AUSTRALIAN COMPETITION TRIBUNAL

Application by Michael Jools, President of the NSW Taxi Drivers Association [2005] ACompT 4

TRADE PRACTICES � application for review of determination not to revoke authorisation � standing of applicant -whether applicant has a �sufficient interest� � whether applicant has standing personally � whether applicant as president of an incorporated association has standing

Trade Practices Act 1974 (Cth):� ss 47, 101

Re: Application by PK Wakeman (1999) ATPR 41‑675 distinguished

Re: Application by Wylie Steel Pty Ltd(1980) ATPR 40‑170 followed

Re: Application by Orica IC Assets Ltd; Re Moomba to Sydney Gas Pipeline (No 2) (2004) ATPR 41‑991 distinguished

RE:�� APPLICATION FOR REVIEW OF THE DETERMINATION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 11 MARCH 2005 NOT TO REVOKE AUTHORISATIONS IN RELATION TO DE LUXE RED & YELLOW CABS CO‑OPERATIVE TRADING SOCIETY LTD (A30112), LEGION CABS (TRADING) CO‑OPERATIVE SOCIETY LIMITED (A90441), RSL EX‑SERVICEMEN�S CABS & CO‑OPERATIVE MEMBERS LTD (A90448), ST GEORGE CABS CO‑OPERATIVE LTD (A90531), ARROW TAXI SERVICES LTD (A90449), REGAL COMBINED TAXIS PTY LTD (A90447), GEELONG RADIO CABS CO‑OPERATIVE LTD (A90463), NORTH SUBURBAN TAXIS LTD (A90455), SILVER TOP TAXI SERVICE LTD (A40047), BLACK CABS AND EASTERN GROUP TAXIS CO‑OPERATIVE LTD (A90498), WEST SUBURBAN TAXIS LTD (A40071) and SUBURBAN TAXI SERVICE PTY LTD (A90472)

BY:�� MICHAEL JOOLS, PRESIDENT OF THE NEW SOUTH WALES TAXI DRIVERS ASSOCIATION

FILE No 3 of 2005

JUSTICE GOLDBERG (President)

1 JUNE 2005

MELBOURNE (HEARD IN SYDNEY)

IN THE AUSTRALIAN COMPETITION TRIBUNAL

FILE No 3 of 2005

BY:�� MICHAEL JOOLS, PRESIDENT OF THE NEW SOUTH WALES TAXI DRIVERS ASSOCIATION

Applicant

THE TRIBUNAL:	GOLDBERG J (President)
DATE:	1 JUNE 2005
PLACE:	MELBOURNE (HEARD IN SYDNEY)

THE TRIBUNAL DETERMINES THAT:

1.�� The objection to the standing of the applicant to make the application is overruled.

2.�� The applicant is to file and serve an amended application on or before 8 June 2005.

3.�� The matter is adjourned for further directions to 15 June 2005.

IN THE AUSTRALIAN COMPETITION TRIBUNAL

FILE No 3 of 2005

BY:�� MICHAEL JOOLS, PRESIDENT OF THE NEW SOUTH WALES TAXI DRIVERS ASSOCIATION

Applicant

THE TRIBUNAL:	GOLDBERG J (President)
DATE:	1 JUNE 2005
PLACE:	MELBOURNE (HEARD IN SYDNEY)

REASONS FOR DETERMINATION

1 On 1 April 2005 Michael Jools, President of the New South Wales Taxi Drivers Association (�NSWTDA�), filed an application pursuant to s 101 of the Trade Practices Act 1974 (Cth) (the �Act�) in relation to a determination of the Australian Competition & Consumer Commission (�the Commission�) dated 11 March 2005 not to revoke authorisations numbered A30112, A90441, A90448, A90531, A90449, A90447, A90463, A90455, A40047, A90498, A40071 and A90472 (the �Authorisations�).� I say �in relation to�, because the relief sought by the applicant, (that the Commission review its determination) is not relief available under the Act.� However the gravamen of the complaint is that the applicant wants the determination of the Commission set aside, and the defect in the application in relation to the relief sought can be cured by amendment.

