General Newspapers P/L v Australian and Overseas Telecommunications Corporation Ltd

[1992] FCA 835

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JUDGMENT NO.

IN THE FEDERAL COURT OF AUSTRALIA )

1 No. NG 776 of 1992

NEW SOUTEI WALES DISTRICT REGISTRY )

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GENERAL	DIVISION	j	!
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BETWEEN:	GENERAL NEWSPAPERS PTP LIMITED
Applicant
A U S T R A L I A N  A N D m,.
O V E R S E A S  !
TELECOMMUNICATIONS CORPORATION LIMITED
Respondent

CORAM:	WILCOX J
PLACE :	SYDNEY
DATE :	28 OCTOBER 1992  18 1992

EXTEMPORE REASONS FOR JUDGMENT

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WILCOX J: An application has been made by notice of motion on behalf of the second respondent, the Minister for Transport	i	:
and Communications, for an order that the proceedings be	1.
dismissed, or forever stayed, as against the second
respondent; or, in the alternative, that the Application and	1
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the Statement of Claim be struck out insofar as they seek	i
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relief against the second respondent.
The application was argued immediately upon return of the notice of motion. The reason for this bourse was that	I
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it was agreed by all parties that there should be an early	I
hearing of the principal proceeding. It was therefore	I
desirable to have a prompt resolution of the question whether	i
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or not the proceeding is to continue as against the second	1 I -
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2.

respondent. Notwithstanding that the matter has been brought

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on urgently, there has been full argument, on behalf of both	. .
the second respondent and the applicants, concerning the
notice of motion. This argument has enabled me to reach a	!
clear view about the situation. Accordingly, I think it is	: I
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desirable immediately to state my decision and make	, i
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appropriate orders.
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Counsel agree that the motion ought to be determined having regard to the principles enunciated by Barwick CJ in	1 / .
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General Steel Industries Inc v The Commissioner for Railways,	,

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=W) (1964) 112 CLR 125 at 129-130. In that case the Chief Justice quoted with approval what was said by Dixon J in &y v	I i
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Victorian Railwavs Commissioners (1949) 78 CLR 62 at 91,

namely :	l',
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" A c a s e m u s t be very c l e a r i n d e e d t o j u s t i f y

the summary intervention o f the c o u r t t o

p r e v e n t a p l a i n t i f f s u b m i t t i n g his c a s e f o r l .

d e t e r m i n a t i o n i n the appo in t ed manner by the

c o u r t w i t h or w i t h o u t a j u ry . The f a c t t h a t a

i s i n t r i c a t e may not d i s e n t i t l e the i

t r a n s a c t i o n

c o u r t t o examine a c a u s e o f a c t i o n a l l e g e d t o

grow o u t o f it f o r the purpose o f s e e i n g j r

whe ther the proceed ing amounts t o an abuse of l :.

p r o c e s s	o r i s	v e x a t i o u s .	But	once	it	appears
t h a t	there	i s a	r e a l	q u e s t i o n	t o be	d e t e n n i n e d

whe ther o f f a c t or l a w and t h a t the r i g h t s o f

the p a r t i e s depend upon i t , t h e n it i s not ,

competent	for	the	c o u r t	to	d i s m i s s	the	a c t i o n	I1 i
p r o c e s s . "
a s	f r i v o l o u s	,and	v e x a t i o u s	and	an	abuse	o f	'1 j

Barwick CJ went on to say that, although a defendant
should be saved from the vexation of the continuance of
useless and futile proceedings, great care must be exercised

to ensure that under thc guise of achieving expedi.ti0u.s finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the .other hand, the fact that the exercise of the jurisdiction may require argument, even extensive argument, does not mean that the application cannot succeed.

The present application has been debated on the basis of the allegations made in the Statement of Claim. The first respondent to the proceeding is Australian and Overseas Telecommunications Corporation Limited ("AOTC"), an entity established by the Australian and Overseas Telecommunications Corporation Act 1991 (the "AOTC Act") which commenced operation on 1 February 1992. As its name suggests, the first respondent is the successor in law to two statutory corporations, Overseas Telecommunications Corporation Limited ("OTC") and the Australian Telecommunications Corporation Limited ("Telecom"). Section 11 of the AOTC Act vests in the new corporation the property and rights of Telecom and OTC and all liabilities of Telecom and OTC.

