Federal Airports Corp v Aerolineas Argentinas
[1996] FCA 714
•15 AUGUST 1996
CATCHWORDS
ADMINISTRATIVE LAW - requirement to give reasons for administrative decisions under s.13 of the Administrative Decisions (Judicial Review) Act 1977 - requests for "further and better particulars" under s.13(7) - power of decision-maker to fix or vary charges under s.56 of the Federal Airports Corporation Act 1986 by way of administrative Determinations - variations made to level of some charges, but not to others - whether reasons required to be given in respect of charges which were not varied - relevant Determination expressed to be a "consolidation" of all previous Determinations - Determination a "single decision" under the Act - reasons required in respect of both decision to vary, and decision not to vary, charges
ADMINISTRATIVE LAW - requirement to give reasons for administrative decisions under s.13 of the Administrative Decisions (Judicial Review) Act - order requiring decision-maker to provide reasons "why a particular basis of charging was used" at individual airports - Court lacks material on which actual process of decision-making can be determined - existence of a particular process of reasoning cannot be assumed - order varied
AVIATION - power of Federal Airports Corporation to fix or vary aeronautical charges under s.56 of the Federal Airports Corporation Act 1986 - requirement to give reasons for variation of charges under s.13 of the Administrative Decisions (Judicial Review) Act 1977 - variations made to level of some charges, but not to others - whether reasons required to be given in respect of charges which were not varied - relevant Determination expressed to be a "consolidation" of all previous Determinations - Determination a "single decision" under the Act - reasons required in respect of both decision to vary, and decision not to vary, charges
WORDS AND PHRASES - "fixing or varying" under s.56(2) of the Federal Airports Corporation Act - literal distinction between concepts - charges amounting to taxation prohibited by s.56(10) - operation of prohibition could not be avoided by a Determination purporting only to "vary" a charge - concepts of fixing and varying "the same thing" for the purposes of the Act.
2.
Federal Airports Corporation Act 1986, s.56.
Administrative Decisions (Judicial Review) Act, s.13(7)
Ansett Transport Industries (Operations) Pty. Limited v Wraith (1983) 48 ALR 500 considered.
FEDERAL AIRPORTS CORPORATION v AEROLINEAS ARGENTINAS & ORS
No. G145 of 1996
BEAUMONT, WHITLAM AND LEHANE JJ.
SYDNEY
15 AUGUST 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G145 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
BETWEEN:FEDERAL AIRPORTS CORPORATION
Appellant
AND:AEROLINEAS ARGENTINAS & ORS.
Respondents
CORAM: BEAUMONT, WHITLAM AND LEHANE JJ.
PLACE: SYDNEY
DATE: 15 AUGUST 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
Vary the orders made at first instance on 21 December 1995 by setting aside order 1; in lieu thereof order that, subject to the provisions of s.13A of the AD(JR) Act, the appellant furnish to the respondents within 28 days an additional statement containing further and better particulars of:
(i)findings (insofar as they were made) on material questions of fact;
(ii)the evidence or other material on which those findings were based; and
(iii) the reasons (to the extent that there were reasons) -
for the decision to fix the charges set out in paras. 4, 5, 5A and 5B of the Determination (No. 10).
2.Declare that, for the purposes of furnishing the additional statement described in 1. above, the decision to make Determination (No. 10) is to be taken to have been made in respect of all charges then fixed, whether or not a variation from the charges previously fixed was involved.
2.
Appeal otherwise dismissed.
Order that the appellant pay one-half of the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. G145 of 1996
)
GENERAL DIVISION )
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
OF AUSTRALIA
BETWEEN:FEDERAL AIRPORTS CORPORATION
Appellant
AND:AEROLINEAS ARGENTINAS & ORS.
Respondents
CORAM: BEAUMONT, WHITLAM AND LEHANE JJ.
DATE: 15 AUGUST 1996
REASONS FOR JUDGMENT
BEAUMONT J.
INTRODUCTION
Section 13(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") provides that, in the circumstances there specified, a person may, by notice in writing, request a decision-maker to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and giving the reasons for the decision. It is provided by s.13(7), which is central to this litigation, that if the Court considers that the statement furnished in pursuance of s.13(1) does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based, or adequate particulars of the reasons for the decision, the Court may order that an
additional statement be furnished 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.
The respondents, as users of Federal Airports under the control of the appellant, applied to a Judge of the Court pursuant to s.13(7) for an order that the appellant furnish additional statements containing further and better particulars in relation to a Determination (No. 10) of aeronautical charges made by the appellant in November 1993 ("the Determination"). The Determination, which was to operate from 1 January 1994, was made under s.56 of the Federal Airport Corporations Act 1986 ("the FAC Act").
