FEDERAL COURT OF AUSTRALIA

Dynamic Supplies Pty Ltd v Australian Securities and Investments Commission [2010] FCA 806

THE COURT ORDERS THAT:

1.                  The amended notice of appeal filed on 10 February 2010 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     Under the Corporations Act 2001 (Cth) (“the Act”), all large proprietary companies are required to prepare and lodge certain financial reports and directors’ reports.  Those reports are then placed on the public record and are available for scrutiny.  However, the Australian Securities and Investments Commission (“ASIC”) has the power under the Act to relieve a company from this requirement if it is satisfied it meets certain criteria.  One of those criteria is that it would “impose unreasonable burdens” on the company.  This matter concerns a refusal by ASIC to allow relief from this requirement.

2                     Dynamic is a large proprietary company because it meets two of the three criteria set out in s 45A(3) of the Act.  In summary, they are that the company has:  an annual revenue of $25 million or more; gross assets at the end of a financial year of $12.5 million or more; or 50 or more employees.

3                     Dynamic sells IT consumables such as printer cartridges, toner and fax paper.  It is one of the largest independent wholesalers of these products in Australia.  As such, it operates in a highly competitive market where its main competitors are Australian subsidiaries of large multinational companies.  It claimed that the information it would be required to include in its annual financial report for the 2007/2008 financial year would be accessed and used by these competitors to damage it in the market place.  Accordingly, it made an application to ASIC seeking relief from the requirement to lodge that financial report because, it claimed, to do so would impose unreasonable burdens on it.

this appeal

4                     ASIC refused Dynamic’s application.  Dynamic then unsuccessfully applied to the Administrative Appeals Tribunal to review ASIC’s decision.  It has now appealed to this Court against the Tribunal’s decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).  Under that section, a person may only appeal to this Court “on a question of law”.  Indeed, the Full Court has repeatedly emphasised that such an appeal is founded on, and limited to, a pure question of law:  see Kowalski v Military Rehabilitation and Compensation Commission (2010) 114 ALD 8; [2010] FCAFC 10 at [39] and the authorities listed.

5                     In its amended notice of appeal, Dynamic set out a number of questions of law which, it claimed, arise in this appeal.  ASIC did not contend that Dynamic had failed to identify one or more questions of law in its notice of appeal.  As the Federal Court Rules require, Dynamic also set out the grounds in support of the orders it sought.  Since the questions of law and the grounds are in substantially the same terms and since counsel addressed these grounds in their written and oral submissions, I will set them out in full.  They are as follows:

1          The Tribunal erred in law and misconstrued the true meaning and effect of ss 340(1) and sub-paragraph 342(1)(c) of the Act in holding,  at paragraph [31] of its Reasons, that the Respondent could only rely on anti-competitive impact as a basis for granting relief under s 340(1) of the Act where the evidence clearly demonstrated that a breach of the competition laws made pursuant to Part IV of the TPA would result if the information required to be disclosed by the Applicant, pursuant to Part 2M of the Act, was made available to competitors;

2          The Tribunal took into account irrelevant considerations in holding that the Applicant needed to demonstrate, in order to succeed on an application for relief pursuant to s 340(1) of the Act, that compliance with the requirements of Part 2M of the Act would result in anti-competitive conduct in breach of the provisions of Part IV of the TPA;

3          The Tribunal failed to take into account relevant considerations and failed to address the correct question in that the Tribunal failed to consider whether the Applicant had demonstrated that compliance with the relevant provisions of Part 2M of the Act would impose an unreasonable burden on the Applicant in circumstances where the Tribunal had correctly held (at [18] of its Reasons) that the information required to be disclosed might be of particular interest to rivals who could use it to hone their marketing and pricing strategies; more targeted and even ruthless competition was likely to result which could lead to a more difficult time for the Applicant in the market place; more aggressive competitive conduct could impact on the Applicant’s profitability and ultimately threaten its survival if it could not respond effectively; and that would have implications for the Applicant’s shareholders, employees, creditors and perhaps its customers.

