CATCHWORDS Administrative Law - Decision by Trade Practices Commission to geant certain authorizations under the Trade Practices Act 1974 - Statutory time in which application For ceview to be lodged expired - Application to Federal Court for extension of time - Whether applicant furnished with relevant documents within para. 11(1)(c) Administrative Decisions (Judicial Review) Act 1977 - Whether s. 11 to be construed in the light of the Act under which relevant decision was made - Pranciples governing applications for extension of time. Administrative Law - Application to be joined in proceedings as respondents - Whether "interested" 1n proceedings within the terms of sub-s. 12(1). Administrative Decisions (Judicial Review) Act 1977, ss. Li, 121i). Trade Practices Act. 1974 sub.-s. 91(4). ACCIDENT INSURANCE MUTUAL LIMITED v. TRADE PRACTICES COMMISS7ON & ORS. No. G.231 of 1983. No. G 225 of i982 LOCKHART J. 25 NOVEMBER 1983 SYDNEY IN THE FEDERAL COURT OF AUSTRALTA i esa) al L ) ) NEW SOUTH WALES DISTRICT RECISTPY ) No, G@ 331 of ) \ GENERAL DIVISION BETWEEN: ACCIDENT INSURANCE MUTUAL LIMITED Applicant AND: TRADE PRACTICES COMMISSION First Respondent CITICORP AUSTRALIA LIMITED Second Respondent AND OTHERS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 225 of 1983 ee GENERAL DIVISION BETWEEN: ACCIDENT INSURANCE MUTUAL LIMITED Applicant AND: TRADE PRACTICES COMMISSTON Respondent ORDER JUDGE MAKING ORDER: Lockhart J. DATE OF ORDER: 25 November 1983 WHERE MADE: Sydney ta THE COURT ORDERS: - In matter number G 231 of 1983: (1) (2) (3) That the period within which that application may be lodged be extended up to and including i5 August 1983; That the costs of today's application in that proceeding be costs in the proceeding: That the proceeding be adjourned until Friday 2 December next at 9:30 a.m. for directions. In matter number G 225 of 1983: (2) (3) That the companies specified in the notice of motion faled on 25 October 1983. be joined as second to eleventh respondents; That the costs of today's application in that proceeding be costs in the proceeding; That the proceeding be adjourned until 2 December next at 9:30 a.m. for further directions. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 231 of 19823 ' GENERAL DIVISION BETWEEN: ACCIDENT INSURANCE MUTUAL LIMITED Applicant AND: TRADE PRACTICES COMMISSION First Respondent CITICORP AUSTRALIA LIMITED Second Respondent AND OTHERS IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 225 of 1983 GENERAL DIVISION BETWEEN : ACCIDENT INSURANCE MUTUAL LIMITED Applicant AND: TRADE PRACTICES COMMISSION Respondent LOCKHART J: 25 November 1983 REASONS FOR JUDGMENT EX TEMPORE 2. LOCKHART J: These are two applications heard together by consent. One 18 in proceeding G231 of 1983. being an application by Accident Insurance Mutual Limited ("AIM"), pursuant to s. li of the Administrative Decisions (Judicial Review) Act 1977, ("the Judacial Review Act"), for either an extension of time within which it may lodge an application for an order of review under that Act, or an order declaring that the application was made within a reasonable time after the relevant decision was made. The second application before me is made 1n proceeding G225 of 1983 by ten companies to whom I shall refer, for convenience, as the Citicorp companies for an order that they be joined as respondents to that proceeding. In proceeding 231 of 1983 AIM 1s the applicant, the Trade Practices Commission ("the Commission") ius the first respondent and the second to the eleventh respondents are the Citicorp companies. AIM seeks to review the decision of the Commission that authorisation applications numbered A90357 to A90366 inclusive should be granted pursuant to s. 90 of the Trade Practices Act 1974. AIM asserts that 1t 1s aggrieved by the Commission''s decision because (1) the conduct the subject of the authorisations would but for them have been in breach of sub-ss. 47(5) and (7) of the Trade Practices Act and woulda have entitled AIM to scbtain injunctive celref, damages and other orders pursuant to ss. 90, 82 and &7 of a3) the Trade Practices Act (2) ats commercial interests have been seriously affected by the conduct the subject of the authorisations, and (3) its commercial interests will continue to be injured by conduct the subject of those authorisations unless and until the relevant decision 1s quashed or set aside. There are five grounds advanced for the application. I need not state them all. It will be sufficient if I state the first, namely, it is said that a breach of the rules of natural justice occurred in connection with the making of the decision and with the conduct engaged in by the Commission for the purpose of making th decision. In proceeding 225 of 1983 AIM is the applicant and the Commission is the only cespondent. AIM seeks to review the decision of the Commission that there are no grounds for it, having regard to the provisions of sub-s. 91(4) of the Trade Practices Act, and the conduct authorised by the Commission in authorisations A90357 to A90366 inclusive, to consider revoking those authorisations. AIM asserts that it is aggrieved by tne Commission's decision because Dd {1) the conduct the subject of the authorisations would but for them have been in breach of sub-s. 47(6) of the Trade Practices Act and would have entitled 1t to have obtained anjunctive celief, damages and other orders pursuant to ss. 80, 82 and 87 of the Trade Practices Act, (2) AIM's commercial interests have been seriously affected by the conduet the subject of the authorisations, and (3) AIM's commercial interests will continue to be injured