Issue L: The Right to Appeal Commission Determinations
Background
165. The Commission is both an enforcement agency and a quasi-judicial body. It is held accountable in different ways depending on which of those roles it is performing. The Commission is accountable by way of judicial review and appeal to the High Court (and subsequently to the Court of Appeal) when it is performing a quasi-judicial function.
166. Section 92(a) states that trade practice authorisation decisions can be appealed by the applicant or any person who participated in a Commission conference. Section 92(c) provides appeal rights for three groups of persons in relation to merger clearances or authorisations: the applicant, any person whose shares or assets would be acquired and any person who participated in a Commission conference.
The issue
167. The provisions in sections 92(a) and (c) that provide appeal rights to anyone who participated in a conference appears to be an arbitrary rule. This may cause excessive uncertainty for the applicant. It may also discourage the Commission from calling conferences when it could be helpful to do so.
Options
168. It is clear that the following parties should have appeal rights:
- The applicant in relation to all classes of applications, including those who apply for clearances of trade practices, should such a system be introduced; and
- A person whose shares or assets are to be acquired in relation to a merger application.
169. Third parties with a material interest in the outcome should at least be entitled to seek leave of the High Court to appeal. Therefore, the options are limited to considering the statutory test that the courts would apply. Two options are:
- A general test – A third party would be allowed to appeal if the High Court thought fit;
- A more specific test – A third party would be able to appeal if it has demonstrated that it has a material interest. An example is the "sufficient interest" criterion in section 47(3) of the United Kingdom Competition Act 1998.
Analysis
170. In our view the outcomes would probably be the same under either option. However, it could be argued that Option (b) would provide greater legal certainty for third parties.
Conclusions
171. We consider that the linkage between participation at a conference and third party appeal rights is arbitrary and should be replaced. However, we have not formed a view on the test that should be applied by the Court.
Questions
Q21. Should appeal rights for persons who participate in Commission conferences be retained or replaced?
Q22. Assuming that the High Court will be given the discretion to decide whether a third party may appeal, what criterion or criteria should appear in the Act?
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