The Hospital Benefit Fund of Western Australia Inc v The Australian Competition & Consumer Commission [1997] FCA 655

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - judicial review - Trade Practices Act - National Health Act - employer offered membership in health insurance plan to its employees - plan involved employer paying annual allowance to employees and providing payroll deduction service for payment of premiums, on condition that employees insure with one specified health fund - specified health fund offered those employees insurance premiums which were discounted from current retail rates - rival health fund sued employer in this Court alleging third line forcing - also informed Australian Competition and Consumer Commission of those proceedings and its view that plan (by offering discounted insurance premiums) was illegal as contravening the National Health Act - employer then gave "Notification" of its conduct to Commission - Commission's statutory discretion to remove protection arising from giving Notification depended upon finding no nett public benefit - Commission decided to let Notification stand - Notification, by remaining in force, had effect that s 47(1) of the Trade Practices Act did not apply to the conduct - whether Commission erred in law by regarding benefit to employees of the employer as a benefit to "the public" - whether Commission erred in not taking into account possible illegality, under National Health Act, of conduct under the plan and possible further illegality by consequent competition from other health insurance providers also offering discounted insurance premiums - whether Commission obliged to extend procedural fairness to applicant before deciding to allow Notification to stand. Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a),(d),(e),(f), (2)(a), (b),(c) Trade Practices Act 1974 (Cth) ss 47(1), (6), (7) (10A), s 93(1), (3A), (7A) National Health Act 1953 (Cth) ss 73BA, 74(5), 74B,Schedule 1 paras. (b),(m) Lee v. Evans (1964) 112 CLR 276 Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 Refrigerated Express Lines (Australasia) Pty Ltd v. Australian Meat and Live-Stock Corporation (No. 2) (1980) 44 FLR 455 Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 Kioa v. West (1985) 159 CLR 550 SWB Family Credit Union v. Parramatta Tourist Services Pty Ltd (1982) 48 FLR 445 Re Shell Co of Australia Ltd (1975) 1 ATPR 35.220 Re QCMA (1976) 25 FLR 169 Re Lamont (1990) 96 ALR 475 Re Concrete Carters Association (Victoria)(1978) 31 FLR 193 THE HOSPITAL BENEFIT FUND OF WESTERN AUSTRALIA INC v THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION No. WAG 162 of 1996