Queensland Newsagents Federation Ltd v Trade Practices Commission

[1993] FCA 792

JUDGMENT No. ..... ,... ma ..,,.., ., , 93 ........ , ...

IN THE FEDERAL, COURT OF AUSTRALIA 1

Q ) Y 1 No. QG 142 of 1993

GENEFAL DIVISION 1

BETWEEN: QUEENSLAND NEWSAGENTS FEDERATION LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Respondent

EX PARTE: NEWSAGENCY COUNCIL OF VICTORIA LTD

AND: VICTORIAN AUTHORISED NEWSAGENTS ASSOCIATION LTD

CORAM:	Spender J
PLACE :	Brisbane
W:	5 ~ovember  1993

CORRIGENDA

Amendment to the Reasons for Judgment of Spender J. delivered

on F November

in the seventh last line and in the last line on
page 2, '1992' should read '1993';

1993 :

in the first line of the penultimate paragraph on page 30, the word 'case' should be inserted after the word 'appropriate'.

REDISTRY

!gk%-

Associate o -&ender	J
15 FEB 1994

AUSTRALIA PRINCIPAL

792 /93

JUDGMENT No. ......,........ ... . , ..,

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) No. QG 142 of 1993
GENERAL DIVISION	1

BETWEEN:	Q U E E N S L A N D	N E W S A G E N T S
FEDERATION LIMITED Applicant

AND :  TRADE PRACTICES COMMISSION
Respondent

EX PARTE:	NEWSAGENCY COUNCIL OF VICTORIA
- LTD

AND :  VICTORIAN AUTHORISED NEWSAGENTS
ASSOCIATION LTD

CORAM:	Spender J
PLACE :	Brisbane
DATE :	5 November 1993

CORRIGENDUM

Amendment to the Reasons for Judgment of Spender J. delivered on 5 November 1993:

Please substitute the date 5 November 1993 where the date

4 November 1993 appears on the pages specified below:

Catchwords p. 2

Minutes of Order

Page 1 of Reasons

Associate to S~ender J.

792 93

JUDGMENT No. ........ ......,.., 1 ........ ....

C A T C H W O R D S

ADMINISTRATIVE LAW - Administrative Decisions (Judicial

Review) legislation - person aggrieved - whether person not privy to authorised arrangement made under Trade Practices Act 1974 (Cth) has standing to challenge validity of that authorisation - power and discretions of Court - exercise of discretion to refuse to grant application where adequate provision is made by another law - whether right to seek review by Trade Practices Tribunal is adequate provision - effect of possible lack of standing in Tribunal - whether de novo hearing makes adequate provision for review where breach of natural justice affects previous decision.

HIGH COURT AND FEDERAL COURT - practice and procedure in

original jurisdiction - joinder of parties - whether parties to authorised arrangements under the Trade Practices Act 1974 are persons "interested in a decision" in circumstances where the matter for decision involves review of that authorisation.

TRADE PRACTICES - authorisations and notifications - Tribunal review of Commission determination - meaning of "sufficient interest" - whether Full Court can review Tribunal decision on whether a party has sufficient interest.

Administrative Decisions (Judicial Review) Act 1977 ss. 5, 6,

10(2)(b)(ii) & 12.

Trade Practices Act 1974 ss. 45, 88, 90A, 91(4), 101 & 163A.

A. E. Bishou & Associates Ptv Ltd v. Trade Practices

Commission (1989) ATPR 40-985

Australian Conservation Foundation v. The Commonwealth (1980-

81) 146 CLRm493

Australian Institute of Marine & Power Enaineers v. Secretary,

Deuartment of Transuort (1986) 13 FCR 124

Broadbridae v. Stammers (1987) 16 FCR 296

Broken Hill Prourietarv Comwanv Ltd v. Trade Practices

Tribunal (1980) 47 FLR 384

Du Pont (Australia) Ltd v. Comutroller-General of Customs (unreported decision of Heerey J given 25 March 1993)

- R. v. Marks: ex parte Australian Buildina Construction

Emplovees Builders Labourers Federation (1981) 147

CLR 471

. . . /2

15 FE6 l994
FEDERAL COURT OF
AUSTRALIA

Re Australian Conservation Foundation v. Forestry Commission

79 ALR 685

Re McHatton aid ~oilector of Customs 18 ALR 154

Re Oueensland Timber Board (1975) ATPR 40-005

Swan Portland Cement Ltd v. Comwtroller-General of Customs

(1989) 25 FCR 523

Toohevs ~ t d v. ~inister for Business & Consumer Affairs (1981)

54 FLR 421

Twist v. Randwick (1976) 136 CLR 106

U. S. Tobacco Co. v. Minister for Consumer Affairs (1988) 20

FCR 520

D Q Q V. TTRADE PRACTICES

COMMISSION: EX PARTE NEWSAGENCY COUNCIL OF VICTORIA LTD AND
VICTORIAN AUTHORISED NEWSAGENTS ASSOCIATION LTD

No. QG 142 of 1993

SPENDER J.
BRISBANE

4 November 1993

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) No. QG 142 of 1993
GENERAL DIVISION	1

BETWEEN: QUEENSLAND NEWSAGENTS FEDERATION LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Respondent

EX PARTE: NEWSAGENCY COUNCIL OF VICTORIA LTD

AND: VICTORIAN AUTHORISED NEWSAGENTS ASSOCIATION LTD

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J
DATE OF ORDER:	4 NOVEMBER 1993
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

the Newsagency Council of Victoria Ltd and the

(i)    Victorian Authorised Newsagents Association be

joined as respondents to the application No. QG
142 of 1993;

(ii)   application No. QG 142 of 1993 be dismissed;

(iii) there be no order as to costs of or incidental to the principal proceedings or of or incidental to

the notices of motion filed in the principal

proceedings.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1  No. QG 142 of 1993
GENERAL DIVISION	)

BETWEEN: QUEENSLAND NEWSAGENTS FEDERATION LIMITED

Applicant

AND: TRADE PRACTICES COMMISSION

Respondent

EX PARTE: NEWSAGENCY COUNCIL OF VICTORIA LTD

AND:  VICTORIAN AUTHORISED NEWSAGENTS ASSOCIATION LTD

CORAM:	Spender J
PLACE :	Brisbane
DATE :	4 November 1993

REASONS FOR JUDGMENT

These proceedings involve the hearing of five related notices of motion arising out of principal proceedings in which the Queensland Newsagents Federation Ltd ( 'the QNF') is seeking review under the Administrative Decisions (Judicial Review) Act (1977) (Cth) ('the ADJR Act') of decisions of, and conduct by, the Trade Practices Commission ('the Commission').

Queensland and Victoria, and presumably the other states and territories of the Commonwealth, have arrangements in place providing for the organisation of the newsagency industry in the respective geographical areas. The arrangements in Queensland and Victoria are the subject of authorizations given by the Commission pursuant to S. 88 of the Trade Practices Act 1974 (Cth) ('the =A'), such authorizations being necessary because the arrangements

involve conduct otherwise in breach S. 45 of the E A . The key anti-competitive feature of these arrangements is the existence of territorial monopolies granted to newsagents.

