Re McIlwraith McEacharn Ltd and Another

[1991] ATPT 1

COMMONWEALTH OF AUSTRALIA

Trade Practices Act

IN THE TRADE PRACTICES TRIBUNAL	)
) No. V1 of 1991
McILWRAITH McEACHARN LIMITED and HOWARD SMITH INDUSTRIES PTY LIMITED

Applicants

RE : APPLICATION TO REVIEW THE DETERMINATION OF THE TRADE PRACTICES COMMISSION REVOKING AUTHORISATION A4460

LOCKHART J. (President)

PROFESSOR M. BRUNT

DR. B.I. ALDRICH

19 August 1991

MINUTE OF ORDER

THE TRIBUNAL ORDERS THAT:

1.  Interim authorisation be granted up to and including Tuesday, 15 October 1991 or further order to the arrangements described in paragraphs 1.2 and 1.2.1 at p. 52,197 of p. 52,197 of 1980 ATPR 50-100, being the report of the Draft Determination of the Trade Practices Commission ("Commission") in the matter A4460.

Liberty to apply is reserved to the applicants and the

COMMONWEALTH OF AUSTRALIA

No. V1 of 1991

MCILWRAITH McEACHARN LIMITED

Applicants

RE :

DETERMINATION OF THE TRADE REVOKING AUTHORISATION A4460

19 August 1991

- R

LOCKHART J. (President), Professor M. Brunt and Dr. B. Aldrich

(Members )

McIlwraith McEacharn Limited ("MML") and Howard Smith Industries Pty Limited ("HSI") (collectively "the applicants") have applied to the Trade Practice Tribunal ("the Tribunal") pursuant to s. 101 of the Trade Practices Act 1974 ("the Act") for a review of the determination by the Trade Practices Commission ("the Commission") dated 7 June 1991 that the grant of authorisation in respect of a prior application A4460 be revoked. That authorisation was granted by the Commission under s. 88(1) of the Act on 31 July 1980 with respect to an application (A4460) by MML relating to a partnership agreement with HSI for the provision of harbour towage services in the port of Melbourne through a firm known as Melbourne Tug Services

( "MTS") . Each of MML and HSI is dissatisfied with the Commission's determination revoking the prior authorisation. Pending the determination by the Tribunal on this review they seek interim authorisation to preserve their rights under the earlier authorisation granted in 1980.

An initial question arises as to the Tribunal's powers in the conduct of this review. Section 101(1) and (2) provide:

"101 (1) A person dissatisfied with a determination by the Commission in relation to an application for, or in relation to the revocation of, an authorization, may, as prescribed and within the time allowed by or under the regulations or under sub-section (lB), as the case may be, apply to the Tribunal for a review of the determination and, if the person was the applicant for the authorization or the Tribunal is satisfied that he has a sufficient interest, the Tribunal shall review the determination.

(2) A review by the Tribunal is a re- hearing of the matter and sub-sections 90(6), (7), (8) and (9) apply in relation to the Tribunal in like manner as they apply in relation to the Commission."

Section 102(1), (2), (6) and (7) provide as follows:

"102 (1) Upon a review of a determination of the Commission in relation to an application for an authorization, the Tribunal may make a determination affirming, setting aside or varying the determination of the Commission and, for the purposes of the review, may perform all the functions and exercise all the powers of the Commission.

(2) A determination by the Tribunal

affirming, setting aside or varying a determination of the commission in relation to an application for an authorization shall, for the purposes of this Act other than this Part, be deemed to be a determination by the Commission.

Tribunal, the member of the Tribunal (6) For the purposes of a review by the

presiding at the review may require the Commission to furnish such information, make such reports and provide such other assistance to the Tribunal as the member

specifies .

(7) For the purposes of a review, the

Tribunal may have regard to any information furnished, documents produced or evidence given to the Commission in connexion with the making of the determination, or the giving of the notice, to which the review relates."

It is plain from the terms of sub-section (1) of s. 101 that

applications for review may be made by persons dissatisfied either with determinations by the Commission in relation to an application for an authorisation or with a determination by the Commission in relation to the revocation of an authorisation. Section 102(1), however, in terms limits the Tribunal's powers specified therein to a review of a determination by the Commission in relation to an application for an authorisation; and is silent as to the Tribunal's powers for a review of a revocation by the Commission of an authorisation.

It is open to argument that subsection (1) of s. 102 is directed both to a review in relation to an application for an

authorisation and a review in relation to the revocation of an authorisation. Revocation by the Commission of an authorisation is made by it pursuant to the powers conferred by s. 91(4) which, so far as relevant, provides that, if at any time after the Commission has granted an authorisation it appears to the Commission that, amongst other things, there has been a material change of circumstances since the authorisation was granted (the relevant provision here), the Commission is satisfied that there has been such a material change of circumstances, the Commission may make a determination revoking the authorisation; and, if it considers it appropriate to do so, it may grant a further authorisation in substitution for the authorisation so revoked (s. 91(4)(b)). The revocation by the Commission under s. 91 of an existing authorisation may answer the description of a determination of the Commission i the application for the authorisation. The words "in relation to" are of the widest import.

