Conciliation and Arbitration Regulations (Amendment)

Legislation au C1972L00006 Regulations Not in force Legislative Instrument

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STATUTORY RULES

1972 No. 6

 

REGULATIONS UNDER THE CONCILIATION AND ARBITRATION ACT 1904-1970.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Conciliation and Arbitration Act 1904-1970.

Dated this twenty-fourth day of January, 1972.

Paul Hasluck

Governor-General.

By His Excellency’s Command,

Sgd. Ivor J. Greenwood

Attorney-General.

 

Amendments of the Conciliation and Arbitration Regulations†

Commencement.

1. These Regulations shall come into operation on the date fixed by Proclamation under section 2 of the Restrictive Trade Practices Act 1971.

Parts.

2. Regulation 3 of the Conciliation and Arbitration Regulations is amended by omitting the words—

“Division 3b.—Proceedings under the Trade Practices Act (Regulations 78j-78p).”

and inserting in their stead the words—

“Division 3b.—Proceedings under the Restrictive Trade Practices Act (Regulations 78j-78pa).”

Definition.

3. Division 3b of Part III. of the Conciliation and Arbitration Regulations is repealed and the following Division inserted in its stead:—

“Division 3b.—Proceedings under the Restrictive Trade Practices Act.

.

“78j. In this Division—

‘question of law’ means a question of law arising in proceedings before the Tribunal that is referred to the Court under section 65 of the Restrictive Trade Practices Act;

‘the Restrictive Trade Practices Act’ means the Restrictive Practices

Act 1971;

‘the Tribunal’ means the Trade Practices Tribunal.

References of questions of law.

“78k.—(1.) The reference to the Court of a question of law shall be in writing signed on behalf of the Tribunal by the presidential member presiding at the hearing of the proceedings in which it has arisen and shall set out—

(a) a statement that the question is referred to the Court by the Tribunal of its own motion, or on the application of a specified party to the proceedings, as the case may be;

 

* Notified in the Commonwealth Gazette on 1972.

† Statutory Rules 1956, No. 60. as amended by Statutory Rules 1957, No. 78: 1958, Nos. 7 and 53; 1959, No. 19; 1960, No. 86; 1961, No. 123; 1963, No. 14; and 1967, Nos. 35 and 136; by Act No. 53 of 1970; and by Statutory Rules 1970, No. 162; and 1971, Nos. 95 and 115.

23952/71—Price 8c 10/22.12.1971

(b) a precise statement of the question of law;

(c) full particulars of the matter in relation to which the question has arisen;

(d) any findings of fact that the Tribunal has made that appear to be relevant to the question;

(e) a short statement of any contentions of the parties in relation to the question;

(f) if relevant to the question, the terms of any determination or order proposed to be made by the Tribunal; and

(g) the names and addresses of the parties to the proceedings before the Tribunal,

“(2.) Where—

(a) a question of law is referred to the Court; and

(b) an order has been made under the Restrictive Trade Practices Regulations directing that persons having a common interest in the proceedings in which the question of law has arisen be represented in those proceedings by a person specified in the order,

it is sufficient compliance with paragraph (g) of the last preceding sub-regulation in relation to such of those persons as are parties to the proceedings if the name and address of the person so specified only is set out.

“(3.) Where a question of law arises in proceedings before the Tribunal in relation to which a person has an address for service, the address to be set out in respect of that person in the reference of the question is that address.

“(4.) The reference shall be lodged with the Registrar by the party who instituted the proceedings in the Tribunal in which the question arose.

“(5.) When a reference has been lodged with the Registrar in pursuance of the last preceding sub-regulation, the Chief Judge, or the next senior judge who is available, shall fix a time and place for the hearing of the question of law and the Registrar shall send, in accordance with any directions of the Chief Judge or other Judge, to each of the persons that the Chief Judge or other Judge specifies, notice of the time and place so fixed, together with a copy of the reference,

Prosecutions for offences under section 164 of the Restrictive Trade Practices Act.

“78L. In relation to a prosecution for an offence against the Restrictive Trade Practices Act, information, warrant or other process or a conviction shall suffice if the offence is set out, as nearly as may be, in the words of that Act.

Civil proceeding for damages under the Restrictive Trade Practices Act.

“78m. Proceedings under section 99 or section 135 of the Restrictive Trade Practices Act shall, so far as is practicable, be instituted and conducted in like manner as actions for damages in the High Court are instituted and conducted.

Injunctions under the Restrictive Trade Practices Act.

