Case: Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511
Outcome: applied
Other decisions of the Full Court of the Federal Court are to the same effect as the statement of principle of Deane J in Pioneer Concrete: see Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 at 514 per Davies and Foster JJ; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 at [48] per Sackville and Emmett JJ. 96 Second, as Lockhart J observed in Kotan at 522, the use of s 155 for the purpose of obtaining evidence to be tendered in penalty proceedings on the question of the quantum of any penalty is a legitimate use of the power. This view is consistent with the observation of Mason J in Pioneer Concrete at 472 that the discharge of the Commission's administrative functions under the Act: ... include the investigation of alleged breaches, the acquisition of information and the obtaining of evidence for submission to the Court in proceedings in respect of a contravention. 97 KAL's contention that the power to issue the Notice had ceased, or was "spent", depends upon whether I am satisfied that the ACCC had decided, either formally or informally, to commence proceedings against KAL at the time when the decision was made to issue the Notice. 98 An affirmative answer to that question would not necessarily lead to a finding that the power was spent. This is because a question of law would then arise as to whether a decision by the ACCC to institute proceedings against KAL bars it from thereafter exercising the power to issue a notice under s 155 of the Act. 99 The question of law is a debateable one. It cannot rise above the statement of Davies and Foster JJ in Kotan at 516 that there may be an arguable case that the power to issue a s 155 notice ceases when the Commission has formally resolved that legal proceedings be commenced. But there are other indications that this proposition does not accurately state the law. 100 First, Davies and Foster JJ thought the preferable view to be to the contrary. Second, Lockhart J was inclined to the view that the power to issue a notice under s 155 does not end and is not abused merely because the Commission has made a decision to institute proceedings against the addressee of a proposed notice. His Honour went on to say that whether the power to issue a notice is abused is a question of fact to be determined in all of the circumstances: Kotan at 521. 101 Third, Lockhart J's view is supported by the observations of French J in Shannahan v Trade Practices Commission [1991] FCA 95 ; (1991) 28 FCR 239 at 244. (See also French J at first instance in Re Kotan Holdings Pty Ltd &amp; Ors v Trade Practices Commission [1991] FCA 273 ; (1991) 13 ATPR 41-122 at [7] ). His Honour said that there is nothing in the terms, context or purpose of s 155 to indicate that the power is compromised by the Commission having decided to commence proceedings. 102 Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan . Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. 113 In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. 115 In my opinion, this distinction supports the view expressed in Kotan because it reaffirms the principle that it is only the Commissioners who have the power to institute proceedings.