The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd - [2016] WASCA 36

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE PILBARA INFRASTRUCTURE PTY LTD -v- BROCKMAN IRON PTY LTD [2016] WASCA 36

CORAM: BUSS JA
MURPHY JA
BEECH J

HEARD: 20 AUGUST 2015

DELIVERED : 29 FEBRUARY 2016

FILE NO/S: CACV 132 of 2014

BETWEEN: THE PILBARA INFRASTRUCTURE PTY LTD
Appellant
AND
BROCKMAN IRON PTY LTD
First Respondent
ECONOMIC REGULATION AUTHORITY
Second Respondent

FILE NO/S :CACV 133 of 2014

BETWEEN :THE PILBARA INFRASTRUCTURE PTY LTD
Appellant
AND
ECONOMIC REGULATION AUTHORITY
First Respondent
BROCKMAN IRON PTY LTD
Second Respondent

ON APPEAL FROM:
For File No               :  CACV 132 of 2014
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EDELMAN J
Citation  :THE PILBARA INFRASTRUCTURE PTY LTD -v- BROCKMAN IRON PTY LTD [No 2] [2014] WASC 345
File No  :CIV 2512 of 2013
For File No               :  CACV 133 of 2014
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EDELMAN J
Citation  :THE PILBARA INFRASTRUCTURE PTY LTD -v- ECONOMIC REGULATION AUTHORITY [2014] WASC 346
File No  :CIV 2511 of 2013

Catchwords:

Statutory construction - Railways (Access) Code 2000 (WA) - The requirements for a valid proposal under s 8 of the Code for the use of railway infrastructure - Whether an entity making a proposal to a railway owner must have a real (or genuine or actual) need to carry on rail operations at a particular time - Whether s 8 requires that a proposal be for the making of an access agreement which (if made) will embody, on the part of the proponent, a definite intention to use the relevant railway infrastructure - Whether s 8 requires that a proposal be for the making of an access agreement which (if made) will embody, on the part of the proponent, definite promises for the use of the relevant railway infrastructure - Whether the existence of a contingent or conditional element in a proposal to use railway infrastructure denies the proposal the statutory character of a proposal under the Code - Whether the subjective motives of an entity which has made a proposal to a railway owner are relevant in determining whether the entity has the sole purpose of carrying on rail operations as required by s 8(2)(b) of the Code - Whether the trial judge erred by failing to conclude that the proposal made to the appellant was not, as required by s 8(3)(d) of the Code, accompanied by an effective notice of the proponent's intention to enter into negotiations for an access agreement under the Code - Whether the trial judge erred in failing to conclude that the proposal made to the appellant did not, as required by s 8(3)(b) of the Code, indicate the times when access was required

Legislation:

Interpretation Act 1984 (WA), s 5, s 6
Railways (Access) Act 1998 (WA)
Railways (Access) Code 2000 (WA)

Result:

CACV 132 of 2014
Appeal dismissed

CACV 133 of 2014
Appeal dismissed

Category: A

Representation:

CACV 132 of 2014

Counsel:

Appellant:     Mr D F Jackson QC, Mr B Dharmananda SC & Mr C P K Russell
First Respondent           :     Mr B A Coles QC & Mr K J De Kerloy
Second Respondent       :     No appearance

Solicitors:

Appellant:     Allen & Overy
First Respondent           :     Herbert Smith Freehills
Second Respondent       :     State Solicitor for Western Australia

CACV 133 of 2014

Counsel:

Appellant:     Mr D F Jackson QC, Mr B Dharmananda SC & Mr C P K Russell
First Respondent           :     No appearance
Second Respondent       :     No appearance

Solicitors:

Appellant:     Allen & Overy
First Respondent           :     State Solicitor for Western Australia
Second Respondent       :     Herbert Smith Freehills

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
City of Kwinana v Lamont (2014) 201 LGERA 334; [2014] WASCA 112
Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Director of Public Prosecutions (Vic) v Leys [2012] VSCA 304; (2012) 296 ALR 96
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194
News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
R v PLV [2001] NSWCCA 282; (2001) 51 NSWLR 736
R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
Taylor v The Owners ‑ Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344
The Pilbara Infrastructure Pty Ltd v Brockman Iron Pty Ltd [No 2] [2014] WASC 345
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Wentworth Securities Ltd v Jones [1980] AC 74
Westminster Corporation v London and North Western Railway Co [1905] AC 426
Wilson & Horton Ltd v Commissioner of Inland Revenue [1996] 1 NZLR 26
Table of Contents

Buss JA's reasons...................................................................................................................... 7
The Competition Principles Agreement
Relevant provisions of the Railways (Access) Act 1998 (WA)
Relevant provisions of the Code
The organisation of the balance of these reasons
Appeal CACV 132 of 2014: the background facts and circumstances
Appeal CACV 132 of 2014: overview of the trial judge's findings of fact
Appeal CACV 132 of 2014: the central features of the Proposal
Appeal CACV 132 of 2014: the issues in the trial of action CIV 2512 of 2013
Appeal CACV 132 of 2014: the first issue: the trial judge's reasoning and conclusion
Appeal CACV 132 of 2014: the second issue: the trial judge's reasoning and conclusion
Appeal CACV 132 of 2014: the third issue: the trial judge's reasoning and conclusion
Appeal CACV 132 of 2014: the trial judge's ultimate conclusion
Appeal CACV 132 of 2014: the grounds of appeal
Appeal CACV 132 of 2014: broad overview of the scheme of the Code
Appeal CACV 132 of 2014: the merits of grounds 1, 2, 3 and 4
Appeal CACV 132 of 2014: the merits of ground 5
Appeal CACV 132 of 2014: the merits of ground 6
Appeal CACV 132 of 2014: the outcome of the appeal
Appeal CACV 133 of 2014: the outcome of the appeal
Murphy JA's reasons............................................................................................................. 73

Introduction
The structure of the Code
Proposal - s 8 of the Code
Principles of construction
Observations on the proper construction of s 8 of the Code
Grounds of appeal and disposition of the appellant's grounds

Grounds 1 - 4
Ground 5
Ground 6

Beech J's reasons.................................................................................................................... 89

BUSS JA: The critical issue in these appeals is whether a document (the Proposal) submitted by Brockman Iron Pty Ltd (Brockman) to The Pilbara Infrastructure Pty Ltd (TPI) on 15 May 2013 was a valid proposal under the Railways (Access) Code 2000 (WA) (the Code) for access to rail infrastructure owned by TPI (TPI's railway).
In action CIV 2512 of 2013 in the General Division of the Supreme Court, TPI, as plaintiff, claimed against Brockman, as first defendant, and Economic Regulation Authority (ERA), as second defendant, relevantly, a declaration that the Proposal 'was not a valid proposal under and for the purposes of the Code and did not attract or enliven the operation of any of the provisions of the Code'.
In action CIV 2511 of 2013 in the General Division of the Supreme Court, TPI, as applicant, claimed against ERA, as first respondent, and Brockman, as second respondent, relevantly, that ERA's decision on 14 August 2013 to approve negotiations under s 10 of the Code on the Proposal was made 'in excess of jurisdiction and power and by reason of error of law' in that the exercise of ERA's power under the Code depended on there being a valid proposal by Brockman for access to part of TPI's railway and, by reason of the matters raised by TPI in CIV 2512 of 2013, there was no valid proposal.
On 18, 19 and 20 August 2014, action CIV 2512 of 2013 was tried before Edelman J. His Honour held that the Proposal was a valid proposal within the meaning of the Code. TPI's claim was dismissed.
On 21 and 22 August 2014, action CIV 2511 of 2013 was tried before Edelman J. His Honour rejected TPI's claim for declaratory relief to the effect that the Proposal was not a valid proposal under the Code. His Honour refused to issue a writ of certiorari quashing ERA's decision on 14 August 2013 to approve negotiations under s 10 of the Code on the Proposal. However, his Honour granted TPI prerogative relief in relation to another claim by TPI. The other claim concerned a determination made by ERA on 12 September 2013. The determination and the relief granted by his Honour in respect of the other claim are not in issue in these appeals.
I would dismiss the appeals. My reasons are as follows.