4          The Tribunal erred in law in failing to give reasons that discharged its obligations pursuant to sections 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

5          The Tribunal erred in law in failing to hold that the discretion to exempt the Applicant from compliance with the requirements for the year ended 30 June 2008 under s 340 of the Act should be exercised if the burden of compliance materially exceeded the benefit of compliance.

6          The Tribunal erred in law in failing to find that the Applicant was entitled to relief pursuant to s 340 of the Act having regard to the findings of fact made at paragraph 18 of its reasons and its decision is illogical, irrational and unreasonable.

the relevant legislative provisions

6                     The sections mentioned in these grounds: ss 340 and 342(1)(c), are the specific sections of the Act that gave ASIC the power to relieve Dynamic from the requirement to lodge its 2007/2008 financial return.  Section 340(1) relevantly provides that:  “On an application made in accordance with subsection (3) in relation to a company, … ASIC may make an order in writing relieving … [the company] … from all or specified requirements of Parts 2M.2, 2M.3 and 2M.4 (other than Division 4)”.  The primary obligation to lodge the annual financial report in question is contained in s 319(1) of the Act and the primary obligation to prepare that report is prescribed in s 292(1) of the Act.  Both these provisions fall within Part 2M.3 of the Act.

7                     Section 342(1)(c) of the Act relevantly provides that:

To make an order under section 340 …, ASIC must be satisfied that complying with the relevant requirements of Parts 2M.2, 2M.3 and 2M.4 would:

                      …

                     (c)  impose unreasonable burdens.

the tribunal’s decision

8                     In its decision, the Tribunal proceeded, first, to summarise the evidence before it about Dynamic’s business, the market for IT consumables in which it operated, Dynamic’s competitors in that market and how that competition affected it.  That evidence was given by Mr Scott McLennan, the managing director of Dynamic; a third party witness; and Mr Paul Vincent, an accountant who provided two reports in support of Dynamic’s application.

9                     The Tribunal noted that Dynamic had to compete against a number of well-known multinational companies such as Hewlett Packard, Brother, Epson and Canon, each of which operated through local subsidiaries in Australia.  Dynamic did this by purchasing its products from these subsidiaries in Australia and from other sources around the world.  Thus, Dynamic was a significant parallel importer.  The Tribunal observed that this resulted in there being little product differentiation within the market, but strong competition between rivals on both price and service.

10                  According to the Tribunal’s reasons, Mr McLennan gave evidence about a recent “price war” between a local subsidiary of one of the multinational companies and Dynamic.  This “price war” caused both companies to offer attractive rebates and discounts over a period of several months.  Whilst Dynamic eventually outlasted this rival, Mr McLennan claimed that the discounting process had an effect on Dynamic’s profitability.  Dynamic relied upon this “price war” to exemplify the dangers it claimed would arise if its rivals were able to obtain detailed financial information about its operations and were therefore able to mount carefully targeted attacks against it.  Dynamic claimed that it may become more vulnerable to these attacks if its rivals knew “how deep its pockets were”.

11                  Before turning to consider the relevant legislative provisions, the Tribunal appeared to summarise its findings on this evidence as follows (at [18]):

Given the evidence of [the third party witness and Mr] Vincent, I am prepared to accept the information contained in the financial report is likely to be accessed and used by at least some of the other participants in the market.  In particular, I accept Mr Vincent’s contention that the information might be of particular interest to rivals who could use it to hone their marketing and pricing strategies.  I also accept the more targeted and even ruthless competition that results could lead to a more difficult time for Dynamic in the market place.  More aggressive competitive conduct could impact on Dynamic’s profitability and ultimately threaten its survival if it could not respond effectively.  That would have implications for Dynamics shareholders, employees, creditors and perhaps its customers.

12                  The Tribunal then turned to consider the provisions of ss 340 and 342(1)(c) of the Act.  It observed that:  “The Act does not provide explicit guidance as to what will make disclosure inappropriate in what circumstances.  One must look for that in the policy evident in the Act.”  It then referred to ASIC’s Regulatory Guide 43:  Financial Reports and Audit Relief (2008) (“RG43”) which, in turn, referred to the decision of Heerey J in Incat Australia Pty Ltd v Australian Securities and Investments Commission (2000) 33 ACSR 462; [2000] FCA 58 (“Incat”) where his Honour identified three factors that were to be considered in deciding whether the company faced an “unreasonable burden”.  Those factors were:

·                    the nature of the requirements to be performed;

·                    the policy objective of the legislation that larger companies lodge accounts; and

·                    the extent of any economic detriment likely to flow to the applicants if they are obligated to comply.

