Federal Court of Australia

Weekes v Australian Competition and Consumer Commission [2025] FCA 1549

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review is dismissed.

2.    The applicant is to pay the respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application by the applicant, Mr Steven Michael Weekes, seeking judicial review under s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of the failure by the respondent, the Australian Competition and Consumer Commission (ACCC), to make a decision in relation to a complaint by Mr Weekes. The grounds of the application are that:

By necessary implication of the Competition and Consumer Act 2010 (Cth), the Respondent had a duty to make a decision whether or not to address the Applicant's submission alleging a structural bias preventing the Respondent from lawfully discharging its statutory functions under that Act. More than four months without a decision is an unreasonable delay, which is a failure under section 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

2    Mr Weekes contends that he is aggrieved by the ACCC’s failure “because it is not in the public interest” and seeks declarations that:

(1)    the ACCC had a duty “by necessary implication” under the Competition and Consumer Act 2010 (Cth) (CCA) to make the decision in question; and

(2)    there was a failure to make the decision.

3    On 29 August 2025, the ACCC filed a notice of objection to competency, alleging that:

1.    In circumstances where:

1.1.    By the originating application, the applicant purports to apply for an order of review in respect of the respondent’s allegedly unreasonable delay in making a decision concerning a submission made by the applicant dated 7 February 2025,

1.2.    The respondent does not have a duty to make the decision identified in the originating application under the Competition and Consumer Act 2010 (Cth) or any other enactment,

1.3.    The respondent therefore has no duty to make a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) applies,

the Federal Court has no jurisdiction under s 8(1) of the ADJR Act to hear or determine this application.

4    On 12 September 2025, I made orders extending the time within which to file the notice of objection to competency under rule 31.05 of the Federal Court Rules 2011 (Cth) to 1 September 2025 and listing the notice of objection to competency to be heard and determined together with Mr Weekes’ application.

5    For the reasons set out below, the Court lacks jurisdiction to hear and determine Mr Weekes’ application which must therefore be dismissed with costs.

2.    BACKGROUND

6    On 23 September 2020, Mr Weekes lodged an online complaint form with the ACCC about White Lady Funerals, a business of InvoCare, alleging the making of false claims by InvoCare (the online complaint).

7    Between approximately 8 October 2020 and 17 January 2022, Mr Weekes and the ACCC communicated by email and telephone about the progress of Mr Weekes’ online complaint.

8    On 17 February 2023, Mr Weekes emailed the ACCC requesting “an update on the status of my report regarding the conduct of Invocare Ltd (Report 331324)”.

9    On 9 May 2023, an officer of the ACCC emailed Mr Weekes attaching a report containing the ACCC’s record held by it in Mr Weekes’ name in relation to his concerns about InvoCare. The attached report (entitled “Individual InfoForm Report”) contains a line item dated 19 July 2021 which states, “RT Outcome: NFA – See UA Meetings table for further information”. On 10 May 2023, Mr Weekes replied to the ACCC’s email acknowledging receipt of the report. Mr Weekes’ email further noted that “the outcome of the Round Table meeting on 19/07/21 was that no further action would be taken in this matter” and asked on what grounds that decision was taken.

10    I note that in his submission to the ACCC on 7 February 2025, Mr Weekes referred to a so-called Outcome Summary of a Round Table meeting on 19 July 2021 which stated that his matter had been marked as “NFA’d” (i.e. no further action) because:

•    It was not a priority,

•    The information provided did not merit investigation,

•    It was deemed an individual or localised dispute, and

•    It was considered outside the ACCC’s scope, as it concerned the Sex Discrimination Act.

11    The ACCC accepted the accuracy of the dot points expressed above.

12    On 14 July 2023, the ACCC replied to an email from Mr Weekes dated 19 June 2023 in which Mr Weekes raised issues in relation to his online complaint. In that response, the ACCC stated that “the Australian Human Rights Commission (AHRC) is best placed to consider your report” and that “[i]t is our view that the previous responses provided to you have now covered all the information we can provide. As such, we will only reply to you if we have new information to provide to you.”

13    On 7 December 2023, the ACCC emailed Mr Weekes in response to a further letter from him on 29 September 2023 raising issues in relation to his online complaint. In that email, the ACCC stated that:

Following a review of previous correspondence with this Office, we note that your query has previously been addressed and a response was provided.

In the circumstances, no further response will be provided.

