Homestyle Pty Ltd t/as BGC Construction v The State Housing Commission
[2003] WASC 142
HOMESTYLE PTY LTD t/as BGC CONSTRUCTION -v- THE STATE HOUSING COMMISSION & ANOR [2003] WASC 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 142 | |
| Case No: | CIV:1711/2003 | 24 JUNE 2003 | |
| Coram: | HASLUCK J | 24/06/03 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | HOMESTYLE PTY LTD t/as BGC CONSTRUCTION THE STATE HOUSING COMMISSION THOMAS GREGORY STEPHENS |
Catchwords: | Injunction Application for interim relief in respect of public housing tender process Effect of State Supply Commission Act 1991 Whether a building contract amounts to a contract for the supply of goods and services Serious issue to be tried in respect of allegations of discriminatory conduct by public authority Interim relief granted Turns on own facts |
Legislation: | State Supply Commission Act 1991, s 17, s 28 |
Case References: | Nil Hughes Aircraft Systems International v Airservices Australia (1997) 76 FLR 151 Lovegrove Turf Services Pty Ltd v Minister for Education [2003] WASC 66 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469 Willow Grange Pty Ltd and Rantack Pty Ltd v Yarra City Council, unreported; SCt of Vic, 1 December 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE HOUSING COMMISSION
First Defendant
THOMAS GREGORY STEPHENS
Second Defendant
Catchwords:
Injunction - Application for interim relief in respect of public housing tender process - Effect of State Supply Commission Act 1991 - Whether a building contract amounts to a contract for the supply of goods and services - Serious issue to be tried in respect of allegations of discriminatory conduct by public authority - Interim relief granted - Turns on own facts
Legislation:
State Supply Commission Act 1991, s 17, s 28
(Page 2)
Result:
Application allowed
Category: B
Representation:
Counsel:
Plaintiff : Mr M J McCusker QC
First Defendant : Mr G T W Tannin & Mr D J Matthews
Second Defendant : Mr G T W Tannin & Mr D J Matthews
Solicitors:
Plaintiff : Hotchkin Hanly
First Defendant : State Crown Solicitor
Second Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FLR 151
Lovegrove Turf Services Pty Ltd v Minister for Education [2003] WASC 66
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469
Willow Grange Pty Ltd and Rantack Pty Ltd v Yarra City Council, unreported; SCt of Vic, 1 December 1997
(Page 3)
1 HASLUCK J: The plaintiff, Homestyle Pty Ltd, is a building company. It seeks an order that the first defendant, the State Housing Commission, be restrained until further order from entering into a contract in respect of Tender No 96180/03 other than with the plaintiff and from issuing further requests for tender subject to a policy recently approved by the defendants.
The application
2 The application for injunctive relief is made at short notice and I am conscious that the defendants have not had an opportunity of formulating detailed submissions or putting on affidavit evidence opposing the relief sought. However, an opportunity has been afforded to them via counsel to make submissions opposing the application.
3 I mention this state of affairs by way of preliminary because part of the case being advanced by the plaintiff is predicated upon assertions of bias. This is the kind of case in which it is essential that an opportunity be afforded to the opposing party, in this case the defendants, to meet allegations of such a kind with evidence. The difficulties confronting the defendants are present to my mind.
4 However, balanced against the factors I have just mentioned are the circumstances of urgency that have been presented to me. The tender process under challenge is to be completed at 2.30 pm this afternoon. It is therefore necessary, the plaintiff contends, that its application for relief should be dealt with on an urgent basis and notwithstanding the considerations I have just described.
Principles
5 Even in circumstances of urgency, it remains necessary, bearing in mind the conventional principles concerning injunctive relief, that the plaintiff must satisfy the Court there is a serious issue to be tried in respect of the propositions it contends for and that the balance of convenience favours the grant of injunctive relief on an interim basis.
6 As to the balance of convenience, the court must always give careful consideration to the question of whether damages will be an adequate remedy as an alternative to the grant of injunctive relief.
7 I will endeavour to act in accordance with these principles.
(Page 4)
Matters in issue
8 Time does not permit me to make a full recitation of the relevant statutory provisions or of the facts. In essence, the plaintiff, known as BGC, is said to be a large builder with a proven track record of competence and performance in its dealings with the State Housing Commission.
9 I understand from what has been put to me and from the evidentiary materials that the plaintiff was minded to tender for a project with regard to 22 housing units to be constructed pursuant to a public tender process. This is tender number 96180/03 which, as I say, runs to completion today, 24 June 2003, at 2.30 pm.
10 The stance of the plaintiff is that it was precluded from submitting a tender in respect of that project as a consequence of a policy recently adopted and acted on by the first defendant. The direction was issued by the second defendant in his capacity as a responsible government minister. The nature of the policy in question, shortly stated, is to forbid the grant of such a contract to BGC because it is a builder with more than five large contracts, presently held, and amounting in worth to over $1.5 million.
Policy matters
11 The policy complained of by the plaintiff is reflected in a letter from the second defendant in his role as the Minister for Housing and Works to the State Housing Commission as a public authority within the second defendant's area of responsibility.
12 The crucial document is a letter date stamped 24 April 2003 concerning distribution of DHW Contracts. Reference is made in that letter to an apprehension that it might be bad for the housing industry if a group of contractors were allowed to dominate the industry. More specifically, the policy contemplates that in the award of contracts no company may have more than five contracts with the Department of Housing and Works, known as DHW, at any one time worth over 1.5 million. In par 4 of the letter, reference is made to an opportunity for an exemption to be obtained in respect of any particular contract.
