RP Data v. BCC and Infopac International
[1995] QCA 551
•08/12/1995
IN THE COURT OF APPEAL [1995] QCA 551
SUPREME COURT OF QUEENSLAND
Appeal No. 109 of 1995
Brisbane
[RP Data v. BCC and Infopac International]
BETWEEN:
RP DATA PTY. LTD.
Appellant
AND:
BRISBANE CITY COUNCIL
First Respondent
AND:
INFOPAC INTERNATIONAL PTY. LTD.
Second Respondent
Davies J.A.
McPherson J.A.
Dowsett J.
Judgment delivered 08/12/1995
Separate concurring reasons for judgment by each member of the Court.
APPEAL DISMISSED WITH COSTS.
CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW; whether decision of council to enter into a contract without giving appellant opportunity to tender unreasonable; whether the making of a contract is an "enterprise" within s.410(1) Local Government Act 1993; whether scope of ss.410 and 412 Local Government Act; whether failure of appellant to request reasons for decision precludes appellant's success.
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1985) 162 C.L.R. 24
CONTRACT – whether consequence of appellant succeeding in obtaining judicial review would result in contract being invalidated; nature of contractual interests; consequences of contract being entered into in contravention of statutory provision; whether presumption of regularity due to indoor management rule.
Reade v. Mayor of St. Kilda (1888) 14 V.L.R. 829
Property Law Act 1974.
Counsel:Mr. P. Dutney Q.C., with him Mr. P. J. Davis for the appellant
Mr. B. Gotterson Q.C., with him Mr. H. L. Alexander for the first respondent
Mr. P. D. McMurdo Q.C. for the second respondent
Solicitors:Paul Crowley for the appellant
Solicitor for the Brisbane City Council for the first respondent
Bernard Ponting & Co. for the second respondent
Hearing Date: 8 November 1995
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 109 of 1995
Brisbane
Before Davies J.A.
McPherson J.A.
Dowsett J.
[RP Data v. BCC and Infopac International]
BETWEEN:
RP DATA PTY. LTD.
Appellant
AND:
BRISBANE CITY COUNCIL
First Respondent
AND:
INFOPAC INTERNATIONAL PTY. LTD.
Second Respondent
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered the 8th day of December 1995
This is an appeal from a judgment given in the Trial Division of this Court dismissing an application for review, under the Judicial Review Act 1991, of a decision of Brisbane City Council (the first respondent) dated 28 March 1995. That decision was one to enter into an exclusive contract for a period of 12 months to sell or supply to Infopac International Pty. Ltd. (the second respondent) information concerning properties within its local government area.
The application sought review on the basis that the decision was made contrary to ss.410 and 412 of the Local Government Act 1993. For the first time before this Court the basis for review was widened to include a ground that the decision was unreasonable and therefore beyond power. The respondents did not contend that this wider basis could not be argued and this Court heard argument on both bases for review.
The facts leading up to the application may be shortly stated. Both the appellant and the second respondent carry on businesses which include the supply for consideration of information of the kind referred to above. The appellant apparently had a contract with the Queensland Government for the supply by the Lands Department of similar information. It also had similar contracts with local authorities in New South Wales. And it had supplied computer software to the first respondent to improve access to property sales information data. The second respondent had similar contracts with Redland Shire Council and Gold Coast City Council.
In 1993 the appellant approached the first respondent with a view to obtaining access to its rating information for resale in the course of its business. It was told that it was improbable that the first respondent's policy would allow public access to its property data.
In 1994 Mr. Catelan on behalf of the appellant had a conversation with Mr. Weston, an officer of the first respondent. However they swore contradictory affidavits as to what was said in the conversation; neither was cross-examined and, not surprisingly, the learned primary Judge made no finding as to what took place in that conversation. The contradictory evidence was as to whether Mr. Weston made any statement as to bulk release of the first respondent's rates data.
On 30 March 1995 as a result of information which he had received Mr. Catelan telephoned Mr. Weston who told him that the first respondent had signed a 12 month exclusive agreement to supply property data. Mr. Weston said that the information and technology section of the first respondent had recommended a non-exclusive agreement but the first respondent had decided to enter into an exclusive agreement for 12 months and thereafter it would be non-exclusive. On 3 April 1995 Ms. Dionysius also confirmed that her section had advised the first respondent against exclusivity but that the first respondent had wanted the agreement to be exclusive.
