Qantas Airways Limited - [2003] ACompT 4

AUSTRALIAN COMPETITION TRIBUNAL
Qantas Airways Limited [2003] ACompT 4
PRACTICE AND PROCEDURE – Trade Practices – application for leave to intervene pursuant to s 109(2) of the Trade Practices Act 1974 (Cth) – test to be applied in determining whether the parties applying to intervene have an interest warranting intervention – whether any intervention should be subject to conditions.
Trade Practices Act 1974 (Cth): s 109(2)
Re Alliance Agreement – Application by PK Wakeman (1999) ATPR 41‑675, referred to
Telstra Corporation Ltd (2001) ATPR 41‑812, referred to
File No 5 of 2003
RE:APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER 2003 DENYING AUTHORISATION IN RELATION TO APPLICATIONS A30220, A30221, A30222, A90862 AND A90863 (PROPOSED ACQUISITION BY QANTAS OF ORDINARY SHARES IN AIR NEW ZEALAND AND COOPERATIVE ARRANGEMENTS BETWEEN QANTAS, AIR NEW ZEALAND AND AIR PACIFIC)

BY:QANTAS AIRWAYS LIMITED (ABN 16 009 661 901) and AIR NEW ZEALAND LIMITED (ABN 70 000 312 685)

Applicants
GOLDBERG J (President), MR G F LATTA and PROFESSOR D K ROUND
23 DECEMBER 2003
MELBOURNE

IN THE AUSTRALIAN COMPETITION TRIBUNAL

No 5 of 2003

RE:APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER 2003 DENYING AUTHORISATION IN RELATION TO APPLICATIONS A30220, A30221, A30222, A90862 AND A90863 (PROPOSED ACQUISITION BY QANTAS OF ORDINARY SHARES IN AIR NEW ZEALAND AND COOPERATIVE ARRANGEMENTS BETWEEN QANTAS, AIR NEW ZEALAND AND AIR PACIFIC)

BY:QANTAS AIRWAYS LIMITED (ABN 16 009 661 901) and AIR NEW ZEALAND LIMITED (ABN 70 000 312 685)

Applicants

THE TRIBUNAL:

GOLDBERG J (President)
MR G F LATTA

PROFESSOR D K ROUND

DATE OF ORDER:

23 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE TRIBUNAL ORDERS THAT:
1.The Gulliver’s Pacific group and SYNERGI Travel Australia Pty Ltd (“the Gulliver’s group”) be given leave to intervene in the application.

2.On or before 20 January 2004, the Gulliver’s group file and serve on the applicants and the Australian Competition and Consumer Commission (“the Commission”) a statement of facts, contentions and issues in response to the application.

3.On or before 19 March 2004 the Gulliver’s group file and serve on all parties any statement on which they intend to rely from witnesses as to fact.

4.On or before 16 April 2004 statements by expert witnesses to be relied upon at the hearing on any issue by the Gulliver’s group are to be filed and served on all parties.

5.On or before 23 April 2004 the Gulliver’s group file and serve on the applicants and the Commission a list of documents intended to be tendered or otherwise relied on at the hearing, and provide copies to the other parties.

6.Any document required by the order of 28 November 2003 to be served by the applicants or the Commission shall also be served on the Gulliver’s group.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

No 5 of 2003

RE:APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 9 SEPTEMBER…

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: [2003] ACompT 4
Decision Date: 23 DECEMBER 2003

CaseChat Overview and Summary

Qantas Airways Limited was the subject of proceedings where various parties sought leave to intervene under section 109(2) of the Trade Practices Act 1974 (Cth). The dispute centred on the interpretation and application of the legislation, with the interveners arguing that they had a significant interest in the matter that warranted their involvement in the proceedings. The court was tasked with determining whether these parties indeed had an interest sufficient to merit intervention, and if so, whether such intervention should be subject to any conditions.

The primary legal issue the court addressed was whether the applicants for intervention had a direct interest in the matter that would entitle them to participate in the proceedings. The court examined the statutory provisions and relevant case law to establish the criteria for determining such an interest. Additionally, the court considered whether any conditions should be imposed on the interveners to ensure that their participation would not unduly prejudice the primary parties or disrupt the proceedings.

The court concluded that the applicants did have a direct and substantial interest in the matter, warranting their intervention. It found that the applicants' interests were not merely incidental or collateral but were directly impacted by the outcome of the proceedings. Furthermore, the court determined that conditions could be imposed on the interveners to manage their participation, ensuring that their involvement would be beneficial and not detrimental to the primary parties or the administration of justice. This decision balanced the applicants' right to be heard with the need to maintain the efficiency and fairness of the judicial process.

The court's final orders granted leave to the applicants to intervene in the proceedings, subject to specified conditions designed to regulate their participation. This outcome allowed the applicants to present their perspectives and interests, contributing to a more comprehensive and balanced resolution of the dispute. The decision underscores the importance of carefully evaluating the nature and extent of an applicant's interest and the potential impact of their intervention on the proceedings.

Orders