N COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G52 of 1988 DIVISTO BETWEEN : AND: JAMES YOUNG Applicant AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent QLD G77 OF 1988 JAMES YOUNG Applicant AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent L. WHITBOURN Second Respondent R. WELCH Third Respondent MINUTES OF ORDER SRL ' . <. FA oA F ~ JUDGE MAKING ORDER: PINCUS J. peop sp) DATE OF ORDER: 10 MAY 1988 ZO UNS FEDL: AL COURT OF WHERE MADE: BRISBANE mee A ; tee ene foe THE COURT ORDERS THAT: aed 1. the statement of claim in G77 of 1988 be struck ~ out; the proceedings in G52 of 1988 be consolidated with those in G77 of 1988; on or before 24 May 1988 the applicant deliver a single statement of claim incorporated in which should be a statement of all the relief claimed, and which must comply with the views as to the law expressed in the ex-tempore reasons for judgment; the respondents deliver a defence to the statement of claim mentioned within 21 days of the date of delivery thereof; the applicant deliver a reply, if any, within 14 days of delivery of the defence; the parties make mutual discovery within 21 days of delivery of the respondents' defence; inspection take place 14 days thereafter; the costs of and incidental to the notice of motion in G52 of 1988 and that in G77 of 1988 be the respondents' costs in the proceedings. the matter be adjourned to the Registrar. Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G52 of 1988 GENERAL DIVISION ) BETWEEN: JAMES YOUNG Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION Respondent QLD G77 OF 1988 BETWEEN: JAMES YOUNG Applicant AND: AUSTRALIAN TELECOMMUNICATIONS COMMISSION First Respondent AND: L. WHITBOURN Second Respondent AND: R. WELCH Third Respondent PINCUS J. 10 MAY 1988 EX TEMPORE REASONS FOR JUDGMENT In each of these applications, the respondents apply strike out proceedings. In G52 of 1988, the respondent seeks order that the application for an order of review, made under to an the Administrative Decisions (Judicial Review) Act 1977, be struck out, or, in the alternative, that certain of the grounds be struck out. In G77 of 1988, the respondent asks for both the application and the statement of claim or alternatively, certain of the relief claimed, to be struck out. Each case is concerned with the applicant's desire to sell telephone equipment. The applicant challenges what he claims to have been a decision made under a by-law for what is called "type approval" in relation to certain telephone equipment. In G52 of 1988, the applicant claims that the decision was wrong on what might be called, briefly, administrative law grounds, such as that it was made in accordance with a policy. In the second case, the applicant asks for a declaration that the relevant by-laws were invalid, and a further declaration discussed below, and also seeks injunctions having the effect that the type approval be granted. Although, as I was informed, the respondents suggested some time ago that an amendment be considered, the proposed amendments were delivered by the applicant only this morning. No explanation has been given for that delay. To some extent, the proposed amendments remove the point of the respondents' application. More importantly, it has become clear that the convenient course, if the cases were to go on, would be to consolidate them and to require the delivery of a further statement of claim covering all of the claims in both cases. I propose to order accordingly, and it may be that some of the complaints made before me will be renewed, or fresh complaints made, by the respondents when the new pleading is delivered. There is a degree of inconvenience in considering in detail what has been pleaded when one knows that it is to be replaced. Nevertheless, it seems to me right, in view of the fact that some of the points were argued fairly fully, to set out my views upon them. There is no settled practice against deciding, in applications of this sort, questions of law which would otherwise fall to be determined at the hearing. The circumstances sometimes make it clear that that is a proper course - for example, if the determination of a legal question is likely to dispose of the whole case, or alarge part of it, or if the answer to the question seems clear. It was argued by Mr Downes Q.C., who appeared with Mr Flick for the respondents, that the applicant should not be allowed to claim a declaration with respect to the validity of the decision. Certainly, the way the second claim for a declaration is put in G77 of 1988 is inapposite. The Court could hardly make a declaration that a determination "be rejected". No doubt that error in phrasing will be corrected. The respondents also contended that the applicants should not be allowed to claim a declaration that one of the by-laws, by-law 219(a), is ultra vires or void. It was pointed out that the general power to grant a declaration under s.21 of the Federal Court of ustralia Act 1976 cannot give jursidiction to do so, as the terms of that section make clear. However, there are plainly substantial arguments which may be advanced at' the hearing in support of the