A possible difficulty in the path of this argument is that sub-section (1) of s. 101 is directed first to the Commission's determination in relation to an application for an authorisation and second to the Commission's determination in relation to the revocation of an authorisation; and only the former is mentioned in sub-section (1) of s. 102. The opening words of sub-section (1) of s. 102 are, however, descriptive of the review being conducted by the Tribunal rather than definitive of the Tribunal's jurisdiction or power; and it is not necessary to read

s. 102 solely in the light of s. 101. It is not necessary that I decide the question of the applicability of s. 102(1) because it is plain that sub-section (1) of s. 101 both confers a right upon a person dissatisfied with a determination of the Commission in relation to the revocation of an authorisation to apply to the Tribunal for a review of that determination and confers jurisdiction upon the Tribunal to review that determination; indeed the Tribunal is bound to review it once application for review has been made.

The power of the Tribunal to review a determination of the Commission revoking an authorisation previously granted must carry with it the powers of the Tribunal necessary for the proper conduct and determination of the review. It would be absurd if the Tribunal was not able to affirm or set aside, as the case may be, the Commission's determination revoking the authorisation. Whether the Tribunal's powers would extend to the power conferred upon the Commission by s. 91(4) (b) of not only revoking the authorisation, but, if it considers it appropriate to do so, granting a further authorisation in substitution for the authorisation so revoked, is a question which it is not necessary for the Tribunal to decide at this stage and it prefers to leave the matter open. The power of the Tribunal, in reviewing the Commission's determination in this case, to revoke the authorisation necessarily carries with it the power at the end of the review to at least affirm or set aside the determination of the Commission.

Accordingly, the Tribunal holds that it has jurisdiction to conduct this review and has power when reviewing the Commission's determination to at least affirm it or set it aside.

The applicants MML and HSI seek interim authorisation from the Tribunal pending the final determination on review or further order. The Commission does not consent but does not oppose the grant of that interim authorisation nor, does it seek to argue that the Tribunal lacks power to grant such an authorisation.

The power of this Tribunal to grant an interim authorisation

has been considered before and it is sufficient for present

purposes to refer to the decision of the Tribunal in Re

International Air Transport Association and Alitalia Linea Aerea

Italiana Spa (1985) 58 ALR 721; [I9851 ATPR 40-537 ("IATA Case").

Without resort to s. 102 of the Act and the specific reference there to the Tribunal being empowered to perform all the functions and exercise all the powers of the Commission for the purposes of the review, the Tribunal holds that its power to conduct a review of the determination of the Commission revoking an authorisation must carry with it, as an incident to the full and proper exercise of that power, the power to grant an interim authorisation of the kind which the Commission may itself grant under s. 91 of the Act.

To this point the Tribunal has considered questions of law, so the findings are those of the President (s. 42(1)).

As the applicants for review had the benefit of the earlier authorisation for more than ten years before the Commission revoked it in June this year and as the review before this Tribunal of the Commission's determination revoking the authorisation is on foot, the interests of justice are, in the opinion of the Tribunal, best served by granting the interim authorisation that is sought. The Tribunal takes into account the principles upon which an application for interim authorisation falls to be determined and which are discussed in the IATA Case and the other cases there referred to. Accordingly, the Tribunal grants interim authorisation, up to and including Tuesday, 15 October 1991 or further order to the arrangements described in paragraphs 1.2 and 1.2.1 at p. 52,197 of 1980 ATPR 50-100, being the report of the Draft Determination of the Commission in the matter A4460. Liberty to apply is reserved to the applicants and the Commission on seven days' notice. Otherwise, the review is adjourned to 15 October 1991.

It is unsatisfactory that the powers of the Tribunal, when reviewing a determination by the Commission revoking an authorisation, are left to the general powers that are necessarily attendant upon a review by the Tribunal under s. 101. The Tribunal draws the attention of the Government and the Parliament to the terms of s. 102(1) and the absence there of any

specific reference to a review of a determination of the

Commission in relation to the revocation of an authorisation.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for decision herein of the Trade Practices Tribunal.

Associate

,

Dated: 19 August 1991

Counsel for the Applicants : C.M. Scerri

Solicitors for the Applicants :	Arthur	Robinson
Hedderwicks
Counsel for the Commission	M. Goldblatt
Solicitors for the Commission :	Australian	Government
Solicitor

Date of Hearing	19 August 1991
Date of Judgment	19 August 1991