On 28 April 1982 the Commission granted an authorization ('the 1982 authorization') relating to the newsagency industry in Victoria. This authorization is still in force. On 16 September 1992, applications to vary the 1982 authorization were lodged with the Commission by the Newsagency Council of Victoria Ltd ('NCV'), David Syme & Co. Ltd, The Herald & Weekly Times Ltd and the Victorian Authorised Newsagents Association Ltd ('VANA'). The QNF was involved in the subsequent process of consultation and, in particular, in the conference provided for by S. 90A of the E A . On 30 July 1993 the Commission issued an authorization ('the 1993 authorization') which provided for alterations to the arrangements applying in the Victorian newsagency industry.

On 27 August 1993 the QNF filed an application for

an order to review:

1. The decision of the Commission that the applicant's request that the respondent extend the date for provision of the applicant's final submissions in connection with the 1992 authorization; or

2. The conduct of the Commission whereby the Commission refused the QNF1s request that the respondent extend the date for the provision of the applicant's final submissions in connection with the 1992 authorization; and

3. The decision by the Commission granting the authorization.

Subsequently, VANA and NCV each filed notices of motion seeking to be joined as respondents in the proceedings initiated by the QNF ('the principal proceedings'). In addition, VANA, NCV and the Commission each filed notices of motion seeking that the principal proceedings be dismissed on the basis of:

1. The applicant not having standing to bring the principal proceedings; and

2. The discretion conferred by S. 10(2)(b)(ii) of the ADJR Act.

So far as is relevant, S. 10 provides:

" (1 ) The rights conferred by sections 5 , 6 and

7 on a person t o make an application t o the Court i n respect o f a decision, i n respect o f conduct engaged i n for the purpose of making a decision or i n respect o f a failure t o make a decision -

( a ) are i n addition t o , and not i n derogation

o f , any other rights that the person has

t o seek a review, whether by the Court, b y

another court, or by another tribunal, authority or person, o f that decision,

conduct. or failure;

(2 )	Notwithstanding sub-section	( 1 ) -
. , .

(b)	the Court may, in its discretion, refuse t o grant an application under section 5 , 6 or 7 that was made to the Court i n respect o f a decision, i n respect o f conduct engaged i n for the purpose o f making a decision, or i n respect o f a failure t o make a decision, for the reason -
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek review by the Court, by another Court, or by another Tribunal, authority or person, of that decision, conduct or failure.

review by way of reconsideration, rehearing, (3) In this section, 'review' includes a

appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. "

These five notices of motion have been heard together.

Joinder

Both VANA and NCV have sought by notice of motion to be joined in the principal proceedings. The Commission, and ultimately the QNF do not resist the motions for joinder.

VANA and NCV seek to be joined pursuant to both S. 12 of the ADJR Act and 0. 6 r. 8 of the Federal Court Rules. Section 12 of the ADJR Act provides:

" (1) A person interested in a decision, in

conduct that has been, is being, or is proposed to be, engaged for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Court under this Act, may apply to the Court to be made a party to the application.

(2) The Court may, in its discretion -

(a) grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b) refuse the application. "

vANA and NCV are clearly persons "interested in a decision" of which review is sought by QNF. Both VANA and NCV are parties to the arrangements which are the subject of both the 1982 and 1993 authorizations. In addition, VANA is the peak trade body of newsagents in Victoria, representing 709 newsagents. Each of these newsagents is directly affected by the 1982 and 1993 authorizations in that the arrangements that are authorized by them affect the way Victorian newsagents conduct their businesses and influence their relationships with their suppliers. The authorised arrangements influence the profitability and value of the relevant newsagency businesses, and thus there is a pecuniary interest in whether the 1993 authorization is maintained. NCV, for its part, is the body entrusted with supervising the arrangements made under the various authorizations.

VANA and NCV are within the terms of S. 12 (1) and
should be joined as respondents in the principal proceedings.

It is unnecessary to consider 0. 6 r. 8 of the Federal Court

Rules.

Standinq

The Commission, VANA and NCV, ("the respondents")

challenge the applicant's standing to bring these proceedings.

Having regard to my view that in the exercise of the discretion under S. lO(2) (b) (ii) of the ADJR Act, the

p r o c e e d i n g s s h o u l d be d i s m i s s e d , it i s not s t r i c t l y n e c e s s a r y

t o d e a l w i t h the q u e s t i o n o f s t a n d i n g . However, the i s s u e o f

s t a n d i n g i s not i r r e l e v a n t b e c a u s e o f u n d e r t a k i n g s b y the

Commiss ion w h i c h w e r e made i n the c o u r s e o f a rgumen t .

S t a n d i n g u n d e r the ADJR Act t o c h a l l e n g e a d e c i s i o n

( S . 5 ) or c o n d u c t ( S . 6 ) i s c o n f e r r e d u p o n a per son "who i s

a g g r i e v e d " by the d e c i s i o n or c o n d u c t . E l l i c o t t J i n Toohevs

L i m i t e d v . M i n i s t e r f o r Business and Consumer A f f a i r s ( 1 9 8 1 )

54 F.L.R.	421 a t 437; 36 A.L.R.	64 a t 79 ( i n a passage adop ted
b y the F u l l Federa l C o u r t i n U . S . Tobacco Co. v.	Minister	for

Consumer A f f a i r s ( 1 9 8 8 ) 20 F.C.R . 520 a t 5 2 7 ) s t a t e d :

"	T h e	words	' a p e r s o n	who	i s	a g g r i e v e d '	s h o u l d
not ,	i n	m y	v i e w ,	be	g i v e n	a	narrow

c o n s t r u c t i o n . They s h o u l d not , therefore, be

c o n f i n e d t o p e r s o n s who c a n e s t a b l i s h t h a t they

h a v e a l e g a l interest a t s t a k e i n the m a k i n g o f

the d e c i s i o n . I t i s u n n e c e s s a r y and

u n d e s i r a b l e t o d i s c u s s the f u l l i m p o r t o f the

p h r a s e . I am s a t i s f i e d from the b r o a d n a t u r e

o f the d i s c r e t i o n s wh ich a r e s u b j e c t t o r e v i e w

and from the f a c t t h a t the p r o c e d u r e s a r e

c l e a r l y i n t e n d e d i n p a r t t o be a s u b s t i t u t i o n

for the more c o m p l e x p r e r o g a t i v e w r i t

p r o c e d u r e s t h a t a n a r r o w m e a n i n g was not

i n t e n d e d . T h i s d o e s not mean t h a t a n y member

o f	the p u b l i c	c a n seek	a n o r d e r o f r e v i e w .	I
am	s a t i s f i e d ,	however ,	t h a t it	a t l e a s t covers
a p e r s o n s u f f e r e d a s a	who	c a n show a	g r i e v a n c e	w h i c h w i l l be

r e s u l t o f the d e c i s i o n compla ined

o f beyond t h a t wh ich he or she h a s a s a n

o r d i n a r y member	o f	the	p u b l i c .	In	many	c a s e s
t h a t	g r i e v a n c e	w i l l	be	shown	b e c a u s e	the

d e c i s i o n d i r e c t l y a f f e c t s h i s or her e x i s t i n g

or f u t u r e l e g a l r i g h t s . In some c a s e s ,

however , the e f f ec t may be less d i r e c t . I t may

a f f e c t h i m o r her i n the c o n d u c t o f a b u s i n e s s

or i t may, a s I think i s the c a s e here, a f f e c t

h is or her r i g h t s a g a i n s t t h i r d p a r t i e s : cf.

