NT Power Generation Pty Ltd v Power & Water Authority

[2003] HCATrans 346

[2003] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D8 of 2002

B e t w e e n -

NT POWER GENERATION PTY LTD

Applicant

and

POWER AND WATER AUTHORITY

First Respondent

GASGO PTY LTD

Second Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 SEPTEMBER 2003, AT 9.52 AM

Copyright in the High Court of Australia

MR A.J.L. BANNON, SC:   If it please the Court, I appear with my learned friend, MR A.A. HENSKENS, for the applicant.  (instructed by Colin Biggers & Paisley)

MR B.C. OSLINGTON, QC:   May it please the Court, I appear with my learned friends, MR L.G. FOSTER, SC and MR A.I. TONKING, for the respondents.  (instructed by Noonans)

McHUGH J:   Yes, Mr Bannon.

MR BANNON:   Your Honours, the first respondent, PAWA, carries on a business of supplying electricity.  It is a vertically integrated business.  It generates the electricity and transmits it along its transmission and distribution system to its customers.  The transmission and distribution of the electricity along its wires is an integral part of the business.  Without the wires, PAWA cannot conduct the business of supplying electricity.  It seems obvious, but it is an important proposition.  Mr Justice Lee, in the Full Court, said that PAWA’s lines were dedicated exclusively to the commercial activities of supplying electricity, which his Honour described as the business of “selling electricity”.

KIRBY J:   One gets a bit of an impression, though, that your client wants to use the general power lines which have to service all parts of the Territory and economic and uneconomic activities, and you just want to take the benefits without the disadvantages.

MR BANNON:   That was an allegation which was sought to be made against us but not finding any force or footing in any defence under the Trade Practices Act.  What we relied on was the application of the Act to promote competition, and what the outcome of competition was, whether it overall benefited the Territory ‑ ‑ ‑

KIRBY J:   Does competition have some notion of sort of equal playing field, that you start from an equal playing field?

MR BANNON:   No, it has a notion of the most efficient allocation of resources.  The theory behind the Act as enacted in section 2 is that the public interest is served by the promotion of competition.  There are authorisation provisions which deal with certain Acts – section 46 is not one of them.

We were granted a licence to sell electricity in the Territory and the question came down to whether or not the conduct in refusing us the service of transmitting our electricity was – it was one argument – that it was a regulatory decision.  There was a finding of fact against that, which has been upheld by a majority in the Full Court, namely, it was a commercial decision.

KIRBY J:   I suppose you can say in rebutter, “Well, that’s all very well, but when they need us, they use us”.

MR BANNON:   Yes, exactly.  The evidence before the trial judge was that there was an inefficient allocation of resources, that business, in particular, was being charged at a higher amount than was a competitive price for the purpose of cross‑subsidising inefficiencies in the business of PAWA.

Now, our desire to use their electricity wires or the service of transmission was pursuant to a desire to compete.  PAWA’s refusal to transmit our electricity was the conduct the subject of complaint.  As I say, we have findings that PAWA’s refusal was a commercial decision made for the purpose of protecting its business against competition.  We also have findings that PAWA took advantage of its substantial degree of power in a market for the proscribed purpose of preventing the applicant’s entry into the electricity supply market.  In short, we say the effect of the findings ‑ ‑ ‑

KIRBY J:   Does that still have work to do after Boral?

MR BANNON:   I am sorry, your Honour?

KIRBY J:   Pass on. 

MR BANNON:   In short, PAWA made a commercial decision on the findings in the course of its business to prevent or stifle competition.  The impediment to our success was the construction of section 2B, and it is an issue of construction which we say has important ramifications.  Does one take, what we say, is a literal view, which is not necessarily a broad view, but one which promotes the purposes of the Act, or does one adopt what we say is a narrow view?  It has not been considered by this Court before.  The decision, the subject of application has just as much significance for section 2A of the Act, which deals with Commonwealth businesses, as 2B.

The prevalence of government businesses – GBEs, they are commonly called – around the whole of the country, and their desire to make them accountable as businesses is a matter of notoriety ‑ ‑ ‑

KIRBY J:   We looked at that in NEAT Holdings v AWB and the majority of the Court took a view on that.