The Competition Principles Agreement

On 11 April 1995, the Competition Principles Agreement was made by the Commonwealth, the States and the Territories.
The preamble to the Competition Principles Agreement states that the Council of Australian Governments had agreed to the principles of competition policy articulated in the National Competition Policy Review report. The preamble also states that the parties to the agreement intended to achieve and maintain consistent and complementary competition laws and policies, which would apply to all Australian businesses regardless of ownership.
By cl 6(3)(a) of the Competition Principles Agreement as amended, for a State or Territory access regime to conform to the principles set out in cl 6, it should apply to services provided by means of significant infrastructure facilities where:
(i)it would not be economically feasible to duplicate the facility;
(ii)access to the service is necessary in order to permit effective competition in a downstream or upstream market; and
(iii)the safe use of the facility by the person seeking access can be ensured at an economically feasible cost and, if there is a safety requirement, appropriate regulatory arrangements exist.
By cl 6(4) of the Competition Principles Agreement as amended, a State or Territory access regime should incorporate, relevantly, the following principles:
(a)Wherever possible third party access to a service provided by means of a facility should be on the basis of terms and conditions agreed between the owner of the facility and the person seeking access.
(b)Where such agreement cannot be reached, Governments should establish a right for persons to negotiate access to a service provided by means of a facility.
(c)Any right to negotiate access should provide for an enforcement process.
(d)Any right to negotiate access should include a date after which the right would lapse unless reviewed and subsequently extended; however, existing contractual rights and obligations should not be automatically revoked.
(e)The owner of a facility that is used to provide a service should use all reasonable endeavours to accommodate the requirements of persons seeking access.

Relevant provisions of the Railways (Access) Act 1998 (WA)

The relevant provisions of the Railways (Access) Act 1998 (WA) (the Act) are as follows.
The long title to the Act states, relevantly, that it is an Act to promote competition in the operation of rail services by:
•providing for the establishment of a Code governing the use of certain facilities for rail operations by persons other than their owners;
•conferring on the Economic Regulation Authority monitoring, enforcement and administrative functions for the implementation of the Code; and
•specifying the kind of arrangements that railway owners are to have in place for the purposes of that implementation,
and for related purposes.
Section 2A states that the main object of the Act is 'to establish a rail access regime that encourages the efficient use of, and investment in, railway facilities by facilitating a contestable market for rail operations'.
Section 3(1) contains numerous definitions. It provides, relevantly:
In this Act, unless the contrary intention appears ‑
access means the use of railway infrastructure;
access agreement means an agreement under the Code between a railway owner and another person for access by that person;
…
Code means the Code for the time being in force under section 4;
Competition Principles Agreement means the Competition Principles Agreement made on 11 April 1995 by the Commonwealth, the States and the Territories as in force for the time being;
…
railway infrastructure means the facilities necessary for the operation of a railway, including ‑
(a)railway track, associated track structures, over or under track structures, supports (including supports for equipment or items associated with the use of a railway);
(b)tunnels and bridges;
(c)stations and platforms;
(d)train control systems, signalling systems and communication systems;
(e)electric traction infrastructure;
(f)buildings and workshops; and
(g)associated plant machinery and equipment,
but not including ‑
(h)sidings or spur lines that are excluded by subsection (3) or (4) from being railway infrastructure associated with the railway concerned;
(i)rolling stock, rolling stock maintenance facilities, office buildings, housing, freight centres, or terminal yards and depots;
railway owner means the person having the management and control of the use of the railway infrastructure;
railways network means ‑
(a)all the railways that were Government railways when this Act received the Royal Assent;
(b)all the railways that are on land that is corridor land as defined in the Rail Freight System Act 2000;
(ba)the railway constructed pursuant to the TPI Railway and Port Agreement; and
(c)any railway declared under subsection (2) to be a part of the railways network;
Regulator means the Economic Regulation Authority established by the Economic Regulation Authority Act 2003.
Section 3A clarifies the scope of access rights:
(1)Without limiting the kinds of rights that can arise under an access agreement, those rights may entitle a person who has access to railway infrastructure to ‑
(a)use land managed and controlled by the railway owner;
(b)construct and operate a rail or other connection to the railway infrastructure,
for the purpose of exercising those rights.
(2)Accordingly, the provisions of this Act about agreements and determinations to do with access extend to the matters described in subsection (1).
Section 4(1) states that the Minister is to establish a Code in accordance with the Act to give effect to the Competition Principles Agreement in respect of railways to which the Code applies.
By s 4(2), provision is to be made in the Code:
(a)for railway infrastructure to be available for use by persons other than the railway owner to carry on rail operations in accordance with ‑
(i)agreements with the railway owner; or
(ii)determinations made by way of arbitration;
(b)prescribing ‑
(i)which parts of the railways network; and
(ii)which railway infrastructure associated with those parts,
are to be so available;
(c)setting out ‑
(i)provisions that are to govern the content of agreements and determinations referred to in paragraph (a);
(ii)rights, powers and duties that are to apply to and in relation to the negotiation, making, and implementation of agreements; and
(iii)duties and requirements in relation to the provision of access that are to be complied with by the railway owner;
and
(d)for the Regulator to have supervisory and other functions for the purposes of the Code, including a function of determining certain requirements in relation to access that are to be binding on the railway owner, a person making a proposal for access under the Code, and an arbitrator.
Section 9(1) states in effect that the Code is 'subsidiary legislation' as defined in s 5 of the Interpretation Act 1984 (WA).