However the submission to the Establishment and Co-ordination Committee dated 7 March 1995, said to have been prepared by Mr. Weston, the proponent of which is said to be Ms. Dionysius, proposed an exclusive licence during the initial 12 months term and non-exclusive thereafter. Under that proposal the first respondent would receive 25% of the second respondent's gross revenue with a minimum payment of $50,000 in the first year and $75,000 in the second year. Those figures, which are said to be modest, it is also said would result in revenue to the Council of as much as $250,000 per annum.
Neither Mr. Weston nor Ms. Dionysius, who swore affidavits in this proceeding deposed to the assertion by Mr. Catelan in his affidavit that they had each recommended a non-exclusive agreement. The submission to the Establishment and Co-ordination Committee appears to be inconsistent with any such recommendation. However it does appear from other internal documents that what those officers originally had in mind involved the first respondent in receiving 20% of the second respondent's gross revenue and one of them, dated 1 February 1995 from Mr. Weston to Ms. Dionysius, expresses a belief that offers similar to the second respondent's would be likely to be put to the Council by other data brokers in the near future. This may imply that, at that stage, Mr. Weston was contemplating a non-exclusive agreement which would leave it open to the first respondent to accept other offers. But whether the original proposal by Mr. Weston or Ms. Dionysius involved a non-exclusive agreement, and if so, how that changed to an exclusive agreement never clearly emerged in the evidence.
Section 410(1) of the Local Government Act provides that a local government may engage in or help an enterprise if the enterprise concerns a matter that, in its opinion, is directed to benefitting, and can reasonably be expected to benefit, its area or part of its area. "Enterprise" is defined very widely to include any business undertaking and activity and the matters that may be of benefit to a local government area include promoting or helping the supply of services to a part of the area and helping the finances of the area's local government. Section 412(2) provides that, before exercising an enterprise power, a local government must consult with, and have proper regard to the advice of, persons who, in its opinion, possess relevant competence about the end to which the exercise of the power is directed, the ways of achieving the end and the lawfulness of the exercise of the power.
The appellant's argument in reliance upon s.410 was that the making of the contract between the respondents was an enterprise; that the only relevant matters which that enterprise could concern would be increasing the revenue of the first respondent and facilitating improved customer service; and that it could not be determined whether either of these matters was directed to benefitting or could reasonably be expected to benefit the area without comparing what could be achieved under the contract with what could be achieved under a contract with a competitor namely the appellant. The argument in reliance on s.412 was that the first respondent did not consult with or receive advice from persons having relevant competence as to the ways of achieving the end to which the exercise of the power was directed contrary to s.412.
There are a number of difficulties with each of these arguments. In the first place, whilst ss.410 and 412 can be applied literally to the making of the contract here, as indeed they could be to almost any activity of a local authority, they appear to be directed to a quite different purpose; empowering a local authority to engage in or help activities of a business kind which might not otherwise be within power provided that the local authority is of opinion that the subject which the activity concerns is directed to benefitting and can reasonably be expected to benefit its area. Secondly, if the enterprise is, as submitted by the appellant, the contract made with the second respondent, the matters which it concerns are literally of benefit to the first respondent, at least financially. The real contentions of the appellant are that, had the appellant been given the opportunity to compete for acquisition of the information, the benefit to the first respondent might have been greater and that proper consultation and advice pursuant to s.412(2) would have shown that.
Even if one were to assume that, if proven, these contentions would have entitled the appellant to a review of the decision because of breaches of ss.410 or 412, an assumption which appears to be contrary to the evident purpose of the sections, the appellant must fail for want of proof. It did not, as it was entitled to pursuant to s.32(1) of the Judicial Review Act, seek reasons for the first respondent's decision and no evidence has been adduced of those reasons or of what advice it sought or obtained before making that decision. It is perhaps unnecessary to add that the first respondent appears to have had the means of knowing the relative qualities of the systems operated by each of the appellant and the second respondent and of the financial terms of their contracts with other relevant entities.
The appellant therefore failed on this basis of review.
The absence of evidence, in my view, also precludes the appellant from succeeding on the wider basis contended for namely that to purport to exercise the power in the way it did was so unreasonable that "no reasonable person in the position of the Council could possibly form the opinion that it was beneficial to dispose of the rights to the second respondent without firstly considering evidence of the value of those rights". The onus being on the appellant, it failed to show that the first respondent did not consider evidence of the value of those rights or that what evidence of that value it did consider was so inadequate as to make the formation of its opinion unreasonable in the Wednesbury sense: Attorney-General (N.S.W.) v. Quin (1990) 170 C.L.R. 1 at 36; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1985) 162 C.L.R. 24 at 41. This basis for review therefore also fails.
