Ansett Transport Industries (Operation) Ltd [v Taylor, R.M. 1987] FCA 173

[1987] FCA 173

Re: ANSETT TRANSPORT INDUSTRIES (OPERATIONS) LIMITED
And: RAE MARTIN TAYLOR (who is sued in his capacity as Secretaty of the
Department of State for Aviation)
No. VG 27 of 1987 Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.

CATCHWORDS

Administrative Law - Two Airlines Agreement - reasons for decision of Secretary of Department of Aviation - sufficiency thereof - giving further and better particulars.

Administrative Decisions (Judicial Review) Act 1977: s. 13.

Airlines Agreement Act 1981: Schedule.

HEARING

SYDNEY

#DATE 10:4:1987

Counsel and solicitors for Ansett Transport Industries (Operations) Limited. J.D. Merralls Q.C. with J.G. Santamaria instructed by Arthur Robinson & Hedderwicks

Counsel and solicitors for the Secretary of the Department of State for Aviation. D. Graham Q.C. with J.E. Middleton instructed by Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondent's costs of the application.

NOTE: Settlement and entry of orders is dealt with under Order 36 of the Federal Court Rules.

JUDGE1

On 31 October 1986 the respondent, Rae Martin Taylor, Secretary of the Department of Aviation ("the Secretary"), decided that he was not satisfied that the services operated by East-West (Operations) Limited ("East-West") between Sydney/Yulara/Perth were not predominantly for use for the purpose of carriage of passengers over separate prescribed routes. The decision was made pursuant to clause 6(1)(c) of what is generally known as the Two Airlines Agreement.

1. The Two Airlines Agreement is dated 28 May 1981 and its parties are the Commonwealth of Australia, the Australian National Airlines Commission ("Australian Airlines") and Ansett Transport Industries (Operations) Limited ("Ansett"). The agreement is a schedule to the Airlines Agreement Act 1981 and it was approved by s. 5 of that Act.

2. The relevant parts of clause 6 of the agreement are as follows:
   
   

"6.(1)(a) The parties shall take all reasonable action within their powers to ensure that the Commission and the Company are the only two operators which provide scheduled domestic passenger air services over trunk routes within Australia.

(b) Subject to paragraph (c) of this sub-clause nothing in sub-clause (1)(a) shall prevent other operators from providing scheduled passenger air services over a prescribed route or successive prescribed routes.

(c) Where any successive prescribed routes have the effect of linking two trunk route centres that are for the time being trunk route centres for the purposes of sub-clause (1)(e), sub-clause(1)(b) applies unless the Secretary is satisfied that such scheduled passenger air services are not predominantly for use for the purpose of the carriage of passengers over separate prescribed routes and are to a significant extent used or to be used for the purpose of carriage of passengers between two centres that are for the time being trunk route centres for the purposes of sub-clause

(1)(e)."

1. The Secretary's decision followed an examination by him of East-West's services over various prescribed routes with the intention of forming a view as to the status of those routes for the purposes of clause 6(1)(c) of the Two Airlines Agreement. The Secretary considered East-West's services in relation to various routes, but the only relevant routes for present purposes are the successive prescribed routes of Sydney/Yulara and Yulara/Perth.

2. This application is the latest round of a curial contest between Ansett, Australian Airlines, East-West, the Minister for Aviation and the Secretary. I have dealt with other aspects of the dispute in earlier judgments where much of the relevant background appears, so I need not repeat it.

3. On 4 November 1986 the solicitors for Ansett wrote to the Secretary requesting him to furnish a statement of reasons for his decision pursuant to sub-s. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). By letter dated 13 November 1986 the Secretary declined to furnish the statement on the ground that his decision was not susceptible to review under the Judicial Review Act as it was not a decision made "under an enactment" within the meaning of that expression in sub-s. 3(1).

4. Ansett commenced proceedings in this Court against the Secretary seeking a declaration that it was entitled to request a statement from him pursuant to sub-s. 13(1). The matter was heard by me and on 23 December 1986 I made a declaration that Ansett was entitled to request the statement. On 19 January 1987 the Secretary furnished the statement to Ansett. On 28 January 1987 Ansett filed in this Court an application to review the Secretary's decision of 31 October 1986. Ansett challenges the Secretary's decision on various grounds which it is unnecessary for me to mention here. The hearing of Ansett's application has been specially fixed for a date later in April. What is before the Court now is another application of Ansett filed on 13 February 1987 which seeks further and better particulars of the section 13 statement already furnished by the Secretary.

