Sita Queensland Pty Ltd v Queensland Transport
[1998] QSC 130
•29 June 1998
THE SUPREME COURT
OF QUEENSLAND
Application No. 10350 of 1996
Brisbane
Before Williams J
[Sita Queensland Pty Ltd v Queensland Transport]
BETWEEN:
SITA QUEENSLAND PTY LTD
Applicant
AND:
QUEENSLAND TRANSPORT
Respondent
JUDGMENT - WILLIAMS J
Judgment delivered 29 June 1998
By application filed 5 December 1996 the applicant, Sita Queensland Pty Ltd, sought an order of review under the Judicial Review Act 1991 (“J.R.Act”). The application made thereby was particularised as follows:
“Application to review the decision of the respondent that Harlingdale Pty Ltd was not to be invited to tender for the provision of scheduled passenger services in the Gold Coast service contract area pursuant to the Transport Operations (Passenger Transport) Act 1994.
The applicant is aggrieved by the decision because:
“1)The applicant has purchased the business assets of Harlingdale Pty Ltd and has, therefore, been adversely affected by the respondent’s failure to allow Harlingdale Pty Ltd to tender for the service contract in question.
. . .
The applicant claims -
1)An order that the matter be referred back to the respondent for further consideration, subject to such directions as the Court determines; and in the alternative
2)An order that the decision be set aside.”
An entry of appearance was promptly filed by the Crown Solicitor notwithstanding that the respondent, as named in the application, was not an entity known to the law.
It was made clear by a Statement of Terms of Decision filed on behalf of the applicant on 12 December 1996 that the decision in question was made on 22 December 1994 by the Director (Passenger Transport) of Queensland Transport.
An order requiring the applicant to deliver further and better particulars was made on 13 January 1997, and on 5 February 1997 another judge ordered that the applicant bring an application seeking an extension of time for the bringing of the principal application. In consequence of that last order the applicant issued a summons on 8 May 1997 seeking such an extension of time.
That application came before a Chamber Judge on 17 July 1997. He correctly concluded that in the circumstances no extension was required. This was a matter within s.26(3) of the J.R.Act and in consequence the application could proceed unless the court was “of the opinion that the application was not made within a reasonable time after the decision was made” and in consequence refused to consider further the application for statutory order of review.
The Chamber Judge on 17 July 1997 gave lengthy directions for the future conduct of the proceeding, including a direction that a statement of claim be delivered on or before 30 July 1997. It is accepted that at that Chamber hearing reference was made to O.81, r.6: “A cause of action for damages that relates to the same matter as a review application may be pleaded in, or joined with, the review application.” The direction that a statement of claim be delivered was given against that background. Notwithstanding the terms of the direction a statement of claim was not delivered until 2 September 1997. The following extracts from that pleading are relevant for present purposes:
“1.The Plaintiff was and is at all material times a company duly incorporated and trading under the name or style of “Coachtrans Australia”.
2.By a contract dated 8 September 1995 the Applicant purchased the assets of Harlingdale Pty Ltd ... including passenger service licence 146 which authorised the carriage of passengers by road between Brisbane and Coolangatta.
3.On or about 2 October 1995, licence 146 was transferred to the Applicant pursuant to the contract.
4.On or about 9 November 1994, the Chief Executive of the Queensland Department of Transport declared, pursuant to s.42 of the Transport Operations (Passenger Transport) Act 1994 that a service contract was required for the area between Coolangatta and Helensvale for the purpose of the provision of public passenger services (“the Gold Coast service contract area”).
5. Section 56(1) of the Act provides ...
...
7.In or about December 1994, a notice was given pursuant to s.58(1) of the Act to certain persons as existing operators of scheduled passenger services in the Gold Coast service contract area for the purpose of:
a)providing them with the first opportunity to offer to provide services under the Gold Coast service contract;
b)requiring them to work out a form of rationalisation, joint operation amalgamation or other arrangement that achieves a just compromise of all their respective rights.