“78n.—(1.) Subject to the next succeeding regulation, an application for an injunction under section 102, 120 or 125 of the Restrictive Trade Practices Act may be made to the Court or a Judge ex parte supported by an affidavit verifying the facts upon which the application is made.

“(2.) Upon such an application, the Court or Judge may make an order calling on the proposed respondent to show cause why an injunction should not be granted, being an order—

(a) in the case of an application under section 102—in accordance with Form 23b; or

(b) in the case of an application under section 120 or 125—in accordance with Form 23a.


“(3.) As soon as practicable after an order in accordance with the last preceding sub-regulation is made, the applicant shall file the order and the supporting affidavit with the Registrar.

“(4.) An order under sub-regulation (2.) of this regulation, together with a copy of the affidavit referred to in sub-regulation (1.) of this regulation, shall be served by the applicant on the respondent at least two clear days before the day fixed for the hearing of the application, unless the Court or Judge gives

leave for shorter service.

“(5.) At the hearing of the application, unless the Court or Judge otherwise permits—

(a) any evidence shall be by affidavit; and

(b) the evidence in support of the application shall consist solely of the evidence set out in the affidavit referred to in sub-regulation (1.) of this regulation.

“(6.) Where the Court or Judge hearing an application permits further evidence to be given in support of the application, the permission may be given subject to such conditions, including conditions as to costs, as the Court or Judge thinks fit.

Proceedings for damages and an injunction.

“78p.—(1) An application for an injunction under section 102 of the Restrictive Trade Practices Act may be included as a claim in a writ instituting an action under section 99 of that Act for damages.

“(2.) Proceedings in an action referred to in the last preceding sub-regulation shall, as far as is practicable, be conducted in like manner as proceedings in the High Court claiming both damages and an injunction are conducted.

Evidence in respect of lodgment or receipt or non-lodgment or non-receipt of documents.

“78pa.—(I.) In this regulation—

‘the Clerk’ means the Clerk of Shipping Agreements holding office under Part XII. of the Restrictive Trade Practices Act;

‘the Commissioner’ means the Commissioner of Trade Practices and includes a person appointed to act as the Commissioner of Trade Practices.

“(2.) In any proceedings in the Court, a certificate under the hand of the Clerk certifying that a specified fact in relation to the lodgment or receipt or non-lodgment or non-receipt of a document, or of a document of a specified description, appears from records kept in the office of the Clerk is evidence of that fact.

“(3.) In any proceedings in the Court, a certificate under the hand of the Commissioner certifying that a specified fact in relation to the lodgment or receipt or non-lodgment or non-receipt of a document, or of a document of a specified description, appears from records kept in the offices of the Commissioner is evidence of that fact.”

Fees.

4. Regulation 164 of the Conciliation and Arbitration Regulations is amended by omitting sub-regulation (1a.) and inserting in its stead the following sub regulation:—

“(1a.) The fees to be demanded and paid in respect of proceedings under section 99 or section 135 of the Restrictive Trade Practices Act 1971 are the fees that would be payable under the High Court Rules, as in force for the time being, if the proceedings were in the High Court.”.


First Schedule.

5. The First Schedule to the Conciliation and Arbitration Regulations is amended by omitting Forms 23a and 23b and inserting in their stead the following forms:—

Form 23a. Regulation 78n

ORDER TO SHOW CAUSE.

In the Commonwealth Industrial Court.

In the matter of the Restrictive Trade Practices Act 1971.

Between Applicant

and

Respondent.

It is hereby ordered that the abovenamed respondent appear before the Commonwealth Industrial Court at              in the State of                                                        on the               day of                            , 19              , at o’clock in the               noon on the hearing of an application by the abovenamed applicant for an injunction under section 120 (or 125) of the Restrictive Trade Practices Act 1971 to show cause why the said respondent should not be restrained from further contravening section 118 (or 124) of that Act, upon tile grounds appearing from the affidavit of

sworn the

day of , 19  and filed herein.

By the Court,

Judge.

————

Form 23b. Regulation 78n.

ORDER TO SHOW CAUSE.

In the Commonwealth Industrial court.

In the matter of the Restrictive Trade Practices Act 1971.

Between

Applicant

and

Respondent.