14    On 29 February 2024, Mr Weekes again wrote to a freedom of information officer of the ACCC (FOI officer) requesting that a further letter be provided to the Chair of the ACCC in relation to his complaint. In that letter, Mr Weekes raised similar issues to those raised in his letter dated 29 September 2023.

15    On 26 April 2024, the Acting Chief Executive Officer of the ACCC (CEO) wrote to Mr Weekes and endeavoured to address the concerns raised by him in correspondence. In that email, the CEO relevantly explained that:

First, while I acknowledge the Invocare matter you raised is something about which you have serious concerns, in reviewing the information and associated correspondence, I consider the position taken by ACCC officers has been appropriate. As an economy wide regulator, the ACCC is not able to pursue all matters that come to our attention and is not established to resolve individual disputes. As we advise on our website, we generally don’t comment on our investigations or what action we may take from the information provided in reports we receive.

The ACCC uses information provided in reports like yours, along with other sources, to build our intelligence about business practices and inform us about broader or systemic issues. We then direct our resources to taking action that will have the widest impact or greatest benefit. Our decisions are made in accordance with our published priorities. You can view our current and enduring enforcement and compliance priorities on our website here.

…

Noting the above, along with previous correspondence, we will not provide any further comment on … the matter raised in your report about Invocare. We consider these matters closed and will read and file, but not respond to, any further correspondence. As stated in our Service Charter, if you remain dissatisfied with our position on this matter, you can contact the Commonwealth Ombudsman.

(Hyperlinks provided where the text above is underlined.)

16    There was no further relevant correspondence between the parties until Mr Weekes sent an email on 7 February 2025 to the ACCC FOI officer enclosing:

(1)    a document entitled “Submission: ACCC Structural Bias in Adjudicating Consumer Law Complaints” (the February 2025 submission), and

(2)    a covering letter to the Chair of the ACCC.

17    As the ACCC submits, neither the covering letter nor the enclosed submission refer to, or invoke, any specific power or function of the ACCC. Rather, Mr Weekes identified the heart of his complaint as concerning “a structural bias within the ACCC’s regulatory enforcement framework, not an administrative process failure” and requested “a formal acknowledgement” from the ACCC that:

•    This submission raises an argument that has not previously been addressed by the ACCC.

•    My correspondence is not a matter for the Commonwealth Ombudsman but a regulatory concern regarding the ACCC’s impartiality.

•    The ACCC has a duty to ensure that its pursuit of gender equity does not compromise its ability to apply the law fairly and without bias.

18    The ACCC did not reply to the February 2025 submission. However, as submitted by the ACCC, I infer that the respondent “read and file[d]” Mr Weekes’ covering letter and submission in line with the indication to that effect in the CEO’s correspondence on 26 April 2024.

19    These proceedings were commenced by Mr Weekes on 19 June 2025.

3.    DOES THE COURT HAVE JURISDICTION TO ENTERTAIN THE APPLICATION BY MR WEEKES?

3.1    Relevant principles

20    The starting point in considering the ACCC’s objection to competency on jurisdictional grounds is s 7(1) of the ADJR Act which provides:

Applications in respect of failures to make decisions

(1)    Where:

(a)    a person has a duty to make a decision to which this Act applies;

(b)    there is no law that prescribes a period within which the person is required to make that decision; and

(c)    the person has failed to make that decision;

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

(Emphasis added.)

21    Section 3(1) of the ADJR Act relevantly defines the phrase “decision to which this Act applies” as “a decision of an administrative character made, proposed to be made, or required to be made … under an enactment”. If an application under s 7(1) of the ADJR Act is successful, s 16(3) of the ADJR Act relevantly empowers the Court to make orders directing the making of the decision or declaring the rights of the parties in relation to the making of the decision.

22    In Fuller v Lawrence [2024] HCA 45; (2024) 99 ALJR 103 at [13], in a unanimous judgment the High Court applied the two criteria for determining whether a decision is “made … under an enactment” enunciated by the plurality in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 at [89] (the so-called Tang criteria), namely:

first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.

23    Section 8(1) of the ADJR Act confers jurisdiction on the Federal Court to hear and determine applications made to the Federal Court under that Act. If there is no “decision to which this Act applies” under s 7(1)(a), then the Court will not have jurisdiction under the ADJR Act to hear the application.

