Australian Competition and Consumer Commission v P. T. Garuda Indonesia Ltd (No 8)
[2013] FCA 172
FEDERAL COURT OF AUSTRALIA
Australian Competition and Consumer Commission v P. T. Garuda Indonesia Ltd (No 8) [2013] FCA 172
Citation: Australian Competition and Consumer Commission v P. T. Garuda Indonesia Ltd (No 8) [2013] FCA 172 Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v P. T. GARUDA INDONESIA LTD File number: NSD 955 of 2009 Judge: PERRAM J Date of judgment: 25 February 2013 Catchwords: EVIDENCE – Expert evidence – Whether opinion on construction of foreign law admissible – Whether opinion on construction is an application of law to facts Legislation: Evidence Act 1995 (Cth) s 57(1)(b) Cases cited: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court’s Allstate Judgment No 33) (1996) 64 FCR 79 cited
Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640 citedDate of hearing: 25 February 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: Ms E Collins SC Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr M Leeming SC Solicitor for the Respondent: Norton White
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 955 of 2009
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND: P. T. GARUDA INDONESIA LTD
Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
25 FEBRUARY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Paragraph 56-62, 72 and 78-80 of the report of Mr Wingfield form part of the evidence.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 955 of 2009
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND: P. T. GARUDA INDONESIA LTD
Respondent
JUDGE:
PERRAM J
DATE:
25 FEBRUARY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On day 34 of the trial Garuda sought to tender the report of Mr Ian George McCurdy Wingfield. Mr Wingfield is an expert in the law of Hong Kong. The ACCC objected to paragraphs 56-62, 72 and 78-80 of Mr Wingfield’s report but at that time I admitted those paragraphs into evidence, indicating that I would provide my reasons for taking that course subsequently. These are those reasons.
An issue in this case concerns whether the legal regime applying in Hong Kong at the relevant time required airlines to charge, if they were minded in fact to charge, a fuel surcharge determined by the Hong Kong Civil Aviation Department (‘the HK CAD’) or, alternatively, whether any such surcharge determined by the HK CAD operated merely as a ceiling otherwise leaving airlines free to charge any lower amount they wished.
This involves a question which touches upon the law of Hong Kong.
Mr Wingfield is an eminent lawyer from Hong Kong whose roles, over time, have included the position of Solicitor-General between 2007 and 2010, the leader of the Hong Kong negotiating party at the negotiations for the mutual assistance bilateral agreements between Hong Kong and various nations including Australia, and a member of the Chinese delegation at the Hague Conference on Private International Law. There is no issue about Mr Wingfield’s expertise.
The paragraphs objected to culminate in paragraph 80 but as the argument developed it was plain that it was paragraph 80 itself which lay at the heart of the matter and that the remaining paragraphs 56-62, 72 and 78-79 were ancillary (although also subject to their own objection). It is convenient then to begin with paragraph 80 which is as follows:
The terms of article 8(2) of the Hong Kong-Indonesia ASA do not on their face provide that airlines may charge less than an approved tariff and the wording of condition (d) of the 2009 Operating Permit that “Garuda shall charge only those tariffs which have been approved by the DGCA and the aeronautical authorities of Indonesia” is unambiguous and leaves no room for the interpretation that Dr McCoy places on the equivalent wording in the sample Operating Permit in paragraph 94.
At the time of argument there was some doubt as to whether the Commission would be calling Dr McCoy. At that time, on the basis that it was otherwise admissible, I admitted the clause appearing after the final conjunction provisionally under s 57(1)(b) of the Evidence Act 1995 (Cth) (‘the Act’). As it happens, Dr McCoy was called and that issue may be put to one side.
Ms Collins SC for the Commission submitted that paragraph 80 was inadmissible as expert evidence because rather than confining itself to the identification of the sources of Hong Kong law, it impermissibly encroached upon the Court’s functions by expressing an opinion on the application of that law to the facts.
There is no doubt that article 8(2) does not ‘on its face provide’ (Mr Wingfield’s words) that airlines may charge less then an approved tariff as the first clause of paragraph 80 says. Article 8(2) of the Agreement between the Government of Hong Kong and the Government of Indonesia concerning Air Services is in these terms:
The tariffs to be charged by the designated airlines of the Contracting Parties for carriage between Hong Kong and Indonesia shall be those approved by the aeronautical authorities of both Contracting Parties and shall be established at reasonable levels, due regard being had to all relevant factors, including the cost of operating the agreed services, the interests of the users, reasonable profit and the tariffs of other airlines operating over the whole or part of the same route.
I do not accept that Mr Wingfield’s observation about what it is that article 8(2) ‘on its face’ provides for, involves the application by him of Hong Kong law to the facts. Indeed, I do not accept it involves the expression of an expert opinion at all – it is purely a statement about what the text of the article says. Any competent speaker of English could make the same point. The short of the matter is that article 8(2) does not, in terms, say that an airline may charge less than an approved tariff. It also does not refer to the Norman Conquest. In my opinion Mr Wingfield can admissibly make either of those observations.
