RP Data Limited (ACN 087 759 171) v State of Queensland - [2007] FCA 1639

FEDERAL COURT OF AUSTRALIA
RP Data Limited (ACN 087 759 171) v State of Queensland [2007] FCA 1639
TRADE PRACTICES – section 46 Trade Practices Act 1974 (Cth) – respondent State collects and maintains valuations and sales data for real property in Queensland – respondent supplies bulk valuations and sales data for real property in Queensland to the applicant pursuant to a licence agreement – whether respondent has engaged in or proposes to engage in conduct for a proscribed purpose in breach of section 46 Act because of the terms on which the respondent proposes to renew its licence agreement with the applicant – respondent proposing to exclude certain information from the data provided – respondent claims purpose of removal of data is to prevent direct marketing using respondent’s data – whether respondent State is bound by section 46 – meaning of “carrying on a business” – application of Act to State – nature of the “market” as contemplated by section 46 and section 4E Act – existence of a Market for the supply of the Collected Data or, alternatively, a Wholesale Market and a Retail Market for the Collected Data and Real Estate Agents’ Services Markets – nature and scope of the relevant market(s)
TRADE PRACTICES – MARKET POWER – does the respondent have a substantial degree of power in any of those markets as contemplated by section 46 – taking advantage of substantial degree of power in a market – is the conduct of the respondent in refusing to renew the current licence held by the applicant on the same terms, in particular excluding the excluded data, conduct which can be characterised as the respondent taking advantage of a substantial degree of power in the Wholesale Market – purpose of respondent in excluding relevant information from data – whether for a purpose alleged by the applicant in contravention of section 46 – whether conduct for the purpose of eliminating or substantially damaging the applicant in the Retail Market – whether conduct for the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market – whether conduct for purpose of deterring or preventing real estate agents from engaging in competitive conduct in the Real Estate Agents Services Markets
Held: The application is dismissed. In so far as the respondent is selling bulk data in the Wholesale Market, the respondent is “carrying on a business” and is bound by section 46. However, the respondent is not bound by section 46 in respect of fulfilling its statutory function of providing individual over the counter searches to the Retail Market and in any event applicant has not discharged its onus of proof in respect of any claim that respondent has a substantial degree of market power in the Retail Market. Existence of and nature of Wholesale Market, and that the respondent has substantial power in this market not in dispute. Respondent held to have taken advantage of its substantial market power in the Wholesale Market but not in contravention of section 46, namely, not for proscribed purpose. Respondent’s purpose in excluding information from the data, being to prevent the use of Departmental data for direct marketing purposes and not for anti-competitive purposes as alleged by applicant clear on the evidence. No contravention of section 46.
Privacy Act 1988 (Cth)
Trade Practices Act 1974 (Cth) ss 2B, 4(1), 46
Land Legislation Amendment Act 2003 (Qld) s 27
Land Titles Act 1994 (Qld)
Local Government Act 1993 (Qld) s 995, 1004, 1006, 1006A
Valuation of Land Act 1944 (Qld) ss 37, 47, 73, 76, 77, 81
Valuation of Land Amendment Bill 1992
Valuation of Land Regulation 2003 (Qld)
Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 cited
Adamson v West Perth Football Club (1979) 27 ALR 475 considered
Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 cited
Australian Competition and Consumer Commission v Boral Ltd (1999) 166 ALR 410 applied
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 cited
Australian Gas Light Company (ACN 052 167 405) v Australian Competition & Consumer Commission (No 3) [2003] FCA 1525 cited
Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497 considered
Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374 applied
Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448 cited
Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 cited
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43 cited
Eastman Kodak Co v Image Technical Services Inc (1992) 504 US 451 cited
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 cited
General Newspapers Pty Ltd v Telstra (1993) 45 FCR 164 cited
John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR ¶41-318 cited
JS McMillan v Commonwealth (1997) 77 FCR 337 distinguished
Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 applied
Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579 cited
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 applied
Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 distinguished
Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 cited
Plume v Federal Airports Corporation [1997] 1019 FCA distinguished
Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 cited
Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 applied
Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 cited
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State of New South Wales v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1 cited
Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 distinguished
Sydney Airport Corporation Limited v Australian Competition Tribunal [2006] FCAFC 146 cited
Telecom Corporation of New Zealand Ltd v Clear Communications Ltd (1995) 1 NZLR 385 cited
Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 cited
United States v Columbia Steel Co (1948) 334 US 495 cited
Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 cited
Corones S, Competition Law in Australia (4th ed, Lawbook Co, 2007)
Miller R, Miller’s Annotated Trade Practices Act (28th ed, Thomson, 2007)
RP DATA LIMITED ACN 087 759 171 v STATE OF QUEENSLAND
QUD75 OF 2005
COLLIER J
30 OCTOBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD75 OF 2005

BETWEEN:

RP DATA LIMITED ACN 087 759 171
Applicant

AND:

STATE OF QUEENSLAND
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

30 OCTOBER 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application filed 18 March 2005 is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not otherwise agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD75 OF 2005

BETWEEN:

RP DATA LIMITED ACN 087 759 171
Applicant

AND:

STATE OF QUEENSLAND
Respondent

JUDGE:

COLLIER J

DATE:

30 OCTOBER 2007

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings concern a claim by RP Data Limited ACN 087 759 171 (“the applicant”), which for a number of years has received data from the respondent pursuant to a licence agreement between the parties, that the respondent has engaged in or proposes to engage in conduct in contravention of s 46 Trade Practices Act 1974 (Cth) (“TPA”) because of the terms on which the respondent proposes to renew its licence agreement with the applicant.
By amended statement of claim filed 12 October 2006 the applicant in this matter has sought:
· a declaration that the respondent had engaged in or proposed to engage in conduct in contravention of s 46 TPA
·     an injunction restraining the respondent from so acting
·     such further or other relief as to the court seemed appropriate
·     costs.
BACKGROUND
The parties
The applicant has been in the business of collating, packaging and on-selling real property data throughout Australia and New Zealand since 1992 when it was first supplied bulk data by the respondent. During this time the applicant has sourced bulk data (specifically, Valuation and Sales data known also as “QVAS data” and also referred to as “Collected Data” by the parties throughout this case) referable to real property in Queensland from the respondent, through the Department of Natural Resources and Mines (“the Department”).
Mr Raymond Catelan, director of the applicant, described the function of the applicant under that agreement as that of a non-exclusive data broker for the Department, whereby the applicant reformats data supplied by the Department into a commercially user-friendly format and markets the data to its customers through either online computer access or an in-house package (affidavit of Raymond David Catelan sworn 28 March 2006 paras 2-3). It is clear from Mr Catelan’s evidence that real estate agents are a major customer of the applicant, although he also deposed that government instrumentalities including the Australian Tax Office are customers (Catelan affidavit paras 4-5).
The applicant is one of eight business organisations holding a licence from the respondent in relation to QVAS data (affidavit of Geoffrey Arthur Oakley sworn 16 January 2006). Nonetheless, I understand that the applicant is a dominant force in respect of distributing the data with something in the order of 70% of the market share in terms of the end users (submission of Mr Jackson QC TS p 7 ll 4-5).
Role of the Department
The Department collects and maintains Queensland real property valuation information pursuant to the Valuation of Land Act 1944 (Qld) (“VL Act”), and Queensland real property title information pursuant to the Land Titles Act 1994 (Qld) (“LT Act”). The VL Act in particular details the role of the Department, and its duties and obligations in relation to collection and maintenance of real property data.
The VL Act requires the chief executive of the Department to make annually a valuation of the unimproved value of all land in local government area (s 37 VL Act). The VL Act also mandates the preparation of a valuation roll for each local government area in the State with the following details required in respect of each valuation:
(a)    the owner’s name and postal address
(b)   situation, description, and measurement or area of the land
(c)    unimproved value
(d) such additional particulars as may be prescribed (s 47 VL Act).
Further, the legislation contains provisions with respect to supply of data collected by the Department, and distinguishes between:
· requirements under the VL Act to supply the data, and powers of the chief executive to supply the data
· provision of bulk data such as found on the valuation roll or on a part of the valuation roll, and particulars of specific valuations.
In particular:
·     the chief executive of the Department is required to give a copy of the valuation roll to the Commissioner of Land Tax, the local government for the area and any authority or person administering any Act and requiring the roll for a purpose of or connected with the administration of that Act (s 73 VL Act)
·     the chief executive of the Department is required to supply a certified copy of the particulars of a valuation entered on a valuation roll to a person who prescribes the fee (s 76(1) VL Act)
·     the chief executive of the Department is entitled to supply to any person particulars or information contained in any s 81 notice upon payment of the prescribed fee (s 76(5) VL Act)
·     the chief executive of the Department is entitled to enter into a contract to supply information in the form of bulk data, defined as valuation roll information for at least 20% of all parcels of land in the State or at least 20% of all s 81 information for parcels of land in the state (s 81(5) VL Act), and microfiche data, which means information capable of delivery in microfiche form in notices given under s 81 in relation to parcels of land (s 77 VL Act).
Mr Geoffrey Oakley, the Principal Marketing Officer of Product Services in the Department, deposed, inter alia, that the Department made available QVAS data, which was comprised of two distinct yet related data sets (the Valuations data set and the Sales data set) (Oakley affidavit para 3). Mr Oakley further deposed that the Department makes QVAS data available in three different ways:
(a)    searches from Department public counters or through online licensees as a basic formatted print of register information
(b)   raw data provided in bulk to business licensees for the creation of their own value added product or to government departments for statutory functions and other purposes
(c)    a value added product with graphics and colours from Department counters or licensees of the SmartMap system (Oakley affidavit para 4).
Bulk data under the VL Act
In this case the data has been supplied by the Department to the applicant in accordance with s 77 VL Act, pursuant to written contracts between the applicant and the respondent described as “licences”. The most recent such contract is dated 1 July 2003.
Section 77 VL Act provides as follows:
(1) The chief executive may enter into a contract to supply information in the form of bulk data or microfiche data.
(2) If the chief executive supplies information under subsection (1)--
(a) section 76(1) and (5) does not apply to the supply of the information; and
(b) the fees and charges applying for the supply of the information are the fees and charges agreed to in the contract; and
(c) without limiting paragraph (b), the contract may also state--
(i) how the fees and charges are to be calculated; and
(ii) how payment of the fees and charges is to be made.
(3) Without limiting subsection (1), a contract for the supply of information in the form of bulk data or microfiche data may limit the use to which the information supplied may be put.
(3A) A contract for the supply of information must include--
(a) a provision allowing the chief executive to exclude, from information supplied under the contract, particulars of valuation roll information or section 81 information for a parcel of land if the chief executive is satisfied, on reasonable grounds, that inclusion of the particulars may result in the particulars being inappropriately disclosed or used; and
(b) a provision allowing the chief executive to prohibit disclosure, or limit distribution or use, of particulars mentioned in paragraph (a) that have already been supplied by the chief executive.
(4) Nothing in this section limits section 76(3) or (4).
(5) In this section--
bulk data means--
(a) valuation roll information for at least 20% of all parcels of land in the State; or
(b) at least 20% of all section 81 information for parcels of land in the State.
microfiche data means information in notices given under section 81 in relation to parcels of land, whether or not including the most recent notices given under section 81 in relation to the parcels, held in microfiche form by the chief executive, and capable of being copied for delivery in microfiche form to a purchaser.
section 81 information, for a parcel of land, means the information in the most recent notice given under section 81 in relation to the parcel, held in electronic form by the chief executive, and capable of electronic transfer to a purchaser.
valuation roll information, for a parcel of land, means the particulars included in a valuation roll about the parcel, held in electronic form by the chief executive, and capable of electronic transfer to a purchaser.
The respondent submitted, and I accept, that s 77 VL Act has five relevant features, namely:
1.   It gives the chief executive a discretionary power to supply information in the form of bulk data.
2.   It does not limit the persons or bodies to whom such information may be supplied.
3.   The fees and charges for the supply are not those prescribed for access to single parcels but are those agreed in the contract.
4. Unlike with respect to information obtained for a single parcel under s 76(1) or s 76(5), the contract may limit the use to which the information supplied may be put: s 77(3).
5. Section 77(3A) mandates two contractual provisions which allow the chief executive to exclude from the information supplied particulars of information, and to prohibit disclosure or limit distribution or use of such particulars if already supplied.
The 2003 licence agreement between the applicant and the respondent
Mr Catelan deposes that, prior to 1992, the real estate industry in Queensland did not have facilities whereby agents could obtain sales and ownership data to assist in the conduct of their businesses, other than over the counter searches at the Department’s offices (Catelan affidavit para 14). It is clear that s 77 VL Act was inserted into the legislation to facilitate the proposed sale of bulk data by the Department to entities such as the applicant (Second Reading speech, Valuation of Land Amendment Bill, The Hon AG Eaton Minister for Land Management, Legislative Assembly, 10 March 1992, p 4019).
The most recent licence agreement between the applicant and the respondent is entitled “Queensland Valuations & Sales Data Licence Agreement for Value Adding between the State of Queensland and RP Data Limited, QVAS VA Licence No: 2003/007”. According to its terms it commenced 1 July 2003. The expiry date of the agreement was 30 June 2005.
Critically, the agreement provides:
“The Licensor grants a non-exclusive, non-transferable licence to the Licensee, to use the Licensed Data for the purposes specified in this Agreement subject to the terms and conditions set out in this Agreement.” (cl 1.1)
“Licensed Data” is defined by the agreement as Queensland Valuations & Sales Data (QVAS) (Sch A item 4), and QVAS in turn is defined by the agreement to mean:
“the Queensland Valuations and Sales Data statutory public access database comprising various digital databases containing property information on each rateable property in the State, and historical property sales records relating to transactions within the State.” (Sch A item 5.1(c))
The 2003 agreement contemplated that licensed data would be used by the licensee to create a new “Licensed Data Product”, defined in cl 2.1(k) as meaning any value added product derived from or based on the Licensed Data or any Licensed Data Products.
Revenue from licence agreement
I understand that, in return for Collected Data supplied by the respondent, the applicant currently pays a flat fee of $158,749 per annum. Mr Oakley further deposed that, under the proposed licence with a royalty cap, the applicant could pay either:
(i)a flat fee of $158,749 per annum, or
(ii)a licence fee of $3,078 per annum plus data access fees of $9,234 per annum plus $12,312 and a royalty fee of 20% of invoices with a cap on the total royalty fees payable of $134,125 (minimum cost $24,624 per annum and maximum cost $158,749 per annum) (Oakley affidavit para 27).
I understand that, under the current arrangement, all licensees pay the same flat fee as the applicant.
Direct marketing
At the hearing, Mr Catelan gave evidence that in 1992 when negotiations first commenced between the applicant and the respondent in relation to the provision of bulk data by the respondent, officers of the respondent were prepared to contemplate direct marketing activities associated with the data in the form of using the names on the valuations register for mailing out and for normal real estate related purposes (TS p 46 ll 44-47). Whether or not that was the policy of the Department in 1992 – although Mr Colin Witt, Principal Marketing Officer of Product Services of the Department, one of the respondent’s witnesses, believed that it was the case (TS p 222 ll 46-48 and p 223 ll 1-3) – it was clear that views in the Department as to the use of Departmental data in direct marketing had changed considerably by 2002. Mr Wayne Fry, Director Product Services of the Department deposed that in or about October 2002 the Department announced that it would be withdrawing names and addresses from the bulk data sets to be supplied from 1 July 2003, however after receiving submissions from licensees (including the applicant) the Department determined that, rather than pursuing this course, the Department would include strict direct marketing clauses in licence agreements (affidavit of Wayne Bradley Fry sworn 24 January 2006 paras 6-8).