by that conduct unless and until the authorisdations are revoked. There are two grounds advanced in support of the application, the first of which is in essence that the making of the decision was said to be an improper exercise of the powec conferred upon the Commission by the Trade Practices Act in pursuance of which the decision was purported to be made. It 1s necessary to refer to some of the relevant facts. Applications for authorisations numbers A90357 tc A90364 were ceceived by the Comm2zssion on 13 October i981. On 14 October the applications rau oO were placed on the Register kept by the Commission pursuant sub-s. 89(3) of the Trade Practices Act. Netice of the receipt of those applications was published 1n the Gazette on 27 Ictober 1981. Applications for authorisdations numbered A90365 and A90366 were received by the Commission on 26 October 1981; on 27 October the applications were placed on the Register. Notice of the receipt of those applications was published on 17 November 1981. Draft determinations un respect of all applications for authorisation were sent to the Citicorp companies on 16 December 1981, and copies of tnose draft determinations were placed on the Register on 21 December 1981. Notification of those draft determinations was published in the Gazette on 5 January 1982. Determinations in respect of the applications for authorisation were sent to the Citicorp companies on 21 January 1982, and copies of the determinations were placed on the Register on 26 January 1982. Notification of the determinations was published in the Gazette on 9 February 1982. Copies of the draft determinations were published in the January 1981 to December 1982 volume of a CCH Australia LUimited publication, peing Australian Trade Practices Reporter, and the determination of the Commission was published also in that Reporter in February 1982 and in the Law Book Company's publication - The Trade Practices Reporting Service Current Authorisations. The authorisations granted by the Commission were in cesvect of the Citicorp companies' proposed insurance céquircement which 1t was thought might constitute the practice of exclusive dealing under che Trade Practices Act. The aoplication for authorisdation was 'for conduct whereby the Citicorp companies vsrccosed to: (1) Instruct the independent insurance broker company retained by it to compile and certify on an annual basis a list of all insurance underwriters which in the bona fide opinion of that broker as at the date of that certificate: fa) (b) (c) (a) Ce) are of such financial ability that the Citicorp companies may have reasonable confidence in them; provide adequate cover both in amount and extent against all risks usually reguired to be covered by Citicorp companies or, 1f appropriate, in the case of any particular underwriter only against those reasons specified in the certificate; u are prepared to enter into a concession agreement in the form acceptable to insurers generally; are prepared to allow mortgagors' and borrowers' insurance policies to fall due ona common date or on a series of specified dates; are prepared to issue insurance policies anda = + to amend such cectiried iist during its currency where 1t appears that an amendment is required to ensure thet each company on the list complies with the above criteria at all times during that year, and that the list continues to be a full and complete list of all underwritecs which in the opinion of the broker do so comply; 2. Require its mortgagors and borrowers to insure the subject of the celative sécurity with one of the companies on the list as so certified from time to time. AIM carried on the business of underwriting insurance in Australia almost exclusively in the field of motor vehicle insurance and consumer credit insurance relating to the purchase of motor vehicles. Very little of this insurance is sold dicect to the public by AIM. The applications for insurance are made through the agency of motor vehicle dealers. Typically, a customer approaches a motor vehicle dealer wishing to buy a vehicle on hire purchase. Because the financier requires that the hired vehicle be comprehensively insured sO aS to protect its security. the dealer may suggest through the customer that he insures with AIM. The dealer may suqgest also that the customer insure himself against incapacity to maintain the hires purchase repayment. This kind of ansucance is known as consumer credit insurance. All hire purchase insurance and the application for one or both kinds of insurance with AIM are usually signed at the same time. The financier lends the customer the total amount of the premiums for the hire purchase period, and they are then paid immediately to AIM by the financiers. This means of 1ussuing -nsurance is well recognised throughout Australia and constitutes a definite part of the motor vehicle unsurance industry. That part of the motor vehicle insurance industry has been referred to in the evidence as "dealer market". AIM is a major insurer in the dealer market. It as the largest private owned insurance company in Australia, writing between about $31 million to $32 million worth of insurance each year. About 90 percent of its new motor vehicle and consumer credit business comes from the dealer market. AIM rarely insuces commercial or fleet vehicles, and does not at the present time actively seek to insure policies other than those originating from the dealer market. AIM does not issue insurance through brokers, exceovt om a very small scale. AIM ais active in the dealer market in most states oat Australia. The major financiers in the dealer market