AUSTRALIAN COMPETITION TRIBUNAL
Football Queensland Limited [2012] ACompT 15
IN THE AUSTRALIAN COMPETITION TRIBUNAL | |
TRIBUNAL: | |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant be granted leave to withdraw the application for review.
2. The application is treated as withdrawn.
3. The date for return or destruction of confidential documents for the purposes of paragraph 8 of the Confidentiality Undertaking attached to the Tribunal’s orders of 17 April 2012 is 5 September 2012.
ACT 1 of 2012 |
RE: | APPLICATION FOR REVIEW OF THE GIVING OF A NOTICE BY THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION UNDER S 93(3A) OF THE COMPETITION AND CONSUMER ACT 2010 TO REVOKE NOTIFICATION N93402 Applicant |
BY: | FOOTBALL QUEENSLAND LIMITED Applicant |
JUDGE: | MANSFIELD J (PRESIDENT) |
DATE: | 25 JULY 2012 |
PLACE: | ADELAIDE |
REASONS FOR RULING
1 The applicant is an Australian public company limited by guarantee. It is responsible for the administration of football (soccer) in Queensland. It is a “not for profit organisation”. Its income is used to meet operating expenses, and any surplus for the promotion of the sport of football.
2 The applicant conducts a “Teamwear” program in relation to football apparel. It requires its member clubs to use only Teamwear purchased from suppliers which it licenses during competitions conducted by it. All Teamwear has the applicant’s “Q logo” on it. It is possible for a player to obtain Teamwear products either direct from a licensed or supplier or from a retailer. If a club or team does not comply with the Teamwear program, the applicant is entitled to impose financial penalties upon it.
3 In October 2010, the applicant entered into 13 licence agreements for a period of three years each for the supply of the Teamwear product. The applicant generated revenue by licensed fees, a royalty on all Teamwear products sold, and for use of the Q logo.
4 Pursuant to s 93 of the then Trade Practices Act 1974 (Cth) (TP Act), the applicant gave notice to the Australian Competition and Consumer Commission (ACCC) on 28 April 2008 of its licensing system for Teamwear apparel The applicant acknowledged that such conduct may constitute third line forcing, contrary to s 47 of the TP Act. The ACCC did not take any action in relation to that notification at that time. As a consequence, s 93(7) operated so that engaging in that conduct by the applicant, after the giving of the notice, would not be taken, for the purposes of s 47, to have the purpose or have the likely effect of substantially lessening competition so that it was not vulnerable to engaging in conduct which contravened that section. It is accepted that the relevant markets are the wholesale and retail markets for sporting apparel.
5 As noted, the applicant in 2010 entered into further licenses to supply and sell the Teamwear program or product. At about the same time, the ACCC was considering whether it should pursuant to s 93(3) of the Competition and Consumer Act 2010 (Cth) (ACC Act) give notice stating that it was in effect removing that protection. It could do so if it was satisfied that the conduct would have the proscribed effect of substantially lessening competition and that there was no likely benefit to the public resulting from that conduct or that the benefit to the public would not outweigh the detriment to the public constituted by the lessening of competition.
6 On 15 December 2011, the ACCC issued a notice in accordance with s 93(3) together with reasons for that decision.
7 The consequence is that the applicant could engage in the conduct which it acknowledged to constitute third line forcing conduct at the peril of infringing s 47 of the ACC Act.
8 The applicant then applied to review the decision of the ACCC pursuant to s 101A of the ACC Act. In accordance with the usual procedure, the Tribunal then held a directions hearing, and gave directions intended to have the matter prepared for hearing: see Re Freight Victoria Ltd [2002] ACompT 1; (2002) ATPR 41-884; at [17]. The matter was listed for hearing to commence on 30 July 2012.
9 In this case, the applicant sought to assert that the notice of revocation should be set aside because the public benefit from the applicant’s otherwise proscribed conduct under s 47 outweighed any detriment to the public by the lessening of competition which the proscribed conduct may have prompted. It is not necessary to describe in detail the nature of the claimed public benefits or how the applicant said that the weighing between public benefits and public detriments should be carried out.
10 On 25 July 2012, the applicant applied for leave to withdraw the application. It indicated through counsel that the reason for the application being withdrawn was simply a decision of the applicant, in the light of the material that had then been assembled for the purposes of the hearing, deciding that it was appropriate to do so. The ACCC indicated that it did not oppose the application being withdrawn, and that there was no relevant public benefit or interest which, in its submission, warranted the matter proceeding to hearing. There were no other interveners in the proceeding.
11 Section 102(4) of the ACC Act provides that, upon a review of the giving of a notice by the ACCC under s 93(3) the onus is upon the applicant to satisfy the Tribunal either that the conduct or proposed conduct does not and would not have the purpose, or does not and is not likely to have or to have had the effect, of substantially lessening competition within the meaning of s 47, or alternatively that in the circumstances the proposed conduct has resulted or is likely to result in a benefit to the public which outweighs or would outweigh the detriment to the public by the lessening of competition that has resulted or is likely to result. If that onus is discharged, the Tribunal is required to set aside the notice of the ACCC. If that onus is not discharged, the Tribunal is required to make a determination affirming the notice of the ACCC.
12 Notwithstanding the apparently comprehensive and prescriptive terms of s 102(4), the Tribunal in addition has power under s 103(1)(a) of the ACC Act to adopt a procedure to conduct the proceedings with as little formality and technicality and with as much expedition as is convenient, and in doing so is not bound by the rules of evidence. Those powers may be exercised by a presidential member of the Tribunal.
13 It has been held in a slightly different statutory context, but in relation to the same terms of s 103(1), that the Tribunal has power to allow an applicant to withdraw its application, so that it is treated as though it were no longer on foot: see In the matter of an application for review by Lakes R Us Pty Ltd [2006] ACompT 3 and the cases there referred to, especially at [31] per French J. That is the exercise of the procedural power found in s 103(1)(a).
14 The effect of permitting the applicant to withdraw the application, and thereby to treat the application as no longer on foot, is to enliven the operation of s 93(9)(a). That subsection provides a complementary and further reason why the Tribunal is empowered to permit the withdrawal of the application, because it specifically contemplates the withdrawal of an application. It provides that, if an application is made to the Tribunal for the review of a giving of a notice under s 93(3), and the application is later withdrawn, the ACCC shall be taken to have given the notice on the day on which the application is withdrawn. If the matter had proceeded to hearing and the Tribunal had affirmed the notice of the ACCC, the notice would have taken effect on the day of the Tribunal’s decision: s 93(9)(c).
15 In this matter, in the particular circumstances, there is no reason why the discretion to allow the withdrawal of the application should not be exercised in accordance with the request of the applicant.
16 Accordingly, the Tribunal orders that:
(1) the applicant be granted leave to withdraw its application for review;
(2) the application is treated as withdrawn; and
(3) the date for return or destruction of confidential documents for the purposes of paragraph 8 of the Confidentiality Undertaking attached to the Tribunal’s orders of 17 April 2012 is 5 September 2012.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield (President). |
Associate: