The commission is a statutory body that investigates uncompetitive behaviour, while the tribunal adjudicates cases and hears appeals.
In a stinging rebuke of the commission, the tribunal said the watchdog’s case had “suffered a lack of focus” and it would have to file a new referral affidavit and confine the case against the implicated banks to a single over-arching conspiracy.
“This is not to hold in general that the commission cannot make out a case in the alternative. Indeed, ordinarily we would avoid making directions that constrain the commission’s prosecutorial discretion to formulate its charges in the manner it considers best,” the tribunal said.
“But we also have a duty to ensure that the tribunal proceedings are fair. When the formulation of a case in the alternative makes the case confusing for the respondents, as we have found it does, and when after being given a chance to re-formulate the case the commission’s efforts have still not added further clarity, the fairness requires that we should intervene.”