MR BANNON:   Yes.  What we say, and what Justice Finkelstein said, was that 2B is satisfied if the impugned conduct is engaged in by the Crown in the course of carrying on a business.  What the majority, and Justice Mansfield said, no, that is not enough.  The conduct must be engaged in the course of carrying on a business – and then these words were added – “of engaging in that conduct”.  Now, those additional words do not appear in 2B.  It does not serve the purpose of the Act and it is a gloss.  The accepted object ‑ ‑ ‑

McHUGH J:   Yes, but it is a question of statutory construction.  By and large, questions of statutory construction just do not generate grants of special leave to appeal, and it is about time the profession understood that.  Questions of construction are notorious for generating division of opinion.  There is usually no right answer to questions of construction, and this Court’s time cannot be taken up resolving disputes about questions of construction unless they are really important and really do involve some question of principle.

MR BANNON:   They really are important in this case, because the object of the Act was to render government businesses subject to the same scrutiny and exposure as equivalent businesses.  Now, as Justice Finkelstein points out, and it is clearly correct, an equivalent private business here would be exposed to section 46.  The fact that it was a vertically integrated enterprise would not make a difference, and that was amply demonstrated in Queensland Wire.  Be it a construction question, nevertheless the ramifications for the application of the Act to government businesses which are so prevalent are so important and so significant, and this construction is so narrow that it warrants the consideration of the matter by this Court.

McHUGH J:   Does not your argue lead to the view that it is only necessary to show that the government or its instrumentality is carrying on a business of any sort?

MR BANNON:   No, because it has to be the conduct in the course of carrying on that business.  The concurrent findings of fact by a majority in the Full Court are the decision here was a commercial decision made to protect its business of supplying electricity.  Now, a conclusion favourable to us on that issue can have no impact on a wider ramification of the type your Honour suggested.  We do not say – Justice Finkelstein did not interpret it as meaning provided you are carrying on any business, then all conduct of the government is caught.  Far from it.  All one needs, though, is, as a sufficient requirement, that the conduct be in the course of carrying on that business, and it was here.

Now, they say it has not only got to be in the course of carrying on the business, but also carrying on a business of which the particular conduct has been engaged in a recurring fashion.  Now, those words just are not there, and it is an extraordinary or remarkable constriction of the words.

KIRBY J:   Now, where do you say that the error is found in the majority approach in the Full Court?  You say they have added some words to the statute.

MR BANNON:   Page 179 where Justice Branson’s consideration commences, the first couple of lines on 179.  This is a statement from Justice Emmett’s judgment at single instance.  The opening lines are “where the conduct complained” ‑ ‑ ‑

McHUGH J:   That has been followed on other occasions, has it not?

MR BANNON:   Yes, but see the test in those lines:

where the conduct complained of is engaged in, in the course of carrying on the business.

We satisfy that.  That is what happened here.  Then over the page, her Honour says at page 180, line 20:

PAWA operates a vertically integrated enterprise in which it purchases gas . . . In one sense, PAWA’s “business” could be characterised as the totality of these activities.  However, I do not consider that the mere fact that an activity is part of PAWA’s overall enterprise means that PAWA is “carrying on a business” in relation to that aspect of its enterprise.  It seems to me that the limitation . . . requires the Court to consider whether PAWA is carrying on a business in relation to each individual aspect of its enterprise.

Now, those words just are not there in the Act.  One goes over to 181 ‑ ‑ ‑

KIRBY J:   What is the mischief done by adding those words, in terms of the policy of the Act?

MR BANNON:   The policy of the Act is that government businesses, if they are not carrying on governmental activities, is found to be a business, part of a commercial activity, the mischief is that government businesses should be exposed, that they should not be able to use market power, making decisions or engaging in conduct in the course of that business to distort the forces of competition.  Governments traditionally have significant market power because they usually control resources, but what is excluded from that, even section 2B, is that when they are engaging in governmental activities, that is not caught by the Act.

KIRBY J:   Is that not what is meant by adding “in relation to that aspect of its enterprise”, that some aspects of the enterprise of a governmental body, including the Authority, will be governmental, and some aspects will be business, and that is the matter that you have to focus on.

MR BANNON:   If that was the approach, then we would not cavil with it, but the difficulty with that is that there is no aspect identified here which was governmental.  The findings were that its business was ‑ ‑ ‑

KIRBY J:   Could it not be said that the supply of electricity to all parts of the Territory and people, rich and poor, outlying and metropolitan, is a governmental responsibility?  You cannot get far without electricity nowadays.