Relevantly, s.56 of the FAC Act provides:
"(1)In this section:
"aeronautical charge" means a charge for, or in respect of:
(a)the use by an aircraft of a Federal airport; or
(b)services or facilities provided by the Corporation;
and, without limiting the generality of the foregoing, includes:
(c)a charge for the landing or parking of an aircraft at a Federal airport;
(d)a charge relating to the embarkation or disembarkation of aircraft passengers at a Federal airport; and
(e)a charge relating to the handling of cargo
carried on an aircraft;
...
(2)Subject to this section, the Corporation may, from time to time, make determinations fixing or varying aeronautical charges and specifying the persons by whom the charges are payable and the times when the charges are due and payable.
...
(10)An aeronautical charge shall not be fixed at an amount that exceeds the amount that is reasonably related to the expenses incurred or to be incurred by the Corporation in relation to the matters in respect of which the charge is payable and shall not be such as to amount to taxation."
Holding that the respondents were entitled to relief under s.13(7), the learned primary Judge ordered that the appellant provide some further certain particulars of its reasons, of the evidence on which it relied, and of its findings.
The appellant now appeals from this order, contending that the application for further particulars ought to have been refused at first instance.
BACKGROUND
In order to understand the reasoning of the primary Judge and the issues that arise on the appeal, it will be necessary to mention some of the background to the dispute. None of the background is contentious.
(a) The determination
The relevant provisions of the Determination are paras.1, 4, 5, 5A and 5B as follows:
"1.This Determination shall operate on and from 1 January 1994 and shall supersede all previous Determinations.
...
Subject to the additional charges set out in paragraphs 5, 5A and 5B...the following charges shall apply in respect of the use of Brisbane...Sydney...Melbourne...Adelaide, Perth and Hobart Airports:
(a)for all fixed wing aircraft weighing more than 20,000 kg and utilising passenger terminal facilities at the airport which are not owned and operated by the [appellant] [i.e. the "domestic" terminals], a charge per landing of $6.62 per 1,000 kg of aircraft weight, and pro-rata for part of 1,000 kg;
(b)for all fixed wing aircraft, other than those covered by sub-paragraph (a) [i.e. the "international terminals] ..., a charge per landing of $5.72 per 1,000 kg of aircraft weight and pro-rata for part of 1,000 kg subject to a minimum charge of $27.50 per landing for all landings other than those referred to in paragraph 5;
(c)for all rotary wing aircraft, a charge per landing of the greater of $13.75 or $2.86 per 1000 kg of aircraft weight and pro rata for part of 1,000 kg;
(d)for all aircraft parked in designated general aviation parking areas for a period in excess of two hours, a charge of $11.00 per aircraft per day or part thereof.
In addition to the charges set out in paragraph 4 above, the following charges apply for the use of Sydney ... Airport between the hours specified:
(a)$200 for each landing at Sydney ... Airport by fixed wing aircraft not engaged in regular public transport operations between 7.30 am and 8.00 am, 9.00 am and 10.00 am, 5.00 pm and 6.00 pm or 7.00 pm and 7.30 pm on a Monday, Tuesday, Wednesday, Thursday or Friday;
(b)$100 for each take-off from Sydney ... Airport by fixed wing aircraft not engaged in regular public transport operations between 7.30 am and 8.00 am, 9.00 am and 10.00 am, 5.00 pm and 6.00 pm or 7.00 pm and 7.30 pm on a Monday, Tuesday, Wednesday, Thursday or Friday;
(c)$250 for each landing at, or take-off from Sydney ... Airport by fixed wing aircraft between 8.00 am and 9.00 am or between 6.00 pm and 7.00 pm on a Monday, Tuesday, Wednesday, Thursday or Friday;
5AIn addition to the charges set out in paragraphs 3, 4, and 5 above, a charge per landing at Brisbane ... Sydney ... Melbourne Adelaide, Perth, Hobart, Coolangatta, Launceston, Darwin, Alice Springs and Townsville Airports of $0.60 per 1,000 kg of aircraft weight and pro-rata for part of 1,000 kg, for all fixed wing aircraft weighing more than 20,000 kg.
5BIn addition to the charges set out in paragraphs 3, 4, 5 and 5A above, a charge per landing at Brisbane... Sydney... Melbourne... Adelaide, Perth, Hobart, Darwin and Townsville airports of $1.05 per 1,000 kg of aircraft weight, and pro rata for part of 1,000 kg, for all fixed wing aircraft utilising passenger terminal facilities owned and operated by the Corporation."
It was common ground that although, as para.1 provided, the Determination superseded all previous determinations made under s.56, some of the provisions of the immediately previous Determination (No. 9) were to the same effect as the equivalent provisions of the Determination (i.e. No. 10). Relevantly, the charges set out in paras.4(a), 5 and 5A were unchanged, although other charges were increased.