are the Citicorp companies, Esanda and AGC Finance Limited. Iam satisfied that 1t was not until late May or eariy June 1983 that AIM first knew of the application for authorisation by the Citicorp companies or of the decision of the Commission with respect to them, or of the draft determination of the subsequent determination. On 1 June 1983 the solicitor for AIM travelled to Canberra and attended the office of the Commission. He there obtained copies of various documents, including the relevant determination. Subsequently, AIM requested the Commission to exercise its powers under sub-s. 91(4) of the Trade Practices Act which, 17 exercised, can in appropriate cases lead to the revocation of an existing authorisation; but the Commission declined to do so. AIM's solicitors were informed of that decision of the Commission by letter dated 8 July 1983. On 12Z July 1983 AIM's solicitors wrote to the Commission, requesting it to furnish a written statement of the findings of the Commission on material questions of fact and the other matters ceferred to in sub-s. 13(1) of the Judicial Review Act. The Commission replied to AIM's solicitors by letter dated 21 July 1983, enclosing various written documents. AIM's application in matter G225 of 1983 was 'filed in this court's New South Wales Registry on 10 August 1983 and its application in matter G231 of 1983 was filed on 15 August 1983. IT have not mentioned all the relevant facts but nevertheless have taken all of the evidence into account. I need not sefer to s.il of the Judicial Review Act in detazl; ait was fully canvassed in argument. 10. The first question 1s whether the circumstances in which AIM's solicitors received copies of the relevant documents of the Commission, including a copy of the determination, answer the description of the furnishing of the relevant document to AIM under para. 1ll(l){c) of the Judicial Review Act. It was submitted by counsel for the Commission that that paragraph has no application here, because the procedures whereby the Commission deals with applications for authorisation under the Trade Practices Act require, Dy s. 89 especially, a code governing the notification of relevant decisions of the Commission. It was submitted that the words "furnisn to the applicant" in para. 11(1)(c) should be construed, not only in the context of the Judicial Review Act, but in the context of the particular legislation before the court pursuant to which the relevant decision is said to have been made, in this case the Trade Practices Act. It was said that ain those circumstances, because of the detailed procedures by which the Commission notifies its celevant decisions to the public, and because of anomalies that woula arise in certain cases, to which I shall refer in a moment, documents embodying decisions of the Commission relating to authorisations under the Trade Practices Act cannot be said to have been furnished to the applicants under para. Il1l(1)(c) of the Judicial Review Act. It was supmitted that an cases where &@ person has in truth not received copies of the relevant documents from the Commission in the course of the execution of its duties under the Trade Practices Act and like AIM here, did not know of any relevant matter until well after tne making of the ll. Commission's decision, the relevant part of s. 11 of the Juaicial Review Act, is sub-s. 11(4). The anomaly to which counsel for the Commission referred was that a person who, like AIM, had not monitored the public Register of the Commission, may apply as late as 10 years after the making of the Commission's decision, and provided he applies within the prescribed period after being furnished with the relevant document, he may then apply as of right under the Judicial Review Act for an order of review, whereas a person who has monitored the Commission's procedures for publication of decisions would be bound to apply within the prescribed period, in effect, after the publication by the Commission of its determination. I am not satisfied that the example to which reference was made 1S sound but, whether sound or not, in my view s. 11 cannot be construed in this way. Its construction must be the same for all applicants for orders of review making diverse applications under a wide variety of Acts of Parliament. I am satisfied that para. 11(1)(c) of the Judicial Review Act does avply. I am also satisfied that when AIM's solicitors were given a cooy of the relevant document un Canberra, that document was then furnished to the applicant under para. ll(1l) {c). It follows that the application by AIM was required by s. 11 to have been made by 29 June 1983 - see _ sub-parca. 11(3)(b) (211i). As it was not in fact made until 15 Auaqust 1983 in matter G 231 of 1983, it ais for the court in the exercise of its discretion to decide whether an extension of time should be grantea to 15 August 1983. The principles governing applications of this kind are referred 1n various judgments of this court. I refer to certain of them in Hickey v. Australian Communications Commission (1983) 47 ALR 517, at pp. 521-523. I need not repeat alli that I said there or all that has been said by other Judges of this Court, except to say that in making an application under s. ll: "the applicant seeks an indulgence. It 1s for him to prove that he is entitled to it. But the court should not surround the exercise of its discretion with unnecessary constraints such as a requirement that there be special circumstances or considerations of that kind. The statute does not require them. Nor should the courts. It is best left to the good sense of the judge hearing