Virgin Blue Airlines Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 1271

Virgin Blue Airlines Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 1271

Virgin's standing could not be finally denied on the basis that acceptance of Qantas' undertaking was necessarily favourable to Virgin, because refusal of the undertaking might have produced a different commercial situation advantageous to Virgin and the undertaking did not address all possible prejudice to Virgin. However, the broader contention that the Trade Practices Act was inconsistent with judicial review of s 87B decisions was closely related to the substantive grounds of review and should not be resolved separately in advance. Because that unresolved issue also affected whether Virgin was entitled to reasons under s 13, and because the Schedule 2 issue had no practical utility...

Jurisdiction
Australia
Judgment Date
06 September 2001
Procedural Posture
Application for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth), a Declaration Under S 39 B(1 A)(c) of the Judiciary Act 1903 (cth), and a Declaration Under S 13(4 A) of the ADJR Act / Separate Questions for Preliminary Determination Under O29 R 2 of the Federal Court Rules
Outcome
Separate questions stood over for determination at the final hearing; costs reserved.
Legal Topics
['standing' 'person Aggrieved' 'section 87 B Undertakings' 'reasons for Decision Under ADJR Act' 'schedule 2 Exclusion for Decisions Connected With Civil Proceedings' 'merger Review' 'substantial Lessening of Competition']
['administrative Law' 'trade Practices' 'judicial Review'] ['standing' 'person Aggrieved' 'section 87 B Undertakings' 'reasons for Decision Under ADJR Act' 'schedule 2 Exclusion for Decisions Connected With Civil Proceedings' 'merger Review' 'substantial Lessening of Competition']

Case Brief

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Procedural Posture

Application for an Order of Review Under the Administrative Decisions (judicial Review) Act 1977 (cth), a Declaration Under S 39 B(1 A)(c) of the Judiciary Act 1903 (cth), and a Declaration Under S 13(4 A) of the ADJR Act / Separate Questions for Preliminary Determination Under O29 R 2 of the Federal Court Rules

Legal Issues

  1. 1 ["Whether Virgin was a person entitled to make an application under s 13 of the ADJR Act in respect of the ACCC decision to accept Qantas' s 87B undertaking" 'Whether the ACCC decision was a decision to which s 13 of the ADJR Act applies' 'Whether Virgin had standing to seek relief under s 39B of the Judiciary Act 1903 (Cth)' 'Whether the Trade Practices Act 1974 (Cth), read as a whole, was inconsistent with judicial review of a decision to accept an undertaking under s 87B' 'Whether the decision fell within par (f) of Schedule 2 to the ADJR Act as a decision in connection with the institution or conduct of civil proceedings']

Ratio Decidendi

Virgin's standing could not be finally denied on the basis that acceptance of Qantas' undertaking was necessarily favourable to Virgin, because refusal of the undertaking might have produced a different commercial situation advantageous to Virgin and the undertaking did not address all possible prejudice to Virgin. However, the broader contention that the Trade Practices Act was inconsistent with judicial review of s 87B decisions was closely related to the substantive grounds of review and should not be resolved separately in advance. Because that unresolved issue also affected whether Virgin was entitled to reasons under s 13, and because the Schedule 2 issue had no practical utility...

Court Disposition

Separate questions stood over for determination at the final hearing; costs reserved.

Orders

  • ['The separate questions stand over for determination at the final hearing.' 'Costs be reserved.']