Robinson v. Western A u s t r a l i a n Museum (1977)

138 C.L.R. 283. "

A person with a mere intellectual or emotional interest in a decision does not have a sufficiently special interest to fulfil the requirements in the above passage: Australian Conservation Foundation Inc, v. The Commonwealth 11980-811 146 C.L.R. 493 at 530.

In my opinion, not only must there be the existence of a special interest in a decision, but also a person must show that the decision sought to be challenged will in some way expose that interest to peril.

I t is common for cases involving standing to focus on the question whether the interest raised by the applicant is sufficiently distinct from the interests of the general public: Australian Conservation Foundation v. The Commonwealth (supra); v. Strictland 71 A.L.R. 41; v. Alcoa of Australia Ltd (1981) 149 C.L.R. 27. Nonetheless there is an implicit requirement that the special interest of the applicant must be sufficiently threatened by the decision in

question. Brennan J stated in Re McHatton and Collector of Customs (1977) 18 A.L.R. 154 at 157:

" However, a decision which affects interests of

one person directly may affect the interests of other indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote for the purposes of S. 27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected. "

Brennan J was in that case concerned with the

requirement in s.27(1) of the Administrative Appeals Tribunal

1975 (Cth). His Honour's observations are apposite.

To the same effect are the observations by Gummow J in Australian Institute of Marine and Power Enuineers v. Secretary, Department of Transport (1986) 13 F.C.R. 124 at 133-4, where his Honour said of the necessary nexus between the decision and the person was that:

" . . .there flows from the decision.. .a danger

and peril to the interests of the applicant that is clear and imminent rather than remote, indirect or fanciful, and the applicant has an interest in the matter of an intensity and degree well above that of an ordinary member of the public. "

This requirement was adopted by the Full Court of the Federal

Court in Broadbridue v. Stammers (1987) 16 F.C.R. 296 at 298.

If the 1993 authorization realistically has the potential to have an' adverse effect on the regulation of the newsagency industry in Queensland, then QNF has an interest in the decision above that of an ordinary member of the public, given that it is the peak trade association for authorised newsagents in this state. This interest goes beyond that of a mere intellectual concern of the members of QNF.

The aspect of standing of QNF comes down to whether the particular decision and conduct in the principal proceedings threaten that special interest. The respondents submit it will not. They raise the following points in support of that submission:

1.  Victorian newsagents and suppliers to Victorian newsagents, who are directly involved in the arrangements covered by the 1993 authorization, have operated under the 1982 authorization since

28 April 1982.

2.  The applicant and those it represents did not at any time have an interest in, or benefit from, the

1982 authorization.

3.  The applicant and those who it represents operate under a separate authorization which is materially different from either the 1982 authorization or the 1993 authorization.

4.  The existing Queensland authorization has not been revoked and there is no evidence of any likelihood of revocation of the existing Queensland authorization.

The respondents submit the dealings between the
Commission and the Victorian industry do not threaten,

directly or indirectly, the special interests of the QNF and

its members.

QNF take issue with the submission that there is no evidence of any likelihood of revocation of the existing authorization for Queensland. Counsel for the applicant pointed to a number of instances in correspondence, Commission circulars, and discussions in which the Commission indicated an intention, expressly or impliedly, to extend the revised arrangements contained in the 1993 authorization beyond the

borders of Victoria.

On 15 May 1990 the Commission released a circular entitled "Study of the distribution of newspapers and magazines: Current issues". A copy of this paper was sent to the applicant. The first paragraph of that paper states:

" This paper is published as part of the Commission's national study of the systems for the distribution of newspapers and magazines. It summarizes the major issues arising from submissions made to the Commission so far and focuses on the key issues which require further comment from interested parties. "

Significantly, paragraph 3 on p. (iii) states:

" The Commission could encourage reform of the

industry by revoking past authorisations and would use that power if necessary. However, it hopes it will not ultimately have to take this step. In the short term it prefers to continue encouraging participation in a reasoned and informed debate about the best long term arrangements for the industry. "

The significance, for present purposes, lies in what is referred to as the "national" scope of the study and the

hoped-for outcome.

On 29 January 1992 a letter was sent by the Commission to the applicant. This was during the negotiation

period leading up to the 1993 authorization. The penultimate

paragraph of that letter states:

" The Commission will be reviewing the situation in other States as the outcome of the Victorian process becomes clear and we will be in touch with you at that time. "

Further, on 30 July 1993, the 1993 authorization was published by the Commission. On p.(ii) of the summary the following passages appear:

" The Commission c o n s i d e r e d the proposed s y s t e m

t o p r o v i d e s t r u c t u r a l changes t o the newsagency

d i s t r i b u t i o n	s y s t e m	i n	V i c t o r i a	and	t o be	the
c a t a l y s t	for	a	change	o f	a t t i t u d e	by

p u b l i s h e r s , n e w s a g e n t s , and sub-agen t s i n the

way they r e l a t e t o e a c h other. T h i s s h o u l d

l e a d	t o	a	more	p r o - c o m p e t i t i v e	e n v i r o n m e n t ,	i n
k e e p i n g	w i t h	c h a n g e s	t h a t	a r e	t a k i n g	p l a c e

g e n e r a l l y	i n the m a r k e t p l a c e	i n A u s t r a l i a .
...