Similarly it is clear that the insertion of s 77(3A) into the VL Act by s 27 Land Legislation Amendment Act 2003 (Qld) resulted from the concerns of Parliament as to direct marketing activities using Departmental data. Introducing the legislation the Minister for Natural Resources and Minister for Mines, the Hon S Robertson said:
“A tremendously important amendment to this Act will allow my Department to prohibit or limit the distribution of bulk valuation and sales data, which is already supplied to bulk data distributors.
As custodian of land titling, my Department of Natural Resources & Mines maintains a Valuations and Sales database containing the names and addresses of more than one million Queensland property owners.
Valuations and sales data is publicly available information under the Act, and any member of the community can access this information for a prescribed fee.
My Department also provides this information under contract to seven licensed private sector bulk data Distributors who value-add and market property information to industries such as real estate, conveyancing, surveying and mapping, and the general community.
The current contracts allow the supply of valuation roll data including the names and postal addresses of land owners to the wholesalers for on-selling to persons for real estate related usage. This is a legitimate use.
However, what upsets many people is they are receiving personally-addressed letters that turn out to be thinly-disguised direct-marketing junk mail touting for real estate services.
The government believes people have a right to some privacy. We are taking action to stop this practice.
The current contracts with wholesale data brokers expire soon and new contracts will apply from 1 July 2003 for the supply of bulk valuation and sales data.
By giving the Chief Executive of my department the power to prohibit the disclosure, or limit the distribution of, bulk valuation and sales data already supplied to bulk data distributors, it means that these distributors will no longer be permitted to allow the distribution of an owner’s name and address for any direct marketing purposes.
This will be achieved by inserting clauses in the new contract agreements with distributors. Any breach of these conditions will result in loss of the agreement.” (Second Reading Land Legislation Amendment Bill, Hon S Robertson Minister for Natural Resources and Minister for Mines, 23 March 2003, p 727)
The respondent submits, and I accept, that the 2003 licence agreement prohibits the use of Collected Data for direct marketing purposes pursuant to s 77(3A). This is made clear by, for example:
·     clause 4.4.2 which states that the licensee acknowledges and agrees to be bound by the restrictions in Sch A to the agreement, and Sch A item 6.1 which provides that the licensee must not allow the use of licensed data or licensed data products consisting of details identifying individuals (that is, names and addresses) to be used by any person for direct marketing
·     clause 4.5.2 which states that the licensee must not distribute licensed data to any licensee’s consultant or third party for direct marketing
·     clauses 4.10.2 and 4.11 and Sch B, which provide, inter alia, that the licensee must not distribute licensed data products to an end user unless the end user has entered into an agreement with the licensee whereby the end user agrees not to use the licensed data or licensed data products for direct marketing.
I also note cl 9.11 of the 2003 licence agreement, which provides:
“The Licensor reserves the right to exclude future supply of certain particulars forming part of the Licensed Data if the Chief Executive of the Licensor is satisfied on reasonable grounds, that inclusion of the data may result in inappropriate use or disclosure. Furthermore the Licensor may prohibit or limit distribution of certain particulars forming part of the Licensed Data.”
It is not contended by the applicant that the prohibitions on the use of names and addresses contained in the 2003 licence contravenes s 46 TPA.
Direct marketing activities after 1 July 2003
Notwithstanding the intention to prevent direct marketing using licensed data, as reflected in the Minister’s second reading speech and required by the licence agreement between the applicant and the respondent, it appears that a number of Departmental officers – and the Minister responsible for the Department – were concerned that direct marketing activities using the respondent’s data were continuing beyond 1 July 2003. This concern is clear from, inter alia:
·     Evidence of Mr Graeme Rush, General Manager Land Management and Use in the Department, that:
o     the Department continued to receive a volume of complaints from real estate agents complaining about the actions of their competitors in using Departmental data for direct marketing, thus disadvantaging real estate agents who “did the right thing” (affidavit of Graeme James Rush sworn 16 January 2006 para 18)
o     the Department received a volume of complaints from managing agents of unit complexes (Rush affidavit para 18)
o     the Department has received 219 written complaints and numerous telephone complaints between 2003 and 2006 (Rush affidavit para 19)
·     A Briefing Note for Information to the Minister for Natural Resources and Mines approved 23 December 2003 by Mr Rush, informing the Minister that despite dialogue between the Department and key stakeholders there was still widespread ignorance of what could and could not be done with Departmental electronic data and that some real estate agents who were compliant were identifying non-compliant firms and lodging complaints with the Department. Interestingly however in that briefing note it was noted that a number of local governments were also in the business of selling real property data, including the Gold Coast where “direct marketing from real estate agencies (was) prolific”, and it was very difficult to establish whether base data originated from local government or Departmental records (exhibit 139, annexure GJR-07 to Mr Rush’s affidavit).
·     An answer to a question on notice in the Legislative Assembly from the Minister on 18 March 2004, where the Minister said in relation to the continuation of unauthorised direct marketing:
“My Department is reviewing the present arrangements. If some members of the real estate industry continue to flaunt their contractual arrangements with their data distributors, my Department will be forced to restructure the current distribution arrangements. The complete removal of ownership and addressing information is an option under consideration.” (exhibit 145)
·     A Briefing Note for Approval to the Minister approved by Mr Rush 5 June 2004 advising the Minister of a proposal of the Real Estate Institute of Queensland (“REIQ”) to allow it to manage direct marketing, using its own database, and noting that while “many agents started out with good intentions to abide by the new rules there is evidence this is no longer the case” (annexure GJR-12 to Mr Rush’s affidavit). The recommendation was that the Minister not approve the REIQ’s proposal, and I understand this recommendation was approved by the Minister on 5 June 2004.
·     A Briefing Note for Approval to the Director-General of the Department approved by P Woodward in the Department dated 13 July 2004 informing the Director-General of on-going concerns by members of the public relating to the use of departmental data for direct marketing purposes by certain real estate agents, and requesting approval for a standard form letter to be sent to complainants (annexure GJR-11 to Mr Rush’s affidavit).
·     A Briefing Note for Approval to the Minister approved by Mr Rush on 1 December 2004 seeking the Minister’s approval to remove ownership and service address information from bulk data supplied to bulk data licensees from 1 July 2005 (annexure GJR-13 to Mr Rush’s affidavit). I understand this recommendation was approved by the Minister on 2 December 2004.
Introduction of Information Access and Pricing Policy
Apparently unrelated to the concerns of the respondent with respect to direct marketing activities involving data sourced from the respondent, the Department’s Information Access and Pricing Policy was implemented 1 March 2004 with the stated purpose of providing:
“an information access and pricing framework which contributes to all sectors of the community having easy, informed, cost effective and equitable access to the department’s information to support the sustainable use of natural resources, social well-being and economic development of Queensland.”
A copy of the policy, entitled “Information Access and Pricing” (IMP/2003/1389 - Version 2) Endorsed 18/12/2003 by Director-General, Department of Natural Resources and Mines, was annexed to Mr Fry’s affidavit (WBF-9).
In its terms, the policy states that it applies to all information items collected, stored and distributed by the department, and assists the department to meet its requirements related to Information Standard 33, a whole-of-government information standard on information access and pricing.
The policy recognises that the Department “is required by statute and the needs of government to acquire a wide range of information” and that “the costs to the department to acquire, maintain and manage this information are substantial”. While the costs would be in the main met by funding from Government, the policy recognises that:
“To a limited extent, some of the costs to Government can be offset by revenue earned from the distribution of information and information products and services based on the Department’s information.”
According to the policy, pricing decisions for departmental information would be guided by the following criteria:
·     the cost of delivery of the information
·     the statutory fee prescribed in an Act and/or Regulation
·     the extent to which use of the information creates a private benefit compared with a public benefit
·     charges should be economically efficient and equitable, eg whether it is cost effective to administer the collection of a fee for the particular information, information product or service
·     the impact that pricing and charging for supply may have on the use of particular information
·     the availability of non-price consideration such as reciprocal information sharing and
·     compliance with legislative requirements, including the National Competition Policy implementation in Queensland and Trade Practices Act 1974.
Under the policy there would be four pricing categories to appropriately set the price for access to the department’s information which was not subject to statutory fees:
·     free – which applies to free information and publications
·     partial cost of provision – that is, cost of replicating the CD-ROM or DVD and associated staff costs, material consumed and accounting costs (applies to Packaged Basic Digital Information)
·     up to Full Cost of Provision – which applies to Enhanced/Rich Digital Information
·     up to Full Cost/Market Rate – which applies to Information Products and Services.
The policy also contemplates that a royalty fee and/or upfront fee approved by an authorised Delegated Officer of the Department would be sought for applications involving “distribution” of information and “development” of information.
The policy contemplates distribution of information by “Distributor Agreements” which permit a person or organisation to distribute departmental information without change to customers and would be implemented on an organisational basis. Similarly, the policy contemplates development of departmental information by “Developer Agreements” which permit value-adding of the information and provision of value-added information and/or services to customers, and would be implemented on an organisational basis.
