Sita Qld Pty Ltd v State of Queensland

[2000] FCA 1076

FEDERAL COURT OF AUSTRALIA

Sita Qld Pty Ltd v State of Queensland [2000] FCA 1076

SITA QLD PTY LTD AND HARLINGDALE PTY LTD v STATE OF QUEENSLAND, THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND, THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND), SURFSIDE BUSLINES PTY LTD AND RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK’S LOGAN CITY BUS SERVICE

QG 95 OF 1998

DOWSETT J
13 JUNE 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 95 OF 1998

BETWEEN:

SITA QLD PTY LTD
FIRST APPLICANT

HARLINGDALE PTY LTD
SECOND APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
THIRD RESPONDENT

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
FOURTH RESPONDENT

SURFSIDE BUSLINES PTY LTD
FIFTH RESPONDENT

RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

13 JUNE 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for a declaration that the matter is beyond the Court’s jurisdiction be dismissed.

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	QG 95 OF 1998

BETWEEN:

SITA QLD PTY LTD
FIRST APPLICANT

HARLINGDALE PTY LTD
SECOND APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

THE MINISTER FOR TRANSPORT AND MAIN ROADS FOR THE STATE OF QUEENSLAND
THIRD RESPONDENT

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF TRANSPORT (QUEENSLAND)
FOURTH RESPONDENT

SURFSIDE BUSLINES PTY LTD
FIFTH RESPONDENT

RAYMOND GRAHAM CLARK AND YVONNE HAZEL CLARK TRADING AS CLARK'S LOGAN CITY BUS SERVICE
SIXTH RESPONDENT

JUDGE:	DOWSETT J
DATE:	13 JUNE 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings were commenced in 1998.  In early 1999, an application was made to strike out substantial parts of the statement of claim, which application was largely successful.  I published reasons in relation thereto on 15 June 1999.  Shortly thereafter, the High Court handed down its reasons in Re Wakim, Ex parte McNally (1999) 163 ALR 270 indicating that the cross-vesting legislation, insofar as it purported to allow state parliaments to confer jurisdiction upon this Court, was invalid.

2. These proceedings, as originally instigated, involved both state and federal claims.  Following the decision in Wakim, I was asked to make a declaration that the matter was beyond the jurisdiction of this Court, such declaration to be used for the purposes of the Federal Courts (State Jurisdiction) Act 1999 (Qld) to facilitate the removal of the matter to the Supreme Court. At that stage, however, it was pointed out that as there were federal aspects to the claim, namely a claim under the Trade Practices Act 1974 (Cth), the matter was correctly commenced in the Federal Court, quite apart from the provisions of the cross-vesting legislation. At that time, counsel for the applicants conceded that such was probably the case. They indicated that they had sought a declaration simply to avoid any suggestion at a later stage that the proceedings were beyond jurisdiction. It should be said that none of the other parties to the litigation had challenged the jurisdiction of the Court to proceed in the matter.

3. In September, the matter was set down for trial in the three weeks commencing today.  In April this year, the applicants applied for an adjournment, saying that they could not possibly be ready, without giving any real explanation as to why that should be so.  The application was unsuccessful.  On Friday of last week, the applicants gave notice of proposed amendments and of other applications to be made today, including a renewal of the application for a declaration that the matter was beyond jurisdiction.  Why I should again be asked to address this question is not entirely clear.  The applicants have sought to justify the application upon the same basis as on the last occasion, namely that they wish to ensure that they are not incurring costs which may be thrown away if any final order is later held to be beyond jurisdiction.  It is, however, difficult to understand their concern. 

4. The substance of the proceedings concerns the applicants’ right to conduct bus services between Brisbane and the Gold Coast and on the Gold Coast. Part of the business which the first applicant has conducted, and wishes to continue to conduct was previously conducted by the second applicant from which it was purchased by the first applicant. In effect, the first applicant submits that since some time in 1996, it has been prevented from conducting the bus services in question by various actions taken by the State, purportedly pursuant to legislation which authorises government regulation of such bus routes. The thrust of the case is that the applicants were, and are entitled to conduct such services, and that they have been unlawfully prevented from doing so and continue to be so prevented. They seek to establish such unlawfulness which is said to be the result of procedural irregularities in the process adopted by the State in giving effect to the relevant legislation. The applicants also seek to recover damages for misleading and deceptive conduct under the Trade Practices Act, this claim being against the fifth respondent. The alleged conduct involved a representation that the applicants could lawfully continue to provide the bus services in question.

5. The appropriate time for determining the jurisdiction of the Court is as at the date of commencement of proceedings.  If the non-federal claims were then relevantly associated with the federal claim, then nothing which has happened since can deprive the Court of jurisdiction.  I have previously given my reasons for that view.  If the applicants demonstrate the illegality of the State’s actions then presumably, the claim as against the fifth respondent will fail because the applicants were, at all material times, entitled to conduct the bus services in question, and the fifth respondent’s conduct was not misleading or deceptive.  The claim under the Trade Practices Act could not be fully resolved without determination of the questions raised in the claims against the State and vice versa.

6. The applicants, at one stage, considered it appropriate that all of these claims be joined in one action, although they now say that they were lulled into a false sense of security by the cross-vesting legislation.  I consider that there is but one matter raised for determination, and that it is appropriate that the Court continue to exercise the jurisdiction which was invoked by the applicants when they commenced these proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             18 August 2000

Counsel for the Applicants:	Mr N Lucarelli QC Mr M Conrick
Solicitor for the Applicants:	Freehills
Counsel for the First and Third and Fourth Respondents:	Mr R Hanson QC Mr P Flanagan
Solicitor for the First, Third and Fourth Respondents:	Crown Law
Counsel for the Fifth Respondent:	Mr O’Donnell QC Mr Lyons
Solicitor for the Fifth Respondent:	Hill Thompson & Sullivan
Counsel for the Sixth Respondent:	Mr Hanger QC Mr Lee
Solicitor for the Sixth Respondent:	Goodfellow & Scott
Solicitor for Mr Johnson:	McCullough Robertson
Date of Hearing:	13 June 2000
Date of Judgment:	13 June 2000