National Competition Council v Hamersley Iron Pty Ltd [1999] FCA 1370

National Competition Council v Hamersley Iron Pty Ltd [1999] FCA 1370

The NCC's limited participation in the trial was understandable because Robe and Hope Downs advanced the jurisdictional arguments, and nothing the NCC did or said represented that it would not exercise any right of appeal. It expressly reserved its position as to future participation, there was no unequivocal election not to appeal, and Hamersley did not change its position to its detriment. The complaint about the 'natural monopoly' argument went to the merits and conduct of the substantive appeal, not competence. The Hardiman principle did not make the appeal jurisdictionally incompetent, and this case was distinguishable because it concerned fundamental principles affecting the...

Jurisdiction
Australia
Judgment Date
05 October 1999
Procedural Posture
Practice and Procedure; Competency of Appeal / First Respondent's Motion Under O 52 R18 of the Federal Court Rules for an Order That the Appellant's Appeal Is Incompetent and Should Be Dismissed
Outcome
The first respondent's motion was dismissed with costs.
Legal Topics
['competency of Appeal' 'limited Participation at Trial' 'submission to Order of the Court' 'part IIIA Access Declaration Procedure' 'role of Administrative Decision Maker in Judicial Review Litigation']
['practice and Procedure' 'competition Law' 'administrative Law'] ['competency of Appeal' 'limited Participation at Trial' 'submission to Order of the Court' 'part IIIA Access Declaration Procedure' 'role of Administrative Decision Maker in Judicial Review Litigation']

Case Brief

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Procedural Posture

Practice and Procedure; Competency of Appeal / First Respondent's Motion Under O 52 R18 of the Federal Court Rules for an Order That the Appellant's Appeal Is Incompetent and Should Be Dismissed

Legal Issues

  1. 1 ['Whether the National Competition Council was precluded from appealing because it did not actively participate in the trial and submitted to the order of the Court.' "Whether the National Competition Council's proposed appeal was incompetent because it sought to raise arguments not raised before Kenny J." 'Whether the principle in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman prevented the National Competition Council from taking an active role in the appeal.']

Ratio Decidendi

The NCC's limited participation in the trial was understandable because Robe and Hope Downs advanced the jurisdictional arguments, and nothing the NCC did or said represented that it would not exercise any right of appeal. It expressly reserved its position as to future participation, there was no unequivocal election not to appeal, and Hamersley did not change its position to its detriment. The complaint about the 'natural monopoly' argument went to the merits and conduct of the substantive appeal, not competence. The Hardiman principle did not make the appeal jurisdictionally incompetent, and this case was distinguishable because it concerned fundamental principles affecting the...

Court Disposition

The first respondent's motion was dismissed with costs.

Orders

  • ["The first respondent's motion filed 16 August 1999 is dismissed." "The first respondent pay the appellant's costs of the motion."]