Relevant provisions of the Code

The relevant provisions of the Code are as follows.
Section 3 of the Code contains numerous definitions. A number of the definitions are identical to the definitions in s 3(1) of the Act. Section 3 of the Code provides, relevantly:
In this Code, unless the contrary intention appears ‑
access means ‑
(a)the use of railway infrastructure; and
(b)where applicable, includes the exercise of other rights of the kind described in section 3A(1) of the Act;
access agreement means an agreement in writing under this Code between the railway owner and an entity for access by that entity;
Act means the Railways (Access) Act 1998;
associate, in relation to a railway owner, means ‑
(a)a related body corporate; and
(b)a unit trust, joint venture or partnership where the interest of the railway owner or of a related body corporate in the unit trust, joint venture or partnership entitles the railway owner or the related body corporate to ‑
(i)control the composition of the governing body of the unit trust, joint venture or partnership;
(ii)cast, or control the casting of, more than one half of the maximum number of votes that might be cast at a general meeting of the unit trust, joint venture or partnership; or
(iii)control the business affairs of the unit trust, joint venture or partnership;
capacity, in relation to a route, means the number of rail operations that can be accommodated on the route during a particular time having regard to ‑
(a)the characteristics of the route;
(b)the length of the rolling stock comprising a train that can be operated on the route, and the speed at which it can be operated;
(c)the requirements of ‑
(i)the railway owner's safety standards under section 9 of the Rail Safety Act 1998; or
(ii)any written law;
and
(d)the technical requirements for the relevant rolling stock;
Commission has the same meaning as in the Government Railways Act 1904;
determination means a determination by an arbitrator under Division 3 of Part 3;
entity means a corporation, partnership, trustee or other person;
expansion, in relation to a route, means an increase in the capacity of the route by an enhancement or improvement of the railway infrastructure associated with the route;
extension, in relation to a route, means the addition of railway infrastructure not forming part of the route at the time when the addition is proposed as mentioned in section 8(4) or (5);
Government railway means a railway, as defined in section 2 of the Government Railways Act 1904, that is under the management and control of the Commission as provided by section 13 of that Act;
operator means an entity to which access is provided under an access agreement;
proponent means an entity that has made a proposal;
proposal means a proposal under section 8;
rail operations means the operation of rolling stock on a part of the railways network;
railway infrastructure means the facilities necessary for the operation of a railway, including ‑
(a)railway track, associated track structures, over or under track structures, supports (including supports for equipment or items associated with the use of a railway);
(b)tunnels and bridges;
(c)stations and platforms;
(d)train control systems, signalling systems and communication systems;
(e)electric traction infrastructure;
(f)buildings and workshops; and
(g)associated plant machinery and equipment,
but not including ‑
(h)sidings or spur lines that are excluded by section 3(3) or (4) of the Act from being railway infrastructure; and
(i)rolling stock, rolling stock maintenance facilities, office buildings, housing, freight centres, and terminal yards and depots;
railway owner means the person having the management and control of the use of the railway infrastructure concerned;
railways network means ‑
(a)all the railways that were Government railways when the Act received the Royal Assent;
(b)all the railways that are on land that is corridor land as defined in the Rail Freight System Act 2000;
(ba)the railway constructed pursuant to the TPI Railway and Port Agreement; and
(c)any railway declared under section 3(2) of the Act to be part of the railways network;
Regulator means the person who holds, or is acting in, the office provided for by Part 3 of the Act;
related body corporate has the same meaning as it has in the Corporations Law;
rolling stock means any vehicle, whether self‑propelled or not, that operates on or uses a railway track;
route means those parts of the railways network and associated infrastructure to which this Code applies, and includes part of a route;
route section means the sections of the railways network into which the network is divided for management and costing purposes.