5. It is common ground that the routes Sydney/Yulara and Yulara/Perth are successive prescribed routes within the meaning of that expression in clause 6 of the Two Airlines Agreement. Having taken the view that he was not satisfied that East-West's scheduled passenger air services over the routes were not predominantly for use for the purpose of the carriage of passengers over the separate prescribed routes Sydney/Yulara and Yulara/Perth, the Secretary stated in the last paragraph (para. 29) of the section 13 statement that it was not necessary to consider the second limb of clause 6(1)(c), namely, whether the relevant air services are to a significant extent used or to be used for the purpose of carriage of passengers between two trunk route centres (i.e. Sydney and Perth).

6. The section 13 statement relevant to Sydney/Yulara/Perth contains eight pages with paragraphs numbered 1 to 29. For ease of reference I attach the statement to these reasons for judgment.

7. Paragraphs 1 to 3 of the section 13 statement contain introductory material including the finding of the Secretary that he was not satisfied for the purposes of clause 6(1)(c) of the matters referred to in its first limb.

8. The second section (paras. 4 to 20) contain the Secretary's "FINDINGS ON MATERIAL QUESTIONS OF FACT". The Secretary referred to the earlier decision of his predecessor, Mr. T.W. Freeland, made on 13 August 1985 which states that he (Mr. Freeland) was satisfied that East-West's passenger air services over the route Sydney/Yulara/Perth were not predominantly for use for the purpose of the carriage of passengers over separate prescribed routes and were to a significant extent used for the purpose of carriage of passengers between the trunk route centres Sydney and Perth (para. 5). The Secretary described the scheduled passenger air services now provided by East-West over the route Sydney/Yulara/Perth and made comparisons between those services and those provided by Ansett and Australian Airlines (paras. 6, 7 and 8). He said that East-West's publicly stated intention is to develop Yulara as a major tourist destination (para. 9). The Secretary then said that East-West adopted the timetable that it has because of various matters to which he referred (para. 10). After mentioning East-West's bookings policy for Sydney/Perth passengers (para. 12) and East-West's published timetable (para. 13), the Secretary said in paragraph 14 "The general thrust of East-West's advertising and promotional material appears to be aimed primarily at promotion of tourist travel to Yulara. East-West advised that with certain exceptions it was intended there should be no further advertising of the service between Sydney and Perth". He referred to the Independent Airfares Committee "Cost Allocation Review" of July 1985 in paragraph 16 and said in paragraph 17 that in 1985 the "level sector" traffic as a proportion of total traffic carried by East-West (on the Sydney/Yulara/Perth route) has "increased markedly".

9. The next section in the section 13 statement is titled "EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS WERE BASED" and it contains one paragraph numbered 21 which has a number of sub-paragraphs (a) to (j). In this section the Secretary refers to various attachments A to G which include a large number of documents that, together with the departmental submission referred to in sub-paragraph (a) and the relevant departmental minutes, constitute the evidence or other material on which the Secretary based his findings of fact relevant to the decision under challenge.

10. Many of the documents to which the Secretary refers and upon which he apparently relied in reaching his decision were disclosed to him by East-West in confidence as they contain commercially sensitive material and are marked "Commercial-In-Confidence". Sensible arrangements were made between the parties and were adopted by me for the purpose of hearing this application to ensure that counsel and solicitors and an independent expert retained by Ansett had access to these documents, but that they were not generally available to officers of Ansett. They are the subject of confidentiality orders.

11. The final section in the section 13 statement is titled "REASONS FOR DECISION" and contains paragraphs 22 to 29. I need not recite them.

12. This sufficiently sets out the facts to understand the issues involved in the present application.

13. Where a decision-maker is obliged to furnish a section 13 statement it must be a statement in writing setting out the findings on the material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for decision (sub-s. 13(1) and (2)).

14. If the person to whom the statement has been furnished considers that it does not contain adequate particulars of findings on material questions of fact or an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons (sub-s. 13(7)).

15. The principles governing the interpretation of s. 13 are referred to in various cases including Re Palmer and Minister for the Capital Territory (1978) 23 ALR 196; Ansett Transport Industries (Operations) Pty. Ltd. v. Wraith (1983) 48 ALR 500; and Arms Construction Pty. Limited v. Deputy Commission of Taxation (1986) 65 ALR 343.