...
8.a) On 21 August 1995, the service contract for the Gold Coast service contract area was awarded to Surfside;
b)The Gold Coast service contract gave Surfside the exclusive right to operate scheduled passenger services within the Gold Coast service contract area.
...
11.In the premises, Harlingdale was entitled to receive the notice referred to s.58 of the Act.
12.Harlingdale did not receive any notice pursuant to s.58(1) of the Act.
13.As a result of the aforesaid, Harlingdale lost the opportunity to:
a)tender for and be awarded the Gold Coast service contract;
b)be compensated for loss of its existing rights as a condition of the award of the Gold Coast service contract to another operator.
14.In the premises, the Applicant claims:
a)an order that the Respondent’s decision not to invite Harlingdale to tender pursuant to s.58 of the Act be set aside;
b)an order that the matter be referred back to the Respondent for further consideration, subject to such directions as the Court determines;
c)alternatively, an order directing the Respondent to do justice between the parties by:
i)paying damages to the Applicant;
ii)directing Surfside to pay compensation to the Applicant for loss of its existing rights.”
It is clearly established both by the original application and that statement of claim that the decision with respect to which judicial review was sought was that “not to invite Harlingdale to tender pursuant s.58" of the Transport Operations (Passenger Transport) Act 1994 (“T.O.P.T. Act”). It is further clear that the principal relief being sought by the application and the statement of claim was that the decision not to invite Harlingdale to tender be set aside and that question (that is whether Harlingdale should be invited to tender) be remitted to the appropriate officer in the Department of Transport for further consideration. There was, as an alternative to that relief, a claim for damages and/or compensation.
It should further be noted that though Surfside Buslines Pty Ltd (“Surfside”) was referred to in that statement of claim it was not a party to the proceedings.
Between September 1997 and May 1998 the following relevant events occurred:
i)There was a failed mediation conference;
ii)There was a change of solicitors for the applicant;
iii)Legal representatives for the applicant indicated that alterations to the claim were being contemplated; that apparently involved additional parties and the raising of further causes of action.
To bring matters to a head the solicitor for the respondent applied by motion returnable 21 May 1998 for directions as to the future conduct of the proceedings. On that motion the Senior Judge Administrator ordered that by 4 June 1998 the applicant file and serve an application returnable on 22 June 1998 for leave to deliver an amended application for statutory order of review and statement of claim, together with any applications for the joinder of any additional applicants or respondents.
It was in that way that the summons presently before me came to be filed. It seeks the following orders:
“(1)Harlingdale Pty Ltd be joined as an applicant to the action;
(2)The name of the First Respondent be changed to State of Queensland;
(3)Surfside Buslines Pty Ltd, the Minister for Transport and the Chief Executive of the Department of Transport (Queensland) be joined as the second, third and fourth respondents respectively;
(4)The applicants be granted leave to amend the statement of claim;
(5)Such further or other order as the court considers appropriate.
(6)The costs of and incidental to this application be reserved.”
The respondent also filed a notice of motion returnable the same day seeking an order that the application for statutory order of review either be dismissed or stayed. The principal ground relied on was that the application was not made within a reasonable time pursuant to s.26(3) of the J.R. Act.
The material filed by the applicant in support of its application included a proposed new statement of claim. The document is 27 pages in length which must be contrasted with the original, virtually all of which is quoted above. The proposed statement of claim is drafted on the basis that the parties to the proceeding are altered in accordance with the application.
So far as the J.R. Act is concerned the proposed statement of claim seeks the review of 5 decisions made either by the Minister for Transport or the Chief Executive of the Department of Transport, but interestingly does not specifically include the decision not to invite Harlingdale to tender for the provision of scheduled passenger services in the Gold Coast service contract area, the only decision referred to in the earlier documents. The decisions sought to be reviewed are the following:
1.The “restricted market entry decision” evidenced by the Governor in Council in or about October 1994 promulgating s.17 of the Transport Operations (Passenger Transport) Regulation 1994 by which it was declared, inter alia, that a public passenger service was to be provided with market entry restrictions for services in the Gold Coast area.