Once the d e t e r m i n a t i o n h a s been f i n a l i s e d the

Commission would w i s h t o d i s c u s s w i t h i n d u s t r y

p a r t i c i w a n t s	the	i m w l i c a t i o n s	and	p o s s i b l e
a p w l i c a t i o n	o f	the	c h a n ~ e s	i n V i c t o r i a t o other

S t a t e s . " (my emphasis)

Kenneth Garry Murphy, in an affidavit filed 16 September 1993, deposes to a number of meetings with Mr Chris Jose, a Special Projects Officer of the Commission, and, in particular, says:

" I was p r e s e n t a t a m e e t i n g b e t w e e n members o f

the QNF e x e c u t i v e and the Commission's senior

p r o j e c t o f f i c e r , Mr C h r i s J o s e , h e l d on 1 J u l y

1991,	a t wh ich Mr	Jose	s t a t e d	t h a t w h i l s t	the
Commission	was	f o c u s s i n g	o n	the	V i c t o r i a n
s i t u a t i o n ,	it	was	a l s o	encourag ing	e x p l o r a t i o n
o f	the	i s s u e s	i n Queens land .	A t	t h i s m e e t i n g ,

Mr Jose f u r t h e r s t a t e d t h a t he b e l i e v e d t h a t

the V i c t o r i a n ar rangemen t s would p r o v i d e a

benchmark for other s t a t e s and t h a t the over-	r i d i n g concern o f the Commission was t o
s e p a r a t e r e t a i l o p e r a t i o n s from d e l i v e r y
o p e r a t i o n s amongst newsagen t s . "

The Commission says that these significant pieces of evidence should not carry the weight they might otherwise bear, having regard to S. 91(4) of the E A . Section 91(4) provides :

" I f , a t a n y t i m e a f t e r the Commission h a s

g r a n t e d a n a u t h o r i z a t i o n , it a p p e a r s t o the

Commission t h a t the a u t h o r i z a t i o n was g r a n t e d

on the b a s i s o f e v i d e n c e or i n f o r m a t i o n t h a t

was	f a l s e	or	m i s l e a d i n g	i n	a	m a t e r i a l
p a r t i c u l a r ,	t h a t	a	c o n d i t i o n	t o	which	the
a u t h o r i z a t i o n	was	e x p r e s s e d	t o	be	s u b j e c t	h a s

not been c o m p l i e d w i t h or t h a t there h a s been a

m a t e r i a l change o f c i r c u m s t a n c e s since the

a u t h o r i z a t i o n was gran ted :

( a ) the Commission s h a l l g i v e notice

a c c o r d i n g l y	t o	the	c o r p o r a t i o n	t o	wh ich
the	a u t h o r i z a t i o n	was	g i v e n	and	a n y other

p e r s o n s who appear t o the Commission t o be

i n t e r e s t e d	and	a f f o r d	them	a	r e a s o n a b l e
o p p o r t u n i t y	o f	mak ing	s u b m i s s i o n s	t o	the

Commission i n the m a t t e r ; and

( b ) where , a f t e r so n o t i f y i n g the c o r p o r a t i o n

and other p e r s o n s ( i f a n y ) and c o n s i d e r i n g

a n y s u b m i s s i o n s made by those p e r s o n s , the

Commission i s s a t i s f i e d t h a t the

a u t h o r i z a t i o n was gran ted on the b a s i s o f

e v i d e n c e or i n f o r m a t i o n t h a t was f a l s e or

m i s l e a d i n g i n a m a t e r i a l p a r t i c u l a r , t h a t

the c o n d i t i o n h a s n o t been c o m p l i e d w i t h

or	t h a t	there h a s been	s u c h a	change o f
m a t e r i a l	c i r c u m s t a n c e s ,	the	Commission	may
make	a	d e t e r m i n a t i o n	r e v o k i n g	the

a u t h o r i z a t i o n and , i f it c o n s i d e r s it

a p p r o p r i a t e t o d o so, g r a n t i n g a f u r t h e r

a u t h o r i z a t i o n i n s u b s t i t u t i o n for the

a u t h o r i z a t i o n so r e v o k e d . "

The respondents submit that the circumstances in which the Commission can make a determination revoking an authorization are limited to those outlined in S. 91(4). It was therefore submitted that any statements the Commission made indicating to the contrary have no legal effect and should be given no weight. The applicant would have, they add, the usual administrative remedies should the Commission seek to act outside the limits imposed by S. 91(4).

Consequently, it was said the special interests of the QNF are not threatened in any way by the 1993 authorization, despite the significant contrary indications by officers of the Commission.

It is important to record the response by counsel for the Commission to the applicant's fears regarding the extension of the arrangements covered by the 1993 authorization to Queensland. After reference had been made to

S. 91(4), the following exchange occurred:

" S p e n d e r J: . . .it i s t r u e t o s a y , and you a r e

s a y i n g this on b e h a l f o f the commiss ion:

' T h e r e i s no e v i d e n c e o f a n y l i k e l i h o o d o f

r e v o c a t i o n o f the e x i s t i n g a u t h o r i z a t i o n

for Queens land . '

M r Hack:  Y e s .

S p e n d e r J:  V e r y w e l l . I t i s not s u g g e s t e d , for

i n s t a n c e , t h a t the c i r c u m s t a n c e s on which i t i s

g r a n t e d i n Queensland h a s changed and t h a t the

commiss ion o u g h t to l o o k a t what would be

a p p r o p r i a t e ,	h a v i n g r e g a r d	to	t h o s e	changes?
Mr Hack:	I	am	t o l d it h a s not been	c o n s i d e r e d

by the commiss ion .

S p e n d e r J: A l l r i g h t . S o there i s no e v i d e n c e

o f a n y l i k e l i h o o d o f r e v o c a t i o n o f the

Queensland	a u t h o r i z a t i o n .
Mr Hack:	Y e s

S p e n d e r J :  T h e r e h a s been no t h r e a t , u s i n g t h a t

word, or f o r e w a r n i n g b e i n g less a g g r e s s i v e , i n

the m a t t e r s t h a t I h a v e r a i s e d w i t h Mr B a i n on

b e h a l f o f the commiss ion s a y i n g we a r e not

h a p p y w i t h what i s i n Queens land , and i f we c a n

p o s s i b l y change i t we	w i l l .
M r Hack: No .	"

It was put to the applicant that the statements by Mr Hack were statements to which I might reasonably have regard in relation to the issues of standing and discretion. The applicant accepted that they were, with the rider that such an undertaking by the Commission will not necessarily bind other parties to the Queensland authorization, such as newspaper publishers, who may by their own actions create the circumstances for a review of the Queensland authorization. Nonetheless, the Commission's undertaking does have a relevance to the complaints the QNF has with respect to the Commission's 'threatsr outlined above.

But for the description of the position of the Commission in relation to Queensland newsagents, I am of the opinion that QNF would have standing in the principal proceedings.

The question I have to ask myself is whether the

statements by Mr Hack of counsel for the Commission are such

that the fears properly entertained by the earlier statements	of the Commission and to officers concerning the possible
ramifications of the 1993 Victorian authorization to Queensland can be ignored.
With some diffidence, it seems to me that the question of standing has initially to be addressed at the time of the institution of the proceedings. If, at that time, the circumstances are such that the initiating party is a party

aggrieved, that party is not disabled from contesting the proceedings merely by statements or expressions by another party tending to modify the existence or basis of "aggrievement" in the initiating party. I accept that, if during the course of a hearing before the Tribunal it emerges that an applicant in truth may not have a "sufficient interest", or if in the course of an application in the Federal Court, in truth an applicant may not be a party aggrieved, the l o c u s s t a n d i of that party can be reviewed: see the observations of Bowen CJ in Broken Hill Proorietv Com~anv

Ltd v. Trade Practices Tribunal (1980) 47 F.L.R. 384 at 395.