Section 4A declares that parties have the option of negotiating agreements outside the Code. Section 4A(1) provides:
To avoid doubt it is declared to be the case that ‑
(a)the parties concerned may choose whether negotiations for an agreement for access are carried on under this Code or otherwise; and
(b)if the parties choose to negotiate an agreement for access otherwise than under this Code, nothing in this Code applies to or in relation to the negotiations or any resulting agreement; and
(c)in particular, without limiting paragraph (b), a Part 5 instrument, as defined in section 40(3), is not to be taken into account in determining the rights, powers, duties and remedies of parties to negotiations carried on or an agreement made otherwise than under this Code, except to the extent that the parties concerned agree otherwise.
Section 5 specifies the routes to which the Code applies. It provides, relevantly:
(1)This Code applies only to ‑
(a)those parts of the railways network; and
(b)the associated railway infrastructure,
that come within the routes specified in Schedule 1.
(1a)Subsection (1) does not prevent ‑
(a)the making of a proposal that involves any extension or expansion, or both, of a route or the associated railway infrastructure, as mentioned in section 8(4); or
(b)the proposal of such an extension or expansion being made in the course of negotiations under Part 3, as mentioned in section 8(5).
(1b)If a route or the associated railway infrastructure is extended or expanded pursuant to an access agreement or a determination, this Code also applies to the route and infrastructure as so extended or expanded.
Part 2A is headed 'Publication of information', and comprises s 6 to s 7E.
By s 7A(1), the railway owner in relation to a part of the railways network to which the Code applies must make a publication containing the 'required information' available for purchase in hard copy format.
The term 'required information' is defined in s 6 to mean:
(a)the form of the railway owner's standard access agreement; and
(b)the information described in sch 2 in respect of the relevant part of the railways network.
The information described in sch 2 that is part of the 'required information', as defined in s 6, which the railway owner must make available for purchase in hard copy format pursuant to s 7A(1), is as follows:
Terms used
1.In item 4 of this Schedule ‑
gross tonnage of a train means the total of the weights of the rolling stock of the train and of the freight carried;
tonnage of freight carried means the gross tonnage of the train less the weight of the rolling stock.
Information
2.A map showing a geographical description of the railways network.
3.A map of the routes listed in Schedule 1 showing the configuration of the tracks on each route.
4.For each route section, details of the following ‑
(a)the track diagrams and type of track;
(b)the length;
(c)the curves and gradients;
(d)the operating gauge;
(e)the location and length of passing loops;
(f)the track and formation characteristics;
(g)the running times of existing trains;
(h)the maximum axle loads and maximum train speeds;
(i)the permanent speed restrictions;
(j)the rolling stock dimension limits;
(k)the indicative maximum train lengths;
(l)the total gross tonnage of all trains operated during a period provided for by section 7D;
(m)subject to any exemption under section 7B, the total tonnage of freight carried on all trains operated during a period provided for by section 7D;
(n)the communication systems;
(o)the available capacity.
5.The train control systems operating on the network.
6.A summary of improvements and capital works proposed to be carried out during a period provided for by section 7E.
By s 7C(1), the railway owner must review, and amend or replace, the information published under s 7A. By s 7C(2), a review, and any necessary amendment or replacement, under s 7C(1) must be carried out as often as is necessary to ensure that the information remains reasonably up‑to‑date at all times and, in any case, at not less than, relevantly, 2 yearly intervals.
Part 2 is headed 'Proposals for access', and comprises s 7 to s 12.
Section 7 is concerned with the provision by a railway owner of preliminary information to an entity that is interested in making a proposal in respect of a particular route:
(1)An entity that is interested in making a proposal in respect of a particular route may ask the railway owner in writing to provide it with ‑
(a)an initial indication of ‑
(i)the current available capacity of that route; and
(ii)the price that the entity might pay for access; and
(iii)the terms, conditions and obligations that the railway owner would want to be included in any access agreement;
and
(b)any update of the required information, as defined in section 6, that is reasonably available to the railway owner; and
[(c)deleted]
(d)the origin and destination of any train paths proposed by the railway owner for the route.
(2)The railway owner must provide the information sought by an entity under subsection (1) not later than the 14^th day after the day on which the request is received.
(3)In providing the information, the railway owner must give to the entity technical information about any aspect of the railway owner's railway infrastructure that affects the design of rolling stock.
Section 8 relates to proposals for access:
(1)An entity may make to the railway owner a proposal in writing for access by the entity.
(2)A proposal can be made ‑
(a)only in respect of a route to which this Code applies; and
(b)for the purpose of carrying on rail operations, and for no other purpose.
(3)A proposal must ‑
(a)specify the route, including the railway infrastructure, to which access is sought; and
(b)indicate the times when the access is required; and
(c)set out the nature of the proposed rail operations; and
(d)be accompanied by a notice in writing of the proponent's intention to enter into negotiations for an access agreement under this Code.
(4A)The proponent must, as soon as is practicable after a proposal is made, give to the Regulator a copy of the notice referred to in subsection (3)(d).
(4)A proposal may specify any extension or expansion, or both, of the route or the associated railway infrastructure that would be necessary to accommodate the proposed rail operations.
(5)The fact that an extension or expansion is not specified in a proposal as mentioned in subsection (4) does not prevent the proposal of such an extension or expansion being made in the course of negotiations under Part 3 on the ground that such an extension or expansion would be necessary to accommodate the proposed rail operations.
Section 9A enables a proponent, at any time before an access agreement is made, to withdraw a proposal for access made to a railway owner. It provides, relevantly:
(1)A proponent may at any time before an access agreement is made withdraw a proposal for access made to a railway owner, but only if there has not been a referral to arbitration under section 26.
(2)Subsection (1) does not affect ‑
(a)any right that a proponent has in law not to continue with a referral to arbitration; or
(b)the operation of section 34(2).
(3)A proposal is withdrawn by the proponent giving notice in writing of the withdrawal to ‑
(a)the railway owner; and
(b)the Regulator.
(4)If a proposal is withdrawn ‑
(a)the railway owner is under no further obligation under this Code in respect of the proposal; and
(b)any matter in progress under this Code in respect of the proposal lapses.
(5)Nothing in this section prevents a proponent that has withdrawn a proposal from ‑
(a)re‑making the same proposal; or
(b)making a further proposal,
under section 8, and if paragraph (a) applies the proponent and the railway owner must again take all steps and observe all requirements under this Code in respect of the re‑made proposal.
Section 9 sets out a railway owner's obligations on receipt of a proposal. By s 9(1), (2) and (3):
(1)The railway owner must within 7 days after a proposal is received ‑
(a)acknowledge receipt of the proposal;
(b)inform the proponent of the railway owner's requirements under sections 14 and 15; and
(c)provide the proponent with ‑
(i)the floor price and the ceiling price for the proposed access;
(ii)the costs for each route section on which those prices have been calculated; and
(iii)a copy of the costing principles that for the time being have effect under section 46.
(2)If section 8(4) applies ‑
(a)the sums notified to the proponent under subsection (1)(c)(i) and (ii) are to be assessed for access to the route and infrastructure as it exists and not for access to any proposed extension or expansion of the route and infrastructure; and
(b)the railway owner must, within 30 days after the proposal is received, provide the proponent with ‑
(i)a reasonable preliminary estimate of the costs relating to any extension or expansion specified in the proposal; and
(ii)the railway owner's opinion as to the share of those costs that is likely to be borne by the proponent, having regard to the requirements of Schedule 4 clause 7A.
(3)In any negotiations or arbitration under Part 3 the railway owner is not bound by an estimate or opinion provided to a proponent under subsection (2)(b).
Section 9(3a) imposes on a railway owner an obligation to give a proponent a draft access agreement not later than the times specified in s 9(3a).
Section 9(4) provides that, in s 9(1)(c)(i):
floor price and ceiling price are the sums equal to the costs referred to in clauses 7(1) and 8(1) respectively of Schedule 4 ‑
(a)as determined by the Regulator under clause 9 of that Schedule; or
(b)if that clause does not apply, as determined by the railway owner for the purposes of clause 10(1) of that Schedule.
Section 10 requires that the Regulator's approval be obtained, in certain cases, before negotiations on a proposal are entered into by the railway owner. By s 10(1):
Where ‑
(a)a proposal has been made; and
(b)the railway owner considers that it would involve the provision of access to railway infrastructure to an extent that may in effect preclude other entities from access to that infrastructure,
negotiations on the proposal must not be entered into by the railway owner without the approval of the Regulator.
Part 3 is headed 'Negotiations', and comprises s 13 to s 36A.
Section 13 imposes a duty on a railway owner to negotiate in good faith with an entity that has made a proposal with a view to the railway owner and the entity making an access agreement:
(1)Where a proposal is made by an entity the railway owner must negotiate in good faith with the entity with a view to the railway owner and the entity making an access agreement in respect of the route.
(2)The duty imposed on the railway owner by subsection (1) ‑
(a)is subject to the proponent meeting the requirements of sections 14 and 15; and
(b)does not arise until the proponent has given notice to the railway owner under section 19(3).
Section 14 confers on a railway owner a right to require a proponent to show that it has managerial and financial ability, as follows:
(1)The railway owner is entitled to require a proponent to show that ‑
(a)either ‑
(i)its management and staff have the necessary knowledge and experience; or
(ii)it will be able to, and will, engage the services of another entity whose management and staff have the necessary knowledge and experience,
to carry on the proposed rail operations; and
(b)it has the necessary financial resources ‑
(i)to carry on the proposed rail operations; and
(ii)if section 8(4) applies, to pay the share of costs referred to in section 9(2)(b).
(2)In subsection (1)(b) ‑
financial resources, in relation to an entity, includes its ability to meet its financial obligations under an access agreement ‑
(a)to the railway owner, having regard to any credit arrangements with the railway owner; and
(b)to other persons, including excesses under policies of insurance.
By s 15, a railway owner is entitled to require a proponent to show that its proposed operations are within the capacity of the route or proposed expanded route:
(1)The railway owner is entitled to require a proponent to show that, having regard to the capacity of the route and any information provided to the proponent under sections 6 and 7 ‑
(a)the proposed entry time onto and exit time from the route to which the proposal relates; and
(b)the speed and length of rolling stock proposed to be used in operations on the route,
either ‑
(c)can be accommodated on the route; or
(d)if section 8(4) applies, could be so accommodated if the extension or expansion, or both, specified for the purposes of section 8(4) were undertaken by the railway owner.
(2)If section 8(4) applies, the railway owner is also entitled to require the proponent to provide the railway owner with a preliminary assessment, based on information reasonably available to the proponent, showing that the proposed extension or expansion ‑
(a)can be carried out in a technically and economically feasible way; and
(b)will be consistent with the carrying on of safe and reliable rail operations on the route.
Section 16 specifies the general duties of a railway owner in the negotiation of an access agreement:
(1)In the negotiation of access agreements the railway owner ‑
(a)must use all reasonable endeavours ‑
(i)to avoid unnecessary delays on its part; and
(ii)to meet the requirements of a proponent who has complied, and whose proposal complies, with this Code;
and
(b)must not unfairly discriminate between one proponent and another.
(2)In the negotiation of access agreements the railway owner must not unfairly discriminate between the proposed rail operations of a proponent and the rail operations of the railway owner including, without limitation, in relation to ‑
(a)the allocation of train paths;
(b)the management of train control; and
(c)operating standards.
(3)In subsection (2) ‑
rail operations of the railway owner includes the rail operations of an associate of the railway owner.
Section 17 sets out the matters that must be covered in negotiating an access agreement:
(1)In negotiating an access agreement the railway owner and the proponent must ‑
(a)ensure that provision is made in detail for the matters specified in Schedule 3;
(b)give effect to the provisions of Schedule 4;
(c)include in the agreement all matters agreed between them in relation to the proposal apart from provisions ‑
(i)implied by law; or
(ii)incorporated in the agreement by reference.
(2)Subsection (1) does not prevent other matters from being included in an access agreement.
The matters specified in sch 3 for which, by s 17(1)(a), provision must be made in an access agreement, are these:
1.The period for which access is provided and arrangements for renewals.
2.The routes, including the railway infrastructure, to which access is provided.
3.The services to be provided by the operator.
4.The allocation of train paths that have ceased to be used by the operator.
5.Prices and charges.
6.Route control and management.
7.Train control, operations and consultation procedures.
8.Other services to be provided by the railway owner.
9.Certification of the operator's staff and contractors ‑
(a)as being competent to carry out functions in rail operations; and
(b)to ensure compliance with the railway owner's safety standards under section 9 of the Rail Safety Act 1998.
10.The standards and other requirements to be met in respect of rolling stock.
11.Performance standards to be met by the railway owner and the operator.
12.The powers of the railway owner in relation to ‑
(a)the inspection of;
(b)the obtaining of information about; and
(c)the testing of,
the operator's rolling stock and other equipment.
13.Emergencies and service interruptions.
14.Environmental standards.
15.Indemnities and insurances.
16.Variation and termination of the agreement.
17.Breaches and defaults arising from the agreement.
18.Determination of liability arising from incidents.
19.The resolution of disputes arising in the carrying out of the agreement.
20.Investigations and inquiries.
21.Confidentiality requirements or restrictions on the use or dissemination of information.
22.Assignment of rights and obligations.
23.Security for the payment of amounts becoming payable under the agreement.
The provisions of sch 4, which are referred to in s 17(1)(b), relate to prices to be paid for access.
Section 18 is concerned with disputes between a proponent and a railway owner about the sufficiency of information given by the proponent to the railway owner under s 14 and s 15.
Section 19 makes provision for each of the railway owner and the proponent to give written notice to the other of its readiness to commence negotiations.
Section 20 deals with the period during which negotiations between a railway owner and a proponent are to begin and cease. By s 20(1), the railway owner and the proponent must begin negotiations on the day nominated by the proponent in a notice given to the railway owner under s 19(3)(b). By s 20(2), immediately before the negotiations are begun the railway owner and the proponent must jointly fix a day (the termination day) after which the negotiations:
(a)will cease if, by the end of that day, they have not entered into an access agreement; or
(b)will continue only if a later termination day is fixed jointly by the railway owner and the proponent.
Section 22 to s 36A are concerned with the arbitration of disputes between a railway owner and a proponent. Those provisions are contained in div 3 of pt 3.
Section 25 stipulates when an entity is taken to be in dispute with a railway owner:
(1)For the purposes of this Division an entity is in dispute with the railway owner if ‑
(a)the entity has made a proposal for access by it;
(b)the proposal complies, and the entity has complied, with this Code; and
(c)any of the situations in subsection (2) exist.
(2)The situations referred to are ‑
(a)the railway owner has refused to negotiate on the proposal as required by section 13;
(b)the proponent has notified the railway owner under section 18(3) that there is a dispute between them; or
(c)the entity and the railway owner have entered into negotiations on the proposal but ‑
(i)have not before the termination day fixed under section 20(2) reached agreement on the provisions to be contained in an access agreement; or
(ii)have before that day jointly made a determination in writing that the negotiations have broken down.