2.The “service contract decision” made on or about 9 November 1994 by the Chief Executive, by which it was determined that a service contract was required for the area between Coolangatta and Oxenford for the purpose of the provision of public passenger services (the Gold Coast service contract area).
3.The “exclusivity decision” made by the Chief Executive in or about November 1994, pursuant to s.38(2) of the T.O.P.T. Act by which it was determined that the proposed service contract for the Gold Coast service contract area should provide the operator with the exclusive right to operate the service for the area.
4.The “notice to compromise decision” made in or about December 1994 by the Chief Executive pursuant to s.56(1) of the T.O.P.T. Act, by which it was determined that all operators who were providing public passenger services in the Gold Coast service contract area should work out a form of rationalisation, joint operation and amalgamation.
5.The “Surfside decision” made on or about 21 August 1995 by either the Minister or the Chief Executive by which Surfside was awarded a contract to provide exclusive public passenger transport services to the Gold Coast service contract area.
In addition to review of those decisions under the J.R. Act the proposed statement of claim also raises the following causes of action:
i)The State of Queensland failed to comply with the provisions of the T.O.P.T. Act with respect to Harlingdale and in consequence Harlingdale suffered damage for which Queensland is liable by way of damages for negligence or breach of statutory duty.
ii)During the relevant period Queensland made representations to Harlingdale which constituted a breach of the duty of care it owed Harlingdale. Further, during that period Surfside made representations to Harlingdale that were made in trade and commerce and amounted to misleading and deceptive conduct contrary to s.52 of the Trade Practices Act 1974. As a result of those matters the applicant, which had acquired the business of Harlingdale, suffered loss and has not received compensation. As a consequence it is alleged that Harlingdale and Sita have suffered damage for which Queensland is liable in negligence and for which Surfside is liable under s.82 of the Trade Practices Act 1974.
iii)There was a contract between Harlingdale of the one part and Surfside and Queensland of the other part the terms of which are set out in paragraph 39 of the proposed statement of claim. It is then alleged that in breach of that contract Surfside and Queensland impeded Sita from continuing the Harlingdale services and as a result Sita suffered damage for which Surfside and Queensland are liable by way of damages for breach of contract.
iv)There is then a claim for misfeasance in public office. It is alleged that the Governor in Council and the Chief Executive by making the decisions in question intended to harm Harlingdale and its successors in title and that in consequence Queensland is liable to pay damages.
v)It is then alleged that Queensland interfered with trade by unlawful means and illegal compulsion rendering it liable in damages to Sita.
The following claim for relief is then made in the proposed statement of claim; the applicants are Sita and Harlingdale:
“In the premises the applicants claim:
a)Prerogative orders, or in the alternative, statutory orders of review setting aside the decisions referred to above;
b)A declaration that the decisions referred to above and T.O.P.T. Regulation s.17 were and are invalid and/or ultra vires and/or void, and of no effect;
c)An order that the compromise decision be referred back to the Chief Executive for further consideration, subject to such directions as the Court determines;
d)Alternatively, an order directing Queensland to do justice between the parties by:
i)paying damages to the applicants; and/or
ii)doing all such acts and things as may be necessary to require Surfside to pay compensation to the applicants for any loss of the right to provide the Harlingdale Gold Coast services;
e)A declaration that the awarding of the Gold Coast service contract to Surfside was unlawful;
f)Damages against Queensland for breach of contract, breach of statutory duty and negligence;
g)Damages against Surfside for misleading and deceptive conduct and breach of contract;
h)Damages against Queensland and the Chief Executive for misfeasance in a public office;
i)Damages against Queensland for unlawful interference with Harlingdale’s business;
j)Damages against Queensland for illegal compulsion;
k)Such further or other orders as the Court considers appropriate;
l)Interest.”
