Re International Air Transport Association and Alitalia Linea Aerea Italiana Spa

[1984] ATPT 3

COMMONWEALTH OF AUSTRALIA

TRADE PRACTICES ACT 1974

IN THE TRADE PRACTICES	RE:	INTERNATIONAL AIR
TRIBUNAL-	? B ~ O H T ASSOCIATION

Applicants

(File Nos. 5 & 6 of 1984)

RE:	An application by International Air Transport Association and Alitalia Linee Aeree Italiane S.P.E. for a review of a
determination made by the Trade Practices Commission dated 31 October 1984 (Commission file No. A34/85)

TRADE PRACTICES TRIBUNAL

Lockhart J., President, Professor M. Brunt,,Mr. L. Wilson

. *

30 November, 1984

REASONS FOR D E C I D

International Air Transport Association ("IATA") and Alitalia

Airlines ("Alitalia") have applied to the Tribunal pursuant to s. 101

of the Trade Practices Act 1974 ("the Act") for a review of a determination of the Trade Practices Commission ("the Commission") made on 31 October 1984.

The applicants are dissatisfied with the determination of the Commission in certain respects, namely, that the Commission, although granting authorisation in relation to certain arrangements for which authorisation was sought from it, refused to authorise certain IATA arrangements which are specified in the schedule to the Commission's determination.

Although there is some problem at this early stage of the matter in identifying precisely what it is that is the subject of that refusal, it is conveniently summarised in paragraph 171 of the Commission's determination. The two applications for review are, by consent of all interested parties, being heard together by the Tribunal. This is the first occasion on which the matter has come before the Tribunal, being the preliminary conference. Today IATA and Alitalia have sought interim authorisation for the arrangements which the Commission declined to authorise. Those arrangements may be broadly described as arrangements requiring carriers and travel agents to adhere to certain fixed or minimum fares or maximum agents' commission and other related matters.

It is not surprising that, since the matter has come on quickly for preliminary directions before the Tribunal, the evidence in support of the application for interim authorisation is scanty. Indeed the essence of the case for interim authorisation is to be found in an affidavit of the solicitor for IATA based on a conversation he had with the Director-General of IATA. The statements of the solicitor are based on information and belief. He deposes to

what are really submissions or arguments as to why interim authorisations should be granted rather than the material on which those submissions are based.

However, IATA has enjoyed the benefit for almost ten years of interim authorisations from the Commission in respect of the arranqements for which IATA now seeks to have the protection of the Tribunal pending the hearinq of the applications for review. That interim authorisation, however, ceased on 31 October 1984 when the Commission made its determination.

The principles governing applications for interim authorisation before the Tribunal are conveniently set out in an earlier decision of the Tribunal: Re: The Oueensland Timber Board (1974) 24 F.L.R. 205, especially at pp. 210 and 211 in the reasons for decision of the President, Woodward J.. For the purposes of today's application we adopt those statements of principle.

The Tribunal is of the opinion that the material before it is too sparse to enable it to conclude that this is a case appropriate for the qrantinq of interim authorisation. To the extent, for example, that the applicants assert that they would be prejudiced by the refusal of the Tribunal to grant interim authorisation, there is no material of any weight before us to support that conclusion. Also, the Tribunal must pay high regard to the public interest in matters of this kind.

The Tribunal does not seek to shut out the applicants from renewing their application for interim authorisation if they should see fit to do it at some future stage, a course which we neither encourage nor discourage. That is a matter for the applicants.

However, a relevant consideration in these circumstances is the length of time that may elapse between now and the commencement of the final hearing of the applications for review, and the Tribunal states that, if the parties are in a position to proceed, the Tribunal can hear the matter in February next year. Accordingly, the application for interim authorisation is refused.

3

I certify that this and the	I
preceding pages are a true copy cf tho
Mr. Justice Lock3z:t.

,rsoclate