Section 26(1) provides that an entity (the other party) that is in dispute with the railway owner may, by notice in writing to the Regulator, refer the dispute to arbitration. By s 26(3), subject to pt 3 div 3 of the Code (which comprises s 22 to s 36A), the Commercial Arbitration Act 2012 (WA) applies to the arbitration.
Section 31(3) states that nothing in the Code is to be read as providing that an arbitrator's determination must require the railway owner to allow the other party to use railway infrastructure.
Section 33 applies where the arbitrator is to determine a dispute referred to in s 25(2)(a) or s 25(2)(c). By s 33(2), (3) and (4):
(2)The determination ‑
(a)may deal with any matter relating to use by the other party of railway infrastructure, including matters that were not the basis for the party's request for arbitration; and
(b)may contain any direction to the railway owner or the other party that is necessary for the purposes of paragraph (a).
(3)Without limiting subsection (2), the determination may do one or more of the following ‑
(a)require the railway owner to allow the other party to use railway infrastructure;
(b)require the other party to use, and pay for, railway infrastructure;
(c)specify the terms and conditions on which the other party may use railway infrastructure;
(d)subject to subsection (4), require the railway owner to extend or expand a route or the associated railway infrastructure, or to do both.
(4)The determination must not require the railway owner to extend or expand a route or the associated railway infrastructure unless the arbitrator determines that the proponent ‑
(a)has the necessary financial resources to pay any costs relating to the extension or expansion for which the proponent is liable; and
(b)is able to secure such payment in a way that the arbitrator considers satisfactory.
By s 35, an arbitrator may, without making a determination, terminate an arbitration at any time if the arbitrator thinks that any of various specified grounds exist, including that 'the other party has not engaged in negotiations in good faith': s 35(c).
Part 4 is headed 'Access agreements', and comprises s 36 to s 39.
Section 36 specifies some general matters in relation to an access agreement:
(1)An access agreement must relate to ‑
(a)the proposal made by the proponent; or
(b)some modification of that proposal agreed to by the railway owner and the proponent.
(2)An access agreement cannot be made ‑
(a)in respect of a route and the associated railway infrastructure unless this Code applies to that route and infrastructure;
(b)for access other than for the purpose of carrying on rail operations; or
(c)so as to confer on an entity exclusive rights to use or occupy any route, whether temporarily or otherwise, including by way of sale, lease or assignment.
(3)Subsection (2)(a) does not, where ‑
(a)section 8(4) applies; or
(b)an extension or expansion is proposed in the course of negotiations under Part 3, as mentioned in section 8(5),
prevent the making of an access agreement that involves the extension or expansion, or both, of a route or the associated infrastructure.
Section 37 states that an access agreement, so long as it complies with the Code, need not contain the same provisions as another access agreement.
Section 39 establishes a scheme for the registration by the Regulator of access agreements and determinations to which s 33 applies. Registration is effected by recording various particulars in a register and the Regulator must make the register available for inspection by any person during office hours.

The organisation of the balance of these reasons

TPI's grounds of appeal in each of the appeals are identical.
Appeal CACV 132 of 2014 relates to action CIV 2512 of 2013 in which TPI claimed against Brockman and ERA, relevantly, a declaration that the Proposal 'was not a valid proposal under and for the purposes of the Code and did not attract or enliven the operation of any of the provisions of the Code'. Brockman took part in the appeal. ERA filed a notice to the effect that it did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
Appeal CACV 133 of 2014 relates to action CIV 2511 of 2013 in which TPI claimed against ERA and Brockman, relevantly, that ERA's decision on 14 August 2013 to approve negotiations under s 10 of the Code on the Proposal was made 'in excess of jurisdiction and power and by reason of error of law', in that the exercise of ERA's power under the Code depended on there being a valid proposal by Brockman for access to part of TPI's railway and, by reason of the matters raised by TPI in CIV 2512 of 2013, there was no valid proposal. Both ERA and Brockman filed notices to the effect that they did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
The outcome of the appeal in CACV 132 of 2014 will determine the outcome of the appeal in CACV 133 of 2014.
It is therefore convenient to consider, first, the appeal in CACV 132 of 2014, including the background facts and circumstances relating to action CIV 2512 of 2013, the trial judge's reasons (including his findings and conclusions) after the trial of that action and the merits of TPI's grounds of appeal in CACV 132 of 2014.