It is alleged in the Statement of Claim that, prior to 1 February 1992, there were dealings between the applicants, who carry on business as a £inn of printers, and Telecom in regard to future contracts for the printing of telephone directories. I need not set out the detail of the alleged contacts. It suffices to say that the applicants allege that they made known to relevant Telecom officers their

willingness to tender for the printing of directories. The Statement of Claim alleges facts by virtue of which the applicants suggest that an inference should be drawn that they were considered as suitable printers.

In para 16 of the Statement of Claim, an allegation is made that on 14 February, 1992, Mr Peter Ferris, Manager, Supply Policy of Telecom - perhaps this should be the new corporation, by then - advised the applicants' solicitor that the applicants would be included on the list of prospective tenderers for the printing of directories. The Statement of Claim also says that a letter to similar effect was sent on the same day, and that there was a further relevant letter on the following day. The applicants allege, in substance, that, by reason of these events, they had an expectation that they would be given the opportunity to tender for future contracts.

The Statement of Claim then alleges that, on 7 October 1992, the applicants became aware that AOTC had	renewed its contracts with its existing contractors. The new
contracts are said to be for the printing of directories over a period of 10 years and to cover each of the markets referred to in para 10 of the Statement of Claim. Those markets are variously defined, but they include the market for the printing of telephone directories within Australia. It is said in para 22 of the Statement of Claim that the value of the new contracts was $600 million, excluding the value of the paper. If the value of the paper is taken into account, the value of the contracts is said to be approximately $2 billion. In para 23 it is alleged that AOTC called no tenders for the printing of the directories. The Statement of Claim proceeds, in para 24, to allege that there was no communication between the AOTC and the applicants, or their solicitors, concerning the printing of the directories, the consideration by AOTC of the exercise of a right to have the current printer's
contracts extended for a further period 12 months or part thereof, or a decision not to call for tenders or a decision to deal only with the current printers.
The Statement of Claim then goes on to make a series of allegations of contraventions of the Trade Practices Act

1974. I need not deal with the detail of these allegations. There follow a series of allegations based upon the Administrative Decisions (Judicial Review) Act 1977. The contention of the applicants, apparently, is that relevant AOTC decisions were decisions under an enactment and, accordingly, that the jurisdiction conferred by the ADJR Act

those decisions by the Court.	arises; thereby enabling the applicants to procure review of
The first paragraph in the Statement of Claim which refers to the second respondent, the Minister, is para 42. ~t
reads as follows:

"BY reason of the f a c t s pleaded in paragraphs 5

t o 10 and 20 herein the second respondent should have given directions pursuant t o section 9 o f the Act t o the first respondent directing that tenders be called for the printing o f the directories. "

During the course of argument, counsel for the applicants said that the references in para.42 to earlier paragraphs should have included paras. 21, 22 and 23; that is, the paragraphs alleging the granting of new contracts without tenders being called. I am content to read paragraph 42 as if it was so amended.

Section 9 of the AOTC Act is a section conferring upon the Minister - that is to say, the Minister for Transport and Communications, the second respondent - the power to give directions to the corporation. Subsection (1) reads:

"Subject t o subsection 2 , the Minister may, a f t e r consultation with the Board, give t o AOTC such written directions i n relation t o the exercise o f the powers o f AOTC a s appear t o the Minister to be necessary i n the public

in teres t . "

The reference to the board is a reference to the board of directors of AOTC. It is not necessary, I think, to refer to subs. (2) or, indeed, any of the other subsections of s.9; except to note that subs.(5) requires the Minister to lay before each House of Parliament a copy of any direction given pursuant to subs.(l).

The submission of the applicants is that the Minister had power, pursuant to s.9(1), to give a direction to AOTC in relation to the decisions the subject of the present proceeding; that is, the decisions as to the making of contracts for the printing of new telephone directories for 1993 and beyond, and its decision not to call tenders for the printing of those directories.