13                  The Tribunal noted that there was no suggestion in this case that the obligation to file the financial report was, in itself, particularly burdensome.  It also noted that a number, if not all, of Dynamic’s large rivals filed such reports and it concluded that the first two matters identified by Heerey J in Incat did not support Dynamic’s argument that publication would impose unreasonable burdens on it.

14                  The Tribunal then recorded and accepted the submission of Mr Bickford, Dynamic’s counsel, that it should balance the burdens with the benefits associated with disclosure.  Accordingly, it proceeded to identify the benefits that Dynamic’s creditors and employees may gain from the disclosure of the material, and concluded that:  “it is unclear whether any of them would be seriously hurt or disadvantaged if [the information] were not available”.

15                  The Tribunal also recorded (at [24]) Mr Bickford’s argument that Dynamic would suffer detriment because :  “the nature of the market and Dynamic’s business made it especially vulnerable if the reports were made available to competitors”.  The Tribunal proceeded to assess this detriment, again referring to RG43.  In the process, it noted Mr Bickford’s objection to the suggestion in RG43 that “the discretion would only be exercised rarely” (emphasis in original).  In response to this, the Tribunal observed that:

The discretion need not be exercised rarely, although I acknowledge one would not expect to see it exercised so regularly that it undermines the rule from which the exception is made. The better course is to focus on the more general inquiry of whether it is appropriate to exercise the discretion in the circumstances in light of the policy underlying the Act. In other words, is there a good reason for departing from the general rule in this case?

16                  Then, under the heading “Should the discretion in s 340 of the Act be exercised in favour of Dynamic?”, the Tribunal turned to consider whether, what it referred to as, the “anti-competitive consequences”, may amount to predatory pricing or the misuse of market power under Australia’s competition laws.  After referring to Part IV of the Trade Practices Act 1974 (Cth) (“the TPA”), particularly s 46, and noting the lack of any expert evidence about market structure and the behaviour of rivals in the IT consumables industry, the Tribunal concluded (at [29]):  “In the absence of that evidence, the most I can say is that publication of the data in the reports might lead to anti-competitive consequences which hurt Dynamic.”  (emphasis in original)

17                  In the next paragraph, the Tribunal came to the following conclusion (at [30]):

The possibility of anti-competitive consequences is probably not enough to satisfy the criterion in s 342(1)(c) of the Act, which says the discretion to waive compliance is enlivened if publishing the data “would ... impose unreasonable burdens”. … I do not think the evidence before me permits me to conclude the anti-competitive result would – as opposed to might – occur. 

(emphasis in original)

18                  Having reached this conclusion, the Tribunal turned to consider whether it would exercise its discretion in Dynamic’s favour, even if it adopted “a more generous interpretation of the wording of s 342(1)”.  I take this to mean if it were sufficient for the purposes of that section, for Dynamic to have established that the anti-competitive consequences “might” occur rather than “would” occur.  On that basis, the Tribunal concluded that it would not exercise the discretion in Dynamic’s favour, essentially because it considered that the Australian Competition and Consumer Commission, and not ASIC, had the responsibility for and should deal with any claims of anti-competitive conduct in breach of the provisions of the TPA.

19                  The Tribunal concluded by making two statements:  first, that it was not satisfied “on balance” that complying with the requirements of the Act imposed unreasonable burdens on Dynamic and, secondly, that the discretion in s 340 of the Act should not be exercised in Dynamic’s favour.  Accordingly, it affirmed ASIC’s decision.