It can be seen that for the first time by the proposed amendments the applicants are seeking to have the decision awarding the Gold Coast service contract to Surfside set aside pursuant to the provisions of the J.R. Act.
It is now necessary to say something about the background facts. The relevant provisions of the T.O.P.T. Act came into force on 7 November 1994. Prior thereto passenger bus services were regulated by provisions of the State Transport Act 1960. Before November 1994 a passenger bus operator was required to obtain a licence pursuant to the 1960 Act which related to a particular route. Harlingdale was the holder of licence 146 granted under the 1960 Act which permitted it to operate a scheduled passenger service from Brisbane to the Gold Coast. Coachtrans Australia Pty Ltd also held licences under the 1960 Act; it was the holder of licences numbered 121 and 212. One of those licences related to a service from Brisbane to the Gold Coast, and the other to a service within the Gold Coast area. At all material times Harlingdale and Coachtrans Australia Pty Ltd had the same registered office and a common principal director, W F Baumann.
Prior to November 1994 Surfside was also a major passenger service provider in the Gold Coast area and the holder of an appropriate licence under the 1960 Act.
The T.O.P.T. Act provided an entirely new regime for public passenger services. In addition to providing for licences to operate a specific route (the approach under the 1960 Act) the new legislation provided for the awarding of contracts for the operation of passenger services within a particular designated area. Section 38 provided for service contracts; such a contract was defined as one between the Chief Executive and an operator “under which the operator is required to provide public passenger service for an area or route in a way that meets or exceeds performance levels stated in the contract”. Section 36 of the T.O.P.T. Act provided that where the Minister was of the opinion that certain criteria stated in the section were satisfied he could by regulation “declare that a public passenger service is to be provided with market entry restrictions”. Where a declaration for market entry restrictions has been made then the service contract “may provide the operator with the exclusive right to operate the public passenger service for the area or route”. Section 44 provides that a service contract is to be for a term of 5 years.
Regulation 17 of the T.O.P.T. Regulation 1994 (which came into force 28 October 1994) declares the Gold Coast area to be an area with market entry restrictions.
The T.O.P.T. Act deals at some length with the procedure which must be followed before a service contract is awarded. Sections 56 and 58 were canvassed extensively during argument; they are, so far as is relevant, in the following terms:
“56.(1) Each operator who provides a public passenger service for a service contract area or route is entitled to the first opportunity to offer to provide a public passenger service of that kind for the area or route.
...
58.(1) If -
(a)an area or route is identified under s.42 (Declaration that service contracts are required) for a public passenger service; and
(b)2 or more people (the “operators”) were providing public passenger services of that kind for the area or route or part of the area or route; and
(c)the chief executive is of the opinion that, for the purpose of entering into a service contract for the provision of a public passenger service of that kind for the area or route, rationalisation, joint operation or amalgamation of, or other arrangement between, the operators is required;
the chief executive must give the operators written notice that they are required to work out, within 60 days, a form of rationalisation, a joint operation, amalgamation or other arrangement that achieves a just compromise of their respective rights.”
Section 61 provides that if an existing operator is not awarded a service contract for the area or route for which the operator or operators were providing service the Chief Executive may require the new operator, as a condition of the new service contract, to pay compensation to the existing operator.
On or about 9 November 1994 the Chief Executive declared pursuant to s.42 of the T.O.P.T. Act that a service contract was required for the area between Coolangatta and Oxenford for the purpose of the provisions of a public passenger service for the Gold Coast service contract area (which, as already noted, was subject to a restricted market entry decision). Specifically in November 1994 the Chief Executive decided, pursuant to s.38(2) of the T.O.P.T. Act that the proposed service contract for the Gold Coast service contract area should provide the operator with the exclusive right to operate the service for the area.