MR BANNON:   There was an argument put that this was a regulatory decision in the nature of a governmental decision, and it was rejected, because there is a finding of fact against that.  The decision of fact was that there was a decision made for commercial reasons to protect its business.

KIRBY J:   Do you say that Justice Mansfield added the same formula?

MR BANNON:   Yes, at page 93, his Honour starts off at line 21 by referring to:

It is necessary for s 2B to apply relevantly that the conduct complained of be engaged in the course of PAWA carrying on its business.

Again, that seems fine, we would satisfy that test, but when one gets to page 95, at line 25, it becomes the question whether:

that access was actively engaged in carrying on a business.

KIRBY J:   There is nothing wrong with that.

MR BANNON:   Then it translates to – at page 96, lines 20 to 25, it says:

It does so using assets including generators and its infrastructure.  Its use of those assets for the purpose of conducting the business . . . is not itself the conduct of the business of acquiring those assets –

McHUGH J:   But that is the issue of construction, is it not, whether or not the Competition Code only applies to a government or statutory instrumentality to the extent to which the impugned conduct itself amounts to carrying on a business and that the Competition Code does not apply to conduct that may be engaged in during the course of a business?

MR BANNON:   Yes, that is the issue, but we say when one looks at the words it does not add those additional words which say the business must be a business of engaging in that conduct or that type of conduct, firstly, and secondly, the ramifications of this narrowing approach, which is a remedial statute which is designed to grapple with the problem of government businesses, is extraordinary.

McHUGH J:   Forensically you say that the court has added words to the section, but they have really interpreted it, have they not, to say that when you look at it in its context it only applies to the extent to which the impugned conduct itself amounts to carrying on a business?

MR BANNON:   That leads to arbitrary results so that as long as they never engage in a particular anti‑competitive activity or never grant access to anybody, then they can be as anti‑competitive as they like.  That cannot have been the intention of the statute.  It is because they have these government resources being applied in businesses in a commercial way that they must be exposed, according to the legislative policy, to the Act. 

This applies to section 45 agreements as well, that under this approach they could enter into a section 45 agreement, a section 47 exclusive dealing agreement, on the basis that the particular aspect of the business which is the subject of agreement, albeit integrally related to the business, is not something they normally engage in.  That, with respect, is a remarkable result.

McHUGH J:   What do you say to the respondents’ contention somewhere or other that to grant leave would be futile because you are unable to demonstrate any loss, so the question is academic from your point of view?

MR BANNON:   The trial judge made no findings on loss.  There was a very active debate as to whether there was loss suffered, and that issue is still yet to be determined.  If we succeed, it would have to go back to the trial judge to determine loss.  There was no finding we had suffered no loss.  That is apparent from the last page of his Honour’s judgment, that is page 136 at about lines 34 and 35.

The other point they make is that we lost against Gasgo but, again, Gasgo’s claim does not affect the PAWA claim.  Again, it is a factual question, whether we would have got gas, and they themselves refer to the fact that Gasgo had offered us gas of an interruptible supply, and there was a lively debate, yet to be resolved by his Honour the trial judge, as to whether or not that was sufficient to say we lost an opportunity which resulted in money, but it is a live issue.

The second aspect of the special leave application is the Gasgo claim and it raises the derivative immunity issue, but it is not essential that would go up for the special leave application but it would be conveniently dealt with.  It just goes to the important question as to whether, in circumstances where something is not the Crown but established by the Crown as a non‑Crown body, the derivative immunity extends where there is no contractual relationship with the Crown, and what is the concept of prejudice of interest.  It was adverted to in Bass but not resolved.

Bradken, in terms is a case where the Crown was a contracting party with the non‑Crown body and the impact of the outcome of the decision would have been to render or vitiate the benefit of that contract.  That does not arise here; it is a wider issue.  May it please the Court.

McHUGH J:   Yes.  Yes, Mr Oslington.

MR OSLINGTON:   May it please the Court.  In our submission, the first special leave point involves a question of construction in respect of which there is no material before your Honours suggesting that there is any disagreement between intermediate courts about the proper construction of either section 2A or section 2B.  Second, there is no material before your Honours to suggest that the construction of section 2B in the future, so far as its application is likely to be required, is something which is going to happen frequently or is going to cause difficulties in the future for governments.

KIRBY J:   It does seem arguable that those words that are added are a gloss on the statute.