Contentions

20                  In relation to ground 1 (see [5] above), Mr Bickford submitted that the Tribunal had misconstrued the effect of ss 340 and 342(1)(c) of the Act.  He pointed to [31] of the Tribunal’s reasons where it said:  “ASIC would only rely on anti-competitive impact as a basis for giving relief where the evidence clearly demonstrated that a breach of the competition laws would result if the information was made available”.  He submitted that this concern with whether the conduct breached Australia’s competition laws was irrelevant and showed the Tribunal had misunderstood what it was required to decide under ss 340 and 342(1)(c).

21                  Mr Bickford raised similar concerns under grounds 2 and 3, which he dealt with together.  He submitted that, when it was reviewing ASIC’s decision, the Tribunal had erred by taking into account irrelevant considerations and by failing to take account of relevant considerations, relying upon the High Court’s decision in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 per Mason J.  As to the former, he submitted that, whether or not Dynamic’s competitors’ use of the material, if it were disclosed, would amount to “anti-competitive conduct” for the purposes of the TPA, was an irrelevant consideration.  As to the latter, he submitted the relevant consideration was whether disclosure of the information would impose “unreasonable burdens” on Dynamic, taking into account the favourable findings of fact the Tribunal had made at [18] of its reasons.  Instead of deciding this question, he submitted the Tribunal “embarked on a frolic of its own” (at [27] to [33] and [35]) by considering whether or not the conduct identified by Dynamic could, or might, amount to anti-competitive conduct for the purposes of Part IV of the TPA.  Finally, Mr Bickford submitted that the Tribunal failed to consider the balance of the burdens and benefits associated with disclosure of the information, as it accepted it should do, in [23] of its reasons.

22                  On ground 4, Mr Bickford submitted that the Tribunal had failed to give proper reasons for its decision in accordance with the requirements of s 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth).  He submitted that, while the Tribunal’s reasons contained some findings on material questions of fact, they did not contain all the relevant material questions of fact and did not disclose the evidence or other material upon which its various findings were based.  He submitted that the Tribunal’s reasons did not demonstrate how the Tribunal had come to its findings of fact in [18], how it had proceeded to balance the burdens and benefits associated with disclosure referred to at [23], or how it had reached the conclusion it did at [34] that, on balance, it was not satisfied that complying with the obligation to lodge the annual report imposed an unreasonable burden on Dynamic.

23                  Mr Bickford also dealt with grounds 5 and 6 together.  He submitted that it was impossible to understand how the Tribunal had logically reached the conclusion it did at [34] of its reasons and, putting aside its irrelevant considerations at [27] to [33] of the reasons, he submitted the Tribunal’s findings at [34] are completely lacking in reason and logic.

24                  Mr Sullivan SC, counsel for ASIC, submitted that the Tribunal found at [18] and [30] of its reasons that Dynamic had failed to establish, as a fact, that publishing the information would impose unreasonable burdens on it.  In making these findings of fact, he submitted that the Tribunal had correctly construed the provisions of s 342(1)(c) of the Act.  He submitted these findings of fact were not open to be reviewed in this appeal and the Tribunal had therefore committed no error of law.  It followed, so he submitted, that the Tribunal had correctly concluded that ASIC’s decision should be affirmed.  Further, Mr Sullivan submitted that, even if the Tribunal had made an error at [31] of its reasons in considering whether the discretion under s 340 should be exercised in Dynamic’s favour, that assessment was made on a hypothetical basis.  Thus, he submitted, any error in it, did not vitiate the Tribunal’s decision in relation to Dynamic’s failure to meet the requirements of s 342(1)(c).  Finally, Mr Sullivan submitted that the Tribunal’s reasons were adequate to explain its findings of fact and how it came to the conclusions it did.  Conversely, he submitted that Dynamic’s criticism of the Tribunal’s reasons was simply an attempt to quibble with its fact finding exercise, which was not open to be reviewed on this appeal.  He characterised Dynamic’s claims that the Tribunal’s reasons were irrational and illogical, in the same way.

