IN THE AUSTRALIAN COMPETITION TRIBUNAL

NEW SOUTH WALES DISTRICT REGISTRY

                                                                                    Matter No. Q1/97

RE:     APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 2 JULY 1997 GRANTING AUTHORISATION IN RELATION TO APPLICATION NO A90600 (THERAPEUTIC GOODS ADVERTISING CODE)

BY:      BIONIC PRODUCTS PTY LTD ACN 002 850 035

MEMBERS:  VON DOUSSA J (Acting President), DR B I ALDRICH (Member), PROFESSOR R DUNCAN, (Member)

DATE OF DECISION:         28 OCTOBER 1998

WHERE MADE:       SYDNEY

REASONS FOR RULING

VON DOUSSA J:

On 11 December 1996 an application for authorisation was lodged with the Australian Competition and Consumer Commission (“the Commission”) on behalf of Proprietary Medicines Association of Australia Inc and the Nutritional Foods Association of Australia.  The application was made under s 88(1) of the Trade Practices Act 1974 (Cth) (“the Act”) for an authorisation to make a contract or arrangement, or arrive at an 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.

The purpose of the application was to gain authorisation for the establishment of a new Therapeutic Goods Advertising Code Council, for the adoption of the Therapeutic Goods Advertising Code by the applicants, and for the establishment of a complaints resolution panel and appeal mechanism that would hear and determine complaints regarding breaches of the Code and that could impose sanctions.

The Commission, by a determination dated 2 July 1997, granted the authorisation sought.  Bionic Products Pty Ltd (“Bionic”) considered that its products and business could be affected by the Therapeutic Goods Advertising Code in respect of which authorisation had been granted.  As a person dissatisfied with the determination, Bionic made application under s 101(1) of the Act to this Tribunal for a review of the determination.  After the application was made, this Tribunal granted an interim authorisation to operate until the determination of the application for review.

Under s 91(1A) of the Act an authorisation granted by the Commission does not come into force until the expiration of the time within which an application may be made to the Tribunal for a review, or if an application for review is made by a person with sufficient interest, until either the application is withdrawn or the application is determined by the Tribunal.  Once an application for review is made to the Tribunal, the jurisdiction given to the Tribunal under s 102 of the Act is enlivened.  In particular, for the purposes of the review the Tribunal may perform all the functions and exercise all the powers of the Commission.  Among the powers of the Commission is that conferred in s 88(16) which provides that a corporation that has made an application to the Commission for an authorisation may at any time by notice in writing to the Commission, withdraw the application.

In the present instance, the applicants for authorisation, Proprietary Medicines Association of Australia Inc and the Nutritional Foods Association of Australia by notice directed to the Tribunal dated 8 July 1998 have purported to withdraw the original application for authorisation.  By way of explanation, the applicants for authorisation seek to withdraw the application because Statutory Rule 1997 No. 400, Therapeutic Goods Regulations (Amendment) made on 18 December 1997 under the Therapeutic Goods Act 1989 came into force on 14 May 1998.  The Statutory Rule had the effect of bringing into law the Therapeutic Goods Advertising Code that had been published in a Special Gazette on 10 December 1997.  Notwithstanding these events, Bionic, through its managing director, Mr Shaw, wishes the review to proceed and has appeared today for that purpose.

The question now before the Tribunal is whether the application for authorisation has been effectively withdrawn so that the Tribunal no longer has jurisdiction to entertain the application for review.  That is a question of law that falls to the presidential member of the Division of the Tribunal which is hearing the matter to determine: see s 42(1) of the Act.

Upon the application for review being lodged the Tribunal may exercise the powers of the Commission including the power to receive a notice of withdrawal filed under s 88(16).  Those powers are not exhausted until one of the events mentioned in s 91(1A)(b) or (c) occurs.  It is my opinion that the notice of withdrawal filed by the applicants for authorisation on 8 July 1998 has effectively brought to an end these proceedings, and I so rule.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Ruling herein of the Honourable Justice von Doussa

Associate:

Date:

Mr J Shaw agent for Bionic Products Pty Ltd

Ms M Painter for Australian Competition & Consumer Commission

Mr M Bezzi (instructed by Australian Government Solicitor) for Commonwealth of Australia

Mr A Limbury (instructed by Minter Ellison) for Proprietary Medicines Association of Australia Inc. & Nutritional Foods Association of Australia