MR OSLINGTON:   I was about to address the construction point itself, your Honour.  Once it was accepted, as it has been, that PAWA never carried on a business of licensing the use of its infrastructure to third parties, or a business of carrying third parties’ electricity on its infrastructure, it becomes obvious, in our submission, that PAWA’s conduct in refusing the applicant’s request to use its infrastructure was not conduct so far as PAWA carried on a business.  Viewed in that way, it does not require the additional words.  PAWA’s conduct was in relation to something in respect of which it had never carried on a business.

Your Honour, it had never been in the business to which the impugned conduct relates, namely the business of granting access to its infrastructure for reward.  The only business engaged in by PAWA was the business of selling electricity to third parties and that business was carried on in a different market to the market ‑ ‑ ‑

KIRBY J:   The suggestion is that the policy of the legislation of promoting competition in government authorities of this kind requires that the Act should be given full reign to promote competition and that your client is not one which has a governmental function as well as a consumer supply function, that it is not as if it is a governmental department which on the side does a bit of trading of some kind.  Its whole point is to be a trader.

MR OSLINGTON:   That, with respect, is not correct, your Honour.  My client is charged with what is regarded as a traditional governmental function of providing electricity to the citizens of the Northern Territory.  It is charged with the responsibility ‑ ‑ ‑

KIRBY J:   But for some reason it has been subjected to this principle of competition.  I mean, that is the law.  You may say that is a silly thing to do to an electricity authority that just has to supply electricity throughout the huge territory of the Northern Territory of Australia, but that is what the law says.

MR OSLINGTON:   It is also charged with functions of advising the government on what is needed for the provision of electricity – and water, for that matter, it has similar functions.  It is charged with maintenance of the electricity infrastructure, it is charged with providing subsidised electricity to remote areas, so its functions are not simply that, as a seller of electricity.  The fact that it sells electricity is simply part of the discharge of its general governmental functions.

KIRBY J:   Now, you have said that this is not a suitable vehicle, essentially, for dealing with the issue which Mr Bannon wants to bring to the Court.  Why is that so and what is the typical case of a suitable vehicle?

MR OSLINGTON:   I have submitted it is not a suitable vehicle because there is no material in the Court suggesting that there has been any difficulty in intermediate courts interpreting either section 2A or 2B.  There is no material ‑ ‑ ‑

KIRBY J:   Mr Bannon says there is a new milieu, now.  There is a milieu of this competition policy which is extended even to traditional governmental authorities.

MR OSLINGTON:   There have been quite a number of cases in which sections 2A and 2B have been applied and there is no material ‑ ‑ ‑

KIRBY J:   To governmental authorities, trading authorities?

MR OSLINGTON:   Yes, your Honour.  McMillan itself was one such case.  I am sorry, I understand what your Honour says.  In McMillan the respondent probably carried on a business in the sense that it did printing and publishing for other government departments and conducted its activities in that respect in a similar manner to that of a business, but it was not providing third parties with publications.

Your Honour, in our respectful submission, the problem with one of the submissions made by my learned friend, relying upon what is said by Justice Finkelstein at page 201 at about line 25, where his Honour says that:

If the operation of s 13 is restricted so that the Competition Code will only apply to conduct which is itself the carrying on of business, one of the principal objects of the Code (putting government business on the same footing as private enterprise) will not be achieved.

In our respectful submission, that ignores the fact that the very proviso in sections 2A and 2B so far as it is carrying on a business is intended by Parliament to restrict the extent to which a government enterprise will be put on the same footing as private business.  One can think of a number of examples, both in the private and public sector, to illustrate the point we make.

In the private sector, for instance, a mining company might have a fleet of trucks which it uses exclusively to cart its ore to a port, never offering to or in fact carting anybody else’s ore.  It could not be said in those circumstances that it is carrying on the business of providing trucking services to truck third parties’ goods, and a refusal by the mining company to allow another miner to use its trucks or to carry the other miner’s ore could not be said to be conduct in the course of any business being carried on by the miner.

In the public sector – and an example might be a public hospital with a very large specialist laundry to accommodate the needs of a hospital which it uses simply for the purpose of carrying out such laundry required by the public hospital.  It could not be said to be engaged in a laundry business and in refusing another private hospital, which did not want to go to the trouble of building its own laundry, laundry services it could not be said that such a refusal was a refusal in the course of carrying on a business.