Consideration

The matters that had to be considered under ss 342(1)(c) and 340

25                  It was common ground between counsel that the combined effect of ss 342(1)(c) and 340 of the Act is to set up a two stage process.  That is, ASIC (and the Tribunal on review) had to determine first, whether under s 342(1)(c) it was satisfied that complying with s 319(1) of the Act (to lodge its 2007/2008 financial report) would “impose unreasonable burdens” on Dynamic.  Secondly, if so, whether ASIC should exercise its discretion to grant relief from that requirement under s 340(1):  see Re SRKKK and Australian Securities and Investments Commission (2002) 42 ASCR 551 at [31] and Brightstar Logistics Pty Ltd v Australian Securities and Investments Commission (No 2) [2010] FCA 435 (“Brightstar”) at [65] per Emmett J.

26                  It was also common ground that the first stage involved ASIC (and the Tribunal on review) engaging in a balancing exercise between the benefits associated with public disclosure of the information in the financial report, on the one hand, and the burdens imposed on the company by such public disclosure, on the other:  see Directors of Liquid Air (WA) Pty Ltd v Commissioner for Corporate Affairs (1989) 15 ACLR 29 at 33 to 34 per Master Staples, Incat at [9] per Heerey J and Brightstar at [58] per Emmett J.

27                  In my view, this first stage also involves another more fundamental consideration.  It stems from the language of s 342(1)(c) that:  “ASIC must be satisfied that complying with the relevant requirements … would: … impose unreasonable burdens”.  As Emmett J explained in Brightstar, this requires an assessment of the causal connection between compliance and the alleged detriment.  He said (at [59]):

Under s 342(1), the decision maker must be satisfied that complying with the relevant requirements would impose unreasonable burdens.  That entails a consideration of a causal connection between compliance and the detriment that might constitute an unreasonable burden.  The likelihood of detriment must be a consideration in determining the extent of the burden that would be imposed by compliance.

28                  Later in his reasons (at [65]), Emmett J observed that subjective belief, or apprehension, on the part of the company, was not sufficient to show the requisite causal connection, although he accepted it may be relevant to the assessment of it, if that belief or apprehension was soundly based.  His Honour then expanded on what he considered was required in assessing the requisite causal connection, as follows (at [66]):

The likelihood of the feared detriment eventuating is a factor to be considered in assessing the unreasonableness of the burden.  The decision maker must, therefore, investigate and examine the relationship between compliance and the identified burden.  Unless a relationship with cause and effect is established, at least on the balance of probabilities, the decision maker could not be satisfied and the jurisdictional threshold requirement would be satisfied.  Even if the prospect of burden is merely possible, it is still necessary to make an assessment of the reality and extent of the detriment apprehended.  The express words of s 342(1) require that an actual link be established between compliance with the lodgement requirements and the suffering of adverse consequences that are said to constitute the unreasonable burdens. 

(emphasis added)

29                  Finally, Emmett J rejected Brightstar’s contentions that:  “it is not essential for an applicant company to demonstrate what will happen or what is likely to happen”, and “it is sufficient if an applicant company identifies the potential for something to occur that will, if it does occur, be of financial disadvantage to the applicant company”.  Instead, he said:  “The mere potential for something to occur is not an unreasonable burden.  There must be some reasonable prospect or likelihood of the feared or apprehended detriment occurring” (emphasis added):  see at [67].

30                  I respectfully agree with all these observations and conclusions.  It follows from them that, in the first stage of the two stage process mentioned above (at [25]), before the Tribunal (or ASIC before it) could begin to balance the public benefits of disclosure with the burdens said to be imposed on Dynamic, it had to assess whether, on the balance of probabilities, there was an actual causal relationship between that compliance and those detriments or burdens.  This is the “jurisdictional threshold requirement” mentioned by Emmett J in Brightstar at [66].  Once the Tribunal had completed this assessment (still within the first stage), if it considered there was some reasonable prospect or likelihood of Dynamic’s claimed detriments or burdens occurring, it would then proceed to undertake the balancing exercise mentioned above:  see at [26].  That is, it would compare the detriments or burdens, for which there was an established causal link, with the benefits of public disclosure of the information.  Finally, if at the end of that balancing exercise, it concluded that public disclosure of the information imposed an unreasonable burden on Dynamic, it would then move to consider whether it should exercise the discretion described in s 340, to relieve Dynamic from the requirement to lodge the financial report.  Of course, the Tribunal would not be obliged to proceed past the first stage – the threshold requirement and/or the balancing exercise – if it concluded that Dynamic had failed to establish both matters in its favour.