Appeal CACV 132 of 2014: the background facts and circumstances

TPI is the owner of TPI's railway. It is situated in the Pilbara region of Western Australia.
The Code applies to TPI's railway.
At all material times, Brockman has held a mining tenement over land containing iron ore in the Pilbara region. Brockman's mining plans for this tenement were described in the Proposal as the 'Marillana Project'.
The trial judge summarised the background to the status of the Marillana Project as at 15 May 2013, being the date on which Brockman submitted the Proposal to TPI [33] ‑ [62]. It is unnecessary to reproduce the summary.
Later, his Honour said that as at 15 May 2013:
(a)Brockman had not obtained the necessary regulatory approvals, consents, land tenure and access rights to develop a mining project, including in respect of port infrastructure.
(b)Brockman had no finance for the multi‑billion dollar Marillana Project. Brockman's parent company had a little over $4 million to commit to the project.
(c)Brockman had no bankable feasibility study to take to financiers. The cost of such a study would be about $50 million. Brockman had not raised the finance to carry out the study. The preparation of a bankable feasibility study would take between three and four years.
(d)Brockman had no 'port solution'. Unless space at the Port Hedland port could be leased from an existing holder of space, it would be necessary for Brockman to engage in construction and this would require approval from the port authority. It would be necessary to prepare a port bankable feasibility study which would cost between $60 million and $100 million and would take between 18 and 24 months to prepare. Brockman had estimates concerning a 'port solution' in relation to various other rail options which estimated port access would be available by 2019.
(e)Brockman had no buyer for any iron ore which it mined.
(f)Brockman did not propose commencing the preparation of a bankable feasibility study or negotiations for key project contracts until its 'infrastructure solution' was resolved.
(g)Construction of the Marillana Project would not commence until a final investment decision was made. That decision had not been made and could take between two and four years after completion of the bankable feasibility study [74].
The Proposal contained a proposal for the use by Brockman of parts of TPI's railway and for the construction, connection and operation by Brockman of two spur rail lines to TPI's railway. The Proposal stated that access was sought to TPI's railway 'commencing in late 2016, subject to conditions precedent which are typical for a below rail access agreement for a new mine'. See p 14 of the Proposal (Green Appeal Book 274).
By letter dated 22 May 2013, written in response to the Proposal, TPI required Brockman to establish each of the following matters:
(a)either:
(i)Brockman's management and staff have the necessary knowledge and experience; or
(ii)Brockman will be able to and will engage the services of another entity whose management and staff have the necessary knowledge and experience,
to carry on Brockman's proposed rail operations: s 14(1)(a) of the Code;
(b)Brockman then had the necessary ability to meet all of its financial obligations of carrying on Brockman's proposed rail operations, both to TPI as the railway owner and to others, as well as all of the costs of any proposed extension or expansion, specified in the Proposal: s 14(1)(b) of the Code; and
(c)having regard to the capacity of the proposed route and any information provided to Brockman by TPI as the railway owner under s 6 and s 7 of the Code:
(i)the proposed entry times onto and exit times from the route to which the Proposal relates; and
(ii)the speed and length of rolling stock proposed to be used by Brockman in operations on the route,
either:
(iii)can be accommodated on that route; or
(iv)if s 8(4) of the Code applies, could be so accommodated if the extension or expansion, or both, specified for the purposes of s 8(4), were to be undertaken by TPI as the railway owner: s 15(1) of the Code.
TPI alleged that Brockman had failed to establish any of the matters referred to in TPI's letter dated 22 May 2013 in that Brockman had failed to provide TPI with evidence that was capable of establishing objectively any of them. Brockman denied TPI's allegations.
Brockman asserted that:
(a)it would provide any information required by TPI to meet the requirements of s 14 and s 15 of the Code after TPI had supplied Brockman with the information that Brockman had requested it to provide, including information requested under s 7 of the Code; and
(b)by letter dated 13 September 2013, Brockman by its solicitors informed TPI of the matters referred to in par (a) above.

Appeal CACV 132 of 2014: overview of the trial judge's findings of fact

The trial judge noted:
(a)at the trial, counsel for Brockman accepted 'the inevitable', which was that a late 2016 commencement date for access 'cannot now be achievable'; and
(b)objectively, and assessed with the benefit of hindsight and expert evidence, 'it was also not likely to have been achievable in May 2013' [75]. (original emphasis)
It was common ground at the trial that the Proposal would not be valid if Brockman did not intend to enter good faith negotiations for an access agreement. Although his Honour did not accept Brockman's concession on that point, he did accept and proceed on the agreed basis that the relevant date for assessing any intention was the date of the Proposal, namely 15 May 2013 [32].
The trial judge found, on the basis of documentary evidence, that a 'significant motive' behind the Proposal was Brockman's attempt to compel TPI's parent company to provide 'more economic terms' for a rail haulage agreement (by which TPI would transport Brockman's iron ore using TPI's rail infrastructure and trains) [78]. His Honour recorded that, ultimately, this motive was not disputed by Brockman [83].
Although his Honour concluded that a 'dominant motive' of Brockman, in making the Proposal, was Brockman's desire 'to obtain commercial terms for a haulage agreement', he accepted that another motive was 'to negotiate for the possibility of a favourable access agreement' [85].
The trial judge also said that although one of Brockman's 'dominant motives for negotiations was to gain leverage over TPI in obtaining a haulage agreement on commercial terms', this motive was not inconsistent with 'an additional motive of entering into negotiations and an intention to do so' [100].
After reiterating that he did not accept Brockman's concession that Brockman must have an intention to enter good faith negotiations in order for the Proposal to be valid, his Honour said that, in any event, he concluded, for four reasons, that Brockman had 'any required intention that might be implied under the Code' [101] ‑ [102]. The four reasons were these. First, one of Brockman's motives in making the Proposal was to enter negotiations with TPI for an access agreement, and that motive was consistent with an intention to enter negotiations [103]. Secondly, and in any event, motive or purpose was a different concept from intention. Brockman's two motives in making the access proposal were therefore different matters from its intentions concerning the exercise of its statutory rights under the Code. Brockman's intentions, in furthering each of its motives, were to employ the statutory process. There was no suggestion that Brockman had any intention, at any stage, of abandoning the statutory process [104]. Thirdly, intention could not be considered in a vacuum. It was 'confusing at best, meaningless at worst, to speak of an intention to enter into an access agreement'. No decision to enter an access agreement could be made in the absence of terms. Hence, the fact that Brockman had not decided to use TPI's railway as its transport option was little more than an acknowledgement that no terms had been agreed. That was the reason for negotiations [107] ‑ [108]. Fourthly, it was never part of TPI's case that the Proposal was a sham [109].

