does not have jurisdiction to review the decision of the respondent and the Tribunal so finds.

2. The Tribunal also notes that the applicant referred this matter to the Commonwealth Ombudsman. While the Commonwealth Ombudsman is not a party to these proceedings, it is appropriate to make a few comments about the Commonwealth Ombudsman's role in these proceedings.

3. The Commonwealth Ombudsman's Office, after completing its internal review procedures, advised the applicant in a letter dated 24 July 2000 that the applicant could, if he wished, appeal to this Tribunal. Relevantly, section 10A of the Ombudsman Act 1976 allows the Ombudsman to refer a matter to this Tribunal for an advisory opinion. There has been no reference. Similarly, s11 of the Ombudsman Act 1976 allows the Ombudsman to recommend that the principal officer of a department refer a matter to this Tribunal for an advisory opinion. The Tribunal notes that the above sections provide for an advisory opinion only, and not for a review of the decision.

4. In conclusion, the Tribunal finds that it does not have jurisdiction to review the decision of the respondent dated 20 January 2000. While the Commonwealth Ombudsman is not a party to these proceedings, the Tribunal notes that it does not have jurisdiction to review the decision of the Commonwealth Ombudsman's Office dated 24 July 2000.