Re Country Television Services Limited

[1984] ATPT 1

-	COMMONWEALTH OF AUSTRALIA
TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL FILE NO. 4 OF 1984

I

RE:	COUNTRY TELEVISION SERVICES
- LIMITED

Applicant

RE:

An application by Country

Television Services Limited for

a review of a determination

made by the Trade Practices

Commission dated 12 September

1984 (netermination No. A21265)

,

ORDERS

Lockhart J. President, Mr. L.W. Johnson, Mr. R.L. Wilson

14 December 1984

THE TRIBUNAL DETERMINES THAT leave be given to the applicant, Country Television Services Limited, to withdraw application for review No. 4 of 1984.

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COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES TRIBUNAL FILE NO. 4 OF 1984

RE: COUNTRY TELEVISION S E R V I B

LIMIT^

Applicant

RE: An application by Country Television Services Limited

k for a review of a determination made by the Trade Practices Commissioh dated 12 September 1984 (Determination No. A21265)

Trade Practices Tribunal

Lockhart J. President, Mr. L.W. Johnson, Mr. R.L. Wilson

14 December 1984

REASONS FOR DECISION

The Tribunal

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Country Television Services Limited (the applicant) applied

to the Tribunal for a review of the determination by the Trade

Practices Coi~~ixisaion (the Commissionl of 1 2 September 1964 ( f i l e no.

A21265). The applicant was the applicant for authorisation to which the Commission's determination related. By that determination the Commission granted authorisation until 30 June 1987 to certain rules and procedures of the Federation of Australian Country Television Stations ("FACTS") - a trade association whose membership consists of companies operatinq Australia's 50 commercial television stations. By

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the rules and procedures in question the television stations substantially delegated to FACTS the task of requlating advertising on commercial television stations. The Commission imposed three conditions on the qrant of authorisation which it is unnecessary to recite.

It appears from the application for review which the applicant lodqed with the Tribunal that the applicant's dissatisfaction with the Commission's determination related principally to two of the three conditions and to the restriction of the operation of the authorisation to 30 June 1987.

The solicitors for the applicant wrote a letter to the Registrar of the Tribunal dated 14 November 1984 in which they said, so far as material:

"We confirm that we are instructed that the applicant does not wish to proceed with the application for review.

Accordinglg, we withdraw the application."

The Commission then qave notice to the Tribunal and to the applicant that it proposed, at the preliminary conference before the Tribunal, to seek orders from the Tribunal that the Commission's determination be set aside.

When the matter first came before the Tribunal on Thursday, 29 November 1984 counsel for the applicant said that his client's application had been withdrawn so that the review was at an end. He submitted, in the alternative, that if the application was still alive the applicant should be qiven leave to withdraw the application. Counsel for the applicant said that, if leave was refused, the applicant would have nothinq to offer in opposition to the course suggested by the Commission, namely, that the Tribunal should set

i, aside the Commission's determination, a course followed by the

Tribunal in its earlier decision of Mortsaqe Guaranty Insurance

Corporation of Australia Limited No.	NSW 3 of 1984 (decision qiven 28
September 1984).

Counsel for the Commission said that the commission took this attitude because FACTS had issued a public statement, which was confirmed in discussions between the solicitors for the applicant and officers of the Commission, that the limitation of time and the conditions imposed by the Commission on the grant of authorisation

L. were unacceptable to FACTS. FACTS said in the public statement that it would introduce a new scheme which would not require authorisation to be sought from the Commission.

Counsel for the Commission submitted that. oncc an application for review had been made, it could not be withdrawn and the Tribunal must proceed to determine it as provided by sub-s. 102(1) of the Trade Practices Act 1974 (the Act), namely, by affirminq, settinq aside or varying the Commission's determination. It was

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submitted, in the alternative, that, if an application can be withdrawn, it can be done only by leave of the Tribunal. The Commission opposed the qrantinq of leave on the sround that the authorisation qranted by it was now academic since the conduct the subject of the authorisation would not take place in view of the public statement made by FACTS and concurred in by the applicant. It was said that the public may gain a false impression that any future conduct of FACTS is protected by the existinq authorisation which would remain on foot unless set aside by the Tribunal.