(b)The initial statement of reasons and findings furnished by the appellant
By letter dated 11 January 1994, the solicitors for the respondents requested, pursuant to s.13(1) of the AD(JR) Act, a statement of reasons, and of findings made, in respect of paras. 4, 5, 5A and 5B of the Determination. By its solicitors' letter dated 14 February 1994, the appellant furnished a statement of reasons, and of its findings, as follows:
"The findings on material questions of fact in
relation to Determination 10 are set out in Annexure 'A' to this Statement of Reasons. Annexure 'A' was prepared before the completion of the 1993 accounts and was provided to industry groups in or about October 1993.
The reasons for the aeronautical charges imposed pursuant to Determination 10 are as follows:
(1)Subject to (2) below, the Corporation seeks to align its aeronautical charges with the cost of services provided to individual users and in keeping with the guidelines of the International Civil Aviation Organisation (ICAO).
(2)However, aeronautical charges in total remain at a level which does not fully recover aeronautical expenses, although full recovery is permitted under Section 56 of the Federal Airports Corporation Act.
(3)The variations in certain components of the aeronautical charges from the levels of charge imposed by [the previous] Determination ... which are outlined in Determination 10 were adopted for the following reasons:
(i)to assist the Corporation to meet the
increased expenses of providing airport services to aircraft in the period since the determination of the Corporation which became effective on 1 January 1993 and for forecast increases in expenses in the period in which Determination 10 will apply. The budgeted increases in both revenue and expenditure for the 1993/1994 period by comparison to the 1991/1992 period are outlined in Annexure 'A'. The 1993/1994 budget predicts a 10.4% increase in revenue against cost increases of 22.6%; and
(ii)to reduce the general level of under-recovery of the expenses associated with the provision of aircraft and passenger landing and handling services at the Corporation's Airports.
It is estimated that the financial impact of the increases in aeronautical charges will be to increase aeronautical revenues to the Corporation for 1993/1994 by $2.8 million or ($1.8 million after tax).
(4)The increase of the terminal charge in clause 5B of the Determination 10 represented a real increase in the level of overall aeronautical charges to users of passenger terminal facilities owned and operated by the Corporation of approximately 4%, while the real level of the existing unchanged aeronautical charge of $5.72 per 1,000 kg will reduce by 3%. A significant proportion of expenses in respect of passenger terminal facilities owned and operated by the Corporation will still be recovered through the existing aeronautical charge of $5.72 per 1,000 kg."
Annexure "A" was the appellant's "Increased Aeronautical Charges Proposals Effective 1 January 1994". Its sub-title was "Explanation of Main Changes in Revenue and Expenditure, 1993/94 compared with 1991/92". It was there explained that a comparison with the 1992/3 accounts was not possible because the Minister had not, by the relevant date, cleared those
accounts for disclosure to the public. Under the annexure's heading "Proposed increase in some Aeronautical charges" the following was stated:
"The Corporation has incurred substantial additional expenses as a consequence of providing enlarged and improved facilities required by the airline industry. The underlying rationale for the increases [is] as follows:
International Terminal Use Charge increase of $0.45/MTOW tonne from $0.60 to S1.05/MTOW tonne to yield additional revenue of $2.6 million in Jan/Jun 1994.
As identified in the sections explaining movements in Depreciation and Interest, the substantial cause of these increases is expenditure arising from the provision of new and improved Passenger Terminal facilities benefiting in particular, International airline operators and their passengers.
Consistent with its stated intention to move progressively towards service specific charges and, in recognition that other sectors of aviation not using the International Passenger Terminal facility enhancements should not be asked to pay increased charges towards those costs, the Corporation is seeking an additional contribution to meet those increased costs via an adjustment to the Passenger Terminal Use Charge of $0.45/MTOW tonne which would yield $2.6 million in additional revenue in the Jan/Jun 1994 period.
The implied annual increase in Aeronautical revenue required to meet the Corporation's objectives in 1993/94 would have been about $35.25 million. Based on a forecast of 5,725,429 International airlines landed tonnes in the Jan/Jun 1994 period, this would have required an increase in the International Passenger Terminal Use rate from the current $0.60/MTOW tonne to $6.16/ MTOW tonne for full recovery.
However, the Corporation has taken the following steps to contain overall Aeronautical revenue growth from charges to levels which reflect no increase in real terms:
Increased external borrowings of $62 million to fund capital works.
Deferral of some capital works.
Reduction in the projected Rate of Return from 7.5% to 6%.
The Corporation's proposal should therefore be viewed in this light.
General Aviation Infrastructure Tariff (GAIT) increase of 10% to yield $0.2 million in additional revenue in Jan/Jun 1994
At approximately 13% cost recovery of Aeronautical facilities and services from Aeronautical Charges and 30 - 35% from all sources of revenue, the level of costs recovered remains substantially below that of other aviation sectors.