Appeal CACV 132 of 2014: the central features of the Proposal

The trial judge summarised the central features of the Proposal [111] ‑ [117]:
(a)The Proposal asserted that the forecast annual production for the Marillana mine was up to 20 million tonnes per annum. It said that the mine was scheduled to commence production in late 2016 with a projected mine life of more than 20 years.
(b)The Proposal stated that Brockman had completed all key planning work for the Marillana Project up to the commencement of the bankable feasibility study stage. It said that the next stage would be the completion of a bankable feasibility study once the 'infrastructure solution' for the project was resolved. The bankable feasibility study, and negotiations for key project contracts, would commence only when there was sufficient certainty about the infrastructure solution. The bankable feasibility study would then inform the final investment decision for the Marillana Project.
(c)As to issues of capacity, the Proposal asserted that 'Brockman's mine planning shows a production profile ramp up over the first two years of production (2017 ‑ 2018)'.
(d)If the Marillana Project proceeded, Brockman planned to export iron ore from the mine through Port Hedland. It had 'a preferential position to participate in at least 18.5 Mtpa and up to 50 Mtpa of port capacity through a proposed development at South West Creek' at Port Hedland.
(e)The Proposal stated that a 'port spur line' of about 16 km would have to be built from the destination of TPI's railway line to the unloading facilities at Port Hedland.
(f)The Proposal gave the following explanation as to why access rights were sought:
to operate train services along the TPI Railway … to allow for the haulage of Product [iron ore] from the Marillana Mine to South West Creek in Port Hedland port, where Brockman has a preferential position to participate in at least 18.5 Mtpa and up to 50 Mtpa of port capacity; and
to commence train services late in 2016 for a duration of 20 years, with an option to extend by mutual agreement, based on allocated cyclic Train Paths, with a limited number of scheduled Train Paths to support the usual operations of a mine.

Appeal CACV 132 of 2014: the issues in the trial of action CIV 2512 of 2013

There were three broad issues between the parties at the trial of action CIV 2512 of 2013 [118] ‑ [122].
First, whether s 8(1) of the Code requires that a proposal be for the making of an agreement which (if made) will embody, on the part of the proponent, a definite intention to use, and definite promises for the use of, the relevant railway infrastructure.
Secondly, whether s 8(2)(b) of the Code requires that the sole purpose for which a proposal may be made is the purpose of actually carrying on rail operations (that is, the operation of rolling stock on part of the railways network); and not for the purpose of obtaining a right to do so, at some future time, if various future uncertain events occur and various future decisions are made by the proponent and others, and if the proponent then decides to carry on the operation of rolling stock on part of the railways network.
Thirdly:
(a)whether s 8(1) and s 8(3)(d) of the Code require that a proposal must be 'genuine'; that is, whether it must be made with a real and genuine intention to negotiate for and, if acceptable terms are reached, to make an agreement to use railway infrastructure;
(b)whether the proposal must state the proponent's genuine requirements, including the time from which the proponent genuinely requires a right to use railway infrastructure;
(c)whether the time for the commencement of use in the proposal should be immediate; and
(d)whether the time for commencement of use in the proposal should be definite, and not uncertain.

Appeal CACV 132 of 2014: the first issue: the trial judge's reasoning and conclusion

TPI's case on the first issue was that all of the following, in combination, were part of the requirements for a 'proposal' under s 8(1) of the Code:
(a)There must be a proposal for an agreement in writing.
(b)The entity making the proposal must intend to make an agreement for actual use of specified railway infrastructure and other applicable matters.
(c)The entity must intend to pay for actual use of specified railway infrastructure and other applicable matters.
TPI alleged that the Proposal was not such a proposal in that it was in fact a proposal for an agreement by which Brockman in effect would only use and pay for the use of TPI's railway infrastructure and would only be bound to perform the agreement if, in the future, Brockman, amongst other things, did the following things, which it had not yet done:
(a)raises sufficient finance to carry out a study, of a kind that would be relied upon by prospective financiers in deciding whether to invest in or advance funds for, the development of an iron ore mining project upon tenements held by Brockman, relating to the technical feasibility and economic viability of such a mining project;
(b)causes such a study to be carried out and the study concludes that such a mining project would likely be technically feasible and economically viable;
(c)obtains (and fulfils all applicable conditions of) all necessary regulatory approvals, consents, land tenure and access rights, to develop such a mining project, including in respect of requisite port infrastructure;
(d)raises sufficient finance to develop such a mining project including requisite port infrastructure and finance to enable it to meet the financial obligations pleaded in paragraph 9(b) below;
(e)decides to develop, and proceeds with development of, such a mining project, including requisite port infrastructure or otherwise obtains access to such infrastructure; and
(f)decides that it wishes to use TPI's railway as the means of transporting iron ore produced from its tenements to the coast of Western Australia.
See par 7 of the further re‑amended statement of claim.

Brockman joined issue with TPI's submissions in relation to the proper construction of s 8(1) of the Code and denied that the matters asserted by TPI were required for a valid proposal. Brockman accepted, however, that it had not yet done the things enumerated in par 7 of the further re‑amended statement of claim.
The trial judge said there were seven obstacles to the three cumulative requirements which TPI submitted were necessary for a 'proposal' under s 8(1) of the Code, and any one of those obstacles was sufficient to reject TPI's submissions [128]. The seven obstacles were as follows [129] ‑ [170]:
(a)TPI's construction was inconsistent with the language of the Code.
(b)TPI's construction involved the making of implications, by reference to the statutory text, and there was no proper basis for filling a 'gap' in the legislation.
(c)TPI's implications, by reference to the statutory text, lacked clarity.
(d)Even if it could be said that Brockman had to form some intention to enter an agreement on particular terms (which were not required to be stated in the Proposal), those terms could never be exhaustively stated; in particular, Brockman could not be expected to know the full detail of the terms of the prospective agreement because many of those finer details would be known only to TPI and would emerge in negotiations.
(e)TPI's implications were inconsistent with other provisions of the Code.
(f)TPI's implications were economically inefficient and therefore contrary to one of the purposes of the Code.
(g)TPI's implications, if accepted, would create an impossible situation for the Regulator.
His Honour concluded:
TPI's proposed requirements should not be accepted. Their inclusion would be inconsistent with Australian principles of statutory interpretation. The concepts sought to be included are ambiguous. Some of the concepts are incapable of being given a coherent meaning. Their inclusion would be inconsistent with the words of the provisions into which they are sought to be inserted. Their inclusion would be inconsistent with the operation of other provisions of the Code. Their inclusion would be inconsistent with a purpose of the Code. And the operation of the concepts would be unworkable [171].