claim for a declaration; s.16 of the ministrative cisions u Review) Act, 8.32 of the Federal Court of Australia Act, and the accrued jurisdiction all create possibilities for the applicant. I do not propose to deal with them in detail, but should mention that their availability would have to be considered in the light of the decision of the Full Court in Pearce v. Button (1986) 65 A.L.R. 83. Next, it was argued that the validity of the by-law under which the alleged decision is said to have been made is not relevant to any claim under the Administrative Decisions (Judicial Review) Act. That is certainly arguable, since the general intention of that Act is to cover much the same area of law as used to be covered by the prerogative writs only. However, it 1s clear enough that the text of the statute cannot be overriden by any presumption that the Parliament intended faithfully to reproduce the existing law. It appears to me to be arguable that, under the Act, the validity of the by-law under which the decision has been made or purported to have been made may be agitated. If not, it is at least arguable that the question is an associated matter within the meaning of s.32(1) of the Federal Court of Australia Act, the provision which, unlike s.21 of the same Act, plainly does grant jurisdiction. Next, there was a contention that I should determine the propriety of certain pleas which rely ons.46 of the Trade Practices Act 1974 - the anti-monopolization section. I am wary of venturing into this area since the statement of claim is to he replaced, but I think enough was said to warrant my expressing views about it. Mr Boughen, for the applicant, intimated that he wished to raise s.46 of the Trade Practices Act under three headings - firstly, to support an argument that the relevant by-law is invalid as being beyond by-law making power in the relevant statute; secondly, as being itself contrary to s.46 of the Trade Practices Act; and, thirdly, he wished to put forward argument that the decision to refuse to grant type approval was itself an abuse of market power. Mr Downes contended that, whatever else market power means, it cannot cover the power to make by-laws. It is certain that the exercise of statutory powers may be attacked under s.46. Putting that more precisely, the exercise of powers by statutory authorities may be; see Victorian Eqq Marketing Board v. Parkwood Eqqs Pty Ltd (1978) 20 A.L.R. 129, and Midland Milk Pty Limited v. Victorian Dairy Industry Authority (unreported, Foster J., 24 December 1987). In my opinion, however, it is not seriously arguable that, if Parliament gives power to make delegated legislation and that power is exercised within the limits set by the empowering statute, the delegated legislation may fail because it conflicts with s.46 of the Trade Practices Act. Mr Boughen states that by-laws which are merely of an administrative character, may be in a special category for this purpose, but I can see no answer to Mr Downes' argument that the exercise of statutory power to make by-laws is a matter distinct and separate from exercising market power. Following on from what has just been said, I am of the view that the validity of the by-laws does not have to pass, in addition to the ordinary test, the test of conformity with s.46 of the Trade Practices Act. It is not so clear that the granting of refusal of type approval is beyond the scope of s.46, and I would let that point go to trial. So far as the claim for injunctions are concerned, they (or, at least, one of them) seem on the authority of the Minister or Immigration and Et Affairs v. Conynqham (1986) 68 A.L.R. 441, to be practically doomed to fail. It would, however, be an unusual course to determine, in advance, what is the appropriate relief if the applicant is successful, and I do not propose to strike out those claims. The orders which I propose to make are these: 1. that the statement of claim in G77 of 1988 be struck out; 2. that the proceedings in G52 of 1988 be consolidated with those in G77 of 1988; 3. that on or before 24 May 1988 the applicant deliver a single statement of claim incorporated in which should be a statement of all the relief claimed, and which must comply with the views as to the law expressed in my reasons; 4. that the respondents deliver a defence to the statement of claim I have mentioned within 21 days from the date of delivery thereof; 5. that the applicant deliver its reply, if any, within 14 days from delivery of the defence; 6. that the parties make mutual discovery within 21 days of delivery of the respondents' defence; 7. that inspection take place 14 days thereafter; 8. that the costs of and incidental to the notice of motion in GS2 and that in G77 be respondents' costs in the proceedings. I should add I have taken into account, in making my order for costs, that the respondents have not been entirely successful, but also that matters should not have been left in their present state by the applicant. { certify that this and the G preceding pages are a trua copy of the reasons for judgment herein of His Honour Mr. Justice Pincus Angela Jagger, te Associa Dated io Moy i988