The statements by the Commission, through its counsel, are not categorical, but are directed at the present position, and do not amount to an assurance that the 1993 Victorian authorization has no present or future bearing on the structure of the Queensland industry.

There is a separate basis for finding that the QNF

has l o c u s s t a n d i , which arises out of observations by Gibbs J	(as he then was) in Australian Conservation Foundation v. The
Commonwealth at 531-532:

" In s u p p o r t o f t h i s b r a n c h o f the argumen t , we

were r e f e r r e d t o S i n c l a i r v. Marvborouah Mininq

Warden [(1975) 132 C.L.R. 4731. In t h a t c a s e ,

a p e r s o n who had been a n o b j e c t o r on the

h e a r i n g o f c e r t a i n a p p l i c a t i o n s before a m i n i n g

warden	s o u g h t ,	and	i n	this	C o u r t	o b t a i n e d ,
mandamus	r e q u i r i n g	the	warden	t o	h e a r	the

a p p l i c a t i o n and o b j e c t i o n s a c c o r d i n g t o l a w .

The	o b j e c t o r	had	no	s p e c i a l	interest,	b u t
r e p r e s e n t e d	a	section	o f	the	p u b l i c .	However,

i t was not i n q u e s t i o n t h a t he had a r i g h t t o

have h is o b j e c t i o n heard b e f o r e the warden.

Barwick C J s a i d [ a t p . 4781:

' The a p p e l l a n t , h a v i n g been an o b j e c t o r

b e f o r e the warden, had a r i g h t t o have the

h e a r i n g o f the a p p l i c a t i o n conduc ted , and

the warden c o n s i d e r the a p p l i c a t i o n and the

o b j e c t i o n s and make his recommendation

accord ing t o law. I f the a p p l i c a t i o n h a s

n o t been s o heard and de termined , he i s a

proper	p a r t y t o seek	a mandamus	t o compel
the h e a r i n g t o be	had	accord ing	t o l aw . . . '

That passage c l e a r l y b r i n g s o u t the p o i n t o f

d i s t i n c t i o n between	t h a t c a s e and	the p r e s e n t	-
there	the o b j e c t o r had	a r i g h t which he	was

e n t i t l e d t o e n f o r c e ; here, the person

s u b m i t t i n g the wri t ten comments had n o f u r t h e r

r i g h t . Other c a s e s concern ing the p o s i t i o n o f

o b j e c t o r s a r e s i m i l a r l y d i s t i n g u i s h a b l e . "

This passage was applied by Burchett J in Re Australian Conservation Foundation v. Forestrv Commission 79 A.L.R. 685 at p. 689.

It is clear that the applicant made submissions in
relation to the 1993 authorization and did so at the

invitation of the Commission. In addition, the itself

provides statutory recognition of the right of " i n t e r e s t e d

persons" to involvement in the development of the

authorization. Section 90A of the =	A	provides, so far as is
relevant:

" ( 1 ) B e f o r e de t e rmin ing an a p p l i c a t i o n f o r an

a u t h o r i z a t i o n ( o t h e r t han an a p p l i c a t i o n for an

a u t h o r i z a t i o n under sub - sec t i on 88 ( g ) , the

Commission s h a l l prepare a d r a f t d e t e r m i n a t i o n

i n r e l a t i o n t o the a p p l i c a t i o n .

( 2 ) The Commission s h a l l , by n o t i c e i n w r i t i n g

s e n t t o the a p p l i c a n t and t o each o t h e r

i n t e r e s t e d person, invite the a p p l i c a n t o r

o t h e r person t o n o t i f y the Commission, w i t h i n

14 days a f t e r a d a t e f i x e d by the Commission

being not earlier than the day on which the notice is sent, whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.

(7) At the conference -

.	. .
(b)	each person to whom a notice was sent under subsection (2) and any other interested person whose presence at the conference is considered by the Commission to be appropriate is entitled to attend and participate personally or, in the case of a body corporate, may be represented by a person who, or by persons each of whom, is a director, officer or employee of the body corporate;

(11) The Commission shall take account of all matters raised at the conference and may at any time after the termination of the conference make a determination in respect of the application.

(12) For the purposes of this section, 'interested person' means a person who has notified the Commission in writing that he, or

a specified unincorporated association of which

he is a member, claims to have an interest in the application, being an interest that, in the opinion of the Commission, is real and

substantial. " (emphasis added)

In the light of S. 90A, the Commission considered the applicant to be a person with a real and substantial interest in the 1993 authorization process and said so in a letter to the applicant dated 26 March 1993. This letter also invited the applicant's participation in the S. 90A conference, an opportunity accepted by the applicant in a letter to the Commission dated 13 April 1993. In my opinion, the applicant had a statutory right to involvement in the

process leading up to the 1993 authorization and therefore was entitled to have that determination made according to law. On this basis also, the QNF has standing in these proceedings.

Discretionarv Grounds

A further ground upon which the respondents have sought dismissal is under S. 10 of the ADJR Act.

The respondents submit that S. 101 of the = A

provides an alternative avenue of review of the Commission's

decision. So far as is relevant, S. 101 provides:

" ( 1 ) A person d i s s a t i s f i e d w i t h a d e t e r m i n a t i o n

by the Commission i n r e l a t i o n t o an a p p l i c a t i o n

for, o r i n r e l a t i o n t o the r e v o c a t i o n o f , an

a u t h o r i z a t i o n may, a s p re sc r ibed and w i t h i n the

t i m e al lowed by o r under the r e g u l a t i o n s o r

under	sub - sec t i on	( U ) , a s	the	c a s e	may	be,
a p p l y	t o the	[Trade	P r a c t i c e s ]	Tr ibuna l	f o r	a

r e v i e w o f the de t e rmina t i on and, i f the person

was the a p p l i c a n t f o r the a u t h o r i z a t i o n or the

Tr ibuna l	i s s a t i s f i e d	t h a t he	h a s	a	s u f f i c i e n t
interest,	the	Tr ibuna l	s h a l l	r e v i e w	the

d e t e r m i n a t i o n .

( 2 ) A	r e v i e w by the	Tribunal	i s a r e -hear ing	o f
the m a t t e r and	sub - sec t i ons	9 0 ( 6 ) ,	(7),	( 8 ) and

( 9 ) a p p l y i n r e l a t i o n t o the Tr ibuna l i n l i k e

manner a s they a p p l y i n r e l a t i o n t o the

Commission. "

The respondent submits that this alternative avenue of review is available to the applicant and makes "adequate provision" for review of the decisions and conduct impeached by the application. They have also drawn attention to the fact that the applicant has sought to take advantage of the

S. 101 procedures. The applicant filed an application with the Trade Practices Tribunal ('the Tribunal') for reconsideration by it of the decision of the Commission on 20 August 1993. This application came before Lockhart J for directions on 30 September 1993.

