AUSTRALIAN COMPETITION TRIBUNAL Nursing Agencies Association of Australia [2003] ACompT 2 TRADE PRACTICES – review sought of determination by Australian Competition and Consumer Commission to authorise agreements pertaining to the health sector which would otherwise have been in contravention of s 45 of the Trade Practices Act 1974 (Cth) – applicant sought leave to withdraw application for review prior to hearing – whether leave of the Australian Competition Tribunal required to withdraw application for review. Trade Practices Act 1974 (Cth): s 91(1A) Re United Permanent Building Society Ltd (1976) 26 FLR 129, considered Re Country Television Services Limited (1984) 73 FLR 68, followed Matter No 8 of 2002 APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 4 DECEMBER 2002 GRANTING AUTHORISATION IN RELATION TO APPLICATIONS A90811 AND A90812 (AGREEMENTS BETWEEN HEALTH PURCHASING VICTORIA AND VICTORIAN PUBLIC HEALTH SERVICES FOR THE EXCLUSIVE AWARD OF TENDER TO NURSING AGENCIES) BY: NURSING AGENCIES ASSOCIATION OF AUSTRALIA GOLDBERG J (Deputy President), PROFESSOR D ROUND and MISS M STARRS 8 JULY 2003 MELBOURNE IN THE AUSTRALIAN COMPETITION TRIBUNAL No 8 of 2002 APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 4 DECEMBER 2002 GRANTING AUTHORISATION IN RELATION TO APPLICATIONS A90811 AND A90812 (AGREEMENTS BETWEEN HEALTH PURCHASING VICTORIA AND VICTORIAN PUBLIC HEALTH SERVICES FOR THE EXCLUSIVE AWARD OF TENDER TO NURSING AGENCIES) BY: NURSING AGENCIES ASSOCIATION OF AUSTRALIA THE TRIBUNAL: GOLDBERG J (Deputy President) PROFESSOR D ROUND and MISS M STARRS DATE OF ORDER: 8 JULY 2003 WHERE MADE: MELBOURNE THE TRIBUNAL ORDERS THAT: 1. Leave is granted to the applicant, Nursing Agencies Association of Australia, to withdraw its application for review filed on 20 December 2002. IN THE AUSTRALIAN COMPETITION TRIBUNAL No 8 of 2002 APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 4 DECEMBER 2002 GRANTING AUTHORISATION IN RELATION TO APPLICATIONS A90811 AND A90812 (AGREEMENTS BETWEEN HEALTH PURCHASING VICTORIA AND VICTORIAN PUBLIC HEALTH SERVICES FOR THE EXCLUSIVE AWARD OF TENDER TO NURSING AGENCIES) BY: NURSING AGENCIES ASSOCIATION OF AUSTRALIA THE TRIBUNAL: GOLDBERG J (Deputy President) PROFESSOR D ROUND and MISS M STARRS DATE: 8 JULY 2003 PLACE: MELBOURNE REASONS FOR DECISION 1 On 3 December 2002 Health Purchasing Victoria ("HPV") lodged applications with the Australian Competition and Consumer Commission ("the Commission") pursuant to s 88(1) of the Trade Practices Act 1974 (Cth) ("the Act") for authorisation to make or give effect to a contract, arrangement or understanding, a provision of which would have the purpose, or would or might have the effect, of substantially lessening competition within the meaning of s 45 of the Act and make or give effect to a provision of a contract, arrangement or understanding where the provision is, or may be, an exclusionary provision within the meaning of s 45 of the Act. 2 On 4 December 2002 the Commission determined to grant authorisations to HPV in the terms of the applications which had been made subject to certain conditions, not relevant for present purposes. The authorisations were expressed to be subject to any application to the Australian Competition Tribunal ("the Tribunal") for review. 3 The determination provided: "If no application for review of the determination is made to the Australian Competition Tribunal, it will come into force on 26 December 2002. If an application is made to the tribunal, the determination will come into force: ■ where the application is not withdrawn – on the day on which the Tribunal makes a determination on the review; or ■ where the application is withdrawn – on the day on which the application is withdrawn." 4 An application was made to the Tribunal pursuant to s 101 of the Act for review of the Commission's determination to grant the authorisations by Nursing Agencies Association of Australia on 20 December 2002. 5 On 18 February 2003 Code Blue Specialist Nurses Agency Pty Ltd ("Code Blue") notified the Tribunal that it wanted to participate in the review and sought leave to intervene in the review. However, by notice dated 6 June 2003 Code Blue notified the Tribunal that it would no longer participate in the application for review and withdrew from it. 6 Leave was also given to the Department of Human Services to intervene in the review. 7 Directions were given for the necessary interlocutory steps to be taken in order to bring the review to a hearing and a hearing date was set for 21 July 2003. A further directions hearing was set for 8 July 2003. 8 On 18 June 2003 Nursing Agencies Association of Australia wrote to the Tribunal notifying it that it intended to withdraw its application for review of the Commission's determination. HPV and the Department of Human Services are concerned to ensure that the authorisations take effect as soon as possible. 