In the case of both Distributor Agreements and Developer Agreements the policy provides that a royalty fee and/or upfront fee approved by an authorised Delegated Officer of the Department will be sought. In the case of Developer Agreements, the policy provides that, unless approved by the Delegated Officer, the royalty would be 20% of the invoice price charged by the Developer to its customers, where the invoice price includes both information/data and any service offered.
Proposals for the arrangement post-2005
An Information Paper entitled “Access to valuation and sales information beyond June 2005” was drafted for the licensees (including the applicant) by Mr Fry and is annexed to Mr Fry’s affidavit (WBF-08). Implications for licensees, including the applicant, of the proposal were summarised in the Information Paper as follows:
·     It was proposed to introduce one new packaged data product, and two new comprehensive data products (a valuations data offering and a sales data offering). The two comprehensive data products would collectively replace the bulk data arrangements in place at that time.
·     In relation to the packaged digital data product, key features were:
othe product allowed analysis of changes that have occurred in the previous year, on a locality or local government basis
oindividual land parcels are not identifiable
oit would be produced on an annual basis
oit would only contain selected fields of information
oidentifiers would be locality (suburb or town) and local government
ovaluations data would be unimproved value, area and valuation land use code
osales data would be month and year of sale, and sale price
othe product would be of use for the purpose of analysis in educational situations, and for companies interested in annual property statistics but not wanting to invest in high cost data.
·     In relation to the two comprehensive data products:
othe valuations data would contain lot on plan, property address, local government, valuation land use code, unimproved valuation and area
oproperty sales sourced from current sales records would contain lot on plan, property address, date of sale, sale price, related sales key, and components of the historical sales records (excluding purchaser/vendor names and addresses) dating back to the early nineteen nineties
othe products could be purchased separately or jointly.
·     Licensees (including the applicant) would require a developer licence to continue to receive Collected Data.
·     The paper stated that the new model would result in lower upfront fees, however a royalty structure would be introduced, being 20% of the invoice price licensees charge their customers. This fee structure was consistent with the way all bulk data was now being licensed. As part of introducing a royalty component, the department would undertake annual audits.
·     There were some omissions from what had previously been available as Collected Data:
ozoning codes were removed as the department was not custodian of this data and the accuracy of data had been impacted by the development of new records in local government to meet the needs of the Integrated Planning Act (IPA)
othe purchaser/vendor names and addresses had been removed from bulk data to assist with privacy issues and ongoing direct marketing concerns.
Mr Fry deposed in his affidavit that, following receipt of feedback from licensees in relation to the proposal, the Department determined to proceed as follows:
· The vendor and purchase details and zoning information would be removed.
· The financial impost would not be increased by the introduction of the royalty arrangement and the record keeping requirements would be mitigated under certain circumstances. That is, licensees would be given a choice as to whether they wished to nominate to pay the maximum royalty (and therefore not be required to produce on a quarterly basis all the royalty return records as required under the proposed new licence) or they could choose to pay the royalties as they went. This would require them to produce the quarterly documentation in respect to invoicing (Fry affidavit para 22).
Following consultation with licensees (including the applicant) an Information Paper, also entitled “Access to valuation and sales information beyond June 2005” (WBF-10), was released on 4 April 2005, which is after this action was commenced. A key modification reflected in the revised proposal was that the pricing was clarified. Specifically:
·     “Comprehensive data products” were rebadged “Bulk digital data” in the 2005 Information Paper, however the concept of two separate products, namely valuations data product and property sales product remained the same. The pricing for the bulk digital data was stated, including that the department would cap the level of fees payable to no more than the current licence fee (increasing by CPI each year) during the term of the licence.
·     The concept of a packaged data product remained unchanged from the earlier information paper. The current access fee for the data, being a CD based product, was identified as $99.
·     A range of searches would be available through both the service centres of the Department and online distributors of the Department. Searches identified by the paper, which were stated to have been available to online distributors for a number of years were valuation searches, sales searches and abbreviated sales searches. Specific prices were identified as:
oValuation searches
PLEADINGS
The Amended Statement of Claim
On the first morning of the hearing Mr Jackson QC for the applicant sought leave to file an amended statement of claim. This application was not opposed by the respondent.
The claim of the applicant can be summarised as follows:
1.   The respondent had dealt with the applicant in a business relationship over a number of years in the respondent’s capacity as the Department.
2.   In performing its function of collecting and maintaining information relating to the address, real property description, sales, valuation and ownership (including historical information as to the names and addresses of vendors and purchasers) of real property interests in Queensland (the “Collected Data”), the respondent also on-sells that Collected Data to third parties, including end users of the data (such as, for example, members of the public), and distributors of information such as the applicant pursuant to licences granted by the respondent.
3.   The applicant is in the business of, inter alia, electronically supplying data throughout Queensland using the Collected Data provided to it by the respondent and together with other data sourced by it from other sources (“the Bundled Data”).
4.   At all material times there existed a market (“the Market”) in Queensland for supply, by sale and purchase, of the Collected Data. Characteristics of this market are that:
a.     the supply of the Collected Data took place by one of the following methods:
·supply directly by the respondent to persons making application to it - for example, members of the public
·supply by the respondent to licensees, such as the applicant
·supply by licensees to persons making application to them - again, for example, members of the public
b.    customers for the Collected Data are real estate agents, valuers, banks, developers, solicitors and others who apply to either the respondent or the licensees of the respondent for the data.
5.Alternatively at all material times there existed markets in Queensland for supply by sale and purchase of the Collected Data to distributors such as the applicant (“the Wholesale Market”) and supply directly to end users (“the Retail Market”).
6.At all material times there existed various geographical markets in Queensland for the supply of services by real estate agents to property owners and prospective buyers, in connection with sales and lettings of real property (“the Real Estate Agents’ Services Markets”).
7.The applicant and the respondent compete in the market for the supply to end users of the Collected Data or parts of it.
8.The respondent has a substantial degree of power in the Market, or the Wholesale Market and the Retail Market.
9.The respondent has taken or threatened to take advantage of its market power as follows:
a.     it has announced that it will not review the current licence held by the applicant on the same terms, and has not done so
b.    it proposes on and from 1 July 2005 that a licensee described by the respondent as a developer or a distributor will be required to pay it:
oan annual licence fee of $3,000
oa data access fee for the valuations data and for the property sales data
oa royalty fee of 20% of the invoice price the licensee charges its customer
c.     it proposes on and from 1 July 2005 that a licensee described by the respondent as a “user” will receive data released annually for $99 per CD, and further proposes at some later time when the respondent’s computing infrastructure is suitable to do so to make the same data available for download from the internet free of charge
d.    it proposes on and from 1 July 2005 not to provide data-sets to the licensees which contain the name of the owner of any property or the names and addresses of the vendors and purchasers of any property (“the Excluded Data”)
e.     it proposes on and from 1 July 2005 to provide the ability to allow searches of the names and addresses of owners of any property of the names and addresses of the vendors and purchasers of any property online for a fee payable to the respondent of $5.70 per search
f.     the proposals advantage the respondent because:
othe respondent will receive annual licence fees, data access fees and royalty fees
othe respondent will be entitled to a royalty expressed as a percentage of the invoice issued by the licensee to its customer, without regard to whether the invoice relates to the provision only of data sourced from the respondent or also relates to the provision of other services by the licensee
othe inability of the licensee to access the Excluded Data will mean that all persons seeking that information will be obliged to access it online with the respondent and pay the respondent the fee nominated
oin order to continue to provide a commercially saleable service, licensees will have to provide the electronic links at no cost to enable their customers to make on line searches with the respondent of the Excluded Data
oin refusing to supply Excluded Data other than for the fixed price of $5.70 per search the respondent intends to and will prevent the distributors, including RP Data, from competing in any market for supply of the Excluded Data
g.     the effect on the applicant of the proposal will be as follows:
othe applicant will not be able to access the Collected Data except on the terms outlined in the proposal
othe applicant will not be able to continue to provide the services which it presently provides to its customers, namely the Collected Data and the Bundled Data, by reason of its inability to provide the Excluded Data
ocustomers of the applicant are unlikely to continue to purchase its services relating to Queensland properties, or alternatively are likely to purchase significantly less of its services relating to Queensland properties by reason of the applicant’s inability to provide the Excluded Data
othe applicant will be obliged to pay the respondent a royalty calculated on the sum invoiced by it to its customers for the provision of the Bundled Data and not solely by reference to the charge for the Collected Data
othe combination of payment of the $5.70 fee for access to the Excluded Data and the payment of a 20% royalty fee will render the provision of data by the applicant of the Excluded Data unprofitable or uncompetitive
h. the purpose of the respondent in acting or threatening to effect these proposals is to, in contravention of s 46:
oeliminate or substantially damage the applicant in the Market or the Retail Market
odeter or prevent the applicant from engaging in competitive conduct in the Market or the Retail Market
odeter or prevent real estate agents from direct marketing to owners of real property using the Excluded Data
odeter or prevent real estate agents from engaging in competitive conduct in the Real Estate Agents’ Services Markets.
The Amended Defence