16. The duty to give reasons pursuant to a statutory obligation and the principles governing the interpretation of those statutes, other than s. 13 of the Judicial Review Act, are referred to in many cases which provide useful background for the interpretation and operation of s. 13. The cases include In re Poyser and Mills' Arbitration (1964) 2 QB 467 at pp 477 and 478; Iveagh v. Minister of Housing and Local Government (1964) 1 QB 395 per Denning LJ. at p 410; Elliott v. Southwark London Borough Council (1976) 1 WLR 499 per James LJ. at p 508; Collins v. Repatriation Commission (1980) 32 ALR 581 at pp 594-5; Clark v. Wellington Rent Appeal Board (1975) 2 NZLR 24 at pp 26 and 27; Dalton v. Deputy Commissioner of Taxation (NSW) (1985) 60 ALR 783 at p 792; Mountview Court Properties Ltd. v. Devlin (1970) 21 P & C R 689 per Lord Parker C.J. at p 692 and Body Corporate Strata Plan No. 4166 v. Sterling Properties Ltd. (No. 2) (1984) VR 903 at p 911.

17. The purpose of section 13 is to enable persons whose property or whose interests are affected by an administrative decision to be fully informed of the basis on which the decision was made and the reasons for it. Hence the section requires that the statement set out the findings on material questions of fact with reference to the material on which the findings were based and that it give the reasons for the decision.

18. Whether reasons are sufficient or not must depend upon the circumstances of the particular case. The section does not require that the findings on all questions of fact be set out; it is sufficient if the statement sets out the findings on material questions of fact. Nor is it necessary that the evidence or other material be set out in the statement; it is sufficient if it is referred to in it. Nor should the statement be interpreted by the courts narrowly or technically. Section 13 is remedial in character. I agree with the following statement by Burchett J. in Arm Constructions Pty. Ltd. v. Deputy Commissioner of Taxation (1986) 65 ALR 343 at p 349:
    
    

"It would be wrong for courts to construe reasons in any overly critical spirit, forgetful that they are the reasons of an administrator, not of the draftsman of an Act. But it would be as bad to betray the aims of the Administrative Decisions (Judicial Review) Act, by ignoring what has been required by the Parliament to be disclosed in the interests of just and lawful (and not merely unassailable) administration."

1. Section 13 seeks to strike a balance between the requirement that persons affected by an administrative decision know the basis upon which it was made and the necessity that the administration of this country be carried on effectively without undue intervention by the courts in the administrative process. The citizen must have, when he receives the statement, sufficient information to decide whether to accept the decision or to pursue the matter further within the administrative process itself or to challenge the decision in the courts.

2. Counsel for Ansett submitted that the section 13 statement furnished by the Secretary was insufficient in various respects. It is convenient if I group the criticisms of the statement under the following headings:
   
   

a) It failed to specify the criteria applied by the Secretary in reaching his conclusion that he was not satisfied that the relevant passenger air services were not predominantly for use for the purpose of the carriage of passengers over separate prescribed routes;

b) It failed to state the Secretary's understanding of the relevant law that he applied when reaching his decision and his processes of reasoning;

c) The Secretary failed to specify the weight which he assigned to each of the findings of fact referred to in paragraphs 9 to 20 of the statement;

d) A specific challenge was made to paragraph 20 of the statement where the Secretary said:

"The fact and circumstances which now prevail in relation to East-West's services over the routes are different from those which prevailed in August 1985 when the former Secretary considered those routes."

It was submitted that this was a compendious statement and that it is unclear whether it must be read in the light of the paragraphs which preceded it or whether it refers to additional, but unstated, facts and circumstances; and

e) Paragraph 26 of the statement was attacked on similar grounds to those which formed the basis of the criticism of paragraph 20. Paragraph 26 states:

"Given the different facts and circumstances which prevailed at the time of my decision as compared to those which prevailed at the time of the former Secretary's decision, the task for me was to decide whether I was satisfied of the existence of the two matters specified in paragraph 6(1)(c)."

1. The findings of the Secretary under clause 6(1)(c) are essentially findings of fact. Was the Secretary satisfied that the relevant scheduled passenger air services provided by East-West were not predominantly for use for the purpose of carriage of passengers over the separate prescribed routes? To answer this question the Secretary must state, as he did, the evidence or other material which he took into account in making his findings. He must state his findings of fact; but that is essentially a statement of the results of a judgemental exercise. It is a process of sifting and weighing and then drawing conclusions.