3.2    The notice of objection to competency must be upheld

24    As earlier explained, Mr Weekes seeks judicial review purportedly under s 7(1) of the ADJR Act alleging that the ACCC had a duty to make a decision about whether to address his February 2025 submission and that it is in breach of that duty by reason of having unreasonably delayed in making that decision. Mr Weekes submits that this duty arises “by necessary implication” of the CCA. In support of this implication, Mr Weekes submits that “for allegations such as [the February 2025 submission], which concern the respondent’s statutory function of enforcing the Australian Consumer Law, a duty to make a decision is necessary to maintain community trust that the function is being discharged lawfully”.

25    The ACCC submits that the applicant has not identified any “decision to which this Act applies” for the purposes of s 7(1)(a) of the ADJR Act.

26    As to the first criterion in Tang, the ACCC accepts that a decision under an enactment can be impliedly authorised by the enactment. However, Mr Weekes does not identify any provision of the CCA or any other statute as giving rise to the alleged duty to make a decision on whether to address his February 2025 submission alleging structural bias within the ACCC. The absence of any such express provision is “telling” against the decision being one made under an enactment: Australian Firearms and Munitions Pty Ltd v Attorney-General [2018] FCA 1442 at [64] (Rangiah J). Rather, Mr Weekes seeks to rely upon a general implied power said to emerge in an unspecified way from a substantial piece of legislation as the basis for importing a requirement on the ACCC to make a decision. However, as Wigney J observed in Schlaepfer v Australian Securities and Investments Commission [2017] FCA 1122 at [34]:

Where the decision was only authorised by the statute in very general terms, it may be difficult to conclude that the statute made provision for the decision and that the decision was accordingly made under the statute. In Hutchins [v Commissioner of Taxation [1996] FCA 201; 65 FCR 269], Black CJ put the issue in the following terms (at 272):

If a decision is neither expressly or impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which provision is made under an enactment. The connection between the text of the enactment and the decision is likely to be too remote for the decision to have the requisite character.

27    Thus, while the ACCC’s decision to not pursue further Mr Weekes’ February 2025 submission alleging a structural bias was authorised in a very general sense by the CCA, in my view there is no basis on which it could be said that the CCA made provision expressly or impliedly for the making of that decision. As Wigney J held in Schlaepfer at [35], the connection between the text of the CCA and the ACCC’s decision is “too remote for the decision to have the requisite character of a decision made under” the CCA. It follows that Mr Weekes’ very general reliance on a “necessary implication” of the CCA based on community trust in the ACCC’s functions being discharged lawfully fails to satisfy the first Tang criterion. This in itself suffices to establish the absence of jurisdiction in this Court to entertain Mr Weekes’ application.

28    Nor is the second Tang criterion met. With respect to this criterion, the High Court in Fuller at [16] explained that:

The second Tang criterion, that the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment, coheres with the observation of Mason CJ (with whom Brennan J agreed and Deane J agreed on this point) in Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321 at 339] (“Bond”) that a decision “on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision” was reviewable under the AD(JR) Act. It also coheres with the observation of Toohey and Gaudron JJ in Bond that, if an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power (in that case a decision to suspend or cancel a commercial broadcasting licence), a finding that satisfies the condition precedent is “readily characterized as a decision ‘under an enactment’”.

29    Applying these principles, I agree with the submission of the ACCC that:

the ground of application must connect the asserted duty to make a decision to “a substantive power” derived from the statute. Other than to refer to the matters outlined above to support a “necessary implication”, the applicant does not identify what, if any, specific substantive power under the CCA could eventually be exercised and in such a way that affects legal rights or obligations.

30    Ultimately, therefore, as the ACCC also submits, it necessarily follows that, where the first Tang criterion is not met, the second Tang criterion is also not met: Australian Firearms at [68] (Rangiah J).

4.    CONCLUSION

31    It follows for these reasons that the notice of objection to competency must be upheld and the application by Mr Weekes dismissed. There was no “decision … under an enactment” and no “decision to which [the ADJR] Act applies” within the meaning of s 7(1) of the ADJR Act. With respect to costs, Mr Weekes submitted that he brought the application in the public interest. I accept that Mr Weekes genuinely believes that he did so. However, in circumstances where the application clearly fell outside the jurisdiction of the Court and the ACCC was wholly successful on this point, I consider that the ACCC should be entitled to its costs against Mr Weekes in accordance with the ordinary rule as to costs.

Associate:

Dated:    10 December 2025