AUSTRALIAN COMPETITION TRIBUNAL Application by Rana [2003] AcompT 3 TRADE PRACTICES – application pursuant to s 101 of the Trade Practices Act 1974 (Cth) – condition of enrolment at university that students become members of student association – university notified Australian Competition and Consumer Commission of conduct which would otherwise potentially be in breach of exclusive dealing prohibition in s 47 of the Act – application sought review of decision of Commission not to issue a notice under s 93 revoking the immunity afforded by notification – whether Tribunal had jurisdiction to review decision of the Commission not to issue a notice. Trade Practices Act 1974 (Cth): ss 93, 101 RE: APPLICATION BY RANJIT SHAMSHER JUNG BAHADUR RANA No 4 of 2003 GOLDBERG J (President) MELBOURNE 26 AUGUST 2003 AUSTRALIAN COMPETITION TRIBUNAL No 4 of 2003 RE: APPLICATION BY RANJIT SHAMSHER JUNG BAHADUR RANA TRIBUNAL: GOLDBERG J (President) DATE OF DECISION: 26 AUGUST 2003 WHERE MADE: MELBOURNE THE TRIBUNAL DETERMINES THAT: 1. The application by Mr Rana filed on 4 August 2003 be dismissed because there is no jurisdiction or power in the Tribunal to deal with the matter. AUSTRALIAN COMPETITION TRIBUNAL No 4 of 2003 RE: APPLICATION BY RANJIT SHAMSHER JUNG BAHADUR RANA TRIBUNAL: GOLDBERG J (President) DATE OF DECISION: 26 AUGUST 2003 WHERE MADE: MELBOURNE REASONS FOR DECISION 1 On 4 August 2003 Mr Ranjit Shamsher Jung Bahadur Rana filed an application in the Australian Competition Tribunal ("the Tribunal") purportedly pursuant to s 101 of the Trade Practices Act 1974 (Cth) ("the Act") for a review of the determination of the Australian Competition and Consumer Commission ("the Commission") dated 30 April 2003 in relation to James Cook University ("the University") to continue certain aspects of its enrolment policy that might have raised some concerns under the Act. 2 The University had lodged a notification on 21 December 2001, pursuant to the provisions of s 93 of the Act, in respect of aspects of enrolment which raised issues in relation to conduct proscribed by s 47(8) of the Act. 3 On 26 October 2002 the Commission had issued a draft notice which evinced an intention to issue a final notice revoking the immunity afforded by the notification lodged by the University on 21 December 2001. The Commission received further submissions and had conferences with relevant parties. On 30 April 2003 it notified the University that it had considered whether to issue a final notice revoking the immunity afforded by the notification lodged by the University and had decided not to issue a notice under s 93(3) of the Act. As the Commission did not propose to issue a final notice revoking the immunity afforded by the University's notification, there was no reasonable basis for the University to take the matter any further. In effect the Commission allowed the University to continue to enjoy the immunity afforded by its notification. 4 Mr Rana has, in his application for review, raised issues whereby he challenges the decision taken by the Commission. I brought the matter on for mention before the Tribunal this day, because it seemed to me that the Tribunal has no jurisdiction or power to deal with the application filed by Mr Rana. The only power of review in relation to the procedure set out in s 93 of the Act is under s 101A of the Act, whereby the Tribunal can review the giving of a notice under s 93(3) or s 93(3A). If no notice is given under either of those subsections then there is no jurisdiction in the Tribunal to deal with a matter arising under s 93 of the Act. 5 In his application, Mr Rana refers to a review of the "determination". Under s 101 of the Act, the Tribunal can review determinations which are made in relation to applications for authorisations. However, the matter which was before the Commission in relation to the University was not an application for authorisation but was rather the notification of exclusive dealing conduct, which initially gave rise to protection and immunity under s 93 of the Act, unless the Commission took the next step of giving a notice, which it has not done. In those circumstances, there is no basis for the application to proceed before the Tribunal. 6 Mr Rana has a number of criticisms and complaints about certain matters raised in his application but those are not matters with which this Tribunal can deal. They are matters for consideration by the Commission, but not matters for consideration by this Tribunal. 7 The order of the Tribunal will be that the application by Mr Rana, filed on 4 August 2003, is dismissed because there is no jurisdiction or power in the Tribunal to deal with the matter. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Decision herein of the Tribunal. Associate: Dated: 5 September 2003 Counsel for the Applicant The Applicant appeared in person Counsel for the Australian Competition and Consumer Commission: Mr J Chisholm Date of Hearing: 26 August 2003 Date of Decision: 26 August 2003