Those examples really apply with equal force in the present case, because it was accepted by the applicants and by all members of the court that there was a separate infrastructure market, a market for the purpose of the Trade Practices Act because there was the potential for trade in the market, not because there was trade in the market.

PAWA had never made its infrastructure services available to anybody, but what the applicant wishes to say is that, “We can force PAWA to go into a business it had not been in before, namely, the business of carrying our electricity for us”.  The mere fact that the infrastructure is used by PAWA in its own business, or to enable it to engage in the market in the sale of electricity, is really no different than the mining company using its trucks to cart its own ore or the public hospital using its own laundry facilities in its hospital business, and particularly when the focus is on section 46.

It would be an odd result, in our respectful submission, if the market in which the respondent, the government agency or government, carried on a business was a different market to that in which it was alleged, as in the present case ‑ ‑ ‑

McHUGH J:   But why do you say that? It is common enough.  There are a number of cases in the United States where it has been held that people have exercised their power in one market to achieve a result in another market.  In fact, one of the airlines cases in this country raises that issue at the moment.

MR OSLINGTON:   We accept that is open, but when one is dealing with section 2A and 2B one also needs to consider whether the respondent is carrying on a business.  The market in which it was alleged and found that PAWA had a substantial degree of power and exercised that power was the infrastructure market, but the market in which PAWA carried on a business was in the sale of electricity.  But, your Honour, in our submission, it is a construction point.

KIRBY J:   As Justice McHugh pointed out, that is not necessarily fatal if it is an important factual point.

MR OSLINGTON:   It is not fatal, but we would submit it is not important, for the reasons we have already expressed.  But second, we would say that there is not sufficient doubt about the construction placed on section 2B by four members of the Federal Court.  When one looks at the reasons for the construction placed on the section by Justice Finkelstein, we would respectfully submit that a critical part of Justice Finkelstein’s reasoning, which we have addressed at page 201, ignores the fact that the purpose of the proviso to sections 2A and 2B are to relieve government agencies from all of the rigours or application of the statute.

Your Honours, there is a further reason why this case may not be an appropriate vehicle.  If special leave is granted, my client would file a notice of contention raising a number of issues and many of those issues are set out in the notice of contention in the papers before your Honours, commencing at page 139.  Some of those issues were decided below, some were in and some were not.  The first contention we would raise is that if the conduct was part of a business, nevertheless, PAWA is protected by section 2C(1)(b).

McHUGH J:   Yes, but did the Full Court deal with these matters?

MR OSLINGTON:   No, the Full Court did not.

McHUGH J:   That is neither here nor there then.

KIRBY J:   That is our answer to that submission, we would just send it back.

McHUGH J:   We would just send it back to the Full Court to deal with it.  What is your next point?

MR OSLINGTON:   The next point is that his Honour Justice Mansfield held that Gasgo ‑ ‑ ‑

McHUGH J:   Your opponent says that is not the end of the matter, even accepting that.

MR OSLINGTON:   His Honour Justice Mansfield made findings that Gasgo would be significantly prejudiced and those findings are at pages 89 to 90 and Justice Branson seems to have accepted those findings at page 186.  Justice Finkelstein, on the other hand, thought that he did not have to deal with that issue because he had held that PAWA was not protected.

KIRBY J:   Can I just tell you something that is going through my mind that is an argument for special leave if it is correct.  Are you familiar with the Court’s recent decision in NEAT Holdings v AWB?  It was a case involving the suggested application of administrative law, not trade practices law but administrative law, to the area of new government enterprises from trading, the Wheat Board, as it had been turned into a private corporation.  It raised in the view of all of us important questions.  Has there been a case that has come to this Court concerning the application of the Trade Practices Act or its equivalent in the States and Territories to trading corporations of government?

MR OSLINGTON:   Not so far as I am aware, your Honour.

McHUGH J:   There are, but they are in a different context.

MR OSLINGTON:   I am sorry, not involving section 2A or 2B.

McHUGH J:   Not involving section 2A, but there are a number of others.

MR OSLINGTON:   Yes.

KIRBY J:   Is that not an argument for considering special leave in this case?  You would have to be convinced that the case is not suitable because of some factual or other element that rendered it an unsuitable vehicle to consider the matter because there can be no gainsaying that in broad terms of legal principle that is an important issue, how one reconciles a trading statute to government corporations which are assuming increasingly these trading functions.

