TPL of LASue COMMONWEALTH OF AUSTRALTA TRADE PRACTICES ACT 1974 IN THE TRADE PRACTICES TRIBUNAL Lockhart J. President, Mr. 14 December 1984 RE: RE: ORDERS: L.W. Johnson, Mr. FILE NO. 4 OF 1984 COUNTRY TELEVISION SERVICES LIMITED Applicant An application by Country Television Services Limited for a review of a determination made by the Trade Practices Commission dated 12 September 1984 (Determination No. A21265) R.L"L. Wilson THE TRIBUNAL DETERMINES THAT leave be given to the applicant, Country Television Services Limited, to withdraw application for review No. 4 of 1984. COMMONWEALTH OF AUSTRALIA TRADE PRACTICES ACT 1974 IN THE TRADE PRACTICES TRIBUNAL FILE NO. 4 OF 1984 RE: COUNTRY TELEVISION SERVICES LIMITED Applicant RE: An application by Country Television Services Limited for a review of a determination made by the Trade Practices Commission dated 12 September 1984 (Determination No. A21265) Trade Practices Tribunal Lockhart J. President, Mr. L.W. Johnson, Mr. R.L. Wilson 14 December 1984 REASONS FOR DECISION The Tribunal Country Television Services Limited (the applicant) applied to the Tribunal for a review of the determination by the Trade Practices Commission (the Commission) ef 12 Beptember 1984 (file no. A21265). The applicant was the applicant for authorisation to which the Commission's determination related. By that determination the Commission granted authorisation until 30 June 1987 to certain rules and procedures of the Federation of Australian Country Television Stations ("FACTS") - a trade association whose membership consists of companies operating Australia's 50 commercial television stations. By 2. the rules and procedures in question the television stations substantially delegated to FACTS the task of regulating advertising on commercial television stations. The Commission imposed three conditions on the grant of authorisation which it is unnecessary to recite. It appears from the application for review which the applicant lodged with the Tribunal that the applicant's dissatisfaction with the Commission' s determination related principally to two of the three conditions and to the restriction of the operation of the authorisation to 30 June 1987. The solicitors for the applicant wrote a letter to the Registrar of the Tribunal dated 14 November 1984 in which they said, so far as material: "We confirm that we are instructed that the applicant does not wish to proceed with the application for review, Accordingly, we withdraw the application." The Commission then gave notice to the Tribunal and to the applicant that it proposed, at the preliminary conference before the Tribunal, to seek orders from the Tribunal that the Commission's determination be set aside. 3. When the matter first came before the Tribunal on Thursday, 29 November 1984 counsel for the applicant said that his client's application had been withdrawn so that the review was at an end. He submitted, in the alternative, that if the application was still alive the applicant should he given leave to withdraw the application. Counsel for the applicant said that, if leave was refused, the applicant would have nothing to offer in opposition to the course suggested by the Commission, namely, that the Tribunal should set aside the Commission's determination, a course followed by the Tribunal in its earlier decision of Mortqage Guaranty Insurance Corporation of Australia Limited No. NSW 3 of 1984 (decision given 28 September 1984). Counsel for the Commission said that the Commission took this attitude because FACTS had issued a public statement, which was confirmed in discussions between the solicitors for the applicant and officers of the Commission, that the limitation of time and the conditions imposed by the Commission on the grant of authorisation were unacceptable to FACTS. FACTS said in the public statement that it would introduce a new scheme which would not require authorisation to be sought from the Commission. Counsel for the Commission submitted that, once an application for review had been made, it could not be withdrawn and the Tribunal must proceed to determine it as provided by sub-s. 102(1) of the Trade Practices Act 1974 (the Act), namely, by affirming, setting aside or varying the Commission's determination. It was 4. submitted, in the alternative, that, if an application can he withdrawn, it can be done only by leave of the Tribunal. The Commission opposed the granting of leave on the ground that. the authorisation granted by it was now academic since the conduct the subject of the authorisation would not take place in view of the public statement made by FACTS and concurred in by the applicant. It was gaid that the public may gain a false impression that any future conduct of FACTS is protected by the existing authorisation