The defence of the respondent may be summarised as follows:
1.The respondent is not bound by s 46 TPA because:
a. it is not a corporation as defined by s 4(1) TPA
b. it is the Crown in right of the State of Queensland within the meaning of and for the purposes of s 2B TPA and pursuant to s 2B the Crown in right of the State of Queensland is only bound by s 46 to the extent that it “carries on a business, either directly or by an authority of the State”
c. it is not carrying on a business within the meaning s 2B.
2.The respondent denies that it carries on the business of supplying the Collected Data for reward, but rather that it supplies such information on the terms prescribed by ss 73, 76 and 77 of the VL Act.
3.The respondent denies the existence of the Market, namely the market in Queensland for supply, by sale and purchase, of the Collected Data. Rather, there exist statutory obligations on the chief executive pursuant to s 76(1) VL Act to supply certain information to a person who pays the prescribed fee, and statutory powers in the chief executive:
4.The respondent does not dispute the existence of the Wholesale Market and the Retail Market. It also admits the allegation that it has a substantial degree of power in the Wholesale Market. However:
5.The respondent claims that the Collected Data is also available from local governments, which have access to information concerning the sale, valuation and ownership of real property interests in Queensland pursuant to ss 1004, 1006 and 1006A Local Government Act 1993 (Qld).
6.The respondent claims that, contrary to the claims of the applicant, the respondent is constrained by the terms of ss 75B, 77(3) and 77(3A) VL Act as to the terms upon which licences may be granted.
7.The respondent denies that it has taken or threatens to take advantage of any market power it may have.
8.The respondent states that pursuant to cl 7 of the licence agreement between the applicant and the respondent, the respondent is not obliged to renew the agreement on the same terms.
9.In relation to specifics of the applicant’s claims concerning fees proposed by the respondent in relation to data access, the respondent:
10.The respondent denies that its proposals are made to advantage it for reasons particularised by the applicant.
11.The respondent claims that the Excluded Data will remain available to the applicant under its licence from the respondent, and that the applicant is not now and will not in the future be unable to provide Excluded Data to its customers.
In my view critically, in the context of s 46 TPA, the respondent claims that its purpose in proposing to exclude the Excluded Data from the bulk data available under future licences is to ensure that such information in bulk data form is not available for direct marketing purposes. This aspect of the defence of the respondent is summarised in its Amended Defence as follows:
· the licences granted by the respondent:
ocontain provisions prohibiting use or distribution of the licensed data for “direct marketing” as defined in the licence or with the intention of encroaching upon the privacy of an individual
orequire the licensee to comply with legislation enacted by Federal or State agencies in relation to privacy including the Privacy Act 1988 (Cth)
orequire the licensee to include in agreements with its consultants, agents and end users provisions to like effect
· the respondent is entitled, under s 77 VL Act, to take steps to ensure that bulk data supplied under a licence agreement is not used for purposes which are extraneous to the purposes for which such data is given to the respondent under the VL Act
· the purposes for which the names and addresses of landowners and vendors and purchasers are required under the VL Act do not include the purpose of providing a database of such information which is able to be used for direct marketing
· the excluded data will remain publicly available, but not in a bulk form which is capable of being used for direct marketing purposes
· the respondent’s purpose in putting forward the proposals is a lawful purpose which it is entitled to give effect to under s 77 VL Act.
SECTION 46 TPA
Section 46 TPA prohibits misuse of market power in defined circumstances. It provides as follows:
(1) A corporation that has a substantial degree of power in a market shall not take advantage of that power for the purpose of:
(a) eliminating or substantially damaging a competitor of the corporation or of a body corporate that is related to the corporation in that or any other market;
(b) preventing the entry of a person into that or any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that or any other market.
(1A) For the purposes of subsection (1):
(a) the reference in paragraph (1)(a) to a competitor includes a reference to competitors generally, or to a particular class or classes of competitors; and
(b) the reference in paragraphs (1)(b) and (c) to a person includes a reference to persons generally, or to a particular class or classes of persons.
(2) If:
(a) a body corporate that is related to a corporation has, or 2 or more bodies corporate each of which is related to the one corporation together have, a substantial degree of power in a market; or
(b) a corporation and a body corporate that is, or a corporation and 2 or more bodies corporate each of which is, related to that corporation, together have a substantial degree of power in a market;
the corporation shall be taken for the purposes of this section to have a substantial degree of power in that market.
(3) In determining for the purposes of this section the degree of power that a body corporate or bodies corporate has or have in a market, the Court shall have regard to the extent to which the conduct of the body corporate or of any of those bodies corporate in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the body corporate or of any of those bodies corporate in that market; or
(b) persons to whom or from whom the body corporate or any of those bodies corporate supplies or acquires goods or services in that market.
(4) In this section:
(a) a reference to power is a reference to market power;
(b) a reference to a market is a reference to a market for goods or services; and
(c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.
(5) Without extending by implication the meaning of subsection (1), a corporation shall not be taken to contravene that subsection by reason only that it acquires plant or equipment.
(6) This section does not prevent a corporation from engaging in conduct that does not constitute a contravention of any of the following sections, namely, sections 45, 45B, 47, 49 and 50, by reason that an authorization or clearance is in force or by reason of the operation of subsection 45(8A) or section 93.
(7) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any other provision of this Act, a corporation may be taken to have taken advantage of its power for a purpose referred to in subsection (1) notwithstanding that, after all the evidence has been considered, the existence of that purpose is ascertainable only by inference from the conduct of the corporation or of any other person or from other relevant circumstances.
There are five elements to s 46, namely:
1. There must be a corporation or the entity must fall within the extended application of s 46 – in particular as contemplated by s 2B.
2. There must be a market as defined by s 4E TPA.
3. The corporation or entity must have a substantial degree of power in a market.
4. The corporation or entity must take advantage of that substantial degree of power in the market.
5. The corporation or market must exercise that power for one of the prescribed purposes in s 46 (1)(a),(b) or (c).
The onus of proof is on the applicant to show that the impugned conduct of the respondent had the proscribed anti-competitive effect: Sodastream Limited v Electronics (Broken Hill) Pty Limited (1985) 60 ALR 427 at 430; John S Hayes and Associates Pty Limited v Kimberly-Clark Australia Pty Limited (1994) ATPR ¶41-318 at 42,237, Stirling Harbour Services Pty Limited v Bunbury Port Authority [2000] FCA 1381 at [13].
RELEVANT ISSUES
In light of the claims of the applicant, matters raised in defence by the respondent, the background facts as pleaded by the parties, and the elements of s 46 TPA, issues which in my view require decision are as follows:
1. Is the respondent bound by s 46 TPA?
2. What is the nature of the “market(s)” as contemplated by s 46 and s 4E? In particular,
·is there a Market for the supply of the Collected Data as pleaded by the applicant, or, is there a Wholesale Market or a Retail Market for the Collected Data and Real Estate Agents’ Services Markets as alternatively pleaded by the applicant and admitted by the respondent?
·what is the nature and scope of the relevant market(s)?
3. Does the respondent have a substantial degree of power in any of those markets as contemplated by s 46?
4. Is the conduct of the respondent in refusing to renew the current licence held by the applicant on the same terms, in particular excluding the Excluded Data, conduct which can be characterised as the respondent taking advantage of a substantial degree of power in a relevant market?
5. If the conduct can be characterised as the respondent taking advantage of a substantial degree of power in a relevant market, was it for a proscribed purpose?
In deciding this matter, I propose to deal with each of these issues in turn.
IS THE RESPONDENT BOUND BY SECTION 46 TPA?
The extent to which the respondent is subject to s 46 TPA is a threshold issue in these proceedings. As was explained by McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 116-117:
· while the conduct proscribed by the TPA, if it is to fall within s 2B, must be engaged in in the course of the entity carrying on a business, the conduct need not itself be the actual business engaged in
· had s 2B not been enacted, the impugned conduct would not be examinable in circumstances where the entity is the Crown in right of a State or Territory
· rather than examining specific conduct and then examining whether that contravention can be described as carrying on a business (as was unsuccessfully argued in NT Power 219 CLR 90), the correct approach is to first ascertain whether the entity “carries on a business”. As the majority explained in NT Power 219 CLR 90, it is necessary to do this because:
“this removes the governmental obstacle to curial examination of its conduct in order to see whether section 46 has been contravened.” (at 117)
As was also observed by the majority in NT Power 219 CLR 90, it is also important not to substitute the question of defining markets for the question of whether a business is being carried on (at 117). Their Honours pointed out:
“However, the words ‘market’ and ‘business’ have distinct meanings. Nothing in the Act limits the meaning of ‘business’ by reference to the criteria for market definition. Businesses often operate across the boundaries of separate markets... All these considerations militate against any approach to the question of ‘carrying on a business’ by reference to competition in a market... The only question is: what business was [the entity] carrying on? So far as it was carrying on a business, s 46 applied to it.” (219 CLR at 118)
Extended application of section 46
Prima facie, s 46 applies only to corporations, defined by s 4 TPA to mean bodies corporate that are:
(a)    foreign corporations
(b)   trading corporations formed within the limits of Australia or are financial corporations so formed
(c)    incorporated in a Territory or
(d)   are holding companies of bodies corporate of a kind referred to in paras (a), (b) or (c).
Clearly the respondent is not a corporation. However Pt 1 TPA makes provision for the extended application of certain parts of the Act. Of particular relevance in these proceedings is s 2B TPA. This section provides:
(1)   The following provisions of this Act bind the Crown in right of each of the States, of the Northern Territory and of the Australian Capital Territory, so far as the Crown carries on a business, either directly or by an authority of the State or Territory:
(a)       Part IV
(aa)     Part VB
(b)       Part XIB
(c)the other provisions of this Act so far as they relate to the above provisions.
(2)   Nothing in this Act renders the Crown in right of a State or Territory liable to a pecuniary penalty or to be prosecuted for an offence.
(3)   The protection in subsection (2) does not apply to an authority of a State or Territory.
Section 46 is found in Pt IV TPA. However the extended application only operates if the Crown in right of the relevant State or Territory is carrying on a business, either directly or by an authority of the State of Territory. As is clear from such cases as NT Power 219 CLR (particularly at 116) and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 237 ALR 512 (particularly at 526-527), this condition is strictly applied.
Submissions of the applicant
In the amended statement of claim, the applicant claimed that the respondent had at all material times carried on, and continues to carry on, the business of supplying Collected Data for reward to entities including the applicant pursuant to licences granted by the respondent for on supply to end users of the Collected Data, and to end users of that data. On behalf of the applicant, Mr Jackson QC submitted in summary:
· although it is not in dispute that the respondent has a statutory obligation to maintain a valuation roll which contains some of the QVAS data, s 77 VL Act empowers the chief executive of the Department to enter a contract to supply information in the form of bulk data or microfiche data, with applicable fees and charges being those agreed to in the contract (s 77(2)(b))
· section 77 is independent of the chief executive’s power and obligation to compile, update and provide relevant copies of the roll or to supply parts of it to relevant government authorities or to provide the facility of a public search under s 76
· the power of the chief executive to supply the QVAS data pursuant to s 77(1) VL Act is an additional commercial power, not conferred for any particular “public” purpose or function
·     the supply of information for a profit, pursuant to a contract, under the supervision of Departmental officers with titles including “marketing officer, general manager and director of product marketing” are consistent with the conduct of a business
·     Mr Oakley deposed that eight business organisations (including the applicant) held a licence for QVAS bulk data pursuant to contracts with the Department
· the respondent’s accounts show that in the years since the year ending 2003 the respondent has earned between $1 million and $1.2 million in respect of sums payable as licence fees under its contracts with licensees for QVAS data and statutory search fees under s 76, and since the year ending 2003 the respondent has received an annual sum varying between $276,000 and $538,000 in respect of another product which it supplies using the QVAS data, described as “SmartMap”
·     the respondent is engaged in the commercial venture of supplying the QVAS data by contracts for a substantial return and is therefore carrying on a business.
Submissions of the respondent
In response, Mr Hinson SC for the respondent submitted in summary as follows:
· In light of principles relevant to determination of whether an entity is “carrying on a business”, it is apparent that the Department was not carrying on a business when supplying the data it collects under the VL Act and in removing the Excluded Data.
· In relation to the Retail Market, the Department only provides its data by way of individual searches as it is required to do by s 76(1) VL Act, and the fee it charges is set by the Valuation of Land Regulation 2003 (Qld). There is nothing in the nature of a business in the provision of such a service – rather it is the discharge of a statutory obligation at a prescribed and regulated fee.
· In relation to the Wholesale Market, the provision of Collected Data is the consequence of the exercise of a statutory power in s 77(1)VL Act, which is limited by s 77(1) and (3A) to being exercised by way of contract and with specific contractual terms. Further the removal of the names and addresses from the Collected Data was undertaken pursuant to a specific statutory power in s 77(3). This suggests that the Department is simply fulfilling its statutory obligations in providing the Collected Data.
· In substance however, it was not a major part of the respondent’s case that the respondent was not carrying on a business for the purposes of s 2B, and the respondent has proceeded on the basis that the provision would otherwise apply (TS p 385 ll 39-43).
Meaning of “carries on a business”
Although the phrase “carries on a business” appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows:
1. “Business” in the context of s 2B is normally a “wide and general” word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since “business” includes “a business not carried on for profit”: NT Power 219 CLR at 116.
2. The phrase “carries on a business” should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that “with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia.” (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794).
3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, “carrying on a business” is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth (2000) 104 FCR 448 at 451.
4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as “carrying on a business”: Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90]. So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not “carrying on a business” (Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre (Corrections Corporation of Australia 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne’s Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT & YE Falls Investments Pty Ltd (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes “carrying on a business”. Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services.
5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53].

