Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701

FEDERAL COURT OF AUSTRALIA

Korean Air Lines v Australian Competition and Consumer Commission (No 3) [2008] FCA 701 ADMINISTRATIVE LAW – ACCC investigation into price-fixing by air cargo cartel – applicant rejected the ACCC's settlement offer – the ACCC issued a Notice under s 155 of the Trade Practices Act 1974 (Cth) – applicant claimed Notice issued for improper purpose – evidence of without prejudice discussions inadmissible – ACCC had not made decision to commence proceedings against applicant if settlement offer were rejected – s 155 is a power conferred for an administrative purpose – whether a notice under s 155 is issued for an improper purpose is to be determined in all the circumstances

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(d), 5(1)(e) and 5(2)(c) Evidence Act 1995 (Cth) s 131 Trade Practices Act 1974 (Cth) s 155

Australian Competition and Consumer Commission v Rural Press Ltd (2000) 96 FCR 389 followed Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756referred to Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182discussed Brown v Commissioner of Taxation (2001) 187 ALR 714followed Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 referred to Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477referred to Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285referred to First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266followed Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233referred to GPI Leisure Corporation Ltd (In Liq) v Yuill (1997) 42 NSWLR 225applied Harrington v Lowe (1996) 190 CLR 311referred to Jones v Dunkel (1959) 101 CLR 298 referred to Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 applied Moran v Moran (No 3) [2000] NSWSC 151distinguished O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1referred to Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 referred to Riley McKay Pty Limited v Bannerman (1977) 15 ALR 561 referred to Rodgers v Rodgers (1964) 114 CLR 608 referred to Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69followed Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1982) 55 FLR 77 discussed Seven Network Ltd v Australian Competition and Consumer Commission (2004) 140 FCR 170referred to Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 distinguished