Jones v Australian Competition and Consumer Commission [2002] FCA 1054

FEDERAL COURT OF AUSTRALIA

Jones v Australian Competition and Consumer Commission [2002] FCA 1054

TRADE PRACTICES – application by chicken meat processors to Australian Competition and Consumer Commission for authorisation under s 88 of the Trade Practices Act 1974 (Cth) – application opposed by chicken meat growers on whose behalf purportedly made – whether processors have standing – whether applicant for authorisation must be at risk of contravening s 45 – whether s 45 applies to vertical conduct – derivative liability under s 75B ADMINISTRATIVE LAW – judicial review – decision by Australian Competition and Consumer Commission to grant authorisation pursuant to s 88 of the Trade Practices Act 1974 (Cth) – standing to seek authorisation – meaning of "by or on behalf of a corporation" – whether application can be brought by corporation not at risk of contravening s 45 – derivative liability under s 75B – member of Commission said to be affected by apprehended bias – waiver - whether claim of prejudgment waived – availability of alternative remedy WORDS & PHRASES – "by or on behalf of a corporation" Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Trade Practices Act 1974 (Cth) ss 45, 45A, 75B and 88 Broiler Chicken Industry Act 1978 (Vic) Re Applications by Australasian Performing Rights Association (1999) ATPR 41-701 at 42,937 referred to Re Queensland Co-operative Milling Association Ltd; Re Defiance Holdings Ltd (1976) 25 FLR 169 at 180 referred to Re Applications by Concrete Carters Association (Victoria) (1977) 31 FLR 193 at 245-246 referred to R v Portus, Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 435 referred to Re Ross, Ex parte The Attorney-General for the Northern Territory of Australia (1980) 54 ALJR 145 at 149 referred to Digby Brown & Co v Lyall 1995 SLT 932 referred to Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391 referred to Walplan Pty Ltd v Wallace (1985) 8 FCR 27 referred to Snyman v Cooper (No 2) (1990) 25 FCR 470 referred to Adelaide Petroleum NL v Poseidon Ltd (1990) 98 ALR 431 referred to R v Toohey; Ex parte the Attorney-General for the Northern Territory (1980) 145 CLR 374 referred to Citizens Airport Environment Association Inc v Maritime Services Board (1993) 114 ALR 473 referred to Australian Competition and Consumer Commission v SIP Australia Pty Ltd [2002] FCA 824 at par 92 considered South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 at 135 per Hely J referred to South Sydney District Rugby League Football Club Ltd v News Ltd (2000) 177 ALR 611 at 680 per Finn J referred to South Sydney District Rugby League Football Club Ltd v News Ltd (2001) 111 FCR 456 at 481 and 517-518 per Heerey , Moore and Merkel JJ considered Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2002) 186 ALR 731 at 749 considered Australian Competition and Consumer Commission v Visy Paper Pty Ltd (2001) 112 FCR 37 discussed Sayce v Coupe [1953] 1 QB 1 referred to Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 293 referred to Webb v the Queen (1994) 181 CLR 41 referred to Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 65 FCR 215 at 226-230 referred to Johnson v Johnson (2000) 201 CLR 488 at 492-493 referred to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 referred to R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553 referred to Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 referred to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 538, 549 and 564-565 referred to Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 referred to Gascor v Ellicot [1997] 1 VR 332 at 348 considered Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 considered Stead v State Government Insurance Commission (1986) 161 CLR 141 considered Nguyen v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1996) 68 FCR 463 at 478 referred to Vakuata v Kelly (1989) 167 CLR 568 at 572, 577 and 587 considered