The Tribunal’s reasons show it did properly consider the requisite matters.

31                  Having identified the matters the Tribunal had to consider under ss 342(1)(c) and 340 of the Act, it is necessary next to consider whether it did duly consider those matters, or at least such of them as were necessary to properly undertake its review of ASIC’s decision.  Obviously, this requires an examination of the Tribunal’s reasons for decision.  That examination must take into account the admonitions in various authorities that this Court should not be concerned with loose language, infelicitous expression, nor approach the construction of those reasons:  “minutely and finely with an eye keenly attuned to the perception of error”:  see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, TelePacific Pty Ltd v Commissioner of Taxation (2005) 218 ALR 85; [2005] FCA 158 at [55] per Sackville J and Young v Commissioner of Taxation (Cth) (2010) 111 ALD 345; [2008] FCA 1908 at [83] per Gilmour J.

32                  It is also necessary to bear in mind that this Court has no jurisdiction on an appeal limited to a question of law, as this is, to evaluate the evidence before the Tribunal (see Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J), nor does it have jurisdiction to review the merits of the Tribunal’s decision:  see Wu Shan Liang at 272.

33                  It follows from my analysis above, that the first matter to be considered is whether the Tribunal properly assessed the threshold requirement, viz did it consider whether Dynamic had established the requisite causal connection between the compliance in issue here and the detriments or burdens it claimed would thereby be imposed on it, what Mr Bickford described as Dynamic’s special vulnerability:  see at [15] above.

34                  In my view, the Tribunal clearly did that in the last sentence of [30] of its reasons, where it said:  “I do not think the evidence before me permits me to conclude the anti-competitive result would – as opposed to might – occur” (emphasis in original).  In other words, I consider the Tribunal concluded that Dynamic had failed to establish, on the evidence, that there was an actual causal relationship between its compliance with the requirement to lodge its 2007/2008 financial report, and the anti-competitive consequences, or burdens, Dynamic claimed would be imposed on it.

35                  To trace that conclusion through, I consider the evidence to which the Tribunal referred in [30], was comprehensively summarised at [2] to [17] of its reasons.  Included in that summary were observations by the Tribunal to the effect that Dynamic had been successful in obtaining its products in the international market place suggesting that:  “it has not been overly troubled by hostile behaviour from multinationals” (at [7]) and that Dynamic had demonstrated itself to be able to compete in the market place as “a nimble trader” (at [11]).

36                  Then, the findings of fact the Tribunal made on that evidence were set out at [18] of its reasons:  see at [11] above.  It should be noted that, in those findings, the Tribunal used the word “could” a number of times in describing its assessment of the link between the use Dynamic’s competitors were likely to make of the information in the financial report and the competitive consequences Dynamic was likely to face.  When this usage of the word “could” is read in the context of the conclusion at [30] (confirmed in [34] of the Tribunal’s reasons), I consider it is clear that the Tribunal was only satisfied, on the evidence, that Dynamic had established the possibility that the competitive consequences would flow from the disclosure of the information, rather than the reasonable prospect or likelihood of that consequence occurring.  Indeed, it used the word “possibility” in the first sentence of [30] to make the point that such a level of satisfaction was “probably not enough to satisfy the criterion in s 342(1)(c)”.

37                  For these reasons, I consider the Tribunal properly assessed the evidence going to this threshold requirement in s 342(1)(c) and concluded that Dynamic had failed to establish that there was a reasonable prospect or likelihood that disclosure of the information in the financial report would impose on Dynamic the competitive consequences, to which it claimed to be “especially vulnerable”.

38                  It is true, as Mr Bickford pointed out in his submissions, that the Tribunal’s conclusion at [30] appears in a section headed “Should the discretion in s 340 of the Act be exercised in favour of Dynamic?”  By itself, this might lead one to conclude that the Tribunal had misunderstood its statutory task, because it appeared to be considering the exercise of the s 340 discretion, before it had determined whether the threshold requirement in s 342(1)(c) had been established.  Despite this, I consider the Tribunal clearly demonstrated in the first sentence of [30] that it fully appreciated it had to deal with the threshold requirement in s 342(1)(c), albeit that it did not express it in those terms, before it came to consider whether the s 340 discretion should be exercised, because it said:  “The possibility of anti-competitive consequences is probably not enough to satisfy the criterion in s 342(1)(c) of the Act, which says the discretion to waive compliance is enlivened if publishing the data “would … impose unreasonable burdens”” (emphasis in original; bold emphasis added).

