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either the application is withdrawn or the application is determined by the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