The need exists to continue to reduce the extent of subsidization by increasing the level of Aeronautical revenue contribution from General Aviation. This is the reason for the proposal to increase GAIT charges including aircraft parking on GA designated areas on Group one airports, in real terms."
(c)The further particulars provided by the appellant on 30 March 1994
By solicitors' letter dated 30 March 1994, the appellant provided further and better particulars requested by the respondents as follows. (The particulars requested appear below in italics; the responses are in bold type):
"1. On an airport by airport basis, [provide details of] all expenses incurred or to be incurred by the Respondent, and deemed by the Respondent as reasonably related to:
(a)The use of the following airports:
(i)by aircraft utilising passenger terminal facilities at the airport which are not owned and operated by the Respondent, and
(ii)aircraft other than those referred to in (i).
Airports:
Brisbane, Sydney, Melbourne, Adelaide, Perth, Hobart
(Determination 4(a) & (b)).
(b)The use by aircraft of Sydney (Kingsford Smith) Airport between the hours specified in Determination 5(a) ‑ (c).
(c)The use by aircraft of Brisbane, Sydney, Melbourne, Adelaide, Perth, Hobart, Coolangatta, Launceston, Darwin, Alice Springs and Townsville Airports.
(Determination 5A)
(d)The use by aircraft of passenger terminal facilities owned and operated by the Respondent, at Brisbane, Sydney, Melbourne, Adelaide, Perth, Hobart, Darwin and Townsville.
(Determination 5B)
1.The reasons for variations in certain components of the aeronautical charges from the levels of charge imposed by previous Determinations which are made by Determination 10 were given in the Statement of Reasons.
...
Also note that no variation was made by Determination 10 to the levels of charge imposed by paragraphs 4(a),5(a)-(c), and 5A under previous Determinations.
On an airport by airport basis, all revenue of the Respondent offset against the expenses particularised pursuant to the above.
2.The reasons for variations in certain components of the aeronautical charges from the levels of charge imposed by previous Determinations which are made by Determination 10 were given in the Statement of Reasons.
Separate reasons in respect of each of paragraphs 4(a), 4(b), 5(a),(c), 5A and 5B of the Determination.
3.The reasons for variations in certain components of the aeronautical charges from the levels of charge imposed by previous Determinations which are made by Determination 10 were given in the Statement of Reasons.
In addition:
(a)Paragraphs 4(a), 5(a)-(c), and 5A were unchanged by Determination 10.
(b)The reasons for the variation to paragraph 4(b) made by Determination 10 were given at paragraphs (1)-(3) of the Statement of Reasons.
(c)The reasons for the variation to paragraph 5B made by Determination 10 were given in paragraph (4) of the Statement of Reasons, save that by way of clarification the increase in the terminal usage charge from $0.60 per 1,000kg MTOW and pro rata for part of 1,000kg to $1.05 per 1000kg MTOW and pro rata for part of 1,000kg made by Determination 10 was to raise revenue to meet part of the increased costs of operation during 1993/1994 of terminals owned and operated by the FAC.
Generally, in respect of each charge:
(a)how each charge was calculated, and
(b)how the cut‑off weight, where applicable, was determined.
4.(a) As already stated, no change was made by Determination 10 to paragraphs 4(a), 5(a)-(c) and 5A. As to the variations which were made by Determination 10, the variations were calculated as follows:
(i)The variation to paragraph 4(b) was calculated by an increase of 10% to the charge of $25.00 previously applicable for prescribed minimum landing charges.
(ii)The variation to paragraph 4(c) was calculated by an increase of 10% to the charge of $12.50 previously applicable.
(iii)The variation to paragraph 4(d) was calculated by an increase of 10% to the charge of $10 previously applicable.
(iv)The variation to paragraph 5B was to increase the charge per landing by $0.45 per 1000kg MTOW and pro rata for part of 1000kg to $1.05 per 1000kg MTOW and pro rata for part of 1000kg.
The reasons for the variations to paragraphs 4(b), 4(c), 4(d) and 5B made by Determination 10 were given in the Statement of Reasons.
(b)None of the charges varied by Determination 10 involved a cut-off weight.
In respect of each purported "Reason":
Reason (1)
(a)further & better particulars of the costs, services and individual users referred to.
(b)further & better particulars of the ICAO guidelines referred to.
5.Reason(1)
(a)(i)The costs referred to are the costs of providing the services referred to below.