The Court's power under S. lO(2) is discretionary. The respondents rely on Du Pont (Australia) Limited v. Comwtroller-General of Customs (unreported decision of Heerey

J given 25 March 1993; Swan Portland Cement Ltd v.

Comwtroller-General of Customs (1989) 25 F.C.R. 523 and A. E. Bishow & Associates Ptv Ltd v. Trade Practices Commission (1989) ATPR 40-985.

Du Pont (supra) and Swan Portland Cement (supra) were both cases involving applications under the ADJR Act and S. 39B of the Judiciarv Act challenging decisions made by the Comptroller of Customs under the Customs Act 1901 in relation to alleged dumping of goods by overseas exporters on to the

Australian market. Section 7(1) of the Anti-Dum~ina Authority

Act 1975 provided for an extensive inquiry and report by the Anti-Dumping Authority following the decision by the Comptroller.

In Swan Portland Cement, the Full Court observed at

" The learned primary judge pointed out that the

legislation provided "its own method of review", referring to an applicant's right to

go to the Anti-Dumping Authority referred to above. His Honour also remarked that, 'it should not be thought that it is always appropriate to bring a matter of this kind before the Court'. We agree and express the view that in manyr (perhaps most) circumstances, the Court's proper response to

an application of this particular sort should

not be to embark upon a full hearing, but rather to exercise the discretion under

s l O ( 2 ) (b) (ii) adversely to the applicant. "

However, their Honours went on to find that for reasons not applicable to this case, the discretion ought not be so exercised in that case.

In Du Pont, Heerey J was not faced with the same limitations which confronted the Full Court in Swan Portland Cement. He proceeded to review the circumstances of the case before him, before coming to the conclusion that the discretion ought to be exercised. Heerey J noted (at p. 6) that:

" . . .the view expressed by the Full Court in a n

was obiter and in any case should not be treated as binding all courts to exercise the

discretion conferred by S. 10 (2)	(b)	(ii)	a2 ways
in the same way. "

A. E. Bisho~ & Associates (supra) involved facts very similar to those before this Court. In that case, the applicant was seeking judicial review of a determination of the Commission. The Commission brought an application before Morling J that the applicants' application be dismissed on discretionary grounds because of the provision of the full re-

h e a r i n g before the T r i b u n a l p rov ided b y the m. S t a n d i n g was

n o t i n d i s p u t e i n t h a t m a t t e r .

I n e x e r c i s i n g the d i s c r e t i o n u n d e r S . 1 0 ( 2 ) ( b ) ( i i )

i n f a v o u r o f the Commission, Mor l ing J c o n s i d e r e d a number o f

f a c t o r s . T h e s e i n c l u d e d the need f o r s p e e d y r e s o l u t i o n o f the

m a t t e r	and	the	l a c k	o f	i d e n t i f i a b l e	d i s a d v a n t a g e	t o	the
a p p l i c a n t	i n	h a v i n g	the	m a t t e r	heard	before	the	T r i b u n a l

r a t h e r t h a n the C o u r t .

W i t h r e s p e c t t o the second f a c t o r , h i s Honour n o t e d

a t 50,745 t h a t :

" I t i s d i f f i c u l t t o see what a d v a n t a g e there i s

t o	B i s h o p	i n	s e l e c t i n g	th i s	C o u r t ,	i n s t e a d	o f
the	T r i b u n a l ,	a s	the	forum	for	d e t e r m i n i n g	the
q u e s t i o n s	o f	l a w	which	i t	w i s h e s	t o	h a v e
d e t e r m i n e d .	I t	i s	n o t	i n	d o u b t	t h a t	the

T r i b u n a l c a n d e t e r m i n e those q u e s t i o n s . T h e y

w i l l	be	d e t e r m i n e d	i n	accordance	w i t h	the
o p i n i o n	o f	the	P r e s i d e n t . . .	The	P r e s i d e n t	i s ,
o f c o u r s e ,	a	judge	o f th is C o u r t .	I	c a n see	no
advan tage	t o	B i s h o p	i n	the	q u e s t i o n s	b e i n g

c o n s i d e r e d i n s e p a r a t e p r o c e e d i n g s under the

J u d i c i a l R e v i e w Act .

M r Limbury s u b m i t t e d t h a t h is cl ient m i g h t

s u f f e r some d i s a d v a n t a g e i f a n y errors o f l a w

i n the Commiss ion ' s d e c i s i o n o f 9 Augus t 1989

a r e	not	c o r r e c t e d	before	the	h e a r i n g	i n	the
T r i b u n a l .	I f	I	t h o u g h t	there	was	s u b s t a n c e	i n

t h i s	s u b m i s s i o n	I	would	be	i n c l i n e d	t o t a k e a
d i f f e r e n t	v i e w	on	the	m a t t e r	o f	d i s c r e t i o n .

Bu t	I	do	not	think	the	s u b m i s s i o n	h a s
s u b s t a n c e .	The	h e a r i n g	i n	the	T r i b u n a l	i s	a

r e - h e a r i n g :  sec. 101 ( 2 ) o f the A c t . Whilst it

may be g o i n g too f a r t o s a y . . . t h a t the T r i b u n a l

s h o u l d not a t t a c h a n y w e i g h t t o a n y v i e w s

e x p r e s s e d by the Commission, i t i s p l a i n t h a t

the	T r i b u n a l	m u s t	c o n s i d e r	the	m a t t e r
a f r e s h . . . O f	c o u r s e ,	a n y	p a r t y	who	i s
d i s s a t i s f i e d	w i t h	the	T r i b u n a l ' s	d e c i s i o n	on

the question o f l a w w i l l have the right t o

challenge the decision i n t h i s Court.

Thus there i s no real advantage t o Bishop i n the questions being determined i n t h i s Court rather than i n the Tribunal. In these circumstances, the fact that the Parliament has made special and adequate provision under which Bishop i s able t o have the Commission's decision reviewed by the Tribunal and the further fact that the proceedings i n the Tribunal w i l l almost certainly be delayed i f th i s Court determines the questions, make it proper for the Court t o exercise i t s discretion under sec 1012) (b) o f the Judicial Review Act

t o refuse t o grant the application.

In my opinion, a s a general rule, challenges t o the correctness i n l a w o f the Commission's decision should be made i n the Tribunal and not i n t h i s Court. There may well be cases where time and expense w i l l be saved i f the question whether the Commission has made an error o f l a w i s determined i n t h i s Court rather than i n the Tribunal. In other statutory contexts, saving o f time and expense has been found t o be a su f f i c ien t reason for the exercise o f the Court's jurisdiction under the Judicial Review Act notwithstanding the avai labi l i ty o f an

a1 ternative remedy. "

The onus i n S . l O ( 2 ) i s on the party seeking t o

persuade	the Court t o exercise i t s discretion: Kellv v . Coates
35 A.L.R.	93 a t 95.
The applicant submitted that S. 1 0 1 does not make

adequate provision for review because it i s not certain that rights w i l l arise under that section, as the Tribunal may decide that the applicant does not have standing under S . 101. In my view, the t e s t o f " su f f i c i en t in teres t" does not appear t o be as onerous as that for " a person aggrieved": see Bowen C J i n Broken H i l l Pro~rietarv Com~anv Limited v . Trade

Practices Tribunal (supra) a t 395.