It is hereby ordered that the abovenamed respondent appear before the Commonwealth Industrial Court at                                                                                                  in the State of                                                        on the                                                         day of                                                                      ,19              , at                                           o’clock in the                             noon on the hearing of an application by the abovenamed applicant for an injunction under section 102 of the Restrictive Trade Practices Act 1971 to show cause why the said respondent should not be restrained from engaging in the practice of resale price maintenance in respect of the goods specified in the Schedule to this Order, upon the grounds appearing from the affidavit of

sworn the

day of , 19  , and filed herein.

THE SCHEDULE

Dated this      day of     , 19 .

By the Court.

Judge.

————

Printed by Authority by the Government Printer of the Commonwealth of Australia

Overview

The Conciliation and Arbitration Regulations 1972, enacted in 1972, were made under the authority of the Governor-General in accordance with the Federal Executive Council and serve to amend the existing Conciliation and Arbitration Regulations. These regulations were introduced to address the need for specific procedural rules to govern proceedings under the newly enacted Restrictive Trade Practices Act 1971. The primary objective of these regulations is to ensure that legal questions arising from trade practices are appropriately referred to the Court, allowing for the proper application of the Restrictive Trade Practices Act in the conciliation and arbitration process. These amendments streamline the process for referring questions of law to the Court, provide guidelines for civil proceedings and injunctions under the Restrictive Trade Practices Act, and ensure that fees for certain proceedings align with those of the High Court. The regulations also update forms used for making applications and orders to reflect the changes brought by the new Act, facilitating a more efficient and consistent application of trade practices law in industrial disputes.

Scope and Application

The Conciliation and Arbitration Regulations 1972, under the Conciliation and Arbitration Act 1904-1970, were amended to incorporate provisions concerning proceedings under the Restrictive Trade Practices Act 1971. These regulations apply to any proceedings involving questions of law arising in conciliation or arbitration matters that are referred to the Court under the Restrictive Trade Practices Act. The scope of these regulations extends to the Commonwealth of Australia, affecting entities and individuals engaged in trade practices that may contravene the Restrictive Trade Practices Act. The regulations detail the procedural aspects of referring questions of law to the Court, including the requirements for the reference document, the process for fixing hearing times and notifying parties, and the manner in which civil proceedings, prosecutions, and applications for injunctions should be conducted. Additionally, these regulations include provisions for evidence related to the lodgment or receipt of documents, and set fees for proceedings under the Restrictive Trade Practices Act equivalent to those applicable in the High Court. The regulations do not specify exclusions or exemptions but are subject to amendment through subordinate instruments.

Key Provisions

These Regulations, made under the Conciliation and Arbitration Act 1904-1970, introduce significant amendments to the Conciliation and Arbitration Regulations to align them with the Restrictive Trade Practices Act 1971. The Regulations primarily focus on updating references and procedures related to the Trade Practices Tribunal, now known as the Trade Practices Tribunal, and the Trade Practices Commissioner, now the Commissioner of Trade Practices. Regulation 3 introduces a new Division 3b, replacing the existing Division 3b, to detail the process for referring questions of law from the Tribunal to the Court under the Restrictive Trade Practices Act. This includes specific requirements for the written reference, such as detailing the question of law, relevant findings, contentions of the parties, and the names and addresses of those involved. These Regulations impose several obligations on the parties involved in proceedings under the Restrictive Trade Practices Act. For instance, when a question of law arises in Tribunal proceedings, the Tribunal must prepare and lodge a written reference to the Court. This written reference must include a precise statement of the question of law, particulars of the matter, relevant findings of fact, contentions of the parties, and details of any proposed determinations or orders. Additionally, any party instituting proceedings in the Tribunal must ensure that the reference is lodged with the Registrar. In cases where persons have a common interest and are represented by a specified individual under an order, only the representative's name and address need to be provided in the reference. Furthermore, applications for injunctions must be supported by an affidavit and filed with the Registrar, with the respondent being served at least two clear days before the hearing. Breach of the provisions outlined in the Restrictive Trade Practices Act 1971 can result in various civil and criminal consequences. Offences under section 164 of the Act can be prosecuted, with information, warrant, or a conviction being sufficient evidence if the offence is described in the Act's words. Civil proceedings for damages under sections 99 or 135 of the Act must be conducted similarly to actions for damages in the High Court. Injunctions under sections 102, 120, or 125 of the Act can be applied for ex parte, supported by an affidavit. Failure to comply with these procedures or to adhere to the stipulated requirements can lead to legal challenges and potential sanctions. The maximum penalties for breaches of the Restrictive Trade Practices Act are not explicitly detailed in these Regulations but are set out in the main Act and can vary significantly depending on the nature and severity of the breach.

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