(a)(ii)The services referred to as at 1
January 1994 include certain or all:
Aircraft Movement Areas
•Grounds
•Runways
•Taxiways
•aprons
•airside safety
•airfield lighting
•airside roads/lighting
•aircraft parking areas
•nose-in guidance
•visual navigational aids
Passenger Proceeding Areas
•Forward airline support service areas
•Aero bridges
•Buses - airside
•Departure lounges
•Holding lounges
•Immigration service areas
•Custom service areas
•Public address system
•Closed circuit surveillance system
•Lifts/escalators/moving walkways
•Public amenities
•Baggage makeup/handling/reclaim
•Public areas in terminals
•Land side road and lighting
•Security systems
•Covered walkways
•Flight information display systems
Security
•Counter terrorist presence.
(a)(iii)The "individual users" referred to comprise aircraft owners and/or operators using airports owned and/or operated by the FAC.
(b)Publications entitled "Statements by the Council to Contracting States on Charges for Airports and Air Navigation Services", International Civil Aviation Organisation, and "Airport Economics Manual", International Civil Aviation Organisation, First Edition - 1991.
Reason (2)Further & better particulars of matters included in "aeronautical expenses".
Reason (2)
The reference to "aeronautical expenses" is a reference to the costs of providing the services referred to in 5(a)(ii) above.
Reason (3)This is not a reason for (any of) the Determination(s). This speaks of variations in the levels of charges imposed by Determination 9. Determination 10 does not speak of Determination 9. Determination 10 stands on its own.
Further & better particulars of the extent to which this "reason" is referrable to any determination.
Reason (3)
Determination 10 varied only certain aeronautical charges imposed by previous Determinations. The reasons for the variations made by Determination 10 are particularised in paragraphs (1), (2) and (3) of the Statement of Reasons (insofar as the amendments to the charges in paragraphs 4(b), 4(c) and 4(d) are concerned), and in paragraphs (1), (2) and (4) of the Statement of Reasons (in relation to the amendment outlined to paragraph 5B, as clarified above).
Reason 4This is not a reason for (any of) the Determination(s). This speaks of a variation of the terminal charge in clause 5B. Determination 10 does not speak of variations.
Further & better particulars are sought as to the charge in 5B.
Reason (4)
The reasons for the variation to paragraph 5B made by Determination 10 have been given in paragraphs (1), (2) and (4) of the Statement of Reasons, as clarified above.
Further & better particulars of the charge in 5A. None at all are given in the purported Statement of Reasons.
6.No variation was made to paragraph 5A by Determination 10. The revenue obtained by the FAC pursuant to the charge is reasonably related to the expenses incurred and to be incurred by the FAC by way of payments to the Australian Protective Service in providing the counter terrorist presence."
THE RESPONDENTS' CASE AT FIRST INSTANCE
At first instance, it was submitted for the respondents that the particulars provided by the appellant did not explain why a particular charge was made at any specific airport. Moreover, it was contended that, even if the Determination was to be viewed as a variation of previous determinations, the information provided did not disclose why it had been decided to vary some only of the charges. Essentially, the respondents' complaint was that there was no way of knowing the particular basis of the charges in paras.4, 5, 5A and 5B.
THE REASONING AT FIRST INSTANCE
Noting that the Determination stated that it superseded all earlier determinations, and that the statement of reasons and particulars revealed that it was a consolidation of the previous determination, together with the amendments made by Determination 10, the primary Judge said:
"The question which arises therefore, is whether the [appellant] was entitled to confine its s 13 statement of reasons to the reasons why the amendments were made or whether, in respect of each clause, whether amended or not, it is required to provide reasons for the decision, including an explanation of the basis upon which charges were
made.
In my opinion, the [appellant] was not entitled to confine its reasons to an explanation of why variations had been made. Determination 10 purported to be a determination in its own right. The [respondents] are entitled to be informed of the reasons for the imposition of the charges imposed by the clauses in question, regardless of whether those charges had been varied. I am also of the opinion that the [respondents] are entitled to know the reason why a particular basis of charging was used at the individual airports specified in the relevant clauses of the determination. This information is required because the basis of charging forms an integral part of the decision to impose charges. It also is a relevant matter in determining whether the [appellant] has complied with its statutory obligation under s 56(10) FAC Act.
The Judge went on to say:
"Having regard to the provisions of s 56(10), I am of the opinion that the [appellant] is required to state its finding as to why a particular rate of charge had been imposed under the various clauses and to refer to the material upon which it based that finding. It is also required to provide particulars of the evidence on which it relied in making these findings.
I am of the opinion that the [appellant], in addition to providing reasons for the charges, is obliged to give its reasons as to why the particular variation was made to a charge. I do not consider that it was entitled to confine itself to a statement of reasons as to why a variation to the charges, generally, was made."