Mr Doyle, counsel for the applicant, asserted that it could not be guaranteed that the applicant would succeed on the issue of standing should it arise before the Tribunal. He submitted his client may be left without any remedy if the discretion under S. 10(2)(b)(ii) is exercised and the Tribunal finds that the applicant is not a person with a sufficient interest.

In my opinion, S. 163A of the provides an

opportunity for the applicant to contest an adverse finding on the question of standing by the Tribunal. So far as is relevant, s . 163A provides:

" ( 1 ) S u b j e c t t o t h i s s e c t i o n , a person may

i n s t i t u t e a proceed ing i n the Court s e e k i n g , i n

r e l a t i o n t o a m a t t e r a r i s i n g under t h i s A c t ,

the making o f -

( a ) a d e c l a r a t i o n i n r e l a t i o n t o the o p e r a t i o n

o r e f f ec t o f a n y p r o v i s i o n o f this

Ac t . . . o r i n r e l a t i o n t o the v a l i d i t y o f

a n y a c t o r t h i n g done, proposed t o be done

o r p u r p o r t i n g t o have been done under t h i s

Ac t ; or

(b) an o r d e r by way o f , or i n the n a t u r e o f ,

p r o h i b i t i o n , c e r t i o r a r i or mandamus,

or b o t h such a d e c l a r a t i o n and such an o rder ,

and the Court h a s j u r i s d i c t i o n t o h e a r and

de termine the proceeding.

( 4 ) The j u r i s d i c t i o n o f the Cour t t o make -

( a ) a d e c l a r a t i o n i n r e l a t i o n t o the v a l i d i t y

o f a n y a c t or	t h i n g done,	proposed	t o be
done o r p u r p o r t i n g	t o have been	done	under
t h i s A c t by	the	Tr ibuna l ;	o r

(b) an o r d e r o f a k i n d ment ioned i n paragraph

( l ) ( b ) d i r e c t e d to the Tr ibuna l ,

s h a l l be e x e r c i s e d by not less than 3 Judges. "

The question of whether a party before the Tribunal had a "sufficient interest" to bring an application for review before the Tribunal was entertained by the Full Court of the Federal Court pursuant to S. 163A of the =Ain Broken Hill Pro~rietarv Com~anv Ltd (supra). The issues before the Tribunal appear in the judgment of Bowen CJ at 388, and include the question of whether "Wylie Steel" had a sufficient interest for the purpose of applying for a review. His Honour dealt with this issue on the appeal at 395, and did not disagree with the formulation of the test by the Tribunal, or its approach to that question. The opinion of Franki J, at 397, is to the same effect. Brennan J felt it unnecessary to address the question; 413.

In the event that the applicant is forced to seek review of such a decision, it will be reviewed by a Full Court of this Court. The possibilities referred to by Mr Doyle do not suggest to me that it would be wrong, unfair or unjust to his client to exercise the discretion conferred by S. lO(2) of

the ADJR Act.

Subsequent to the hearing of submissions on the motions, the applicant sought and was granted leave to make further submissions: cf. v. Finance Cor~oration of Australia Ltd INo. 11 (1980-1) 147 C.L.R. 246 at 257-8.

At a directions hearing of the Tribunal on 30 September 1993, both NCV and VANA indicated their intention to challenge the standing of the applicant in the Tribunal proceedings. The Commission, as I understand it, seeks to make submissions of a general nature, rather than oppose the standing of the applicant per se. That those parties have made that indication does not alter my view as to the proper exercise of the discretion under S. lO(2) of the ADJR Act.

Doyle also submitted that a review by the Tribunal would not address his client's claim because it would not look into the conduct of the Commission about which the applicant complained. This is plainly so. It is not, however, grounds for refusing to exercise the discretion. Section 101(2) makes clear that the review by the Tribunal is a re-hearing and not an appeal from the decision of the Commission. The Tribunal's task is to reach its decision on the basis of submissions received by it from parties to the application to it. Such parties may include the Commission. The applicant will have the opportunity to put before the new decision-maker the matters it alleges it was denied the

opportunity to put before the Commission: Re Oueensland Timber

Board (1975) ATPR 40-005 at 17,121.

The effect of a successful application by the applicant in the Federal Court proceedings would be to set aside the 1993 authorization, and direct the Commission to approach that matter again. Since the Tribunal is to consider the matter de novo, it seems to me to permit the Federal Court proceedings to continue would produce delay and significant expense, with no corresponding benefit to anybody. I am as well very conscious of the position of parties who are not parties to the Federal Court proceedings, but who wish to challenge the 1993 authorization (by way of re-hearing) before the Tribunal. Their interests are by no means irrelevant in the exercise of the discretion under S. lO(2) of the ADJR Act.

Where the complaint in the principal proceedings is denial of natural justice at first instance, assistance can be gained from the observations of the High Court in Twist v. Randwick Municioal Council (1976) 136 C.L.R. 106; R, v. Marks: ex Darte Australian Buildinq Construction Em~lovees Builders Labourers Federation (1981) 147 C.L.R. 471; and the observations of Wilcox J in Marine Hull Liability Insurance Co. Ltd v. Hurford (1985) 10 F.C.R. 234.

These cases are concerned with the question of whether a de novo hearing can properly remedy a breach of natural justice infecting a previous decision. Such questions often arise in the context of private clubs and associations, especially racing clubs: Calvin v. [l9801 A.C. 574. In

v. Marks (supra) Mason J, with whom Murphy, Aitken and Wilson JJ agreed, said at pp. 484-5:

" In any event, what happened before Marks J. cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The B.L.F. exercised its right of appeal to the Full Bench. On an appeal the Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the

d e c i s i o n under appeal ( S . 3 5 ( 9 ) ( a ) , ( c ) and . . .

( d ) ) . In T w i s t G.- c and wick m u n i c i ~ a l c o u n c i l ,

f11976J 136 C.L.R. 1067 this Court h e l d t h a t

the existence o f a fill s t a t u t o r y r i g h t o f

appeal	on	f a c t s	and	l a w was	i n d i c a t i v e o f a
l e g i s l a t i v e	i n t e n t i o n	t h a t	the	c i t i z e n ' s	o n l y

r i g h t	o f	r e d r e s s	a g a i n s t	the	c o u n c i l ' s	f a i l u r e
t o g i v e	h i m	an	o p p o r t u n i t y	t o be	heard	b e f o r e

making a d e m o l i t i o n o r d e r was by way o f

appeal . . .

The p r e s e n t c a s e h a s some s i m i l a r i t i e s t o

Twist. There i s here a f u l l appeal on f a c t and

l a w under S . 35 . Moreover, S . 3 5 ( 9 ) ( a ) e n a b l e s

the F u l l Bench t o admit f u r t h e r e v idence .