In my view, it is clear that the respondent is carrying on a business with respect to the supply of bulk data to licensees including the applicant. My reasons for this finding are as follows:
· As indicated by s 77(1) VL Act the decision to provide Collected Data by the respondent to the applicant and other licensees is at the discretion of the respondent, and does not constitute fulfilment of a statutory obligation.
· While s 77(3A) VL Act imposes limitations on the contents of any contract entered into by the chief executive and a licensee, the limitations are minimal and do not derogate from the power of the chief executive to enter into a relevant contract, such as the licence agreements relevant in this case.
· The purpose of the legislature in enacting s 77 was to facilitate the Department entering into business relationships in relation to the sale of Collected Data. As the Minister said in the Second Reading Speech introducing the Valuation of Land Amendment Bill 1992,
“The Bill seeks to allow the Department of Lands to sell valuation-related information which is currently available under the existing legislation, but on a more commercial basis. The information technology now available provides a range of commercial opportunities provides a range of commercial opportunities that could not have been foreseen when the current legislation was drafted.” (emphasis added) (Second Reading speech, Valuation of Land Amendment Bill, The Hon AG Eaton Minister for Land Management, Legislative Assembly, 10 March 1992, p 4019)
·     The supply of Collected Data was not an ad hoc act by the respondent. The contractual relationship between the respondent and the applicant has existed since 1992 (licence agreement dated 11 May 1992, annexure RDC-1 to Mr Catelan’s affidavit), and since then the parties have entered subsequent agreements.
·     The applicant is but one of eight licensees to whom the respondent has supplied the bulk data for reward since 1992.
·     I agree with Mr Jackson’s submission that the supply of the Collected Data by the respondent under the supervision of Departmental officers with titles including “marketing officer, general manager and director of product marketing” is consistent with the conduct of a business.
Accordingly, while it is clear that the Collected Data is collected by the respondent pursuant to statutory obligations in the VL Act, and accordingly it could not be said that the respondent in collecting the data was carrying on a business, nonetheless it is equally clear that the sale of the Collected Data to licensees such as the applicant constitutes the carrying on of a business by the respondent.
Similarly, I note that the respondent supplies the value-added product “SmartMap”, which is available over the counter and which, inter alia, provides information as to sales in an area on a yearly basis. Little evidence was produced to me as to the activities of the respondent in relation to its supply of SmartMap, however it appears that SmartMap is supplied on a commercial basis. From the limited information before me, it appears that the respondent is “carrying on a business” in relation to its supply of SmartMap.
However, the position appears quite different with respect to the supply by the respondent - to end users - of data in response to individual over the counter searches. In particular, I note:
· There is a clear legislative delineation between the commercial contracts concerning bulk data sanctioned by s 77, and the compulsory provision of information required s 76.
· The supply by the respondent of s 76 data does not form any part of its business relationship with the licensees, who receive bulk data from the respondent.
· Obligations of the respondent in relation to valuation of land throughout Queensland, the collection of data, the maintenance of valuation records and the supply of the data are mandated by the VL Act. As Mr Hinson SC for the respondent submitted, the Department is required by s 76(1) VL Act to supply a certified copy of the particulars of a valuation entered on a valuation roll, to a person who pays the prescribed fee. I note the prescribed fee is found in the Valuation of Land Regulation 2003 (Qld). Indeed, I note that the long title of the VL Act is “An Act to make better provision for determining the valuation of land for rating and taxing purposes, and for matters incidental thereto or consequent thereon”. I accept the evidence of Mr Rush that the QVAS data is the point of truth source for sales data, that is, how much a property was sold for at a particular date (Rush affidavit para 10). In my view, the supply of data by the respondent in respect of individual searches is an act of government and carrying out of the functions of government in the performance of its statutory duty, similar to the provision of a certificate by the municipal council in Mid Density Development Pty Ltd 39 FCR 579.
· In light of the foregoing, the fact that the Department would undoubtedly enter into many transactions of this nature does not mean that the Department is “carrying on a business” of supplying data in response to individual searches.
· Although the respondent has submitted that local governments and the applicant can supply data in response to individual searches, in my view this does not derogate from the fact that the activities of the respondent in this regard constitute a function of government in the performance of its statutory duty rather than “carrying on a business”. Indeed in this respect I note that:
othe provision of valuation information by local government is required by s 995 Local Government Act 1993 (Qld) to be given to parties contemplated by that section, and is itself information which the chief executive is required to give local governments pursuant to s 73(1)(f) VL Act
ounlike the statutory obligation of the respondent, individual search data provided by the applicant is only to its customers, in a “commercially user friendly format” (Catelan affidavit para 3).
It follows that, in my view, the supply of data by the respondent in response to individual searches is not, as was the case in Paramedical Services [1999] FCA 548 or JS McMillan 77 FCR 337, an activity for reward which could be performed by any citizen or private trader, and thus potentially “carrying on a business” by the respondent.
Conclusion
Although “business” in this context is wide and general word, and, as I have already noted, “carrying on a business” is to be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, the supply of data by the respondent in response to individual over the counter searches is not part of a broader “business” of supply of valuation data by the respondent. It would not represent the true position with respect to the conduct of the respondent to find that, because it had engaged in some commercial activities with the applicant and other licensees, its entire operation with respect to supply of valuation data to members of the public, local government authorities and others had become a “business” which it was conducting.
The result of this finding is that s 46 TPA applies only to conduct of the respondent in the course of its carrying on of a business of supply of bulk data. The section does not apply to conduct of the respondent carrying out its statutory function of supplying data in response to individual searches.
Notwithstanding this finding, I note that the respondent’s case was predicated on the basis that s 46 potentially applied to all conduct of the respondent relevant to these proceedings (submission of Mr Hinson SC TS p 385 ll 30-43). Accordingly, in the interests of completeness, and in case I am in error with respect to my conclusions concerning the application of s 46 to the conduct of the respondent, I shall consider the claims of the applicant and the submissions of the parties concerning conduct of the respondent relevant to individual searches of data.
IS THERE A “MARKET” AS CONTEMPLATED BY SECTION 46 AND SECTION 4E TPA?
Section 4E TPA defines “market” for the purposes of the Act as follows:
For the purposes of this Act, unless the contrary intention appears, market means a market in Australia and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.
The necessity for competition to exist before a “market” is constituted was emphasised in Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374. As Gleeson CJ and Callinan J observed:
“A market is an area of close competition; a field of rivalry. As the passage from Re Queensland Co-Operative Milling Association Ltd quoted above indicates, and as s 46(3) recognises, both the supply side and the demand side are relevant to an assessment of the market. It does not solve, but merely re-states, the problem to speak of sub-markets. There may be a wider, and a narrower, area of rivalry; but, if the narrowest area itself constitutes a market, then it is power and conduct in that area that must be examined.” (at 422-423) (cf Deane J in Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 at 195)
In the amended statement of claim the applicant alleged that at all material times there existed four possible markets. They were:
·     a Market for supply of Collected Data (para 5)
·     alternatively to such Market, a Wholesale Market for supply of Collected Data to intermediaries including the licensees and a Retail Market for supply of Collected Data or parts of it to end users (para 5A)
·     additionally, Real Estate Agents’ Services markets involving the supply of services by real estate agents to property owners and prospective buyers, in connection with sales and lettings of real property (para 5B).
It is not in dispute that, for the purposes of these proceedings, there exist a Wholesale Market, a Retail Market and Real Estate Agents’ Services Markets. Further, I note that:
· the expert witnesses – Mr Jon Norling, Director of Urban Economics, for the applicant and Mr Philip Williams, Executive Chairman of Frontier Economics Pty Ltd, for the respondent – agreed as to the existence of the Wholesale Market and the Retail Market (Joint Expert Statement of Areas of Agreement and Disagreement, 4 September 2006), and the existence of markets in which real estate agents compete (report of Frontier Economics Pty Ltd “Competition among real estate agents: a report prepared for ClarkeKann”, comment of Mr Williams TS p 72 ll 34-35, evidence of Mr Norling, TS p 100 ll 25-35); and
· in the applicant’s outline of submissions the applicant noted that the parties agreed, on the pleadings, as to the existence of the Wholesale and Retail and Real Estate Agents’ Services Markets (Applicant’s Outline of Submissions para 72).
The respondent however disputed the existence of a Market for the supply of Collected Data. At the hearing the applicant did not press its claim as to the existence of that Market. Accordingly, I make no findings as to para 5 in the amended statement of claim that at all material times there existed a Market in Queensland for supply (by sale and purchase) of the Collected Data.
What is the nature and scope of the relevant markets?
I note that in the Joint Expert Statement of Areas of Agreement and Disagreement, the following propositions were agreed by the expert witnesses:
·     There are two relevant markets: a Wholesale Market and a Retail Market.
·     The Wholesale Market is the market in which the Department produces and supplies QVAS data in bulk form to licensees.
·     The Retail Market consists of the supply of real property data to end users. Suppliers include the licensees in the Wholesale Market, the respondent and local government authorities.
·     They understood that the respondent had a statutory obligation to supply data in the Retail Market and is also empowered, at its discretion, to supply QVAS data in bulk form. It operates in both the Wholesale Market and in the Retail market.
These propositions are not in contention.
The Wholesale Market
Fundamentally, the characteristics of the Wholesale Market are not in dispute between the parties. Those characteristics appear to be as follows:
·     The product the subject of this market is QVAS raw data in bulk form, consisting of information about the physical dimensions and location of property, data of valuation and sales, address of the property and names of owner (Oakley affidavit para 3, Norling expert report para 2.1, Williams expert report paras 78 and 81).
·     The respondent is the only supplier of the QVAS raw data in bulk form (Norling expert report para 2.1, Williams expert report para 79).
·     While local government authorities provide details of property ownership to members of the public, they do not provide bulk data, nor data outside the boundaries of the relevant authority. Further, local government authorities do not provide data as to property transfer (Norling expert report para 2.1, Williams expert report para 79).
·     The market has existed since 1992, and consists of the respondent and eight licensees (including the applicant) (Norling expert report para 2.1, Williams expert report para 81).
·     The geographical dimension of the market is Queensland.
The Retail Market
Similarly, the characteristics of the Retail Market are not in dispute between the parties, and appear as follows:
·     The subject of this market ranges from base data supplied over the counter by the respondent to processed QVAS data including value-added products supplied by retailers to end users.
·     There are approximately 166 retailers in this market and an indeterminate number of customers (Norling expert report para 2.2). The retailers in this market are:
othe eight licensees (including the applicant)
othe respondent, and
o157 Queensland local government authorities (Norling expert report para 2.2).
·     Although it seems the parties agree that there is one Retail Market and both the applicant and the respondent are suppliers in that market, it is clear that the applicant and the other seven licensees package products which are much more sophisticated than the information supplied by the respondent in this market, and pursuant to a very different structure than that in which the licensees operate in the Retail Market.
·     The eight licensees (including the applicant) create value-added products on the basis of the QVAS data, they do not redistribute the raw data to end-users (Williams expert report para 83, Oakley affidavit para 2(b)).
·     The geographical area of the market is Queensland.
·     In relation to the activities of the respondent – the respondent is a supplier to the Retail Market, however the data supplied is in a relatively basic format with little bundling, namely:
oindividual over the counter searches for such information as owner, property, name and service address at the cost of $11.85 in the 2006-2007 financial year, and over the counter searches in respect of abbreviated sales data at the cost of $5.70 in the 2004-2005 financial year, increasing to $5.85 in the 2006-2007 financial year (evidence of Mr Fry TS pp 193-194, Norling expert report Table 2.1, Williams expert report para 85); and
oa map-based product showing valuation and sales information which may be purchased from Department counters or licensees of the SmartMap system (Williams expert report para 85, evidence of Mr Witt TS p 229 ll 11-15)).
·     In relation to the activities of the applicant – as explained by Mr Kris Matthews, State Manager Queensland for the applicant, in his affidavit sworn 16 October 2006, the value-adding supplied by the applicant includes the ability to interrogate the applicant’s database to produce a range of information concerning a property including:
odetails of all properties including details of the owners in one street
oa photograph of a particular property (produced by insertion of the street number and name in the search engine or by search of the owner’s name)
oa copy of the plan of a property
oas a more sophisticated search of the aerial map the distance to essential services and points of interest for home owners can be overlayed on the aerial map
oa detail view of a property augments over ten databases to provide comprehensive detail on the target property and its performance within a suburb. This includes:
·Aspects of the applicant’s business include (RP Data Information Memorandum Document No 1 February 2006 (exhibit A1), Norling expert report para 2.2, Williams expert report paras 82-84):
oits customers pay a membership fee depending on location, and ongoing costs of $120 per month for Queensland data only or $13.65 per title search
oit produces property data including tenant information (names and addresses), suburb profiles, sales history, street and postcode sales history, property investment reports, commercial sales history, aerial photos and mapping services
ocustomers include financial institutions, retail consumers and property investors, real estate agents, valuers and appraisers, government agencies, the Real Estate Institute of Queensland, developers and contractors. Real estate agents account for an estimated 55% of total revenues (RP Data Information Memorandum p 13, Williams expert report para 84, Norling expert report Table 2.1).
·In relation to the activities of the local government authorities – they do not provide sales data, but rather supply one-off, over the counter searches for names, addresses, valuation and size of blocks within the boundaries of the local government authority. Prices vary across authorities. Major users are property owners, real estate agents, valuers, mortgage brokers and developers. (Norling expert report para 2.2 and Table 2.1, Williams expert report para 79).
·Total revenues earned by licensees across Australia amounted to approximately $51 million in 2006 (Williams expert report para 84).
The real estate agents’ services markets
Although it appears that the parties agree that these markets exist, the nature of these markets was the subject of minimal attention either in the pleadings or at the hearing. The characteristics of these markets appear to be as follows:
·     the participants in each market are real estate agents
·     the subject of these markets is services by real estate agents to property owners and prospective buyers in connection with sales and lettings of real property (evidence of Mr Norling, TS p 100 ll 25-35)
·     each market is a localised market within Queensland
·     the geographical limits of each market varies depending on the precise activities of the real estate agent in question (report of Frontier Economics Pty Ltd “Competition among real estate agents: a report prepared for ClarkeKann”)
·     the competitive conduct of some of the agents in each of these markets involves direct marketing, including marketing for clients (report of Frontier Economics Pty Ltd “Competition among real estate agents: a report prepared for ClarkeKann”, and evidence of Mr Williams TS p 73 ll 1-10).
DOES THE RESPONDENT HAVE A SUBSTANTIAL DEGREE OF POWER IN ANY OF THOSE MARKETS AS CONTEMPLATED BY SECTION 46?