13 The Minister is permitted to give directions to the State Housing Commission as a consequence of the relevant statutory provisions. However, it is important to understand, as I have perceived in the materials before me, that the direction I am speaking of cannot be characterised as a policy gazetted pursuant to s 28 of the State Supply
(Page 5)
- Commission Act 1991. It is simply a letter from the Minister to the first defendant.
14 I pause to say that by s 28 of the Act the State Supply Commission may issue supply policies relating to the supply of goods and services. Notice of the making of a policy is to be published in the Gazette. By s 17 all public authorities are to comply with supply policies.
15 The letter under notice in the present case does not purport to be a gazetted policy and thus the provision concerning gazetted policies in s 28 of the Act does not apply. Further, and in any event, a question arises, on the evidence presently before me, as to whether policy documents are limited to documents of a kind allowed for by the provision, that is to say, documents that can be characterised as policy concerning open and effective competition.
16 There is no need for me to describe the statutory provisions and related policy documents in detail save to say in a general way that the principal policy document put out pursuant to the provisions emphasises a credo of encouraging and promoting competition and making sure that public authorities function in an even handed manner and avoid bias.
Building contracts
17 A question has arisen in the course of argument as to whether the provisions of the State Supply Commission Act 1991 can be thought to apply to building contracts of the kind the subject of the 22 unit project. There has been a good deal of debate about that matter. It is said on the defendant's side that the State Supply Commission Act does not apply to a contract of that kind and that explains why the ministerial direction complained of should not be regarded as a policy fitting within the framework of that Act.
18 However, I have to say for myself that, without formally ruling in any definitive way upon that issue, I consider that there is a serious issue to be tried as to whether a building contract of the kind presently in contemplation can be regarded as a contract for the supply of goods and services.
19 That being so, in my opinion, one is obliged to have regard to the requirements specified in s 17 of the Act whereby, subject to the State Supply Commission Act, all public authorities shall comply with supply policies.
(Page 6)
20 As I have noted, the ministerial direction is arguably not affected by that provision because it has not been proclaimed in the manner prescribed by s 28 of the Act and does not concern a contract for goods and services. On the other hand, acts, events and policies bearing upon what might be described as a contract for the supply of goods and services might arguably be subject to the general benchmark as to how the award of such contracts is to be handled.
21 It therefore seems to me that a question arises as to whether the ministerial direction and the related events, including the refusal of an exemption which was sought by the plaintiff, amounted to acts infringing supply policies proclaimed pursuant to the State Supply Commission Act.
22 That is clearly a complex issue because the Minister's letter makes some reference to the danger that might result to the state if a very large monopolistic concern commenced to dominate the industry and went into liquidation or was, in some other way, incapacitated. There may be various reasons why it can be said that there is no infringement of the supply policies that have been proclaimed having regard to the circumstances of the present case. The reality is, however, that I do not have evidence of that kind before me, although the defendant might wish to adduce such evidence in due course.
23 I am left in the position, on the evidence before me, that there is a ministerial direction which arguably discriminates against the plaintiff. On the face of the evidentiary materials, BGC is the only contractor of a size sufficient to be precluded by the ministerial policy from tendering for the present project.
24 I have some evidence before me of a particular conversation which is relied upon to underpin a suggestion by the plaintiff that there might be some element of discrimination or bias directed against the activities of this particular company.
Serious issue to be tried
25 Against this background, it seems to me that where the company in question has a track record of performance and competence as described in the affidavit material, there is a serious issue to be tried as to whether the policies issued pursuant to the State Supply Commission Act weigh against the events in the present case with the result that there has been an infringement of the requirements specified in s 17 of the Act.
(Page 7)
Balance of convenience
26 I will not go in detail to matters bearing upon the balance of convenience. It will be sufficient to say, for present purposes, that in the absence of evidence from the defendant's side I am satisfied that matters of the kind described at par 23 of the affidavit of Gerard Michael Forde sworn 23 June 2003 are sufficient to establish that damages may not be sufficient compensation for loss in the circumstances of the present case.
27 I am conscious that the tender process does not commit the first defendant to award contracts to any specified party at this stage, as the tender process has not yet been completed. I would understand from what I have heard that completion of the tender process can be deferred in that the opening of the tender documents can be delayed if indeed injunctive relief is obtained.
28 It therefore seems to me that in these circumstances the balance of convenience weighs in favour of the grant of an injunction as a means of maintaining the status quo. I consider that the issue raised by the plaintiff is a justiciable issue and is not simply an academic issue about the merits of the policy complained of. The policy is in existence at the present time and is likely to have a practical effect upon the tender process concerning the 22 units for which the plaintiff wished to tender.
Conclusion
29 It is for the reasons I have given that I consider that there is a serious issue to be tried and that the balance of convenience weighs in favour of the grant of an injunction for a short period in order to maintain the status quo. I consider that injunctive relief in a form to be formulated, but being essentially related to the plaintiff's minute in that regard, should be granted.
30 The proposed orders contemplate that there be liberty to apply on 72 hours' notice. I take that to be a liberty to apply to discharge on 72 hours' notice. The purpose of the injunction at this stage is to grant relief for a short time only, if I am correct in my assumption that the defendant would wish to have an opportunity to file answering affidavits and to have an opportunity to argue the case more fully. Accordingly, a provision for discharge is appropriate. I will hear from the parties as to whether any further orders and directions are appropriate.
0
5
0