39                  I also reject Mr Bickford’s submission that the Tribunal embarked upon an irrelevant frolic at [27] to [29] of its reasons, thus indicating it did not appreciate the task it was required to undertake.  On a fair reading of those paragraphs, I consider the Tribunal was simply saying that, since it had no expert evidence before it about market structure and industry behaviour, it was not possible to consider the anti-competitive consequences raised by Dynamic in the context of Australia’s competition laws.  Moreover, I consider the Tribunal then made it clear that, in the absence of such evidence, the evidence that was before it, did not rise above establishing that the anti-competitive consequences said to occur, might occur, particularly where it recorded in the last sentence of [29]:  “In the absence of that evidence, the most I can say is that publication of the data in the reports might lead to anti-competitive consequences which hurt Dynamic” (emphasis in original).  I therefore do not consider the Tribunal was saying that, in the absence of that expert evidence, it intended to give any less weight to the evidence that was before it.  Furthermore, even assuming, as Mr Bickford submits, that predatory pricing and misuse of market power were entirely irrelevant considerations, I do not consider the Tribunal’s treatment at [18] and [30] of its reasons, of the evidence that was before it, was affected by these considerations.

40                  Finally, I do not accept that the part of [31] quoted by Mr Bickford in his submissions (see at [20] above) demonstrates that the Tribunal misunderstood the provisions of s 342(1)(c) of the Act and the task it was required to undertake.  As I observed at [18] above, I consider that in [31] the Tribunal was determining whether it would exercise its discretion under s 340 in Dynamic’s favour, on the hypothetical basis that it may be wrong about its construction of s 342(1)(c).  Since I have concluded that the Tribunal was not wrong in that construction, even if there were some error in the hypothetical determination the Tribunal made at [31], I do not consider that error is of such a nature that it vitiates the Tribunal’s decision:  see Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 146 per Lockhart J, 156 per Sheppard J and 164 per Morling J and Development Consent Authority v Phelps [2010] NTCA 3, particularly the authorities referred to at [18] to [22].  For the same reasons, I do not consider I need to resolve whether or not the Tribunal took into account irrelevant considerations at [31] to [33] of its reasons, in reaching the ultimate conclusion at [35] about the exercise of the discretion under s 340 of the Act.

41                  For these reasons, I consider that a fair reading of the Tribunal’s reasons for decision indicates that it properly understood the provisions of ss 342(1)(c) and 340 of the Act and the task it was required to undertake on its review of ASIC’s decision.  Further, I do not consider Dynamic has made out its ground that the Tribunal took into account irrelevant considerations in its decision.  To the contrary, I consider the Tribunal duly assessed the requisite causal connection by reference to the only relevant considerations, viz the evidence before it and the findings of fact it made based thereon.

42                  Furthermore, a fair reading of its reasons shows that the Tribunal clearly identified that evidence, the findings of fact it made and the reasoning process it employed.  It necessarily follows that I do not consider there is any merit in Dynamic’s grounds that the Tribunal’s reasons did not comply with ss 43(2) and 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), or that they lacked reason and logic.  In other words, I consider this is one of those situations where Dynamic has used those labels as “an emphatic way of expressing disagreement” with the factual conclusions the Tribunal has reached:  see Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1167 per Gleeson CJ and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ.  As I have already observed above (see at [32]), it is not the role of this Court on an appeal limited to a question of law, to conduct a review of those conclusions.

conclusion – appeal must be dismissed

43                  For these reasons, I do not consider that the Tribunal made a material error of law in undertaking its review of ASIC’s decision to refuse Dynamic the relief it sought under ss 340 and 342(1)(c) of the Act.

44                  It follows that Dynamic’s appeal to this Court must be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:  30 July 2010