9 There is no specific provision contained in the Act or in the Trade Practices Regulations 1974 (Cth) for the withdrawal of any application for a review of a determination of the Commission made pursuant to s 101 of the Act. However, there is an implicit recognition of such an occurrence in the Act by a provision which contemplates that an application may be withdrawn. This is found in s 91(1A)(c) which provides that where an application for a review of a determination of the Commission is made to the Tribunal and is then withdrawn, the authorisation comes into force on the day on which the application is withdrawn. The concept of withdrawal of an application for review is also recognised in subs (1B) and (1C) of s 91. 10 In Re United Permanent Building Society Ltd (1976) 26 FLR 129, the United Permanent Building Society was refused an authorisation by the Trade Practices Commission and it applied pursuant to s 101 of the Act to the Trade Practices Tribunal for a review of that determination. Prior to the hearing, the Society notified the Tribunal that it withdrew its application for review. Northrop J treated the withdrawal of the application for review as a matter of procedure which did not require the making of an order or determination by the Tribunal. He directed that the application for review be withdrawn. 11 In Re Country Television Services Limited (1984) 73 FLR 68, an applicant for a review of a determination by the Trade Practices Commission pursuant to s 101 of the Act notified the Trade Practices Tribunal that it did not wish to proceed with the application for review and purported to withdraw the application. However, the Trade Practices Tribunal took the view that the applicant's notification did not operate to withdraw the application for review and that the application could only be withdrawn by leave of the Tribunal. Accordingly the Trade Practices Tribunal ordered that leave be given to the applicant to withdraw the application for review. This order was different from the order of Northrop J where he directed that the application be withdrawn. 12 In circumstances where an applicant for review pursuant to s 101 of the Act wishes to withdraw the application for review, the Tribunal is of the view that the appropriate order to make is that leave be granted to withdraw the application rather than that the applicant be directed to withdraw the application. To the extent to which there is a difference between the procedure adopted in Re United Permanent Building Society Ltd (supra) and Re Country Television Services Limited (supra), the Tribunal prefers the approach taken in the latter case. 13 The opinions expressed in this decision up to this point of the reasons have been those of Goldberg J as Deputy President of the Tribunal as the opinions involve a question of law and are, in accordance with s 42(1) of the Act, to be determined in accordance with the opinion of the presidential member presiding. 14 The issue which all the members of the Tribunal must now determine is whether leave should be granted to the applicant to withdraw the application. 15 Although the application for review was initiated by a private party and not a public body, the proceeding before the Tribunal is not only a proceeding inter partes. The proceeding also involves issues relating to the public interest. It was fundamental to the determination of the Commission that the arrangements for which the authorisations were sought were likely to result in a benefit to the public and that that benefit would outweigh the detriment to the public constituted by any lessening of competition that would be likely to result from the arrangement. 16 As the applicant for review does not wish to proceed with the review and as the only other party who indicated an intention to participate in the review other than the Department of Human Services, Code Blue, does not wish to proceed with the review, the Tribunal does not consider that there is any reason in the public interest why the review should be maintained. Accordingly the Tribunal grants leave to the applicant to withdraw its application for review. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Decision herein of the Tribunal. Associate: Dated: 9 July 2003 Counsel for Nursing Agencies Association of Australia: Mr N G Rochow Solicitor for Nursing Agencies Association of Australia: Cowell Clarke Counsel for the Australian Competition and Consumer Commission: Mr T Jarvis Solicitor for the Australian Competition and Consumer Commission: Deacons Lawyers Counsel for Health Purchasing Victoria and Department of Human Services: Ms R Binny Solicitor for Health Purchasing Victoria and Department of Human Services: Freehills Date of Hearing: 8 July 2003 Date of Reasons for Decision: 8 July 2003