Fur the r , by r e a s o n o f their very n a t u r e and

their c a p a c i t y t o c r e a t e unemployment, t o

d i s l o c a t e i n d u s t r y and t o d i s t u r b the l i f e o f

the	community	i n c l u d i n g	t h e	e s s e n t i a l	services
on	which	t h e	community	depends,	i n d u s t r i a l
d i s p u t e s	c a l l	f o r	speedy	and	f i n a l
d e t e r m i n a t i o n ,	an	o b j e c t	which	i s best	ach ieved

by r e c o g n i s i n g t h a t the remedy o f a p a r t y

compla in ing	t h a t	he	h a s	been	den ied	n a t u r a l
j u s t i c e	a t	first	i n s t a n c e	i s	t o exercise	h i s

r i g h t o f appeal under S . 35 t o the e x c l u s i o n o f

pur su ing rel ief by way o f p r e r o g a t i v e w r i t .

There i s a problem i n s a y i n g t h a t a member o f

the Commission i s n o t under a d u t y t o obse rve

the r u l e s o f n a t u r a l j u s t i c e and there i s a

f u r t h e r problem i n s a y i n g t h a t the Parl iament

can o u s t the j u r i s d i c t i o n o f this Court under

S . 7 5 ( v ) o f the C o n s t i t u t i o n t o grant rel ief

a g a i n s t an o f f i c e r o f the Commonwealth by way

o f p r o h i b i t i o n f o r den ia l o f n a t u r a l j u s t i c e .

Even so, the B.L.F. e x e r c i s e d i t s r i g h t o f appeal under S . 35 and the Fu l l Bench examined

the m a t t e r f o r i t s e l f . . .In my o p i n i o n the

B.L.F. r e c e i v e d a f u l l and f a i r h e a r i n g i n the

appeal and i n t h o s e c i rcums tances a n y d e n i a l o f

n a t u r a l j u s t i c e b e f o r e Marks J was i r r e l e v a n t

( C a l v i n v. k r [ l9801 A.C. 574 , a t p. 5 9 3 ) . "

I n the e a r l i e r c a s e o f T w i s t v . Randwick M u n i c i ~ a l

Counci l ( s u p r a ) there was a d ivergence o f v i ews between Mason

J ( a s he was then) and Barwick CJ a s t o the meaning o f the

f i n d i n g t h a t a f u l l d e novo hear ing remedied a d e f e c t i n

n a t u r a l j u s t i c e . Barwick CJ t o o k the v i e w t h a t the e x i s t e n c e

of the de novo hearing meant that Parliament had impliedly excluded the duty to give natural justice at the initial decision-making level (see pp.109-110). Mason J, however, adopted the view that while the provision of a de novo hearing did not exclude the duty to give natural justice, the provision of an effective review in the legislation in question meant that Parliament had intended the appeal procedure contained in the relevant Act to be the exclusive remedy for failure to give natural justice at the initial decision-making level (see p. 115).

This question, however, was resolved by the decision in R, v. Marks, as Wilcox J observed in Marine Hull (supra) at 245:

" . . . the decision [in R, v. Marks ] stands as

authority for the view that the effect of the full right of appeal is not - as Barwick CJ suggested - to exclude the obligation to give natural justice but rather to limit the available remedies for breach to a prosecution of the appeal."

While, as noted by Wilcox J at 246, not every provision for appeal will be sufficient to remedy a defect in the initial hearing, the right of review under S. 101 is a right to a complete de novo rehearing, which clearly does provide a review sufficient to cure a defect in natural justice at the previous level.

I do not accept the submission that failure to allow review of the Commission decision will mean "the whole

consultation process of the =A can be ignored and parties leap directly to the Tribunal". The provision of a de novo rehearing does not exclude the obligation of the Commission to observe the rules of natural justice at the previous level. Also, a deliberate attempt by other parties to leapfrog the consultation process provided for by the =A could be limited by the Commission itself because of the requirement under S. 101 that the Commission have made a determination before the issue comes before the Tribunal. If the parties were holding back in the consultation process, the Commission could delay the making of a determination. Prudence would strongly suggest that a party with a relevant interest would be wise to be fully involved in the decision-making process by the Commission.

The applicant submits that, should it receive the hearing to which it claims to be entitled, the result may be that it is unnecessary for the matter to go before the Tribunal, at least for the QNFrs part, either because the

given on terms which satisfy QNF; or QNF is satisfied by	authorization may be refused; or the authorization may be
having had a fair hearing, even if it is unsuccessful.
While these outcomes are possible, they do not persuade me of the appropriateness of permitting QNF to proceed in this Court. First, the substantive question in this application appears headed for the Tribunal regardless of the views of QNF. Paragraph 9 of the affidavit of I. H.

Zeitler filed 17 September 1993 makes clear that Seven Eleven Stores Pty Ltd., The Independent Newsagents Association and the Australian Association of Convenience Stores Incorporated, have sought review of the Commission's decision in the Tribunal.

Secondly, I am conscious, as was Morling J in A. E. Bishop that proceeding in this Court may delay the resolution of the substantive matter for a long period. While the need to resolve a matter quickly is no excuse for injustice, the objectives of justice and expedition can both be met by the review procedure set out in the m. This view is supported by the reasoning in Twist v. Ranwick Munici~al Council and R, v. Marks.

In addition, the observations of Morling J outlined above from A. E. Bisho~ seem to apply equally to the present proceedings. I like Morling J, am unable to see what advantage there is to QNF in selecting this Court instead of

complaints.	the Tribunal as the venue for resolution of the substantive
I therefore find that this is an appropriate case in all the circumstances to exercise the discretion conferred by S. 10(2)(b)(ii).

For the above reasons, I order that:

1.    The Newsagency Council of Victoria Ltd and the Victorian Authorised Newsagents Association be joined as respondents to the application QG 142 of 1993.

2.    Application QG 142 of 1993 be dismissed.

3.    There be no order as to costs of or incidental to the principal proceedings or of or incidental to the notices of motion filed in the principal proceedings.

The overall result is that all parties have been partially successful and partially unsuccessful. I will in those circumstances make no order as to the costs of the principal proceedings, or of the notices of motion.

I certify that this and the
preceding thirty (30) pages are
a true copy of the reasons for
judgment herein of the

Honourable Mr Justice S~ender.

Date: 5 November 1993

Counsel for Queensland Newsagents

Federation Limited	Mr S. Doyle
instructed by	Hunt & Hunt
Counsel for Trade Practices
Commission	Mr P. Hack
instructed by	Australian Govt. Solicitor
Counsel for Newsagency Council
of Victoria	Mr C. Scerri
instructed by	Freehill Hollingdale & Page
Counsel for Victorian Authorised
Newsagents Association	Mr Bain Q.C.
instructed by	Phi l lips Fox
Date of Hearing	17 September 1993