~ ~ IN THE SUPREME COURT OF QUEENSLAND No. 7788 of 1998 Brisbane Before Williams J [Sita Queensland Pty Ltd v Beattie & Anor] BETWEEN: SITA QUEENSLAND PTY LTD ACN 070097219 Applicant AND: PETER DOUGLAS BEATTIE First Respondent DAVID JOHN HAMILL Second Respondent REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 10th day of September 1999 ( , CATCHWORDS: ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Failure to Exercise Discretionary Power - delegation of power - whether both Ministers made own decision. Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24, applied. STATUTES - Acts of Parliament -Interpretation - Queensland Competition Authority Act - definition of "Ministers must act jointly" - sufficient if act in 'concurrence of the other'. Kendle v Melson (1998) 193 CLR 46, considered. Queensland Competition Authority Act, s 6 considered. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Abuse of Discretionary power - Consideration oflrrelevant Matter or Refusal to Consider Relevant Matter - whether the matters alleged were irrelevant considerations - whether these considerations were decisive. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - error of law - whether Ministers simply adopted the approach of the Minister of Transport & applied the wrong test - distinction between political­ administrative decision-making and test to be applied in civil litigation. Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, approved Briginshaw v Briginshaw (1938) 60 CLR 336, distinguished. Queensland Competition Authority Act, s 57 referred to. ADMINISTRATIVE LAW - Rules of Natural Justice and Breach Thereof - right of party affected to be heard -whether applicant should have been given the opportunity to comment on Minister of Transport's material- whether consideration of procedural fairness of the type discussed in Kioa v West applied - ground should be considered in light of statutory provisions. Bread Manufacturers ofNew South Wales v Evans (1981) 56 ALJR 89, referred to. Queensland Competition Authority Act, s 57, referred to. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Abuse of Discretionary power - Consideration oflrrelevant Matter or Refusal to Consider Relevant Matter - no cluty to consider advice of the Solicitor-General. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - Failure to observe procedures required by statute - whether respondents failed to consult with responsible Minister - no procedures laid down by statute. ADMINISTRATIVE LAW - Judicial Review on Grounds of Ultra Vires or Defective Exercise of Power - decision not authorised by statute - whether decision incomplete as it did not expressly reject QCA's recommendations. Queensland Competition Authority Act, s 57, referred to. Counsel: Mr F Harrison QC & Mr B Porter for the Applicant Mr R Hanson QC & Mr P Flanagan for the Respondents Solicitors: MacGillvrays for the Applicant Crown Solicitor for the Respondents Hearing Date: 2nd August 1999. IN THE SUPREME COURT OF QUEENSLAND No. 7788 of 1998 Brisbane Before Williams J [Sita Queensland Pty Ltd v Beattie & Anor] BETWEEN: SITA QUEENSLAND PTY LTD ACN 070 097 219 Applicant AND: ( \ PETER DOUGLAS BEATTIE First Respondent . DAVID JOHN HAMILL Second Respondent REASONS FOR JUDGMENT - WILLIAMS J Judgment delivered 10th day of September 1999 1. The applicant seeks review pursuant to the Judicial Review Act 1991 (JR Act) of the decision of the respondents, being the Premier and Treasurer of Queensland, recorded in a document dated 6 August 1998 and headed Ministers' Decision Noticepursuant to s.57(3) of the Queensland Competition Authority Act 1997 (QCA Act). 2. To facilitate the hearing ofthe application the applicant delivered a statement of claim. The allegations of fact contained in paragraphs 1-40 inclusive thereof, while not admitted by the respondents, are not disputed for purposes of the hearing. 2 3. At least since October 1995 part of the applicant's business has involved the transporting of passengers by bus between Brisbane and the Gold Coast along what is called the Brisbane- Gold Coast public transport corridor. There is what is described as a "market" for the provision of public passenger transport services along that corridor. The applicant has clearly been a competitor in that market at least since 2 October 1995, and continues to be so. 4. On or about 26 February 1996, Queensland Rail (QR) started providing rail services along that public transport corridor; initially the service was from Brisbane to Helensvale but it has been extended to Robina. Because of that QR can be described as a competitor in the public passenger transport market between Brisbane and the Gold Coast. In about January 1995 the I\. then Minister for Transport and Main Roads set the initial fares to be charged for the rail service; there was an increase after 23 January 1997. 