Re Lakes R Us Pty Ltd - [2006] ACompT 3

AUSTRALIAN COMPETITION TRIBUNAL
Lakes R Us Pty Ltd [2006] ACompT 3
ACCESS REGIME – refusal by designated Minister to declare a service – application to Australian Competition Tribunal for review of decision – review hearing dates fixed – application for leave to withdraw application for review – procedural power of Tribunal – application for leave to withdraw opposed – public interest – no effective contradictor – leave therefore granted.
Trade Practices Act 1974 (Cth) s 44K, s 44ZZP
Trade Practices Regulations 1974 reg 22, reg 26
Asia Pacific Transport Pty Ltd [2003] ATPR 41-920 cited
Re United Permanent Building Society Ltd (1976) 26 FLR 129 cited
Re Country Television Services Ltd (1984) 73 FLR 68 cited
Nursing Agencies Association of Australia (2003) ATPR 41-936 cited
File No 2 of 2006
RE: APPLICATION FOR REVIEW, PURSUANT TO SECTION 44K OF THE TRADE PRACTICES ACT 1974, OF THE DECISION BY THE ACTING NSW PREMIER TO NOT DECLARE WATER AND TRANSPORT SERVICES PROVIDED BY HYDRO LIMITED AND STATE WATER CORPORATION

BY: LAKES R US PTY LTD
FRENCH J (Deputy President)
31 MAY 2006
PERTH

AUSTRALIAN COMPETITION TRIBUNAL

No 2 OF 2006

RE:APPLICATION FOR REVIEW, PURSUANT TO SECTION 44K OF THE TRADE PRACTICES ACT 1974, OF THE DECISION BY THE ACTING NSW PREMIER TO NOT DECLARE WATER AND TRANSPORT SERVICES PROVIDED BY SNOWY HYDRO LIMITED AND STATE WATER CORPORATION
BY:LAKES R US PTY LTD
Applicant

THE TRIBUNAL:

FRENCH J (Deputy President)

DATE:

30 MAY 2006

WHERE MADE:

PERTH

THE TRIBUNAL DETERMINES THAT the applicant have leave to withdraw its application.

AUSTRALIAN COMPETITION TRIBUNAL

No 2 of 2006

RE:

APPLICATION FOR REVIEW, PURSUANT TO SECTION 44K OF THE TRADE PRACTICES ACT 1974, OF THE DECISION BY THE ACTING NSW PREMIER TO NOT DECLARE WATER AND TRANSPORT SERVICES PROVIDED BY SNOWY HYDRO LIMITED AND STATE WATER CORPORATION

BY:

LAKES R US PTY LTD
Applicant

THE TRIBUNAL:

FRENCH J (Deputy President)

DATE:

31 MAY 2006

PLACE:

PERTH

REASONS FOR RULING ON APPLICATION FOR LEAVE TO WITHDRAW
Introduction

On 9 January 2006 the Acting Premier of New South Wales, decided, on the recommendation of the National Competition Council (NCC), not to declare, under Pt IIIA of the Trade Practices Act 1974 (Cth) (the Act), water storage and transport services provided by Snowy Hydro Ltd (Snowy Hydro) and the State Water Corporation (State Water). Lakes R Us Pty Ltd (Lakes R Us) which had applied for the declaration then applied to the Australian Competition Tribunal (the Tribunal) for review of the Minister’s decision.
Lakes R Us had difficulties in formulating its case and failed to comply with a Tribunal direction for the filing of witness statements. On 26 May 2006 the company applied for leave to withdraw its application.
For the reasons which follow, I will grant leave to Lakes R Us to withdraw its application. The time and money that has been wasted by parties involved in the application as well as the wasted time of the Tribunal is to be regretted. It may be…

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: [2006] ACompT 3
Decision Date: 30 MAY 2006

CaseChat Overview and Summary

In the Australian Competition Tribunal, Lakes R Us Pty Ltd sought review of the decision by the Acting Premier of New South Wales, on the recommendation of the National Competition Council, not to declare certain water and transport services provided by Snowy Hydro Ltd and State Water Corporation as designated services under Pt IIIA of the Trade Practices Act 1974 (Cth). The Tribunal was required to decide whether Lakes R Us should be granted leave to withdraw its application for review. The Tribunal considered the statutory framework, the procedural history of the case, and the public interest in determining whether leave should be granted.

The Australian Competition Tribunal found that it had the procedural power to grant leave for an applicant to withdraw its application for review. The Tribunal's power to do so was derived from s 103(1)(a) of the Trade Practices Act 1974 (Cth), which allows the Tribunal to conduct its proceedings with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal also took into account the public interest in deciding whether to grant leave. In this case, the Tribunal concluded that it was in the public interest for Lakes R Us to be granted leave to withdraw its application because there was no effective contradictor, and proceeding with the case without a properly prepared applicant could lead to a decision uninformed by all relevant evidence and argument.

Accordingly, the Australian Competition Tribunal granted leave to Lakes R Us Pty Ltd to withdraw its application for review of the decision by the Acting Premier of New South Wales not to declare certain water and transport services provided by Snowy Hydro Ltd and State Water Corporation as designated services under Pt IIIA of the Trade Practices Act 1974 (Cth).

Orders