The Authorisations

2 On 25 February 1986, the Trade Practices Commission granted authorisation A30112 to De Luxe Red & Yellow Cabs Co‑operative Trading Society Ltd (now Combined Communications Network Ltd) (�De Luxe/CCN�) in respect of the following conduct:

�The penalising or suspension from the use of radio booking facilities by the Co‑operative of its members or drivers as a result of the failure by members or drivers to display radio numbers and/or decals of taxi hiring account or other credit systems which have been approved from time to time by the directors and/or failure of those members or drivers to accept those hiring account or other credit systems in satisfaction of fares for any hirings.�

3 The authorisation allows De Luxe/CCN to provide radio booking facilities on the condition that members and drivers accept whichever taxi hiring account or credit system is approved by De Luxe/CCN, and display details of those systems.� Without the authorisation, De Luxe/CCN risked breaching the prohibition against exclusive dealing in the form of third line forcing under s 47(6) of the Act.

4 De Luxe/CCN claimed that it benefited the public to have a common booking number and to be assured of being able to use a known card system.� De Luxe/CCN claimed that confusion would arise where a member of the co‑operative provided a credit facility not offered by all other members of the co‑operative.� The Trade Practices Commission agreed at the time that consumers should not be misled as to the availability of credit card services, and accepted that there were public benefits in requiring members of De Luxe/CCN to display and offer systems such as Cabcharge.

5 In the period 1986 to 1994, eleven other companies or co‑operatives in the taxi industry in Victoria, New South Wales and South Australia applied for authorisation for the same or similar conduct.� The Trade Practices Commission considered the applications in light of the authorisation granted to De Luxe/CCN and granted authorisations for the same or similar conduct to the following companies or co‑operatives:

� Legion Cabs (Trading) Co‑operative Society Limited (�Legion Cabs�)

� RSL Ex‑Servicemen�s Cabs & Co‑operative Members Ltd (�RSL Cabs�)

� St George Cabs Co‑operative Ltd (�St George Cabs�)

� Arrow Taxi Services Ltd (�Arrow�)

� Regal Combined Taxis Pty Ltd (now Taxis Combined Services (Victoria) Pty Ltd) (�TCS(Vic)�)

� Geelong Radio Cabs Co‑operative Ltd (�Geelong Cabs�)

� North Suburban Taxis Ltd (now 1A Bell Holdings Ltd) (�North Suburban�)

� Silver Top Taxi Service Ltd (�Silver Top�)

� Black Cabs and Eastern Group Taxis Co-operative Ltd (now Black Cabs Combined Ltd) (�Black Cabs�)

� West Suburban Taxis Ltd (�West Suburban�)

� Suburban Taxi Service Pty Ltd (now Suburban Transport Services Pty Ltd) (�Suburban�).

6 In the Determination, the Commission noted [at par 2.29] that:

� the applicants have discretion to approve which cards and vouchers will be the subject of the conduct;

� CCN (which is the subsidiary company of Cabcharge Australia Ltd and the parent company Taxis Combined Services Pty Ltd) has approved the Cabcharge Account System, which accepts, among other things, Cabcharge cards and dockets and certain other credit cards; and

� the cards and vouchers accepted under the Cabcharge Account System appear to be the same for all the applicants to the Authorisations.

The Determination

7 This is an unusual proceeding because in relation to all but one of the Authorisations, no party sought to have the Authorisations revoked.� Rather the Commission itself decided to revisit the Authorisations as it considered that there may have been a material change of circumstances since the time of granting the Authorisations.

8 Section 91B(3) of the Act provides that if, at any time after granting an authorisation, it appears to the Commission that, inter alia, there has been a material change of circumstances since the authorisation was granted, the Commission may inform persons �who appear to be interested� that it is considering revocation of the authorisation, indicate the basis on which revocation is being proposed, and invite submissions within a specified period.