5. QR is a body corporate which is a statutory GOC as defined in the Government Owned Corporations Act 1993. It was then established as a body corporate on 1 July 1995 by s.8 of the Government Owned Corporations (Queensland Rail) Regulation 1995. The 10 million ordinary shares of $1 each are held equally by the Minister administering the GOC Act and the Minister for Transport and Main Roads. Thus QR is a government agency as defined in the Schedule to the QCA Act. By Gazette notice dated 30 June 1997 the then Premier and Treasurer of Queensland declared all the business activities of QR to be "significant business activities" for the purposes of s.39 of the QCA Act. 6. The statement of claim alleges that the fares set for rail passengers using the public transport corridor in question were not set in accordance with ordinary commercial principles; they were not set so as to recover costs or to make a profit; they do not include any profit margin, debt guarantee fees, sales tax, or share of corporate overhead; nor do they cover the operating costs of the service. It is alleged that the fares were set on the basis that Queensland would fund 3 and continue to fund the provision of the Gold Coast rail service by providing both direct payments and internal cross subsidies to QR to enable it to provide the services. 7. The applicant then alleges that because the rail fare is lower than it's bus fare its share of the subject market has fallen substantially and it will not be able to continue to carry on business in that market without significant levels of external funding or cross subsidisation. It asserts that unless the present situation is remedied it will have to cease providing its services in question. 8. Against that background the applicant made a complaint to the Queensland Competition Authority (QCA), a body corporate established by s.7 of the QCA Act. Section 38 of that Act provides: ( " " \ "The principle of competitive neutrality is that a government agency carrying on a significant business activity should not enjoy a competitive advantage, solely because of the government ownership or control ofthe agency, over competitors or potential competitors in a particular market." 9. Section 43 of the QCA Actprovides that a person adversely affected by the competitive advantage alleged to be enjoyed by the government agency may lodge a complaint. On 2 July 1997 the applicant formally lodged a written complaint alleging against QR a breach of the principle of competitive neutrality by the prices it was charging for the Brisbane to Gold Coast passenger rail service. 10. Thereafter the QCA conducted an investigation into the complaint. There is no doubt that the applicant had ample opportunity to put its case fully to the QCA. Indeed, as is established by exhibit 6, the applicant was given an opportunity of commenting upon a draft report before that report was finalised and forwarded to "the Ministers" pursuant to s.52 of the QCA Act. 11. The expression "the Ministers" is used throughout the Act, and in the Dictionary (the Schedule to the Act) it is defined as meaning "the Premier and the Treasurer". That brings into play s.6(1) which provides: 4 "F or this Act - (a) if a thing is required to be, or may be, done by the Ministers, the thing is to be done by the Ministers jointly; and (b) if a thing is required to be, or may be, given to the Ministers, the thing is to be given to each of the Ministers." Subsection (2) provides that where those two offices are held by the one person (as is not . infrequently the case) "the thing may be done by, or given to, that person alone". 12. Section 54 provides that the QCA must state in a report whether the complaint has been substantiated, its reasons for the decision, and (where it decides a complaint has been substantiated) include recommendations on how the government agency's failure to comply with the principle of competitive neutrality could be overcome. 13. The report was finalised in June 1998 and delivered under cover of a letter dated 7 July 1998 to the respondents. It is of some relevance to note that the Beattie Government was sworn in on 29 June 1998 having defeated the previous Government at an election held shortly before that date. (\ :1.4 The report from the QCA is reasonably lengthy but it is not necessary to quote extensively from it for present purposes. All that need be noted are paragraph 11 reciting the decision, and paragraphs 36 and 37 containing the recommendations: "11. The Authority has concluded that: • the fares charged by QR for its Brisbane to Gold Coast services breach the principle of competitive neutrality; BUT • QR does not enjoy any procedural or regulatory advantage in respect of Brisbane to Gold Coast services which breach the principle of competitive neutrality.