I also note that the complaints were significant in number – exhibits A6, 18, 19 and 20 are bundles of some of the written complaints received by the Department, and Messrs Fry, Witt and Oakley all said that there were in fact many more complaints made to them orally by telephone (TS p 95 ll 20-22, p 239 ll 19-21 and p 269 l 43). The complaints in the exhibits were a combination of complaints from consumers and those from real estate agents who were not engaged in direct marketing.
The applicant submitted that of the complaints received by the respondent the majority are from real estate agents and building managers, with 37% attributable to individuals, and in view of the number of transactions in Queensland every day the number of complaints is minor. However I accept the evidence of the respondent’s witnesses that there were many complaints by telephone. Further, I do not accept that, simply because a large number of complaints were from real estate agents and business managers, they were not “real” complaints as the applicant’s submissions seem to imply, and I do not accept the submission of the applicant that the number of complaints received by the respondent would not justify a substantial overhaul to contractual arrangements in place since 1992.
Purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market: section 46(1)(c)
Again, there appears to be no direct evidence of this purpose, rather the applicant submits the purpose is to be inferred from the factors particularised in the applicant’s amended statement of claim. Those factors are:
(A) the effect of the proposal as set out in paragraphs 8 and 9 of the amended statement of claim
(B) the Department, through Colin Witt, has evinced an intention to harm and prevent RP Data competing in the market place by:
(i) offering Infopac favourable terms in order to compete with RP Data
(ii) informing John Edwards of Residex that the Department had an intention to reduce the cost of the Collected Data so as to break RP Data’s monopoly
(C) Wayne Fry and Geoff Oakley on 4 February 2005 stating to Jane Woodward of RP Data that if RP Data did not agree to the new licence conditions that they would not receive any Collected Data in the future.
In summary, the applicant submits that:
·     The applicant and the respondent are competitors in the Retail Market.
·     The respondent’s purpose in refusing supply of the Excluded Data is clearly to require that end users who wish to obtain that data must do so from the respondent directly, using the respondent’s range of search products. Its purpose in doing so is to prevent the applicant and the other licensees from engaging in competitive conduct in supplying that information to its customers as part of the applicant’s own suite of licensed data products.
· The applicant objects to the admission of opinion evidence of Mr Norling as to the purpose of the respondent, primarily because the matter in issue is purpose under s 46 TPA which is a subjective purpose question, and Mr Norling’s opinion evidence as to the applicant’s purpose is not a matter within his expertise.
·     Most of the applicant’s customers are real estate agents who, before listing any property for sale or lease, must take reasonable steps to identify or verify the property’s ownership and its description. It is inevitable that, as a result of the proposal, the respondent’s search fee income, whether by way of QVAS data searches or titles registry searches, will increase.
·     Although the respondent’s witnesses claimed that the proposed changes were in response to privacy concerns, prevention of direct marketing by end users (specifically real estate agents) was in fact the motive not the purpose – the purpose was to prevent the applicant from engaging in the conduct of providing the Excluded Data in its existing products to end users. The conduct sought to be deterred or prevented was competitive with the conduct of the respondent in providing names and addresses in its statutory searches.
Section 46(1)(c) must be read in the context of the policy objective sought to be achieved by the TPA. As pointed out by Gleeson CJ, Gummow, Hayne and Callinan JJ in Melway 205 CLR at 13).
“Section 46 aims to promote competition, not the private interests of particular persons or corporations.”
(cf Boral 215 CLR 373 per Gleeson CJ and Callinan J at 411, Gaudron, Gummow and Hayne JJ at 429, McHugh J at 458-459; Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Baxter Healthcare 237 ALR at 535, Rural Press [2002] FCAFC 213 at [139], Universal Music 131 FCR at 585, and the discussion of Professor Corones at pp 34-37). It follows that the conduct of a person which the corporation or other entity with the substantial degree of market power seeks to affect must be conduct in the nature of competition in a market. Like s 46(1)(a), the breadth of application of s 46(1)(c) is such that it does not need to be the market in which the respondent is a participant (cf Merkel J in Robert Hicks Pty Ltd (t/as Auto Fashions Australia) v Melway Publishing Pty Ltd (1998) 42 IPR 627 at 643, Toohey J in Ross Payne & Co v Western Australian Lamb Marketing Board unreported, Federal Court of Australia, 3 August 1983, Wilcox J in Pont Data Australia Pty Ltd v ASX Operations Pty Ltd (1990) 93 ALR 523 at 555). Accordingly, it is within the scope of s 46(1)(c) that a corporation or entity with a substantial degree of market power in the Wholesale Market could breach s 46(1)(c) because, inter alia, its purpose was to deter or prevent the a person from engaging in competitive conduct in the Retail Market.
However, notwithstanding the submissions of the applicant, I am not persuaded that the purpose of the respondent was to deter or prevent the applicant from engaging in conduct which was competitive with the conduct of the respondent when it discharged its statutory function of providing names and addresses in response to statutory searches in the Retail Market. Similarly, it cannot be said that the proposal of the respondent had the purpose of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market to the benefit of other licensees – the proposal to exclude the Excluded Data from the data supplied by the respondent was identical in respect of all licensees. So, for example, in my view the purpose of the respondent in this case was not to gain a competitive advantage in the Retail Market over the applicant in relation to the Excluded Data or to deter the applicant from discounting prices of its product to competitors of the respondent (cf Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (2003) 129 FCR 339 at 355-356. I form this view for the following reasons.
First, while I accept that, as a result of the respondent’s proposal, the applicant will not be able to continue to provide services to its customers which include the Excluded Data, and that this may impact upon the business of the applicant as claimed in para 9(b) of the amended statement of claim, the applicant must demonstrate more than this effect to show that the purpose of the respondent’s conduct was in breach of s 46(1)(c). As pointed out by Lee J in NT Power Generation v Power & Water Authority [2002] FCAFC 302 at [17], although the effect of conduct may, in some circumstances, explain or reveal the purpose of the conduct, the inference may be negated by other material relevant to the issue of purpose (cf Photo-Continental Pty Ltd v Sony (Australia) Pty Ltd (1995) ATPR 41-372 at 40,122-40,123). It is the purposeful conduct of the contravening corporation that attracts the operation of s 46(1)(c): Baxter Healthcare 237 ALR at 519.
Second, in my view the “purpose” of the respondent, which as Toohey J observed in Queensland Wire 167 CLR 177 carries with it the notion of an intent to achieve a certain result, was to prevent the Excluded Data being used for direct marketing. The clear inference which can be drawn from the conduct of the respondent is that, despite publicly expressed concerns of the respondent concerning usage of its data for direct marketing, and although the licensees were required by the licence agreement between themselves and the respondent to ensure that end users had agreed not to use the data or data products supplied by the licensees for direct marketing, nonetheless end users (primarily some real estate agents) were engaging in direct marketing using data sourced originally from the respondent. I note that the possibility of the Excluded Data being withdrawn because of inappropriate use by end users had been anticipated by cl 9.11 of the 2003 licence agreement which provided:
“The Licensor reserves the right to exclude future supply of certain particulars forming part of the Licensed Data if the Chief Executive of the Licensor is satisfied on reasonable grounds, that inclusion of the data may result in inappropriate use or disclosure. Furthermore the Licensor may prohibit or limit distribution of certain particulars forming part of the Licensed Data.”
It is because of the respondent’s view that Excluded Data was being misused for direct marketing that the respondent formulated its proposal to exclude the Excluded Data from the Collected Data it supplied the applicant and the other licensees. Excluded Data could still be obtained from the respondent, because the respondent was statutorily obliged to supply it. One obvious result of end users obtaining Excluded Data on the basis of individual searches is that the cost and process of so obtaining that information is a clear disincentive to direct marketing activities, which is compatible with the stated purpose of the respondent.
Third, the applicant made a number of claims in the amended statement of claim concerning the alleged intention of the respondent to harm the applicant. I make the following observations:
·     In relation to the claim of the applicant that the respondent had an intention to harm and prevent the applicant competing in the market place by offering another party, Infopac, favourable terms in order to compete with the applicant (amended statement of claim para 10(b)(i)(B)(I)), no evidence is produced other than that of Mr Catelan in his affidavit, referring to alleged statements of Mr Witt in 1998. I note that these statements were allegedly made almost 10 years ago, and appear to bear little relationship to the complaint before me. Further, I note that Mr Witt was not cross-examined in relation to these statements, nor did any other person who could give direct evidence as to such an offer give evidence. I also note Mr Oakley was cross-examined in relation to a letter from Infopac received by him in 1998 (pp 278-279) however there was no substantiation that the respondent had sought to cause harm to the applicant in connection with an contractual relationship between the respondent and Infopac. I therefore give no weight to this aspect of the claim.
·     Similarly Mr Witt was not cross-examined concerning the allegations of the applicant with respect to Mr Edwards and Residex (amended statement of claim para 10(b)(i)(B)(II)). No evidence was given by Mr Edwards, and Mr Edwards did not appear as a witness in these proceedings. I also give no weight to this aspect of the claim.
·     In relation to the claim of the applicant that on 4 February 2005 Mr Fry and Mr Oakley said to Ms Jane Woodward of the applicant that if the applicant did not agree to the new licence conditions the applicant would not receive any Collected Data in the future, I note that:
oMr Fry stated in para 28 of his affidavit that what occurred was that “I said that if RP Data did not agree to the new licence conditions and refused to enter into a licence agreement then RP Data would not be able to receive licensed data after 30 June 2005. This would apply to the other seven licensees.” Mr Fry was not cross-examined with respect to this statement.
oMs Woodward gave no evidence in these proceedings.
oIt is clear from the evidence of Mr Fry that all licensees were being treated in the same way, and this evidence does not establish a breach of s 46 as alleged.
Finally, I have formed this view without taking into consideration the opinion of Mr Norling on the issue. I agree with the applicant that the evidence of Mr Norling in relation to the purpose of the respondent is not an area within his expertise. An assessment of the purpose of the respondent is an issue for the court to decide, based on the evidence before it.
In my view, the purpose of the respondent in engaging in the conduct complained of was not that of deterring or preventing the applicant from engaging in competitive conduct in the Retail Market.
Purpose of deterring or preventing real estate agents from direct marketing to owners of real property using the Excluded Data, and for the purpose of deterring or preventing real estate agents thereby from engaging in competitive conduct in the Real Estate Agents’ Services Markets: section 46(1)(c)
Although the respondent admitted the existence of these markets, this purpose as pleaded does not refer to competitive conduct in markets in which the applicant participates. Nonetheless, as I have already found, and indeed it is not in dispute, that the terms of s 46(1)(c) are sufficiently wide to include a claimed conduct which constitutes an entity taking advantage of its power for the purpose of deterring or preventing a person who is a stranger to the litigation, from engaging in competitive conduct in a market in which no party to the litigation is a participant.
As I have already indicated in my judgment there is little evidence before me as to the nature of this market including little evidence from the expert witnesses. It does not appear however to be in dispute between the parties that competitive conduct of real estate agents in these markets includes direct marketing activities to clients or potential clients.
In relation to the claims in paras 10(ba) and (bb) in the amended statement of claim the applicant submitted as follows:
1.   The applicant alleges that the purpose of the respondent is to deter or prevent real estate agents from direct marketing to owners of real property using the Excluded Data. That is denied by the respondent, although the respondent concedes that its purpose in proposing to exclude the Excluded Data is to ensure that such information in bulk form is not available for direct marketing purposes.
2.   The respondent’s witnesses clearly supported the inference that the purpose was to deter or prevent real estate agents in particular. The applicant refers to evidence of Mr Oakley as follows:
All right. Well, what’s the purpose of it then? I mean, what do you achieve by taking out that data, if they can get it anyway? --- To me, I suppose, when you talk about direct marketing, you talk about quantity. You send out - if you do marketing studies, and I have a degree in marketing - if you send out a hundred letters you get standardly about a 3 per cent response, okay. When you’ve got the bulk data you’re getting all of Queensland at one go. You can do that sort of thin, you can send out large, large quantities of mail and live off a very small number of returns. When you’ve got to do it search by search by search, that’s really not possible to do that sort of marketing approach.
Why, because it’s too expensive?--- It’s too time consuming. What you could do with a large number is set up mail mergers and mail searches and you can send it out easily. It’s automated. You can have machinery set up so that it prints them. You can even have the machinery set up to fold the letters and put them in the envelopes.
So what you’re trying to do is to stop these real estate agents from conducting the way they market?--- Having bulk mail-outs and things like that, yes.” (TS p 274 ll 6-22)
3.   The applicant alleges that the respondent thereby has the purpose of deterring or preventing real estate agents from engaging in competitive conduct. The respondent denies that allegation also. However, the evidence supports the obvious inference that direct marketing by real estate agents is competitive conduct in the markets for their services. The respondent led no evidence to the contrary.
4.   It follows that the proposal to exclude the names and addresses from Collected Data is conduct that the respondent proposes to engage in for a purpose proscribed by para 46(1)(c).
A number of submissions were made the respondent in relation to these claims. In particular:
1. The respondent’s proposal to withdraw the Excluded Data from the Collected Data supplied to licensees does not prevent real estate agents from engaging in direct marketing. The proposal merely prevents persons, including real estate agents, from using data collected by the Department being used for purposes other than those contemplated by ss 77(3) and (3A) VL Act. There is no deterrence on real estate agents and others direct marketing by, for example, newsletter drops, newsletters and so on.
2.   Evidence of witnesses of the respondent was that the purpose of the respondent was to try and stop direct marketing using the Department’s data-sets rather than stop direct marketing activities of real estate agents per se. So, for example, at the hearing, evidence of Mr Rush was as follows:
“And specifically, you wanted to stop direct marketing by real estate agents?--- I wanted to stop direct marketing using government sourced information.”
Similarly, Mr Fry gave evidence as follows: (TS p 200 ll 19-23)
“But how do you know that it’s going to stop direct marketing by simply taking it out of the hands of the six licensees who you’ve licensed to obtain bulk data --- We’re not saying we are trying to stop direct marketing in total. We are saying we are trying to stop direct marketing using this data set from our Department.” (TS p 334 l 25)
3.   On the evidence there appears to be no prohibition on anyone using information obtained directly from either the respondent or a third party (for example, local government authorities) in direct marketing activities. The effect of the prohibition is that a person cannot use for direct marketing purposes information obtained through a distributor such as the applicant.
4.   A distinction needs to be made between the purpose of the proposal of the respondent and the effect of it if implemented. The sole purpose of the Department is the prevention of the misuse of the Excluded Data and the protection of privacy of individuals and businesses that have provided, compulsorily, information to the respondent. The proposal, if implemented, may have the effect of preventing or deterring certain competitive conduct such as direct marketing, by closing off one source of names and addresses, but that the proposal might have that effect is irrelevant if the purpose for its implementation was not to deter or prevent competition, which is the case here.
5.   This case is no different to that encountered by the Full Court in Australasian Performing Right Association Ltd v Ceridale Pty Ltd (1990) 97 ALR 497.
6.   The respondent supplies a product, the QVAS database, which is compiled for purposes which do not include direct marketing. The respondent is entitled to prevent the misuse of its information for a purpose for which the information was not collected.
7.   The licence agreement emphasises that data supplied may only be used for certain purposes. Clause 1.1 of the 2003 Licence states:
“It’s a non-exclusive, non-transferable licence to use the licence data for the purposes specified in the agreement, subject to the terms and conditions.”
Further, cl 4.1.1 provides:
“The agreement does not confer on the licensee any rights of ownership in the licensed data, and all intellectual property rights, including copyright in the licensed data, are unaffected by this agreement.”
No evidence was produced at the trial demonstrating that real estate agents who are customers of the applicant and who engage in direct marketing activities utilise data sourced from the respondent. Indeed it would be difficult to produce such evidence – it is clear from the terms of the 2003 Licence Agreement that the applicant is contractually obliged to ensure that its customers (including real estate agents) do not use the information for such purposes, and presumably any direct marketing activity engaged in by real estate agents who are customers of the applicant would be in breach of their own agreement with the applicant.