9 If any objection to the revocation is included in a submission, the Commission must not make a determination revoking the authorisation unless it is satisfied that it would, if the authorisation had not already been granted, be prevented under subs 90(6), (7), (8) or (9) from making a determination granting the authorisation in respect of which revocation is sought:� s 91B(5).

10 Section 90(6) of the Act provides that the Commission shall not make a determination granting an authorisation under subs 88(1), (5) or (8) unless it is satisfied that the provision of a proposed contract, arrangement or understanding would result or likely result in a benefit to the public and that that benefit would outweigh the detriment to the public constituted by any lessening of competition.

11 On 17 December 2003 the Commission sent a notice to De Luxe/CCN advising that it was considering revoking its authorisation.� On 21 April 2004 Suburban advised the Commission that its authorisation (No A90472) was no longer required.� On 7 May 2004 the Commission issued notices advising that it was considering revoking eleven other authorisations on the basis of a change in material circumstances, and in the case of Suburban because an application for revocation had been made.

12 The determination dated 11 March 2005 the subject of this application (the �Determination�) therefore considered the twelve Authorisations together.

13 The applicants to the Authorisations, except for TCS(Vic) which is no longer operating, provided submissions to the Commission and all, except Suburban, opposed revocation of the Authorisations.� The Commission also received submissions from interested parties, including the applicant in this proceeding.

14 In the Determination the Commission noted that there was some contention about the extent of the Authorisations, particularly whether or not EFTPOS, being electronic funds transfer point of sale, was covered [par 2.25].� The Commission noted that at the time of the De Luxe/CCN authorisation, EFTPOS would not have been a consideration given that there were no EFTPOS terminals in taxis at that time.� The Commission concluded that the terms of the Authorisations did not extend to any requirement that EFTPOS terminals be accepted by taxi operators and/or drivers as a condition of obtaining radio booking services [par 2.31].�

15 The Commission identified a number of competition‑related issues, but found that none of these were linked to the Authorisations because Cabcharge cards and the Cabcharge system were likely to continue to be used and accepted by taxi drivers even without the Authorisations.�

16 In conclusion, the Commission determined that the Authorisations generated negligible public detriments in the processing of non‑cash payments of taxi fares, which were marginally outweighed by the small public benefit flowing from the authorisations in the certainty that card and voucher payments would always be accepted in taxis, and determined not to revoke the Authorisations.

submissions

17 De Luxe/CCN, Legion Cabs, RSL Cabs, St George Cabs, Arrow, Geelong Cabs, North Suburban, Silver Top, Black Cabs and West Suburban (�the Networks�) oppose the application for review of the Determination on the basis that the applicant, in his personal capacity or as President of the NSWTDA, does not have standing pursuant to s 101 of the Act.�

18 Section 101(1) of the Act provides:

�A person dissatisfied with a determination by the Commission:

(a)�� in relation to an application for an authorization or a minor variation of an authorization; or

(b)�� in relation to the revocation of an authorization, or the revocation of an authorization and the substitution of another authorization;

may, as prescribed and within the time allowed by or under the regulations or under subsection (1B), as the case may be, apply to the Tribunal for a review of the determination.�

19 Subsection 101(1AA) of the Act provides, inter alia, that if the Tribunal is satisfied that the person applying for the review of the determination has �a sufficient interest�, the Tribunal must review the determination.

20 The Networks submitted that the applicant does not have a �sufficient interest� to bring the application, either in his personal capacity, or as President of the NSWTDA on the grounds that:

� in his personal capacity, the applicant�s personal business interests and prospects are not adversely affected by the determination, and even if they are, his interest is not real and substantial as his interest is no greater than other taxi drivers that operate in New South Wales; and

� in his capacity as President of the NSWTDA,� the business interests or prospects of the NSWTDA are not adversely affected by the determination, and in any event, the NSWTDA is better characterised as a lobby/interest group and its interests as an advocate are not affected by the determination.