THE ORDERS MADE AT FIRST INSTANCE
The appellant was ordered to -
"1 ...provide the following particulars under s 13(7) of the [AD(JR) Act] in respect of paragraphs 4, 5, 5A and 5B of Determination 10 ... :
(a) The reasons for the imposition of the charges imposed by clauses 4, 5, 5A and 5B.
(b)The reason why a particular basis of charging was used at the individual airports specified in clauses 4, 5, 5A and 5B.
(c)The findings as [to] why a particular rate of charge had been imposed under clauses 4, 5, 5A and 5B and to refer to the material upon which it based those findings.
(d)Particulars of the evidence on which it relied in making each of the findings referred to in (c).
(e)Reasons as to why any variation was made to a charge specified in clauses 4, 5, 5A and 5B."
THE APPELLANT'S CONTENTIONS ON THE APPEAL
On behalf of the appellant, it is submitted that s.13 requires a statement of the reasons for the decision which was actually made, rather than reasons for some other decision; and that, for present purposes, not varying an earlier decision should not be treated the same as re-making the earlier decision. (As has been noted, no variation was made to the level of charge imposed by paras.4(a), 5(a)-(c) and 5A, the request being in respect of paras.4, 5, 5A and 5B; the effect of the Determination was to increase other charges.) It is argued for the appellant that the obligation imposed by s.13 is to disclose the true basis of the decision, not to provide justification for it ex post facto (reliance is placed upon Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162); and that a statement should not give reasons which were not in fact the reasons for a decision; equally, a statement of reasons should not purport to furnish reasons for a "decision" that is not, in truth, the decision then made. Since the appellant, in the Determination, has decided to vary only some of the charges, it must follow, on the appellant's submission, that the primary Judge erred in holding that the appellant "was not entitled to confine its reasons to an explanation of why variations had been made".
It is said, for the appellant, that if the decision-making process was confined, in effect, to the variation in fact made to the previous Determination, the appellant should not have been ordered to go beyond these variations in furnishing reasons; and that the respondents were really seeking reasons for the earlier determination - something that they could have done earlier, but then declined to do.
The appellant further argues that the trial Judge's reasons implicitly assumed, wrongly it claims, that the purpose or object of s.13 is to ensure that a decision-maker provide only "good" reasons in respect of a mental process which, in the Court's view, might have been useful if such a process had been undertaken; but that, since the "true basis" of the appellant's decision was disclosed by the reasons that were actually furnished by the appellant, the application under s.13(7) for further relief ought to have been refused.
CONCLUSIONS ON THE APPEAL
It appears that three issues emerged at first instance: (1) the relevant meaning and operation of s.13 of the AD(JR) Act; (2) the relevant meaning and operation of the Determination, as construed in the light of s.56 of the FAC Act; and (3) if, contrary to the appellant's contention, there was an entitlement in the respondents to some relief, the form of that relief. The question on the appeal is whether we are persuaded that the trial Judge erred in any of these respects. It will be convenient to deal with them separately.
(a) The relevant meaning and operation of s.13 of the AD(JR) Act
In a familiar passage, cited by the primary Judge here, Woodward J. said, in Ansett Transport Industries (Operations) Pty. Ltd. v Wraith (1983) 48 ALR 500 (at 507):
"[Section 13(1)] requires that the decision-maker should set out his [or her] understanding of the relevant law, any findings of fact on which [the] conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him [or her] to those conclusions. He [or she] should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation."
Woodward J. went on to say (at 507-8) that the AD(JR) Act clearly intends that persons aggrieved by administrative decisions which adversely affect them should have "full opportunity to show, if they can, that such decisions, have been improperly reached"; and that they can only do this if "they know how the decisions were in fact reached". (Emphasis added.)
Generally speaking, none of this is, or could be, in contention for present purposes. But other specific aspects of the Ansett Case should be mentioned.
In Ansett, the Independent Air Fares Committee had made a determination confirming approval of discount air fares pursuant to s.17 of the Independent Air Fares Committee Act 1981. An application was made, pursuant to s.13 of the AD(JR) Act for an order that the Committee give a better statement of their reasons for deciding to reject a request by Ansett that the Committee revoke its approval of discount fares offered by a competitor. Having decided that relief should, in the exercise of the Court's discretion, be granted, Woodward J. said (at 509):
"As to the form of order to be made, counsel for Ansett, at the close of argument, sought only an order that the IAFC furnish an additional statement `containing further and better particulars with respect to the findings, evidence or other material or reasons relevant to the decision'. Counsel instanced some of the issues on which they would expect to receive useful findings of fact and reasons for decision, but they did not attempt to formulate any more detailed order than was sought, in the terms I have quoted, by the original application.