2. The Secretary should state the relevant statutory framework which surrounds the subject matter of his decision, otherwise it would be difficult to understand the reasons for his decision. The statement makes it plain that this is what the Secretary did. It must be kept in mind also that when giving his reasons the Secretary was furnishing them to one of the parties to the Two Airlines Agreement, a party familiar with the legislative framework in which the Two Airlines Agreement is placed.

3. Some reliance was placed by counsel for Ansett upon a passage from the judgment of Woodward J. in Ansett Transport Industries (Operations) Pty. Limited v. Wraith (supra) where his Honour said at p 507 that the decision-maker was required by sub-s. 13(1) of the Judicial Review Act to "set out his understanding of the relevant law ...".

4. As the Judicial Review Act is concerned with decisions made under Commonwealth enactments, a section 13 statement generally should draw the attention of the person who requests it sufficiently to the relevant law to enable him to understand the legislative framework in which the decision was made. This may in some cases merely involve a brief reference to the statutory or other law underlying the decision. In other cases in may involve a fairly detailed reference to sections of statutes or to particular regulations or other delegated legislation. It all depends on the particular enactment involved in the decision- making process in question. Woodward J.'s reference to the requirement that the decision-maker set out his understanding of the relevant law cannot, in my view, be called in aid of the proposition that in every case a decision-maker must in substance specify all relevant law or give a legal opinion as if he were a barrister advising his client. Section 13 is concerned with practical considerations aimed at properly informing the person whose property or whose other interests are affected by the decision of the grounds of the decision which has been made and which affects him.

5. There is no substance in the criticism that the Secretary should have, but did not, indicate the particular weight which he gave to each of his findings of fact. Where his task is to decide whether he is or is not satisfied of the matters specified in the first limb of clause 6(1)(c) it seems to me that it would make his task difficult, if not impossible, were he required to assign varying degrees of weight to particular matters which he regarded as relevant in reaching his decision. The Secretary mentioned in the section 13 statement the facts and documents upon which he relied. What he said in effect was that, having regard to the various matters which he regarded as relevant, he reached a particular conclusion and was not satisfied as to the matters mentioned in the first limb of clause 6(1)(c). His enquiry is of a general or global character. A lot of matters were taken into account by him as, indeed, they should have been, bearing in mind the subject matter of the enquiry. I do not discern any error on the part of the Secretary in this process. That is not to say that the Secretary did or did not err in law in making the decision which he did. That is a quite different matter which is not to be examined on the hearing of this application which is solely a challenge to the sufficiency of the section 13 statement.

1. There is no substance in the criticism of paragraphs 20 and 26 of the section 13 statement. In my view paragraph 20 should be construed as compendiously referring to the facts and circumstances narrated in earlier paragraphs. Substantially the same considerations apply to the criticism made of paragraph 26.

2. It is important to bear in mind that a great deal of the material placed before the Secretary by East-West was material supplied in confidence, the publication of which would reveal what was asserted by East-West to be commercially confidential. No challenge is made to the proposition that a lot of the material before the Secretary answered this description. Section 13A of the Judicial Review Act expressly provides that a decision-maker is not required to include in a section 13 statement any information supplied in confidence or the publication of which would reveal a trade secret or otherwise answering the description of para. 13A(1)(b). It is necessary, therefore, to approach the present application knowing that precision in all statements of fact would be difficult as s. 13A imposes constraints upon the matters which the Secretray is required to include in the statements, much of which was treated as being confidential.

3. I have a general impression that the statement supplied under s. 13 in this case is a full statement which sufficiently describes the basis upon which the Secretary made his decision. The Secretary's process of reasoning is sufficiently set out, especially when it is remembered that the task which clause 6(1)(c) vests in him is itself of a general character, the adequate performance of which must be determined by reference to the relevant facts as a whole.

4. If the Secretary took irrelevant considerations into account or failed to take relevant considerations into account or if his decision involved an error of law or if a breach of the rules of natural justice occurred in connection with the making of his decision or if any of the other grounds for review specified in s. 5 of the Judicial Review Act applied to the making of his decision, the section 13 statement sufficiently enables Ansett to chart its course and determine whether a challenge to the decision is justified.

5. In the light of these findings it is not necessary for me to deal with the submissions of counsel for the Secretary that, if I had reached a contrary conclusion, I should refuse relief to Ansett in the exercise of the Court's discretion.

6. Finally, I should say that all I am considering in the present application is the sufficiency of the Secretary's section 13 statement. I am not considering the validity of the statement itself or whether any of the grounds upon which Ansett relies in support of its substantive application to challenge the statement are soundly based or not.

7. I would dismiss the application with costs.