For the purposes of this application, I am content to accept that the Minister did have power to give such a direction. My attention has been drawn to the fact that in, the Second Reading speech of the Bill which became the AOTC Act, the Minister referred to the power given by s.9(1) as being one which "should be viewed as primarily providing the Minister with a reserve power," and that he went on to state that the thrust of the reforms was to ensure that the board, management, and staff of the new company had every incentive to ensure that the new company performs efficiently and is responsive to customer requirements. Notwithstanding these

conditions of its exercise are first, that there be	statements, subs. (l) is couched in wide terms. The only
consultation with the board - a machinery matter - and, secondly, that the directions relate to the exercise of the corporation's powers. Judgment as to the nature of the appropriate directions is left to the Minister, the stated criterion being necessity in the public interest.
It is one thing, however, to say that the Minister has a power to intervene in relation to the relevant decisions; or perhaps, more strictly, would have had a power had he intervened at the appropriate time. It is another matter to treat s.9 as creating a duty to intervene. In its amended Application the applicant seeks the following orders against the Minister, as set out in paras.7 and 8:

" ( 7 ) An order o f mandamus against the second respondent directing him t o consider according t o l a w the giving o f a direction

respondent that i t call for tenders for	i n the public in teres t t o the first
the printing of the directories.

( 8 ) In the alternative t o paragraph ( 7 ) herein

a mandatory i n junction directing the second respondent t o consider according t o law the giving o f a direction i n the public in teres t t o the first respondent that it cal l for tenders for the printing o f the directories. "

The jurisdictional basis for these orders, it is

said, is s.39(B) of the Judiciarv Act 1903. The proposed

orders have two features in common. One is that they do not,
in terms, require the Minister to make any particular

decision. The direction which is sought is that the Minister consider the giving of a direction. Although this is not stated, the intended reference is to a direction pursuant :to s.9 of the AOTC Act. Secondly, the proposed orders are in a form available only where there is a failure to comply with a public duty. Although the Statement of Claim does not so assert, the basis of the claim against the Minister must be that he had not merely a power to give a direction, but that, under the circumstances, he was bound, at least, to consider giving a direction.

I do not see any basis upon which it can be reasonably be argued that the Minister was bound, as a matter of law, to consider giving a direction. As I have said, I do not doubt that he had the power to give a direction. It may be thought by some people, perhaps including the applicants, that the Minister ought to have exercised his power. But in order to support either mandamus or a mandatory injunction, the legislation would have to impose either an expressed or implied duty upon the Minister to consider exercising the s.9 powers. The legislation does not go that far.

The matter which is emphasised in argument - and, indeed, is the material referred to in para 42 of the Statement of Claim - goes to the size of the contract, in terms both of the amount of work involved and the value of the

Minister if he decides to consider whether or not to exercise	contract. These, no doubt, are relevant matters for the
his s.9 power. But I do not think that those factors make this commercial decision any different, so far as the Minister is concerned and as a matter of law, to any other. In short, I see no basis upon which it can be said that the Minister was under a legal duty even to consider giving a direction under s.9. I say nothing about the Minister's political responsibility. That is a matter for Parliament, not for the Court.
At the outset of these reasons I quoted what was said in General Steel and in m in order to emphasise the caution with which courts act in considering applications for summary dismissal or a stay. If I thought that the applicant's position might improve as the evidence emerged, it would be inappropriate to dispose of the matter summarily. But it seems to me that the evidence cannot improve the applicant's case. The critical question is the proper interpretation of s.9 of the AOTC Act, applying those sections to the applicants' allegations of fact and treating those allegations, for the purposes of the motion only, as being correct. Even if I assume the correctness of the allegations in the Statement of Claim and apply those allegations to s.9, it is impossible to say that there is any duty conferred upon the Minister.
I am of the view that the action cannot succeed against the second respondent. It is therefore appropriate to
take the course urged on his behalf. The appropriate order to make is that the proceeding be dismissed as against the second respondent and I propose to so order.
Proceeding dismissed as against the second respondent. The applicants are to pay the second respondent's costs.
I certify that thls and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox.
Associate: q-& Dated: 28 October 1992

APPEARANCES

Counsel for the Applicant:	C Stevens QC and
P  S h a r p
Solicitors for the Applicant:	Cutler Hughes and Harris

Counsel for the First Respondent: G Flick

Counsel for the Second Respondent: G Johnston

Solicitors for the

First Respondent:	Mallesons Stephen Jaques
Solicitors for the Second
Respondent:	Australian Government Solicitor
Dates of hearing:	28 October 1992