21 The Networks also submitted that the applicant was seeking a review of matters not contained within, nor relevant to, the Determination, and consequently the Tribunal had no jurisdiction to review those matters.�

22 The Networks submitted that the Tribunal should follow the Tribunal�s consideration of the words �sufficient interest� in Re: Application by PK Wakeman(1999) ATPR 41‑675 (�Re Wakeman�) and have regard to the policy issues there set out, namely that the �sufficient interest� requirement acts as a filter to ensure that the review process is not misused or abused.

23 The Networks contended that the applicant had failed to identify the business or economic interests of taxi drivers which would be adversely affected by the Authorisations, given that the conduct the subject of the Authorisations was likely to continue.�

24 The applicant submitted that the Tribunal should not apply the restrictive test of a �real and substantial� interest set out in Re Wakeman but simply regard �sufficient� as meaning �adequate�.� The applicant submitted that he is a part time Sydney taxi driver and the deprivation of access to the radio booking facilities and approved credit systems is a matter of substantial detriment.� Further, the applicant says that he was an applicant for minor revocation, revocation and/or substitution, and thus has standing.

25 In relation to the applicant as President of the NSWTDA, the applicant submitted that the NSWTDA is a corporation which has 450 members and other officers, and which represents its members in their interests as taxi drivers.

26 In its outline of submissions dated 13 May 2005, the Commission submitted that the applicant has a sufficient interest, in his personal capacity and as President of the NSWTDA, and that the question of the applicant�s sufficiency of interest should be considered in relation to the single determination, and not the twelve individual authorisations.� Further, the Commission submitted that the applicant could not be said to be an applicant for minor revocation, revocation and/or substitution.

27 Mr Faruque Ahmed and Mr Bob Zivojinovic are both taxi drivers and appeared in person before the Tribunal.� Mr Ahmed requested that he be a party to the proceeding.� Mr Ahmed has sent a letter to the Tribunal setting out his concerns regarding the Authorisations and the use of Cabcharge.� Mr Ahmed submitted that he is directly affected by the Authorisations because, among other things, he is compelled to bear the burden of any dockets not honoured by Cabcharge and of traffic fines received whilst processing Cabcharge dockets and cards, and has to provide his details to a company with which he has no contractual relationship.

28 Mr Zivojinovic wishes to provide information to the Tribunal regarding the Authorisations.� He informed the Tribunal that he is forced to honour Cabcharge payments if the payments are not honoured.

REASONING

29 I am satisfied that the applicant was not the applicant for minor revocation, revocation and/or substitution of an authorisation.� The applicant made submissions to the Commission in respect of the Determination, but that was the limit of his involvement.� As noted above, the Commission decided to review the Authorisations itself (except in the case of Suburban).� Accordingly, in order to have standing the applicant must demonstrate that he has a sufficient interest.

30 The Trade Practices Tribunal considered the meaning of �sufficient interest� in Re: Application by Wylie Steel Pty Ltd(1980) ATPR 40‑170 (�Re Wylie Steel�), and said (at 42,344):

�It is not necessary to define the various categories of persons who may have a �sufficient interest�; but they include a person who establishes that his business or prospects could be adversely affected by the proposed merger.�

31 The Tribunal then stated that (at 42,345):

��subsec 101(1) requires that before proceeding with the review of the determination of the Commission, the Tribunal must be satisfied that the applicant, not being the applicant for the authorisation, has made out a prima facie case that it has a �sufficient interest�.� The test is not an unduly high one.� If it were, it may involve determining the very questions that will loom large in the hearing on the merits of the determination�

�

If it emerges during the course of the hearing that the applicant in truth may not have a �sufficient interest� the Tribunal may then review the locus standi of the applicant and consider the future course of the application for review.�

32 In Re Wakemanthe Australian Competition Tribunal considered whether Mr Wakeman (being a customer of air and travel services, a taxpayer in New Zealand and Australia and an aggrieved person who wished to start an airline) had sufficient interest in a determination which granted authorisation for an alliance agreement between various major airlines.�

