Telstra Corporation Limited v Australian Competition & Consumer Commission (No 3) [2007] FCA 1905

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Australian Competition & Consumer Commission (No 3) [2007] FCA 1905

PRACTICE AND PROCEDURE – whether Court should exercise discretion to allow Commission to argue a new point relating to the application of ss 46(1)(c) and 46(2) of the Acts Interpretation Act 1901 (Cth) to Competition Notice the subject of Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) – factors relevant to discretion – utility in considering Competition Notice in light of s 46 limited – whether discretionary factors should be approached differently where party is a government agency – questions of discretion should not be disregarded because Commission is a government agency – not in interests of justice to re-open case – factors raised for exercise of discretion not sufficient – uncertainty and prejudice to applicant as a consequence of raising new issue in circumstances where Competition Notice has been revoked – remaining issue as to whether mandatory to apply s 46

ADMINISTRATIVE LAW – Commission not entitled to issue Competition Notice – proposed redacted Competition Notice – a Part A competition notice is an instrument for the purposes of s 46 of the Acts Interpretation Act – s 46 does not apply to the decision to issue the Competition Notice – decision to issue notice invalid – s 46 does not apply where instrument was intended to operate fully – contrary intention evident that the Commission is not entitled to make substantive changes to the Competition Notice by applying s 46 – if s 46 were to apply whether Competition Notice could be read down or severed – whether s 46(1)(c) applies to the Competition Notice requiring it to be read so that it is valid to the extent it is within power – Competition Notice invalid in entirety and cannot be read down proposed alternative construction not available – whether s 46(2) applies to the Competition Notice requiring parts to be severed – severance not appropriate