MR OSLINGTON:   We would respectfully submit that the application of section 2A and 2B to PAWA in the facts of this present case and a decision on that question would not give rise to a statement of general principle.

I notice the orange light is on.  We would also wish to contend in a manner generally consistent with what we said in our notice of contention to the Full Court, that the decision on section 46 ought to be reversed and we would be filing a notice of contention in this Court.  That was a question which was decided against us.

KIRBY J:   That was not decided in the Full Court though.

MR OSLINGTON:   Yes, it was, your Honour.

KIRBY J:   Was it?

MR OSLINGTON:   Yes.  Justice Lee upheld our contention in that respect.  Justice Finkelstein disagreed and Justice Branson, without giving expansive reasons, essentially agreed with Justice Finkelstein, and there are a number of important issues, we would submit.

KIRBY J:   Does that not leave that question in a state of uncertainty?

MR OSLINGTON:   Yes, your Honour.  As we understand the Rules, we do not need leave to raise such an issue by way of contention, we would have an appeal as of right.

McHUGH J:   I am not sure about that, it all depends.  You may need a cross‑appeal.  You may need leave.

MR OSLINGTON:   No, your Honour, Order 70 rule 6(5) seems to entitle us ‑ ‑ ‑

KIRBY J:   Justice Branson raised an interesting point that Mr Bannon cavils with and that is that you have to construe the statute in the

constitutional context of the protections which the Constitution gives to free ownership of property by private organisations.

MR OSLINGTON:   We did not raise that issue directly with her Honour.

KIRBY J:   It is common place that you have to read all the legislation conformably to the Constitution.

MR OSLINGTON:   Coming back to what your Honour Justice McHugh said, Order 70 rule 6(5) would seem to entitle us as of right.

McHUGH J:   It depends whether the ground supports the decision or whether it is an independent ground.  Is it another point?

MR OSLINGTON:   No, we would simply wish to support the decision in our favour in effect by saying, even if we lose the point, we lose on the point sought to be raised.

KIRBY J:   It is a notice of contention point then.

MR OSLINGTON:   Yes, a notice of contention, but it does raise substantial section 46 issues.

McHUGH J:   That may be against you.  What would it require, this Court to examine a mass of evidence?  I notice that Justice Finkelstein said the facts were complex and it does not sound like a suitable vehicle.

MR OSLINGTON:   It would, your Honour, but we do not need leave, as we understand the Rules, if special leave is granted to the applicant.

KIRBY J:   You say it would be a bit unfair for you not to be able to challenge on your point if you were facing the challenge of the applicant?

MR OSLINGTON:   That is so, your Honour, but, in our respectful submission, on a proper interpretation of the Rules, we do not have to demonstrate whether it would be unfair or not.  We have a right to so contend if special leave is granted.  May it please the Court.

McHUGH J:   Yes, Mr Bannon.

MR BANNON:   In relation to the question of whether this case involves governmental activities, I referred to a finding of Justice Lee in my submissions.  Could I just specifically direct your Honours’ attention to that, which confirms the factual finding below.  It is at page 154, the very last line on that page.  It is the sentence commencing “The facilities owned by the Crown” over to the top of that page and your Honours will notice the way it “dedicated exclusively to the commercial activities”.  It squarely raises the problem of the government using a conduct in the course of its commercial activities for a commercial purpose to upset market equilibrium.

The surest test of whether or not somebody in a non‑Crown position would have been subject, and hence whether the legislative purpose is thwarted or not, are the findings of Justice Mansfield and the majority of the Full Court, namely that section 46 would have applied but for this narrow point.  We won every other point.  Thirdly, the Act is directed towards making people do with their own money and their own resources what they do not want to do.  Queensland Wire was an ideal example of that.  They had never supplied their Y‑bar to anybody other than their related party.

KIRBY J:   Justice Finkelstein suggests that Queensland Wire is dead and buried.

MR BANNON:   Not on those issues – as for the application of the particular test of the facts, but not on the question of whether or not it could conceivably apply in circumstances where somebody had devoted its resources, in effect, internally and never used them externally.  That is one of the great purposes of section 46, is to try and make people with exclusive use of resources – we are not talking about trucks here; we are talking about the only practical means of distributing electricity in the Northern Territory short of making another grid system to the detriment of the public.

KIRBY J:   But you are a bit of a raider, are you not?  You are going in there picking and choosing and getting the sweet bits and leaving the hard bits to the Authority.