33 The Tribunal considered the context of s 101 and the purpose of the Act, and said (at 42,635):

�Under the general law, and with judicial review, because the courts have powers to award costs and summarily dismiss proceedings which are vexatious, frivolous or an abuse of process, there is no policy reason why rules as to standing should act as a control against unmeritorious claims.� No such powers are bestowed on the Tribunal.� A purpose of the threshold requirement of �sufficient interest� is to act as a filter to ensure that the review procedure is not misused or abused.�

34 In Re Wakeman the Tribunal then considered which persons may make a submission to the Commission and noted that once a draft determination is published the Commission is required to invite submissions only from the applicant and persons whose interest is �real and substantial�.� The Tribunal then said (at 42,637):

�As the Act recognises that a person with less than a real and substantial interest may be excluded from the process at that stage, it would follow that the Act does not contemplate that review under s 101 is available to a dissatisfied person with an interest which is not at the least real and substantial.

The question of what constitutes a real and substantial interest will depend on the subject matter of the conduct, or of the proposed contract arrangement or understanding which is under consideration, on the nature and extent of the interest possessed by the person asserting it, and in the way in which the grant of the authorisation will impact on that interest.

The concept of relativity or proportionality inherent in the requirement of a �real and substantial� interest arising under s 90A(12) should be carried through to the interpretation of �sufficient interest� in s 101(1), so that the applicant for review must have, on the considerations just mentioned, a real and substantial interest.� Moreover, the interest should be one that is sufficient to warrant putting those who will be involved in the review to the very considerable time, effort and expense that a review involves.� The requirement of �sufficient interest� is concerned primarily with the interest of the applicant in the subject matter of the authorisation (or revocation) rather than with the merits of the contentions which the applicant seeks to ventilate on the hearing of the review.� However, if the contentions of the applicant are plainly without substance, or are irrelevant to the issues which the Tribunal would be required to consider on a review, the applicant would fail to satisfy the Tribunal that his or her interest was �sufficient� to warrant the Tribunal reviewing the Commission�s Determination.�

35 It should be noted that the �real and substantial� interest requirement in s 90A(12) only applies where the Commission is considering an application for an authorisation.� The �real and substantial� interest requirement is not found in ss 91A, 91B or 91C which deal with minor variations, and revocation, of authorisations.� In such circumstances the Commission is obliged to give notice �to any persons who appear to the Commission to be interested�.� The Commission is then obliged to consider any submissions received from such persons before making a determination.

36 It is therefore questionable, whether the Tribunal�s observation in Re Wakeman, referred to in par [34] above, can be carried through to an application for review under s 101 by a person who is �interested� in a determination by the Commission not to revoke an authorisation.� A person with �less than a real and substantial interest� is not necessarily excluded from the process at the point of time when the Commission is considering whether to make a determination revoking an order for authorisation or making a determination not to revoke an authorisation.

37 Although Re Wylie Steel established that a person whose business interests or prospects could be adversely affected would have a �sufficient interest� the Tribunal did not say that an effect on business interests or prospects was a precondition to establishing a �sufficient interest�.� As noted above at par [30] above, the Tribunal noted that the categories of persons who might have a �sufficient interest� included a person who established that his or her business interests or prospects could be adversely affected (emphasis added).

38 I accept that the applicant�s business and prospects may be adversely affected by a requirement that the applicant offer Cabcharge as a service.� For example, if the applicant wishes to use radio booking facilities, the applicant is prevented from dealing with competitors of Cabcharge, which may offer more favourable terms and conditions.� This may adversely affect a taxi driver�s income and the viability of his or her business.

39 I disagree with the submission of the Networks that the applicant cannot have a sufficient interest because his interest is limited to that of a taxi driver in New South Wales.� I do not consider that it is necessary for the applicant�s interest to encompass every aspect of the Determination in order for the test of standing to be satisfied.� The question of standing should be determined in light of the Determination as a whole, and not with respect to each individual authorisation.