each case to determine whether, on the evidence before him, the court's discretion should be exercised in favour of granting an enlargement of time to bring an application for an order of review." In the present case the applicant did not in fact know about relevant matters until, at the earliest, late May 1983. Thereafter it acted reasonably to correct what it regarded, rightly or wrongly, as a wrong done to it. It sought to have the Commission revoke its authorisdation pursuant to its powers under sub-s. 91(4) but that application failed. It took other steps including an endeavour to ascertain the name of the relevant broker from the Citicors companies oc their solicitors. There has, 1n my opinion, been no undue delay by AIM in bringing its application in G231 of 1983. It has not rested on its rights. Nor am I satisfied that prejudice would be suffered dy 13. anybody if AIM's application in G 231 of 1983 succeeds. There 1s some evidence given on behalf of the Citicorp companies that, since the authorisations were granted to them, fees have been paid to the independent broker by Citicorp Australia Limited and management fees have been expended in preparing and amplementing procedures as a result of those authorisations. This evidence is of a very general nature and there is nothing to suggest that any such prejudice was caused by or otherwise attributed to any delay by AIM. Nor am I satisfied that any prejudice would be sustained by the Citicorp companies if this application for an extension of time succeeds. Accordingly, I am of the view that AIM''s application falls properly to be considered under para. 11(1)(c) of the Judicial Review Act and that 1t should succeed. If, however, I were to consider that application as one more appropriately dealt with under sub-ss. 11(4) and (5) rather than para. 11(1)(c), and the court was then required to have regard to the matters mentioned in those sub-sections, it wouid be my opinion that the application was made within a reasonable time after the decision under review was made, and that the Court would in all the circumstances entertain the application for an order of review notwithstanding that on one view of the matter the delay may technically be said to be of the order of some 19 months. I turn now to the avplication by the Citicorp companies in matter G £25 of 1983 that they be added as resvondents to that la. application. The basis on which this application is put is that sub-s. 12(1) of the Judicial Review Act empowers the Court to order that a person be made a party to an application for an ordec of review provided that he 1s a person "interested" in the relevant decision or the relevant conduct that is the subject of the application for eview. Counsel for AIM submitted that this application should fail on the basis that the Citicorp companies do not answer the statutory description of an "interested" person in that if AIM succeeds in i1ts application to review the Commission's decision, then there are no grounds for the Commission to consider revoking the authorisations under sub-s. 91(4) of the Trade Practices Act 1n which case two separate and 1undependent events then occur. The first is that the Commission will have to consider whether 1t appears to 1t that the authorisations were granted on the basis of evidence or information that was false or misleading in material particulars or that the conditions to which the authorisations were expressed to be subject have not been complied with or that there has been a material change of circumstances since the authorisations were granted. The second is that, 1f it is affirmatively satisfied as to the happening of those matters, then the Commission 1s required to give notice to the corporation to which the authorisation was agiven and certain other persons who would be entitled to make submissions to the Commission on the matter, and in due course the Commission mar 15. make a determination revoking the authorisation or take certain other steps. Counsel for AIM arques that it is only at the second stage that the Citicorp companies would become interested and involved and that this is insufficient to satisfy the sub-secticn. Iam satisfied that this argument 1s unsound. Indeed, it seems to me that in matter G 225 of 1983 the Citicorp companies are persons interested in the decision under challenge. They have the benefit of the existing authorisations and any steps in this Court under the Judicial Review Act in those proceedings must, 1t seems to me, involve their relevant interests. The interests of justice require that they be made respondents to that application. I should add that there are no practical difficulties following from this because it is common ground that in all probabilities, if both applications, G 225 and G 231 proceed, since they each will then have the same parties, they will be heard together. Accordingly, in those circumstances, the Court makes the Following orders: In matter number G 231 of 1983: (1) That the period within which that applicaticn may he lodged be extended up to and including 15 August 1983, (2) That the costs of today's application in that proceeding be costs in the proceeding; 16. {3) That the proceeding be adjourned until Friday 2 December next at 9:30 a.m. for directions. In matter number G 225 of 1983: (1) That the companies specified in the notice of motion filed on 25 October 1983, be joined as second to eleventh respondents; (2) That the costs of today's application in that proceeding be costs in the proceeding; (3) That the proceeding be adjoucned until 2 December next at 9:30 a.m. for further directions. aa te