Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296

FEDERAL COURT OF AUSTRALIA

Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 ADMINISTRATIVE LAW – judicial review – publications under s 28 of the Trade Practices Act 1974 – whether "decision" or "conduct" for purposes of Administrative Decisions (Judicial Review) Act 1977 – whether decision made "under an enactment" – whether correctness of publications under s 28 is "jurisdictional fact" – whether improper purpose. STATUTES – construction – implication – where ellipsis in language used – Trade Practices Act 1974 s 28(1)(e) – scope and operation of s 28. ADMINISTRATIVE LAW – judicial review – jurisdiction and standing – declaratory relief – declaration under s 163A of the Trade Practices Act 1974 – declaration as to operation of Division 2 of Part V – declaration as to alleged errors of law in publications – whether advisory opinion – appropriateness of discretionary relief. TRADE PRACTICES – threats of proceedings by ACCC for contraventions of Part V of the Trade Practices Act 1974 – whether expression of opinion is false or misleading and deceptive – declaratory relief – whether court will grant "negative declaration" in absence of actual representations. Trade Practices Act 1974 (Cth) ss 4, 28, 52, 53, 55, 66, 68, 68A, 71, 79, 80, 87, 163A Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6 Judiciary Act 1903 (Cth) s 39B(1A) Taxation Administration Act 1953 (Cth) s 14ZAAE Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126 referred to John Fairfax Ltd v Australian Postal Commission [1977] 2 NSWLR 124 referred to Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 referred to Cabal v Attorney-General of the Commonwealth [2001] FCA 583 referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed Edelsten v Health Insurance Commission (1990) 27 FCR 56 referred to Margarula v Minister for Environment (1989) 92 FCR 35 referred to McLachlan v Australian Securities and Investments Commission (1999) 30 ACSR 418 referred to Ruddy v Commissioner of Taxation (1998) 82 FCR 337 referred to Ross v Costigan (1982) 59 FLR 184 referred to Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 referred to Pegasus Leasing Ltd v Commissioner of Taxation (1991) 32 FCR 158 referred to Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125 referred to Salerno v National Crime Authority (1997) 75 FCR 133 referred to Randwick City Council v Minister for the Environment (1998) 54 ALD 682 referred to Kelson v Forward (1995) 60 FCR 39 referred to Australian National University v Lewins (1996) 68 FCR 87 followed Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 referred to General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 referred to Hutchins v Commissioner of Taxation (1996) 65 FCR 269 followed Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560 followed Bank of Western Australia v Federal Commissioner of Taxation (1994) 55 FCR 233 referred to Sanders v Snell (1998) 196 CLR 329 referred to San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 referred to Collie v Behan (1997) 25 ACSR 644 referred to Meredith v Commissioner of Taxation of the Commonwealth of Australia [2001] FCA 1135 referred to New South Wales Aboriginal Land Council v Aboriginal and Torres Straight Islander Commission (1995) 131 ALR 559 referred to Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 referred to Croome v The State of Tasmania (1997) 191 CLR 119 referred to Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 referred to Williams v Spautz (1992) 174 CLR 509 referred to Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1992) 149 CLR 191 referred to MGICA (1992) Ltd v Kenny & Good Pty Ltd (1996) 140 ALR 313 referred to Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 followed Hamersley Iron Pty Ltd v National Competition Council (1999) 164 ALR 203 referred to Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800 distinguished Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] 1 All ER 545 referred to Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 distinguished Re S [1995] 3 All ER 290 referred to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to Burgundy Royale Investments Pty Ltd v Westpac Banking (1987) 76 ALR 173 referred to Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 referred to Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Review 17 Bennion, Statutory Interpretation (3rd ed, 1997) Evans, Statutory Interpretation (1988) Burrows, Statute Law in New Zealand (2nd ed, 1999) Sutherland, Statutory Construction (5th ed, 1991) Spigelman, "Statutory Interpretation - Identifying the Linguistic Register" (1999) 4 Newcastle Law Review 1 Pearce and Geddes, Statutory Interpretation in Australia (4th ed, 1996) Aronson and Dyer, Judicial Review of Administrative Action (2nd ed, 2000) Zamir & Woolf, The Declaratory Judgment (2nd ed, 1993) Chemerinsky, Federal Jurisdiction (3rd ed, 1999) ELECTRICITY SUPPLY ASSOCIATION OF AUSTRALIA v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION A9 of 1999 FINN J CANBERRA 12 SEPTEMBER 2001