It follows that the appeal must be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 109 of 1995
Brisbane
Before Davies J.A.
McPherson J.A.
Dowsett J.
[R.P. Data P/L v. Brisbane City Council & Anor.]
BETWEEN
R.P. DATA PTY. LTD.
Applicant
AND
BRISBANE CITY COUNCIL
First Respondent
AND
INFOPAC INTERNATIONAL PTY. LTD.
Second Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 8th day of December 1995
I agree with the reasons of Davies J.A. for holding that this appeal should be dismissed. There is, however, another aspect on which I think some comment is called for.
The application before us appears to assume that, if the applicant had succeeded in obtaining a review of the Council's decision to enter into the contract, the result would necessarily have been to invalidate the contract entered into by the respondent Council with the second respondent. Without having heard full submissions on that point, I am not prepared to act on that assumption.
Entering into or concluding a contract is a juristic act having consequences going beyond the preceding decision that the contract was to be entered into. It is something from which rights accrue in favour of the other contracting party or parties that are not necessarily dependent on the validity or propriety of that decision. Hence it does not automatically follow that, if the decision itself is vitiated, the contract is also nullified. Whether such a consequence will ensue may very well turn on the character and effect of the factor which is said to vitiate the decision; its relevance for or impact on the contractual capacity, authority or power of the decision-making party; and possibly also the extent, if at all, to which the other contracting party is aware of the defect or irregularity in the decision-making process: Reade v. Mayor of St. Kilda (1888) 14 V.L.R. 829, 834.
Ordinarily in such a case the question whether a contract is rendered void if made in contravention of a statutory provision regulating its making depends on whether the provision in question is mandatory or simply directory: Reade v. Mayor of St. Kilda (1888) 14 V.L.R. 829, 834-835; Dynan v. City of Ballarat [1933] V.L.R. 141; Haynes v. Sutherland Shire Council (1966) 83 W.N. (Pt. 1) (N.S.W.) 428, 430; Hunter Brothers v. Brisbane City Council [1984] 1 Qd.R. 328, 337; cf. also Maxwell Contracting Pty. Ltd. v. Gold Coast City Council [1983] 2 Qd.R. 533, 537, and authorities cited there. Furthermore, where non-compliance with a specified procedure is relied on to invalidate the ensuing contract, it is possible that in some instances failure to observe a procedural step may be cured by applying the presumption of regularity in the "indoor management" of a statutory corporation like the respondent Council: cf. National & Overseas Distributors Corporation (Pty.) Ltd. v. Potato Board 1958 (2) S.A. 473 (App.Div.), where the decision in Royal British Bank v. Turquand (1856) 6 E. & B. 327 was applied to such a corporation. See also Property Law Act 1974, s.46.
There is nothing in the Judicial Review Act 1991 which expressly or by necessary implication renders contracts void. Indeed, on one view of it, the definition or description in s.5 of the Act of "making of a decision" does not readily fit the making of a contract or of a decision to enter into a contract. In the end, the appellant is compelled to rely on non-compliance with ss.410 and 412 of the Local Government Act 1993. Even if it is proper to regard those provisions as mandatory in their effect, or as capable of attracting the operation of s.23 of the Judicial Review Act, they appear, as Davies J.A. points out, to have a purpose quite different from that to which the applicant seeks to apply them here. And even if they are in some circumstances capable of vitiating a contract like the one made here, a major difficulty confronting the appellant in the present case is that, on the material before us, it is not possible to say that the respondent Council failed to comply with them. Without knowing the Council's reasons for deciding to enter into a contract or to agree to the terms complained of, it is impossible to be confident about what those reasons were, or that the Council took or failed to take account of matters now said to be critical to the validity of that decision. Neither the decision itself nor the terms of the contract are so obviously unreasonable on their face as to justify a finding that they were beyond power: cf. Attorney‑General v. Wellington City Corporation [1924] N.Z.L.R. 818, 826.
I agree that the appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 109 of 1995
Brisbane
Before Davies JA
McPherson JA
Dowsett J
[R P Data P/L v. Brisbane City Council & Anor]
BETWEEN:
R P DATA PTY LTD
Applicant
AND:
BRISBANE CITY COUNCIL
First Respondent
AND:
INFOPAC INTERNATIONAL PTY LTD
Second Respondent
REASONS FOR JUDGMENT - DOWSETT J
Judgment delivered 08/12/1995
I have read the reasons for judgment prepared by Davies JA and am in agreement with his Honour's reasons and with the proposed orders. I also agree with the observations made by McPherson JA.
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