In my view the following issues are clear.
First, as I noted earlier in this judgment, it is not contended by the applicant that the provisions in the 2003 Licence Agreements, prohibiting misuse of Collected Data (supplied by the respondent) for direct marketing purposes, contravene s 46 TPA. The claim of the applicant that the withdrawal of Excluded Data by the respondent to ensure that Collected Data supplied by the respondent is not misused for direct marketing purposes is somewhat difficult to reconcile with the position of the applicant with respect to the provisions of the existing agreement which are intended to ensure that the data is not so misused.
Second, I note the complaints made to the respondent and other Departments in relation to direct marketing activities of real estate agents. Several volumes of complaints have been accepted into evidence. They included a complaint concerning a direct marketing letter from a real estate agent addressed “Dear Name Suppressed” to a post office box at Robina, which clearly referred to data of the respondent. Two recurring themes in many of the complaints are:
· the belief of the complainant that certain real estate agents are engaging in direct marketing activities based on bulk data originally sourced from the respondent; and
· the request that the respondent address this misuse of data in some fashion.
As I have already found, the purpose of the respondent in proposing to withdraw the Excluded Data from supply to the applicant and other licensees is to prevent data supplied by the respondent being used for direct marketing purposes. I accept the evidence of witnesses for the respondent, including Mr Rush and Mr Fry, on this issue. While I note the applicant’s submission concerning evidence of Mr Oakley, I also note that the relevant statements of Mr Oakley were made in the course of a cross-examination concerning complaints received by the Department about the misuse of Collected Data, and consider his comments should be read in that light.
Third, while in the absence of evidence to the contrary I accept that the most likely persons affected in their direct marketing activities by the withdrawal of the Excluded Data would be real estate agents, I accept the respondent’s submission that this is an effect rather than the purpose of the respondent’s conduct. I also consider that principles articulated by the Full Court in Ceridale 97 ALR 497 are relevant here.
In Ceridale 97 ALR 497, the Australasian Performing Right Association Ltd (“APRA”) owned copyright of public performances in nearly all current popular copyright music, and the respondents were all persons associated with premises within which the subject works had been performed without the licence of APRA. APRA would grant, inter alia, licences in respect of premises to play recorded music, the use of a background music system, and live performances with respect to works over which APRA held copyright. The respondents were persons associated with premises within which works over which APRA held copyright had been performed. The licence held by the first respondent was terminated by APRA on account of non-payment of outstanding licence fees. Further dispute between the parties led to APRA filing a notice of motion seeking summary judgment with injunctive relief. In relation to s 46, his Honour said that APRA had the monopoly control over the market concerning the supply of the performing rights of music played to patrons in nightclubs and discotheques, and the refusal to grant a customer such as the defendants a licence which would enable the customer to obtain that commodity was plainly an exercise of market power (at 508-509). His Honour also found that it was no answer to a complaint of a contravention of s 46 that the corporation was only taking advantage of a legal right (at 509) and in this case the proper characterisation of APRA’s actions was that it was taking advantage of its powers in the market to prevent the defendants from engaging in competitive conduct in another market simply in order to collect a disputed debt (at 509). The trial judge refused to grant an injunction, the object and effect of which was to force a business to pay a debt which was subject to a genuine dispute.
Wilcox, Spender and Pincus JJ allowed the appeal of APRA. In particular at 510-511 their Honours said:
“There is no doubt, in the present case, that APRA enjoys a substantial degree of power – amounting indeed to dominance – in the market for music rights. It would seem that, in practical terms, it would be impossible for a nightclub or discotheque to survive without using music of the appellant. Accordingly, APRA is a corporation to which section 46 applies. But we are unable to agree that, upon the facts of this case, APRA has been guilty of any of the proscribed acts. The only suggested conduct was a contravention of para (c), that is that APRA had denied licences ‘for the purpose of deterring or preventing a person from engaging in competitive conduct in that or any other market’; the relevant ‘person’ being each of the respondents and the relevant ‘other market’ being the nightclub or discotheque market. We agree that the granting of an injunction might have the effect of preventing the respondents from competing in those markets. But there is no basis for saying that this was APRA’s purpose. APRA had nothing to gain by putting the respondents out of business. On the contrary, it was in the interests of APRA to maximise the number of users of its material, so long as they paid licence fees. APRA’s purpose was merely to prevent unauthorised use of its material and the integrity of its licensing system.” (emphasis added)
In my view the comments of their Honours I have italicised are of particular relevance in this case before me. The evidence is overwhelming that the purpose of the respondent was to prevent misuse of its database, in circumstances where legislatively supported contractual provisions in the licence agreements appear not to have been successful in preventing that misuse. Indeed, in my view it is fair to say that as a general proposition, provided they did not misuse Departmental data, the respondent had nothing to gain by deterring or preventing the participants in the Real Estate Agents’ Services Markets from engaging in competitive conduct in those markets.
Fourth, irrespective whether during the 1990s the Department may have had no qualms concerning its database being used for direct marketing purposes by real estate agents as claimed by Mr Catelan (TS p 46 ll 44-46) and conceded by Mr Witt (TS p 222 ll 46-48 and p 223 ll 1-3), it appears that by October 2002 the Department was concerned about misuse of the data for direct marketing as a general proposition (for example, evidence of Mr Fry TS p 195 ll 13-14). This concern is reflected in the enactment of s 77(3A) VL Act, introduced into the VL Act in May 2003, which specifically required the inclusion in any contract for the supply of information a provision allowing the chief executive of the respondent to exclude particulars of valuation roll information if satisfied, on reasonable grounds, that inclusion of the particulars may result in the particulars being inappropriately disclosed or used. The clear purpose in the conduct of the respondent has been to ensure that the respondent’s database should not be misused, by anyone. While real estate agents may be the most affected group, in my view this does not mean that the purpose of the respondent is to deter real estate agents engaging in competitive conduct in the relevant market.
CONCLUSION
A threshold issue in these proceedings was whether the respondent was bound at all by s 46 TPA, because it is not a “corporation” as required by that section. I formed the view early in this judgment that:
(a)conduct of the respondent in the Wholesale Market in supplying Collected Data to the applicants and others did constitute the carrying on of a business by the respondent for the purposes of s 2B TPA, with the result that the respondent was bound by s 46 in respect of this conduct; but
(b)the supply by the respondent of data in response to individual searches in the Retail Market was not subject to s 46 TPA because, in so doing, the respondent was not “carrying on a business” as contemplated by s 2B.
Although the respondent clearly has a substantial degree of power in the Wholesale Market, and it did take advantage of that power, in my view it did not take advantage of that power for purposes proscribed by s 46(1) TPA.
Accordingly, the claim of the applicant fails, and is dismissed with costs.
THE COURT ORDERS THAT:
1.The application filed 18 March 2005 is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not otherwise agreed.

I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.
Associate:
Dated: 30 October 2007

Counsel for the Applicant: D Jackson QC and M Martin

Solicitor for the Applicant: ClarkeKann

Counsel for the Respondent: M Hinson SC and D O'Brien

Solicitor for the Respondent: Crown Law

Date of Hearing: 20 October 2006

Date of Judgment: 30 October 2007

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD75 OF 2005

BETWEEN:	RP DATA LIMITED ACN 087 759 171 Applicant
AND:	STATE OF QUEENSLAND Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	30 OCTOBER 2007
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD75 OF 2005

JUDGE:	COLLIER J
DATE:	30 OCTOBER 2007
PLACE:	BRISBANE

Counsel for the Applicant:	D Jackson QC and M Martin
Solicitor for the Applicant:	ClarkeKann
Counsel for the Respondent:	M Hinson SC and D O'Brien
Solicitor for the Respondent:	Crown Law
Date of Hearing:	20 October 2006
Date of Judgment:	30 October 2007