Among the matters instanced by counsel on which, as at present advised, I would have thought they were entitled to information (if such matters in fact played a part in the decision) were ..." [Emphasis added]
Woodward J. then instanced several possible issues, and went on to say (at 509-10):
"Although I have drawn attention to these particular issues, and s13(7) of the Judicial Review Act contemplates a more specific order as to the matters to be covered by way of `further and better particulars', I do not believe such an order would be appropriate in the present case. This is so for three reasons: first, because the statement in fact made in response to the request of 14 July was so laconic that it is impossible to point to specific matters requiring elaboration; secondly, because only part of the material and submissions put before the IAFC were before me; and thirdly, because difficult questions of confidentiality, on which I have no information, may arise under s13A of the Judicial Review Act.
For these reasons I think the appropriate order of the court is that, subject to the provisions of s13A of the Judicial Review Act, the IAFC should furnish to Ansett within ten days an additional statement containing further and better particulars of:-
(a)findings on material questions of fact,
(b)the evidence or other material on which those findings were based, and
(c)the reasons,
for the decision of 6 July 1983 not to revoke approval of East-West's discount air fare between Sydney and Brisbane via intermediate ports."
With respect, I agree in principle with this approach.
(b)The relevant meaning and operation of the Determination, as construed in the light of the FAC Act
In my opinion, as a matter of form as well as substance, the Determination was, as the primary Judge held, made by way of a consolidation of all previous determinations, which were stated to have then been superseded. Section 56, when properly construed, empowers the appellant to fix the charges from time to time. It is true that s.56(2) appears to draw a literal distinction between "fixing" on the one hand and "varying" on the other. But these concepts are, in truth, the same thing for present purposes, and the additional reference to a power to "vary" is only added for more abundant caution, so as to dispel any suggestion that only one determination could ever be made.
The matter may be tested by reference to the prohibition in s.56(10) that a charge shall not be "fixed" at an amount that exceeded the amount there specified. It would not be possible, in my view, to avoid the operation of this constitutionally-based prohibition by using the device of a determination that purported to "vary" rather than "fix", a charge. The Determination fixed some new charges, but it also fixed other charges by picking them up from the earlier Determination.
It follows, in my opinion, that there was here a single decision, namely, to decide to make a determination which fixed each of the charges specified in the Determination (i.e. all of the charges in Determination No. 10). As Lehane J. pointed out in argument, there was here made a decision, part of which was a decision to vary some charges, but another part of which was not to vary other charges. Insofar as they were matters which in fact played a part in the decision (the qualification noted by Woodward J.), reasons should be given with respect to the decision in all its aspects; that is, with respect to its positive aspects (i.e. insofar as the
appellant decided to vary its charges) as well as the negative aspects (i.e. insofar as the appellant decided not to vary the status quo).
In essence, the question is one of identifying the relevant "decision" in the statutory context (the FAC Act) in the events or circumstances which occurred. In my opinion, there was one relevant decision and this was the decision to make the Determination. This decision is then picked up by s.13 of the AD(JR) Act in all, and not merely some, aspects.
I am not at all persuaded that the trial Judge erred in this connection. Indeed, I agree that the Determination was an independent or "free-standing" instrument, evidencing a single decision.
(c) The form of relief
At first instance the respondents sought an order for the provision of specific and detailed particulars, "on an airport by airport basis" and otherwise sought, in effect, to interrogate the appellant rather generally in the matter.
The trial Judge did not grant relief in the extreme form thus sought, as we have seen, but the appellant was ordered to provide, inter alia (see para.(b) of the order) the reasons "why a particular basis of charging was used" at individual airports, together with the findings made by the
appellant, and the evidence, in that connection (see paras.(c) and (d) of the order).
I have difficulty with some aspects of this approach. The stream cannot rise higher than its source, and it is possible that the appellant had no reasons, or no particular reasons, for one or more parts of the entire decision made. It should not be assumed, at least on any universal basis, that a particular process of reasoning was employed in every aspect of the decision to make the Determination. The problem with the a priori approach in these matters, as Woodward J. recognised in Ansett, is that the Court does not, at this stage, have before it the material on which to determine the actual, or real, process of decision-making. The Court can do no more than speculate, given the preliminary stage of development of the issues that appear to be emerging.
It is preferable, I think, to follow, in principle, the approach taken by Woodward J. in Ansett, adding an express proviso to deal with the possibility that, to some extent, there were, relevantly, no reasons or findings. It is appropriate also to make a declaratory order dealing with the question of law earlier addressed with respect to paras. 4, 5, 5A and 5B of the Determination, no complaint having been made about other aspects of the Determination.
ORDERS PROPOSED
I would propose the following orders:
Vary the orders made at first instance on 21 December 1995 by setting aside order 1; in lieu thereof order that, subject to the provisions of s.13A of the AD(JR) Act, the appellant furnish to the respondents within 28 days an additional statement containing further and better particulars of:
(i)findings (insofar as they were made) on material questions of fact;
(ii)the evidence or other material on which those findings were based; and
(iii) the reasons (to the extent that there were reasons) -
for the decision to fix the charges set out in paras. 4, 5, 5A and 5B of the Determination (No. 10).