That led to the provisions of s.56 and 58 being invoked. Critically the applicant and/or Harlingdale alleges that at all material times (that would be from 7 November 1994 to 21 August 1995) Harlingdale was an existing operator for purposes of s.56 because it was the holder of licence 146. Counsel for the respondent disputed that; the difference of opinion flowed from competing constructions of s.56.
Counsel for the applicant contended that Harlingdale provided a public passenger service for the Gold Coast area pursuant to licence 146 and was therefore entitled to the first opportunity to offer to provide the public passenger service pursuant to the contemplated contract of service. Counsel for the respondent relied on the fact that once the T.O.P.T. Act came into force, licence 146 was categorised as a licence for a “long distance scheduled passenger service” which was different from a “scheduled passenger service”. The proposed service contract was for a scheduled passenger service and the respondent’s argument was that Harlingdale was not an existing operator of a service “of that kind”. I am inclined to accept the submission by Counsel for the respondent, but it is not necessary to make a final determination thereon. Of course, if the respondent’s submission is correct then as a matter of law Harlingdale was not entitled to a “first opportunity to offer to provide” that service and in consequence the whole basis of the initial application for judicial review would fail. I am prepared to assume for present purposes that Harlingdale was entitled to a first opportunity offer pursuant to s.56.
When the Chief Executive came to invoke s.58 the appropriate notice was given to 6 operators within the Gold Coast area, namely: Coachtrans Australia Pty Ltd., Surfside, Gold Coast City Bus, Koala Coaches, Mr and Mrs Rothwell and Mudgeeraba Springbrook Bus Service. Thereafter there were negotiations between those operators to arrive at a “just compromise” pursuant to that section. W F Baumann, as a principal of Coachtrans Australia Pty Ltd was involved in those negotiations for a compromise; Surfside ultimately acquired the rights of Coachtrans Australia Pty Ltd and paid compensation. In those circumstances it cannot be said that Harlingdale was not aware of what was happening and how its rights were likely to be affected by the various decisions being reached.
By letter of 26 May 1995 Coachtrans Australia Pty Ltd and the other operators were advised of the proposal to award the service contract to Surfside. The final document awarding Surfside the contract of service was executed on 21 August 1995. In accordance with the legislation that contract was for a term of 5 years and it gave Surfside exclusive rights for the area.
Shortly thereafter the applicant, Sita Queensland Pty Ltd, acquired the business assets of Coachtrans Australia Pty Ltd and Harlingdale. On or about 2 October 1995 licence 146 was formally transferred to the applicant. After the acquisition the applicant generally traded under the name or style of “Coachtrans Australia”.
In a letter from Queensland Transport to Baumann of Coachtrans Australia Pty Ltd of 26 May 1995 informing the latter of the decision to award the contract to Surfside the following statements were made:
“You should note that from the date that this service contract comes into effect you will no longer be able to legally operate scheduled passenger services within the declared service contract area other than under a sub-contract with the contract holder. ... Until the contract comes into effect, your existing licence remains valid and you are entitled to continue to provide services as at present.”
Then in a letter between the same parties of 16 June 1995 Queensland Transport made the following statements:
“As you are aware the services between the Gold Coast and Brisbane have been deregulated under the provisions of the Transport Operations (Passenger Transport) Act 1994 ... These services are long distance schedule passenger services as defined in the legislation in that they are scheduled public passenger services on which passengers are carried on an established route -
(a)for an average distance of at least 40 km; or
(b)between non-contiguous service contract areas or routes.
...
Long distance schedule passenger services are specifically excluded from the definition of scheduled passenger service in the Act which permits you to carry on your current operations on the Gold Coast to Brisbane service. As long as the service continues to meet the criteria prescribed in the definition of a long distance schedule passenger service it can continue to operate lawfully.”
The statements in each of those letters, though specifically directed to Baumann as a director of Coachtrans Australia Pty Ltd., must be taken to have informed him in his capacity of a director of Harlingdale of the effect the changes had on Harlingdale’s licence No. 146.
