Case: Newham v Australian Securities and Investments Commission (2000) 35 ACSR 147
Outcome: cited
The ACCC accepts that where a reinstatement is sought in order to enable an applicant to pursue a claim against the company reinstated, it must appear that the claim has reasonable prospects of success or raises a serious question to be tried: Newham v Australian Securities and Investments Commission (2000) 35 ACSR 147; Gausten v Outokumpu Australia Pty Ltd (unreported, Supreme Court of Western Australia, Master Sanderson 20/11/1998). 13 In her affidavit in support of the application for reinstatement, Bianca Sumner, a Project Officer employed by the ACCC, exhibited the written agreement which is at the heart of the proceedings instituted by the ACCC. That agreement contained the following provisions: To all English Language Institutions in Perth The Perth International Student Agencies, which are KOKOS International Pty Ltd, IAE Edu Net WA, Study Overseas Now, Nanuri Education Centre and Jobbok International, have organized an agreement along with the Council of Korean Agency. The agreement is proposed to prevent excessively discounted fees offered by the agencies mentioned above. The agencies pledges (sic) to offer fair dealings accordingly to the agreed conditions which are listed below that all International students (including Working Holiday Makers &amp; Tourists) will not be offered discounts beyond the noted amount on the school's invoice. Unfortunately the problem has arisen to enormous proportions in Sydney and it sets a fine example. The agents there are competing with each other by offering 15-20% off their own commission to students. In result of this, students are taking this matter to their advantage and requesting for more concessions. It is believed that all persons it concern (sic) do not want this predicament to occur in this market in Perth. Therefore, The Council of Korean Agency wishes to monitor and control unfair commissions apart from official privileges offered by Education Institutes. It is also aimed to all Institutions to cooperate within the agreement for fair dealings in the Korean Market. Listed below are the agreed conditions: 1. The five agencies in Perth will organize a Net Work System and cooperate by working together and monitoring any illegal activities. 2. All other agencies should follow the system, which has been organized by the five agencies mentioned above, and carry it into an effect. 3. If any of the five agencies as well as others has performed unfair illegal activities will face a penalty fee ordered by the Council of Korean Agency. 4. All Education Institutions in Perth to cooperate by reporting to the Council of Korean Agency if any illegal activities are performed by any agencies. . No enrolment for school for 3 months. On the face of it the evidence of the agreement indicates that the ACCC's claim has reasonable prospects of success. 14 There are obvious public interest considerations in favour of the litigation proceeding against all companies said to have been party to the arrangements of which the ACCC complains. Given that those proceedings are still pending it is neither necessary nor desirable to enter upon any further analysis of their merits. It is sufficient to say that on the materials before the Court it is just that the company be reinstated.