2.Declare that, for the purposes of furnishing the additional statement described in (1) above, the decision to make Determination (No. 10) is to be taken to have been made in respect of all charges then fixed, whether or not a variation from the charges previously fixed was involved.
Appeal otherwise dismissed.
Order that the appellant pay one-half of the respondents' costs of the appeal.
COSTS
I would not interfere with the trial Judge's order that the respondents receive their costs at first instance.
Whilst the respondents have succeeded on the main point of law argued on the appeal, the appellant has persuaded me, at the adjectival level, that the orders made at first instance should be modified in some significant respects. Such an outcome is, I think, reflected in 4, above.
I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.
Associate
Dated: 15 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 145 of 1996
)
GENERAL DIVISION )
On appeal from a Judge of the Federal Court of Australia
FEDERAL AIRPORTS
CORPORATION
Appellant
AEROLINEAS
ARGENTINAS & ORS
Respondents
Coram: Beaumont, Whitlam and Lehane JJ
Place: Sydney
Date: 15 August 1996
REASONS FOR JUDGMENT
WHITLAM J
I have had the advantage of reading in draft the judgment of Beaumont J, which sets out the background to this appeal and the relevant statutory provisions.
It may also be worth noticing the provisions of subss 56(3) and (4) of the FAC Act, which provide:
"(3) The Corporation shall not make a determination under subsection (2) unless it has notified the Minister of the proposed determination.
(4) Notification under subsection (3) of a proposed determination:
(a)shall be made to the Minister in writing;
(b)shall specify the day on and from which the determination is, if not disapproved by the Minister, intended to operate;
(c)where the proposed determination relates to the fixing of an aeronautical charge - shall specify the basis of the proposed charge; and
(d)where the proposed determination relates to the variation of an aeronautical charge - shall specify the reason for the proposed variation."
For the purposes of obtaining Ministerial approval, pars 56(4)(c) and (d) of the FAC Act distinguish between a determination that relates to the fixing of an aeronautical charge and one that relates to the variation of an aeronautical charge. Whatever may be the difference between the "basis" of a charge and the "reason" for a variation, it is clear that the amount fixed by any variation must conform with the limitation imposed by subs 56(10) of the FAC Act.
I agree with Beaumont J that, in both form and substance, Determination 10 fixed all the charges there set out. I would not, however, characterize that determination as a "single decision" . At least for the purposes of the AD(JR) Act, fixing the amount of each aeronautical charge involves, in my opinion, the making of a decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The respondents' request under subs 13(1) of the AD(JR) Act related to all the charges set out in paragraphs 4, 5, 5A and 5B of Determination 10. The appellant took the view, wrongly, that it had not "fixed" charges under paragraphs 4(a), 5 and 5A of that determination because the same amounts had been payable in respect of matters there set out under the previous determinations in force prior to 1 January 1994. This meant that the
appellant never purported to furnish a statement in response to that part of the respondents' request. Neither before the primary judge nor us has there been any debate about the adequacy of the statements furnished on 14 February 1994 and 30 March 1994 in respect of the charges set out in paragraphs 4(b), (c) and (d) and 5B of the determination.
Nonetheless, in all of the circumstances, I agree that the form of order proposed by Beaumont J is appropriate. As his Honour explains, it avoids the fault in the order made at first instance since it does not specify matters that may have played no part in the appellant's reasoning process. The resultant statement should be sufficient to achieve the objects of the AD(JR) Act. The reference to s13A of that Act acknowledges that what the order describes as an additional statement will, in effect, be the first statement furnished by the appellant in response to part of the respondents' request.
I certify that this and the preceding 2 pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam
Associate:
Date: 15 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. NG145 of 1996
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:FEDERAL AIRPORTS CORPORATION
Appellant
AND:AEROLINEAS ARGENTINAS & ORS
Respondents
CORAM:Beaumont, Whitlam and Lehane JJ
PLACE:Sydney
DATE:15 August 1996
REASONS FOR JUDGMENT
LEHANE J: I have had the opportunity of reading, in draft, the judgment of Beaumont J. I agree that the orders proposed by his Honour should be made and I agree also with his reasons.
I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 15 August 1996
Heard: 30 May 1996
Place: Sydney
Decision: 15 August 1996
Appearances: Messrs A Robertson SC and P S Braham of counsel instructed by Mallesons Stephen Jaques appeared for the appellant.
Messrs J C Campbell QC and B J Sullivan of counsel instructed by Middletons Moore & Bevins appeared for the respondents.
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