At material times Harlingdale traded as Pacific West and licence 146 was renewed in that name on 16 August 1995. The licence stated that the “service authorised by licence” was “the service for the carriage of passengers by road between Brisbane and Coolangatta”. As previously noted that licence was formally transferred to the applicant, Sita, on 31 October 1995; on transfer the licence was reproduced in identical terms to that quoted above except that the licensee was shown as Sita Queensland Pty Ltd.
On 27 February 1996 the applicant wrote to Queensland Transport as follows:
“I write to you today in respect of the Brisbane to Gold Coast service, as clarification is urgently required in terms of my ability to set down and pick up at Helensvale as part of the overall service.
An examination of Departmental correspondence indicated to me that we are able to continue on operating the existing Brisbane to Gold Coast service notwithstanding that contract areas had been issued.
We provided the service via Helensvale yesterday on the basis that this did not contravene any law.
Yesterday Mr David Peretz contacted me in regard to this matter and I informed him that I would check my understanding with you.
If it is not possible to pick up and set down at Helensvale on our long distance route, can we pick up and set down at Coomera?”
The reply is dated 28 February 1996; relevantly it stated:
“Firstly, I would remind you that Brisbane to Gold Coast inter-city services are long distance scheduled passenger services for purposes of the ... T.O.P.T. Act.
Services involving the carriage of passengers from Helensvale Station to any destination within the Gold Coast commercial service contract area are deemed to be scheduled passenger services. Surfside ... as the holder of the Gold Coast commercial service contract, has an exclusive right to provide such services. Any other operator providing services of this kind other than under a contract with Surfside would be in breach of s.43 ...
However, you would be able to pick up passengers at Helensvale Station if you chose provided their destinations were outside the Gold Coast service contract area.
Similarly, you are entitled to pick up passengers at Coomera Station and carry them to destinations within the Gold Coast service contract area.
To summarise, on services to Brisbane Coachtrans cannot set down passengers within the Gold Coast service contract area, while on services from Brisbane Coachtrans cannot pick up passengers within the Gold Coast service contract area other than for services operated under an agreement with Surfside Buslines.”
In subsequent correspondence it was alleged on behalf of the applicant that there was an inconsistency between the stance adopted by the Department in its letter of 28 February 1996 as compared with the contents of its letter of 16 June 1995. The applicant maintained that it received no compensation for the impact on the Brisbane to Coolangatta route of its inability to pick up and drop off passengers within the Gold Coast area. It is sufficient to say that subsequent letters from the Department asserted that the applicant was misinterpreting what was said, inter alia, in its letter of 16 June 1995. That exchange of views continued in correspondence and negotiations from March until September 1996.
No resolution was reached and in September 1996 a complaint was issued under the Justices Act 1886 alleging that the applicant was providing a public passenger service for a service contract area when it was not entitled to do so under a service contract.
It is alleged on behalf of the applicant that it was only then that it appreciated it was a person aggrieved by the decisions taken late in 1994 and early 1995; in consequence the original application under the J.R. Act was filed on 5 December 1996.
Whilst dealing with the facts it is necessary to say something about Surfside. As already noted, in August 1995 it secured the service contract for the Gold Coast area, with exclusive rights, for a period of 5 years. In consequence it expanded its fleet of buses considerably and otherwise entered upon financial obligations of some magnitude. The following comparative figures as to the cost of the company’s plant and equipment, leasehold improvements, office and equipment, and buses demonstrates that point:
Assets
June 1994
December 1996
Plant and Equipment
$ 944,782
$ 1,739,394
Leasehold improvements
- Nil -
$ 132,044
Office furniture and equipment
$ 168,175
$ 217,316
Buses
$8,416,038
$15,305,638
Virtually the whole of the income of Surfside is from takings from the services it conducts pursuant to the service contract. It has operated that service contract, expended those monies, and incurred those liabilities from August 1995 until June 1998 without being notified of any claim on behalf of the applicant to have the decision to award the contract to it set aside.
