J S McMillan Pty Ltd & Ors v Commonwealth of Australia [1997] FCA 619

J S McMillan Pty Ltd & Ors v Commonwealth of Australia [1997] FCA 619

AGPS, in providing printing and related services, was carrying on a business within the meaning of s 2A, but the challenged conduct was not conduct engaged in in the course of carrying on that business. The Request for Tender and dealings with prospective tenderers concerned a once-off decision to cease AGPS...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 July 1997
Procedural Posture
Trade Practices Proceeding Alleging Misleading and Deceptive Conduct in a Government Tender Process / Reasons for Judgment After Hearing
Outcome
Application dismissed; costs stood over for further argument.
Legal Topics
['misleading or Deceptive Conduct' 'application of the Trade Practices Act 1974 (cth) to the Commonwealth' 'meaning of Carrying on a Business' 'meaning of in So Far as It Carries on a Business' 'relief Under S 87 of the Trade Practices Act 1974 (cth)']
['trade Practices' 'government Tenders' 'crown Immunity'] ['misleading or Deceptive Conduct' 'application of the Trade Practices Act 1974 (cth) to the Commonwealth' 'meaning of Carrying on a Business' 'meaning of in So Far as It Carries on a Business' 'relief Under S 87 of the Trade Practices Act 1974 (cth)']

Source-derived case record

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Procedural Posture

Trade Practices Proceeding Alleging Misleading and Deceptive Conduct in a Government Tender Process / Reasons for Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Commonwealth, through the Department of Administrative Services and AGPS, engaged in misleading or deceptive conduct in relation to the tender process.' 'Whether McMillan suffered loss or damage by reason of any misleading conduct.' 'Whether the Commonwealth was carrying on a business for the purposes of s 2A of the Trade Practices Act 1974 (Cth).' 'Whether s 2A of the Trade Practices Act 1974 (Cth) made the Act applicable to conduct connected with ceasing, selling or disposing of the AGPS business rather than the day to day carrying on of that business.']

Ratio Decidendi

AGPS, in providing printing and related services, was carrying on a business within the meaning of s 2A, but the challenged conduct was not conduct engaged in in the course of carrying on that business. The Request for Tender and dealings with prospective tenderers concerned a once-off decision to cease AGPS activities and dispose of assets and opportunities connected with those activities. Section 2A therefore did not make the Trade Practices Act 1974 (Cth) applicable to the conduct complained of. Although the Court found aspects of the Commonwealth's tender conduct misleading and found that McMillan lost the opportunity to be short listed, the Act did not bind the Commonwealth in...

Court Disposition

Application dismissed; costs stood over for further argument.

Orders

  • ['The application must be dismissed.' 'The proceedings were to be stood over for further argument on the question of costs and for the parties to bring in short minutes.']