MR BANNON:   There was not a finding of fact to that effect, but even if that was the case, again that is the outcome of competition and this is the balancing process.  There are many people who say competition is not for the benefit of the community overall because it has some ugly sides to it, but the theme of the Act is that the public interest is served by promoting competition.  That is where the conflict comes in and that is an important matter to be resolved.  This is a construction issue, but it has significant ramifications.

Can I just say in relation to this vehicle point, the notice of contention is not to support the decision which is the subject of the application for special leave.  It is an independent basis to consider other points in which the Court would have to be satisfied special leave should be granted, but we would say (a) they are not important issues, but even if they were, the findings of fact are such that they can be dealt with by this Court.  There is no contest of the findings of the facts.  The matters were dealt with

before the Full Court on the basis of his Honour’s findings.  We did not seek to challenge and our learned friends did not challenge them, so that it is not a vast ‑ ‑ ‑

KIRBY J:   Every counsel tells us in trade practices cases, and then we get to them and there are 12 volumes and we are taken through page after page after page of facts.  We are swamped with facts.

MR BANNON:   It is not possible now to consider whether or not that issue arises.  If they put on a notice of contention, that can be examined at that point in time, but we would say it is not going to cause complications.

McHUGH J:   Thank you, Mr Bannon.  Yes, there will be a grant of special leave in this matter.  Mr Oslington, you are at risk if you just simply rely on a notice of contention.  You may well be right on your point, but I think you should give serious consideration as to whether or not on the hearing that point may require, itself, a grant of special leave.  You had better look at what we have said in these cases in the past, but there will be a grant of special leave.

MR OSLINGTON:   I am grateful for your Honour saying that because at least we will not be criticised if we seek by way of favour anyway a grant of special leave.

McHUGH J:   Yes.

KIRBY J:   How long would the matter take?  It depends a bit on the resolution of that point, but on the matter raised in the appeal it would seem to be a one‑day case on the matter.  If it were extended into any examination of the section 46 point, it might ‑ ‑ ‑

MR OSLINGTON:   It could take another two days, your Honour.

McHUGH J:   Another two?

MR OSLINGTON:   It could, your Honour.

KIRBY J:   Well, that is a very intimidatory thing.  If you say that, that might well be a ‑ ‑ ‑

MR OSLINGTON:   I do not say that in terrorem, your Honour ‑ ‑ ‑

KIRBY J:   Every day is critical.

MR OSLINGTON:   ‑ ‑ ‑ but the facts are not quite as simple and are not quite decided without any dispute between the parties, as my learned friend would suggest.  Indeed, the argument before the Full Court on the section 46 point required the court to look at the various facts, or some of the facts, and the evidence and, as in many of these cases, it really depends on how one characterises some of the evidence and what conclusions one draws from facts, but in order to do so one necessarily needs to examine many of the facts.

McHUGH J:   I think we will grant leave in this matter, but that there will be a directions hearing concerning the conduct of the case before it is listed for hearing and at some appropriate time when the parties think they are in a position to deal with the issues, they should apply to a Judge for directions as to how the appeal is conducted.  Certainly, there is no way in the world this Court is going to be giving three days of its time to this case, particularly since the factual matter seemed to be purely factual matters on the section 46 case.  There does not seem to be any real questions of law involved in it.

MR OSLINGTON:   I will not spend time debating that but, your Honour, the Rules require us to file a notice of contention within 14 days.

McHUGH J:   They do.  Certainly file your notice of contention and if you consider you need special leave or that there is a risk that you may need special leave, then you can make that application as well.  It may be that on a directions hearing that would be directed to go before the Full Court and there would be a special leave hearing in respect of the cross‑appeal.

MR OSLINGTON:   Could we seek a direction in the first instance, whether or not we do need the special leave, before actually making an application for special leave, your Honour?

KIRBY J:   I think that would be a matter that the Full Court would have to deal with, but I think it would be prudent of you to assume in the light of the development of the issues that you should put on the application for it ‑ ‑ ‑

MR OSLINGTON:   For special leave?

KIRBY J:   ‑ ‑ ‑ and that could be returned before the Full Court.

MR OSLINGTON:   May it please the Court.

McHUGH J:   Yes, there will be a grant of special leave in this matter.

AT 10.41 AM THE MATTER WAS CONCLUDED