Surfside also draws attention to the fact that in good faith it negotiated with the other operators in accordance with the notice given pursuant to the T.O.P.T. Act. It bought out all the other operators, including the Coachtrans operation at that time. If the decision to award the service contract to Surfside was now set aside, there would be adverse consequences for those other operators who concluded arrangements with Surfside. They are not proposed parties to the proceedings.
The critical question is whether or not at this stage in the proceedings the amendments sought by the applicant, both by way of adding parties and seeking the review of additional decisions, should be permitted. As already noted s.26 is concerned with the time frame within which an application for a statutory order of review should be made; it was to this provision that most submissions were directed. Sub.s.(2) provides that the basic time frame is the period of 28 days beginning on the day on which the decision is made. That applies where the terms of the decision are recorded in writing and set out in a document given to the applicant. That is not the case here; none of the actual decisions in question was directly communicated to Harlingdale. In consequence sub.s.(3) is relevant and the court must have regard to sub.s.(4); those sub-sections are in the following terms:
“(3) If -
(a)there is not a period prescribed for the making of an application for a statutory order of review in relation to a particular decision; or
(b)there is not a period prescribed for the making of an application by a particular person for a statutory order of review in relation to a particular decision;
the Court may take the following action if it is of the opinion that the application was not made within a reasonable time after the decision was made -
(c)if paragraph (a) applies - refuse to consider an application for a statutory order of review in relation to the decision;
(d)if paragraph (b) applies - refuse to consider an application by the person for a statutory order of review in relation to the decision.
(4)In forming an opinion for the purposes of sub-section (3), the Court -
(a)must have regard to -
(i)the time when the applicant became aware of the decision; and
(ii)If sub-section (3)(b) applies - the period prescribed for the making by another person of an application for a statutory order of review in relation to the decision; and
(b)may have regard to such other matters as it considers relevant.”
It is clear from the relief sought in the proposed statement of claim that the applicant seeks prerogative orders in the alternative to statutory orders of review. Section 26 only applies to the latter. The time frame for seeking prerogative orders is set by s.46. Though that provision was not referred to in the course of argument it cannot be overlooked in the circumstances; relevantly it provides:
“46.(1) Subject to any other enactment, an application for review must be made -
(a)as soon as possible and, in any event, within 3 months after the day on which the grounds for the application arose; or
(b)if the Court extends the period of 3 months - before the end of the extended period.”
It can therefore been seen that in general terms the legislation requires the bringing of an application either for a prerogative order or a statutory order of review within a relatively short period of time after the decision was made. That is understandable; it reflects the general policy that there should be finality in decision making and that a decision should not be challenged long after it has been made and parties affected by it have acted on the faith of it.
The 5 decisions which the applicant now wishes to challenge were made between November 1994 and August 1995. By June 1998 when this application was made, more than 3 years had passed since each of the decisions other than the awarding of the contract to Surfside was made; with respect to that decision all but 3 years had lapsed. The applicant’s case is that it was not aware of the impact of the decisions on it, because of the alleged misleading letter from Queensland Transport of 16 June 1995, until it was served with the complaint in September 1996. Even on that case there has been a delay of at least 20 months in seeking to challenge those decisions. In my view the applicant gains no comfort from the fact that on 5 December 1996 it made its initial application under the J R Act. That application (ignoring the fact it was brought against a non existent entity) only sought relief with respect to one specific (largely irrelevant) decision, and failed to join an essential party, Surfside, as a respondent. The present application filed in June 1998 to join Surfside as a respondent, and to seek the review and setting aside, of 5 specific decisions, including the decision to award the contract of service to Surfside, should be regarded as the commencement of proceedings for that relief against those parties on the date the application was filed.