40 The applicant�s personal position can be distinguished from that of the applicant in Re Wakeman as his interest is greater than the ordinary person.� Although the applicant is part of a large group, namely taxi drivers in New South Wales, the group is distinct from the community at large.�

41 In any event, I am satisfied that the applicant, Mr Jools, personally has a sufficient interest in the Determination which is real and substantial which entitles him to have the standing to bring the application.� I am satisfied that there is a real, and directly substantial, effect of the Determination upon Mr Jools in his capacity as a taxi driver.� The terms of the authorisations specifically refer to �members or drivers� in two parts of the Determination.� The Determination provides that the applicant for authorisation can penalise or suspend both members and drivers from the use of radio booking facilities if the members or the drivers fail to display the radio numbers or decals and if the members or drivers fail to accept accounts or other credit systems in satisfaction of fares for any hiring.� It is difficult to imagine a more direct or substantive effect of an authorisation on a taxi driver.� In short, the taxi driver can be disentitled from using radio booking facilities under the authorisation if he or she does not comply with the requirements therein referred to.� It is self-evident that an inability to have available radio booking facilities for a taxi driver will have a substantial and immediate effect on his or her ability to earn a living.�

42 The Networks conceded, quite correctly, that taxi operators had standing to review the Determination.� If the taxi operators, or members, have such standing it is difficult to see why taxi drivers do not have equal standing.� The Networks submitted that the effect on drivers was less direct.� I reject that submission.� The effect of the authorisation and the consequences which flowed from it are at least equally direct upon taxi drivers as they are on taxi operators or members; and on one view, the effect on taxi drivers is more direct.� It inhibits them from gaining income from their own personal exertion whereas the taxi operator is only limited in relation to the use of one of its assets.� The taxi operator or member is still able to derive income from personal exertion.�

43 Although there is an issue whether, absent the authorisation, Mr Jools might conduct his activities as a taxi driver any differently, I am satisfied that that issue, in the present circumstances, does not affect his standing.� In the words of Re Wylie Steel, resolving this issue may �involve determining the very questions that will loom large in the hearing on the merits of the determination�.�

44 In any event, in the course of oral submissions, Mr Jools made it clear that there were competition issues with which he was concerned as a result of the authorisation, which inhibited him, on his submission, from having the opportunity to use an alternative provider of an EFTPOS terminal.�

45 Having regard to the cost and effort a review involves and the intention that s 101 of the Act act as a filter, I would not give standing to any taxi driver in his or her personal capacity.� I do not consider that the prospect of having every taxi driver in the states of Victoria, New South Wales and South Australia as a party to this proceeding to be an efficient and sensible way for the Tribunal to deal with this issue.� Nevertheless I propose to allow Mr Jools personal standing, as his representation is conjoint with that of the NSWTDA.� In that way, the interests of taxi drivers personally can be represented and advanced before the Tribunal.

46 I will not grant leave to individual taxi drivers such as Mr Ahmed and Mr Zivojinovic to be joined as parties to the proceedings.� The interests of individual taxi drivers will be protected through Mr Jools being a party.� However, I will allow those individuals to provide written submissions to the Tribunal, if they should wish to do so.� It will be up to Mr Jools to determine who he will seek to call as witnesses.�

47 I turn to the question of the applicant in his capacity as President of the NSWTDA.� The Networks submitted that the NSWTDA is a lobby/interest group and therefore it cannot have standing under s 101 of the Act.

48 In the recent case of Re: Application by Orica IC Assets Ltd; Re Moomba to Sydney Gas Pipeline (No 2) (2004) ATPR 41‑991 (�Re Orica�), the Tribunal considered whether two membership‑based not for profit incorporated associations had standing under the Gas Pipelines Access (South Australia) Act1997 to apply for a review of the Minister�s decision to revoke coverage of a portion of the gas pipeline.� Whether or not the applicants had standing depended upon whether either body was adversely affected by the decision.�

49 The Tribunal found that the associations were not adversely affected and said (at 48,610 [12]):

�We were not referred to any authority which establishes the proposition that a consumer advocate organisation is adversely affected by a decision which relates to its objects and purposes and with which it disagrees on policy grounds.