The second aspect of paragraph 80 has two elements. The first is Mr Wingfield’s claim that condition (d) of the 2009 Operating Permit includes the words ‘Garuda shall charge only those tariffs which have been approved by the [Director General of Civil Aviation] and the aeronautical authorities of Indonesia’. Since this is what clause (d) in fact says, I do not see the harm in Mr Wingfield reciting that incontestable fact. As I apprehended the debate, the real concern lay with his subsequent assertion that clause (d) was unambiguous.
As the Commission developed the point, it would be acceptable for Mr Wingfield to set out the relevant principles of Hong Kong law governing the interpretation of licensing conditions, but what he could not offer was an opinion on the application of those principles to the facts so as to arrive at the meaning of the condition. Put another way, he could equip the Court with the tools to interpret condition (d) but he could not say what it meant.
I do not think that the difficulty indentified by the Commission arises. Paragraph 80 of Mr Wingfield’s report is responsive, in part, to Dr McCoy’s claim in paragraph 92 of his report that licence conditions were to be interpreted under the law of Hong Kong ‘purposively and contextually within the terms of the empowering statute’. That context included, according to Dr McCoy at paragraph 88 of his report, the following:
There is no rational (or non-perverse) basis under Hong Kong law for there to be in context a fixed tariff, meaning that a fixed maximum tariff is also the fixed minimum tariff. The entire ethos, structure and purpose of the tariff system is to foster economic competition and rivalry between airlines and only a maximum approach rather than a minimum approach to tariffs can give real effect to the purposes and objective of the intended inter-airline rivalry, for the benefit of the public. These conclusions are consonant with the terms and objectives of A7 of the ASA and consistent with the purpose of the Chicago Convention.
(emphasis in original)
Mr Wingfield’s statement about unambiguity needs to be seen in its proper context of what it was that Dr McCoy then said in paragraph 94:
The terms of conditions (e), (f) and (g) of the Operating Permit read contextually and purposively, for the reasons given throughout this Report, also, just like the Licence condition, only impose a ceiling, which the carrier may lower at will, but not exceed.
The contest between the experts is, therefore, one in which Dr McCoy seeks a contextual reading of an equivalent condition, whilst Mr Wingfield resists this on the basis of a lack of ambiguity in condition (d).
I do not think, so viewed, that Mr Wingfield has done any more than to express an opinion on the ambiguity of the clause. No doubt a corollary of his opinion that the condition is unambiguous will be, if it be accepted, that the condition means what it says but Mr Wingfield does not express an opinion about that. The way I read his opinion is as a denial, as a matter of law, of the availability of Dr McCoy’s contextual reading because of the lack of ambiguity.
Construed that way, Mr Wingfield has not expressed an opinion on what condition (d) means but rather on the anterior legal question of whether it is ambiguous. The application of his opinion that the clause is unambiguous to the facts leads only to the conclusion that condition (d) bears its ordinary meaning. I see no infringement in paragraph 80 of the principle that Mr Wingfield’s opinion should be confined to the content of the law rather than its application. In that circumstance, no occasion arises to consider whether, and if so how, the decision of this Court in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (Court’s Allstate Judgment No 33) (1996) 64 FCR 79 is to be applied (or the nature of its relation with the decision in Idoport Pty Ltd v National Australia Bank Ltd (2000) 50 NSWLR 640).
For those reasons, I admitted paragraph 80.
Objection was also taken to paragraph 72 which was in these terms:
Nowhere in the tariffs articles does it say that a designated airline is free to charge less than an approved tariff as Dr McCoy opines in paragraph 64(g). While that may be inferred from condition (f) of the Licence to Cathay Pacific, quoted at paragraph 33 of the Report, condition (d) of the 2009 Operating Permit provides that “on any service operated under this permit Garuda shall charge only those tariffs which [have] been approved by the DCGA [sic] and the aeronautical authorities of Indonesia.
I read the first sentence as being a statement about the actual wording of the tariff articles and hence as involving no expression of expert opinion. I do not read the second sentence as involving the application of foreign law to the facts. What is occurring in the second sentence is the identification of conditions in the licence bearing upon the construction question. Mr Wingfield identifies condition (f) as potentially tending in one direction but condition (d) in the other. All that that involves is the identification by Mr Wingfield of considerations relevant to the construction issue.
Objection was taken to paragraphs 56-62. I will not set them out. It is sufficient to note that Mr Wingfield there sets out the various provisions of certain air service agreements and expresses an opinion on their similarity in some cases.
Viewed as part of the material leading to the conclusion at paragraph 80 I see nothing objectionable, or even controversial, in this evidence. The same may be said of paragraphs 78-79.
It was for those reasons I admitted the evidence.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 25 February 2013
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