which would remain on foot unless set aside by the Tribunal. Neither the Act nor the Trade Practices Regulations make express provision for the withdrawal of an application for review. The Tribunal's powers expressly stated in the Act, upon a review of a determination of the Commission, are those to which we have referred in sub-s. 102(1). In Re: United Permanent Building Society Limited (1976) 26 F.L.R. 129 the United Permanent Building Society was refused authorisation by the Commission. The Society applied, pursuant to s. 101, to the Tribunal for a review of that determination. Prior to the Tribunal embarking upon the hearing of the matter the Society notified the Tribunal's Registrar that it "withdraws its appeal from the determination of the Trade Practices Commission ... The then President of the Tribunal (Northrop J.) proceeded on the basis that the Society had applied for leave to withdraw its application for review. His Honour treated the withdrawal as a matter of procedure which he, as a presidential member of the Tribunal, could deal with otherwise than by a division of the Tribunal consisting of a 5. presidential member and two other members. Neither the Commission nor any of the interveners opposed the application to withdraw. His Honour made an order directing that the application for review he withdrawn. Although the circumstances in which the question of withdrawal arose in the United Permanent Building Society Case are different from those involved in the present matter, it is interesting to note that Northrop J. did not treat the Society's application as having operated to withdraw the application for review of its own force. His Honour chose to direct that the applicant for review withdraw the application. Rules of Court generally provide for the discontinuance of proceedings and they define the circumstances in which a moving party may discontinue as of right or by leave. No such provision appears in the Act or the Trade Practices Regulations governing proceedings before the Tribunal. The withdrawal of applications raises difficult concepts and has been the subject of some discussion by courts in various contexts, including bankruptcy proceedings, where petitioning creditors have sought the Court's leave to withdraw petitions to sequestrate a debtor's estate, rather than an order of the Court that they be dismissed. Withdrawal of a bankruptcy petition isa notion that does not lie easily with bankruptcy law because the date of presentation of a petition, upon which a sequestration order is subsequently made, determines the title to property of the bankrupt and has direct relevance to the avoidance of certain dispositions of a bankrupt's property. 'Although procedures before courts, including bankruptcy petitions, are different in nature to applications for 6. review before the Tribunal, they nevertheless suggest that caution should be exercised before deciding that an applicant for review has a right to withdraw his application.so that, upon the withdrawal taking effect according to its terms, the Tribunal's functions and powers thereupon cease. The proceedings before the Tribunal are not merely inter partes; they involve the public interest. In the opinion of the Tribunal the applicant's notification to the Tribunal by letter from the solicitors of 14 November 1984 did not operate to withdraw the application for review. To this point the views expressed have been those of Lockhart J. as the Tribunal's President since they involve a question of law: sub-s. 42(1) of the Act. The question which all three members of the Tribunal must now consider is whether leave should be granted to the applicant to withdraw its application. Although we see some force in the Commission's argument that the authorisation is now academic and "the slate should be wiped clean", we do not think that there is any real likelihood that the public will be unwittingly misled to think that the Commission has authorised whatever future conduct may be engaged in by FACTS or by the applicant. Also, we note that the Commission is itself empowered, by sub-s. 91(4) of the Act, at any time after it has granted authorisation, to make a determination revoking the authorisation in various circumstances including the fact that there has been a material change of circumstances since the authorisation was granted. We see no good purpose in keeping alive the application which the applicant seeks to withdraw. We are of the opinion that leave to withdraw should be granted. The Tribunal orders that leave be given to the applicant to withdraw application for review No. 4 of 1984. I certify that this and the six (6) preceding pages are a true copy of the Reasons for Decision herein of the Trade Practices Tribunal. AK Co Associate Dated: 14 December 1984