The Federal equivalent of the J R Act is the Administrative Decisions (Judicial Review) Act 1977, and s.11(4) thereof equates with s.26(3) of the J R Act. That Federal provision was considered by the Full Court of the Federal Court in Newby v Moodie (1988) 83 ALR 523. There it was held that the period of more than 8 months between the time that the appellant became aware of the decision to prosecute and the filing of the application for review in the court was not a reasonable time within which to bring the application. Moynihan SJA in Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 considered the relevant factors to be taken into account on an application for an extension of time pursuant to s.26. At 665 he said:
“It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest.”
Though those words were said specifically with respect to a s.26(1) application, they are apposite, in my view, to an application relying on s.26(3). Reference should also be made in that regard to what was said by Thomas J in Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372:
“The principles upon which time may be extended in cases of this kind have been mentioned in a number of decisions ... They include the existence of a satisfactory explanation, notions of what is fair and equitable in the circumstances, whether any prejudice will be occasioned to the respondent, the public interest, and (where such view is possible) the merits of the substantial application for review.”
Taking into account the impact on Surfside which is now nearly 3 years into the 5 years of its service contract, the impact on the concluded arrangements between Surfside and the other former operators, the public interest in having no disruption to the passenger service which has existed for approximately 3 years, and what I regard as an unsatisfactory explanation by the applicant for the delay in bringing proceedings, more than a reasonable time has elapsed between the date when the decisions sought to be impeached were made and the bringing of this application in June 1998.
In those circumstances I would refuse leave to add the additional respondents and refuse leave to deliver the proposed amended statement of claim challenging the 5 decisions particularised above.
That leads to a consideration of the existing application, that is the application as filed on 5 December 1996. Should it be summarily dismissed on the respondent’s notice of motion?
Counsel for the applicant virtually conceded that judicial review of the decision not to invite Harlingdale to tender would not result in the applicant obtaining any meaningful relief. Further, pursuant to the original application and original statement of claim relief is sought against Surfside which is not a party; at least to that extent the claim must be struck out. Further, the original application has not been prosecuted diligently. By June 1998 more than a reasonable time had elapsed without the applicant bringing the matter on for determination, and in that period of
time the prejudice to Surfside had significantly increased.
As, for the reasons given above, it is now too late for the applicant to amend the original application in a meaningful way, it should be dismissed under s.48 of the J R Act on the ground that it is inappropriate to allow the proceedings to be continued.
It will be noted from the original and proposed statements of claim quoted above that the applicant was seeking an award of damages pursuant to the J R Act. Counsel for the applicant submitted that the court could award damages relying on s.30(1)(d) of the J R Act which empowers the court to make “an order directing any of the parties to do, or refrain from doing, anything that the Court considers necessary to do justice between the parties.” Counsel for the respondent argued strongly that such provision did not empower the court to award damages, though he conceded it may empower the court to award interest if as part of its overall order the court was ordering the repayment of a sum of money. In the circumstances it is not necessary for me to make a final decision on that contested matter, but my inclination is to accept as correct the submissions of counsel for the respondent.
As already noted, various common law claims were joined in the proposed statement of claim relying on O.81 r.6. As I have held that there is no viable “review application” there is nothing to which those claims can be joined. Counsel for the applicant contended that the common law claims could be made independently of the J R Act. It is not necessary for me to make any finding in relation thereto; if the applicant wishes to pursue common law remedies then it has the right to do so. That extends to any challenge to the validity of Regulation 17 of the T.O.P.T. Regulation 1994 which can be made independently of the J R Act. An action should be commenced by writ in the ordinary way naming such entities as the present applicant considers would be appropriate parties, and the matter should proceed in the usual way.
My orders will therefore be:
1.On the applicant’s summons filed 5 June 1998 - summons dismissed.
2.On the respondent’s notice of motion filed 11 June 1998 - order that the application for statutory order of review filed 5 December 1996 be dismissed.
I will hear submissions as to the appropriate orders for costs.
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