Neither the Act nor the Trade Practices Requlations make express provision for the withdrawal of an application for review. The Tribunal's powers expressly stated in the Act, upon a review of a determination of the Commission, are those to which we have referred in sub-s. 102(1). In Re: United Permanent Buildins Societv Limited (1976) 26 F.L.R. 129 the United Permanent Buildins Society was refused authorisation by the Commission. The Society applied, pursuant to s. 101, to the Tribunal for a review of that determination. Prior to the

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Tribunal embarkinq upon the hearing of the matter the Society notified the Tribunal's Registrar that it "withdraws its appeal from the determination of the Trade Practices Commission ..."

The then President of the Tribunal (Northrop J.) proceeded on the basis that the Society had applied for leave to withdraw its application for review. His Honour treated the withdrawal as a matter of procedure which he, as a presidential member of the Tribunal, could deal with otherwise than by a division of the Tribunal consistinq of a

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presidential member and two other members. Neither the Commission nor any of the interveners opposed the application to withdraw. His Honour made an order directing that the application for review be withdrawn. Althouqh the circumstances in which the question of withdrawal arose in the United Permanent Buildinq Societv Case are different from those involved in the present matter, it is interestina to note that Northrop J. did not treat the Society's application as havinq operated to withdraw the application for review of its own force. His Honour chose to direct that the applicant for review withdraw the application.

Rules of Court qenerally provide for the discontinuance of proceedinqs and they define the circumstances in which a movinq party may discontinue as of riqht or by leave. No such provision appears in the Act or the Trade Practices Regulations qoverninq proceedinqs before the Tribunal. The withdrawal of applications raises difficult concepts and has been the subject of some discussion by courts in various contexts, includinq bankruptcy proceedinqs, where petitioninq

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creditors have souqht the Court's leave to withdraw petitions to sequestrate a debtor's estate, rather than an order of the Court that they be dismissed. Withdrawal of a bankruptcy petition is a notion that does not lie easily with bankruptcy law because the date of presentation of a petition, upon which a sequestration order is subsequently made, determines the title to property of the bankrupt and has direct relevance to the avoidance of certain dispositions of a bankrupt's property. Althouqh procedures before courts, includinq bankruptcy petitions, are different in nature to applications for

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review before the Tribunal, they nevertheless suqqest that caution should be exercised before decidinq that an applicant for review has a right to withdraw his application so that, upon the withdrawal takinq effect accordinq to its terms, the Tribunal's functions and powers thereupon cease. The proceedinqs before the Tribunal are not merely inter partes; they involve the public interest.

In the opinion of the Tribunal the applicant's notification to the Tribunal by letter from the solicitors of 14 November 1984 did not operate to withdraw the application for review.

To this point the views expressed have been those of Lockhart J. as the Tribunal's President since they involve a question of law:

sub-s. 42(1) of the Act.

The question which all three members of the Tribunal must now

consider is whether leave should be qranted to the applicant to

withdraw its application. Althouqh we see some force in the

ii Commission's argument that the authorisation is now academic and "the slate should be wiped clean", we do not think that there is any real likelihood that the public will be unwittinyly misled to think that the Commission has authorised whatever future conduct may be enqaqed in by FACTS or by the applicant. Also, we note that the Commission is itself empowered, by sub-s. 91(4) of the Act, at any time after it has granted authorisation, to make a determination revoking the authorisation in various circumstances including the fact that there has been a material chanqe of circumstances since the authorisation was qranted.

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We see no qood purpose in keepinq alive the application which the applicant seeks to withdraw.	We are of the opinion that leave to
withdraw should be granted.

The Tribunal orders that leave be qiven to the applicant to withdraw application for review No. 4 of 1984.

I certify that this and the six (6) preceding

pages are a true copy of the Reasons for

Decision herein of the Trade Practices Tribunal.

Associate

Dated: 14 December 1984