Littles Gippsland Coaches Pty Ltd v Transport Regulation Board

[1977] FCA 5

IN THE FEDERAL COURT OF AUSTMLlA	V . 6 No. 42 of 1977
GENERAL DIVISION
B E T W E E N :

LITTLE'S GIPPSLAND COACHES PTY. LTD. Plaintlff

and

Defendants

REASONS FOR JUDGMENT	NORTHROP J.
21TH MAY 1977

a

LITTLE'S GIPPSLAND COACHES PTY. LTD. - P l a i n t i f f

and

TRANSPORT REGULATION BOARD and OTIiERS Defendants

HIS HONOUR: This i s t h e r e t u r n o f a summons t aken ou t by t h e

p l a i n t l f f , d i r e c t e d t o t h e f l r s t f o u r d e f e n d a n t s , s e e k l n g

i n t e r i m o r i n t e r l o c u t o r y i n j u n c t i o n s r e s t r a i n i n g them from

c o n t i n u i n g w i t h t h e h e a r i n g o f c e r t a i n p r o c e e d i n g s u n d e r t h e

Transpor t Regula t ion A c t , pendlnq the hear ing and determln-

a t i o n o f t h e matters r a l s e d by t h i s writ.

The f i r s t d e f e n d a n t i s the Transpor t Regula t lon

Board, which is incorpora ted and i s a c o r p o r a t i o n by reason

o f t he T ranspor t Regu la t ion A c t 1958, s . 4 . The second,

t h i r d a n d f o u r t h d e f e n d a n t s a r e members o f t he Transpor t

Regulation Board - r e f e r e n c e may be made t o s.5 o f t h e

Transport Regulat lon A c t f o r t h e s e p u r p o s e s .

I t is i m p o r t a n t t o stress t h a t t h i s i s a n I n t e r -

l o c u t o r y matter, and it is u n d e s i r a b l e f o r m e t o e x p r e s s a n y

f i n a l view on the matters whlch have been raised. In coming

t o my conclus ion , I s h a l l a p p l y t h e p r l n c l p l e s r e f e r r e d t o ~y

M r . Ju s t i ce Menhenn l t t In the case o f Gabr i e l v. Lobban ( 1 9 7 6 )

VR.689 a t 6 9 0 , where H i s Honour, quoting from the Hlgh Court

d e c i s i o n o f Beecham Group L i m i t e d v. B r i s t o l L a b o r a t o r i e s

Pty. Limited 118 C.L.R. 618 a t 6 2 2 s a l d -

"The C o u r t a d d r e s s e s i t s e l f i n a l l c a s e s , p a t e n t a s

w e l l a s o t h e r , t o t w o maln m q u l r i e s . The f i r s t i s

w h e t h e r t h e p l a i n t i f f h a s made o u t a p r ima f ac i e

case, i n t h e s e n s e t h a t i f t h e e v l d e n c e r e m a l n s a s

it is t h e r e i s a p r o b a b i l i t y t h a t a t t h e t r i a l o f

the a c t l o n t h e p l a i n t i f f w i l l b e h e l d e n t i t l e d t o

r e l i e f . " Then two a u t h o r i t l e s a r e c l t e d i n s u p p o r t

of t h a t . Later, a t p .623 , the Cour t sa id : "The

second inqui ry i s dlrected t o t h l s a s p e c t o f t h e

matter. I t i s w h e t h e r t h e ~ ~ c o n v e n l e n c e or l n ~ u r y

which t h e p l a i n t i f f would be l i k e l y t o s u f f e r I f a n

i n j u n c t i o n were refused outwelqhs or 1 s outweighed

by t h e i n l u r y w h l c h t h e d e f e n d a n t w o u l d s u f f e r i f

a n i n j u n c t i o n were g ran ted . 'I

For t h e p r e s e n t p u r p o s e s , it i s necessary to apply

t h e f i r s t o f t h o s e two i n q u i r i e s o n l y .

. / L . . .

- 2 -

On behalf of the plaintiff xt i s argued that the

first named defendant, by reason of s . 4 of the Transport

Regulatlon Act, is a corporation within the meaning of the

Trade Practices Act 1974. The word "corporatlon" is defined

in that Act as meaning a body corporate that (a) 1s a Foreign corporation, (b) is a trading corporation formed within the

limits of Australia or is a financlal corporation so formed,

(c) is lncorporated in a territory or (d) 1 s a holding company

of a body corporate of a klnd referred to in paragraphs (a),

(b) or (c).

The wording of s . 4 of the Transport Regulatlon Act

is in a form common in statutes for the incorporation of

bodies, and in my opinlon cannot be used In any way at all o

show that a body so incorporated 1s a trading corporation or

a financial corporatlon.

Next, it was argued that the actlvitles of the

Transport Regulatlon Board In regulatlng trading actlvltles

of commercial vehicles, whether of passengers or of goods

itself constituted the Transport Regulation Board a tradlng

corporation.

This argument is not sufficlent to persuade me at

this stage and on the material presently before me that there

e	is a prima facie case that the Transport Regulation Board	1 s
a trading corporatlon.

In order to determine thls questlon It 1 s necessary

to look at the functions belng performed by the corporate

body Itself, aild this is made clear from the Hlgh Court

declslon in the Queen v. Trade Practlces Trlbunal ex parte

St. Georye Councll, 130 C.L.R. p.533. --

It was turther aigued that the Transport Regulation

Board by receiving monies could well be a financlal

corporation. In addjtlon, It is urged thc Transport Regulatlon Board may be engaging in actlvities of trade, In any event,

and thls could	not be established until after dlscovery and
interogatories.

. / 3 ..

In my opinion, at this stage of the proceedlngs and

on the material before me I am not satisfled that the

Transport Regulation Board 1 s a financlal corporatlon or a

tradlng corporation because of possible undlsclosed actlvltles.

In my opinion, having regard to the functlons and

powers conferred upon the Transport Regulation Board by that regulatory body performing functions on behalf of the government of Victoria and cannot be said to be a corporatlon

within the meanlng of the Trade Practlces Act 1974.

It was next argued that the second, third and fourth

defendants could well be corporations because of the fact they

used the postal facllitles and therefore came within the

provisions of the Trade Practices Act because of thelr

activitles in connection with postal communications, and that

in any event the Transport Regulatlon Board and Its melnbers

could be supplymg goods or services to the Commonwealth In a

sense of lndividuals withln the Commonwealth.

In my oplnion, there is not a sufflclent prlma facie

case established on the material before me to	~us ify	any such
conclusion.

In these clrcumstances, I am not satlsfied that the

plaintiff has made out a prima facie case in the sense that If the evidence remains as it is now, to quote from the Beecham case,

"There is a probablllty that at the trial of the

actlon the plaintiff will be held entitled to relief."

I have trled to avoid going lnto too much detail on

the legal arguments which have been adrlrtsssed to me. I have

concerned myself only with the initial questlon of whether the Transport Regulation Board, and the second and third and fourth

defendants are corporatlons within the meaning of the Act.

. / 4 . . .

- 4 -

I n t hese c i r cums tances , I w i l l d i s m i s s t h e summons

s e e k i n g t h e i n t e r i m a n d i n t e r l o c u t o r y i n j u n c t i o n s a n d make

a n o r d e r t h a t t h e p l a i n t i f f p a y t h e d e f e n d a n t s ' c o s t s o f the

summons and I c e r t i f y f o r c o u n s e l .

AT 12.07 P.M. THE COURT ADJOURNED SINE DIE

.. .