�

It is not sensible to speak of this kind of corporation being adversely affected by a decision which relates to a topic about which it is interested by virtue of its objects and purposes.� Its role as a public interest advocate is not affected by an actual decision which is arrived at one way or the other. Each organisation is to be distinguished from individual members who will have varied (perhaps competing) commercial and personal interests.�

50 I am satisfied that the circumstances of the NSWTDA can be distinguished from the associations the subject of the decision in Re Orica.� The associations in Re Orica were broad‑based public interest advocacy groups.� With respect to one of the associations, the Energy Users Association of Australia, any energy user was able to join.� With respect to the other, Energy Action Group, any person who subscribed to the goals and objectives was able to join.�

51 It is clear that the NSWTDA is of a different nature.� The NSWTDA is an incorporated association and its aims and objectives are concerned with advancing the interests of taxi drivers.� Only taxi drivers with a New South Wales taxi authority may be members.� In my view, the NSWTDA is more akin to a trade union or industry body, than a consumer advocacy group.� I refer in particular to the following aims and objectives in the NSWTDA�s constitution:

�2.1�� A fair share of a fair fare.

2.2�� The aims and objectives are expressly concerned at advancing the interests of all taxi drivers.

2.3�� The general purpose of the NSW Taxi Drivers Association is in being a united voice and a combined strength in good will and solidarity for the common good of all taxi drivers [incorporating bailee and owner/lessee drivers] in NSW.

2.4�� To be recognized and accepted within the Taxi industry, and by all levels of Government, the media, and the general public, as the legitimate body representing the interests of taxi drivers in NSW.�

52 As noted in pars [30] and [37] above, in Re Wylie Steel the Tribunal did not provide an exhaustive list of the categories of persons who may have a sufficient interest.� The Tribunal stated that it includes a person whose business interests or prospects could be adversely affected (emphasis added).� I therefore consider that it is open to the Tribunal to find that the NSWTDA, as a body representing persons whose particular business or personal prospects may be adversely affected by the Authorisations, has standing, despite the fact that the commercial interests of the organisation itself are not adversely affected.

53 In conclusion, I am satisfied that the NSWTDA has a sufficient interest pursuant to s 101 of the Act to bring the application.

scope of application

54 As set out above, the Networks submitted that the applicant seeks review of matters not contained within, nor relevant to, the Determination.� The Networks submitted that certain parts of the application are unclear, embarrassing or based on a misunderstanding of the Determination.� There is substance in this submission.�

55 The Networks also submitted that the application seeks review of matters relating to credit card processing systems, which are not the subject matter of the Authorisations.� The issue whether the installation of EFTPOS terminals is covered by the Authorisations was the subject of written and oral submissions.� I consider that there is some inconsistency in the Determination in that the Authorisations do not appear to cover a requirement to install EFTPOS terminals (although I leave this issue open), yet the Commission appears to accept that there is virtually no alternative for the processing of Cabcharge cards other than through Cabcharge EFTPOS terminals.�

56 However, I do not consider it appropriate for the Tribunal to decide questions relating to the form or substance of the application.� This is not a strike out application.� I do not consider that the applicant�s contentions are so lacking in substance and irrelevant that it can be said that the applicant�s interest is not �sufficient�:� see Re Wakeman.

57 The objection to the applicant�s standing to apply for the review is overruled.� The applicant must clarify the nature of the relief he seeks and the grounds upon which he is dissatisfied with the Commission�s Determination.� The applicant must give proper particulars of those grounds and of his facts, contentions and statement of issues.� He should amend his application accordingly within seven days.

I certify that the preceding fifty‑seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:�� 1 June 2005

Counsel for the Applicant:	Mr J W Shaw QC

Solicitor for the Applicant:	Jones Staff & Co

Counsel for Australian Competition and Consumer Commission:	Ms J Stuckey‑Clarke

Solicitor for Australian Competition and Consumer Commission:	Australian Competition and Consumer Commission

Counsel for the Networks:	Mr A J L Bannon SC

Solicitor for the Networks:	Mallesons Stephen Jaques

Date of hearing:	16 May 2005

Date of judgment:	1 June 2005