Appeal CACV 132 of 2014: the second issue: the trial judge's reasoning and conclusion

By s 8(2)(b) of the Code, a proposal can be made for the purpose of carrying on rail operations, and for no other purpose.
TPI's case on the second issue was that Brockman had subjective motives, and had uncertainty about its subjective intentions, that were inconsistent with a subjective purpose of immediately carrying on rail operations. TPI submitted that the Proposal was not valid because it involved an impermissible motive or purpose.
The trial judge rejected TPI's case on the second issue. His Honour said there were five obstacles to the acceptance of its case [174] ‑ [197]:
(a)The language of s 8(2)(b) had the effect that a proposal in writing for use of railway infrastructure can be made only for the purpose of the operation of rolling stock on a part of the railways network and not, for example, to use railway infrastructure for other purposes. The textual meaning of s 8(2)(b) involved attention to the words of the written proposal and not some subjective purpose of the entity making the proposal.
(b)Section 36(2)(b) was concerned with access agreements. It reinforced the requirement of sole purpose in s 8(2)(b). The language of s 36(2)(b) was identical to that of s 8(2)(b) with its focus on the sole 'purpose of carrying on rail operations'. It was the written agreement, and only the written agreement, which was to be considered in determining whether an access agreement was made for an impermissible purpose.
(c)TPI's reliance upon 'subjective purpose' was not really reliance on purpose at all. A 'purpose', in the context of s 8(2)(b), was concerned with an expressed consequence rather than a motive. Accordingly, the 'purpose of carrying on rail operations' described the expressed consequence to which the proposal must be directed. The reference to 'purpose' was different from the motive or reason for that expressed consequence or end. His Honour illustrated the point by comparing the alleged 'purpose' which TPI contended was impermissibly held by Brockman (to gain leverage in negotiations for a haulage agreement) and the statutory example of purpose (carrying on rail operations). The first 'purpose' (which was really a motive) concerned why Brockman made a proposal with the end consequence being to carry on rail operations. The second (statutory) 'purpose' was concerned with that end consequence.
(d)TPI's submissions, if accepted, would create an impossible situation for the Regulator.
(e)Even if motive and purpose were conflated, and s 8(2)(b) were read as though it referred to the subjective motive of Brockman, the evidence showed that Brockman did have a subjective motive of carrying on rail operations. Even the alleged impermissible motive of gaining leverage in commercial negotiations for a haulage agreement was concerned with haulage by rail; that is, with carrying on rail operations. Even if the Code were concerned to proscribe impermissible motives, a motive of using the access regime to support negotiations outside the Code was not only within the meaning of 'rail operations', but was also a matter contemplated by s 4A(1).
His Honour concluded:
Section 8(2)(b) of the Code requires that a proposal in writing for use of railway infrastructure can be made only for the purpose of the operation of rolling stock. It is not concerned with some subjective 'purpose'. Still less is it concerned with subjective motive. Those notions of subjectivity are inconsistent with the language of the provision (including the definitions). They are inconsistent with the language of other provisions in the Code. They would create a practical impossibility for the operation of the Code in cases where the issue is contested before a Regulator [206].

Appeal CACV 132 of 2014: the third issue: the trial judge's reasoning and conclusion

TPI's case on the third issue was that four requirements flowed from its contention that under s 8(1) and s 8(3)(d) of the Code a proposal must be 'genuine'. The requirements were these:
(a)The proposal must be made with a real and genuine intention to negotiate for an access agreement.
(b)The proposal must be made with a real and genuine intention to make an agreement to use railway infrastructure if acceptable terms are reached.
(c)The proposal must state a definite time from which the entity genuinely requires a right to use railway infrastructure.
(d)The time must be one involving immediate use.
The trial judge rejected TPI's case in relation to the alleged first and second requirements. His Honour said [210] ‑ [226]:
(a)The Code did not contain any language requiring a genuine intention to negotiate or a genuine intention to make an agreement. TPI's contention involved an attempt to imply entire sentences into s 8(1) and s 8(3) through the use of the ambiguous word 'genuine'.
(b)TPI sought to imply the concept of genuineness into the Code because of a perceived 'gap'. There was no gap.
(c)The implication sought to be made by TPI lacked clarity.
(d)TPI's contention was inconsistent with other provisions of the Code. There was inconsistency with s 35, which permits termination of an arbitration, at any time, if the arbitrator thinks that a proponent has not engaged in negotiations in good faith. Also, there was 'considerable tension' between an alleged implication of an intention to negotiate, or an intention to use the railway infrastructure if terms are agreed, on the one hand, and s 14 and s 15, on the other.
(e)TPI's contention, if accepted, would create an impossible situation for the Regulator.
(f)There is a relevant difference between intention and motive. Brockman, in making the Proposal, had a motive to enter negotiations for a haulage agreement with TPI's parent company. Brockman, in making the Proposal, also had a motive to make a possible access agreement. Even if some concept of an 'intention to negotiate' or an 'intention to make an agreement to use railway infrastructure if acceptable terms [are] reached' could be found in the Code, then Brockman had the required intention.
His Honour also rejected TPI's case in relation to the alleged third requirement. His Honour said [227] ‑ [247]:
(a)Section 8(3)(b) provided that a proposal must 'indicate' the times when access was required. This was not a requirement of precision.
(b)The contrasting text of other provisions of the Code confirmed that the indication of timing in a proposal need not be precise.
(c)In the context of a long term access proposal (such as a proposal for 20 years of access), a requirement for precision, such as indicating the days and times for rolling stock access in, say, 7, 10, or even 15 years' time, by a proponent who does not even have any 'indication' of improvements and capital works beyond five years of that period, was unworkable.
(d)A determination of whether a proposal has 'indicate[d]' the times when access is required under s 8(3)(b) of the Code is an assessment of fact upon which, in different cases, different minds might reach different conclusions. The information about timing in the Proposal was sufficient, for the purposes of s 8(3)(b), to indicate the times when Brockman required access.
The trial judge also rejected TPI's case in relation to the alleged fourth requirement. His Honour said [248] ‑ [262]:
(a)Every proposal will relate to a future use. By definition, a proposal will only be prospective. At the very least, the proposal will need to accommodate the possibility of some delay to account for the time required by the Regulator to formulate floor and ceiling prices, any arbitration concerning disputes about s 14 or s 15, the period of negotiations and a possible arbitration for an access agreement.
(b)The Code does not use the term 'immediate'. TPI sought in effect to fill a perceived 'gap' in the Code in a manner that went beyond legitimate implication.
(c)There was serious uncertainty about the meaning of 'immediate' in the proposed implication.
(d)TPI's contention was based on a false premise, namely its assertion that a determination of costs by the Regulator under sch 4 of the Code assumed that the proposal was for access immediately or, possibly, not longer than 12 months after the date of the proposal.
(e)TPI's contention was inconsistent with other provisions of the Act and the Code; in particular, there was an inconsistency between the alleged requirement that the only rights that an access agreement can confer are those rights which will be exercised immediately, on the one hand, and provisions such as s 3A(1) of the Act, which provides that the kinds of rights that are permissible under an access agreement are not limited, on the other.
His Honour concluded:
Each of [the first and second requirements] concerning the alleged requirements for intention must be rejected. They are not present in the words of the Code. They cannot be implied. And, in any event, they would be satisfied. [The fourth requirement] must also be rejected. The requirement for immediacy of timing is a literal impossibility, is uncertain, is inconsistent with other provisions of the Code, cannot be implied into the Code, and in any event, it is based on a false premise. The proposal must be made with a real and genuine intention to negotiate for an access agreement.
In relation to [the third requirement], there is an express requirement that Brockman … indicate the times when access is required. But the indication does not require precision for the proposal to be valid. On an assessment of the evidence, Brockman … provided an adequate indication [263] ‑ [264].

Appeal CACV 132 of 2014: the trial judge's ultimate conclusion

The trial judge held that the Proposal was valid. His Honour therefore dismissed TPI's action for a declaration that the Proposal was invalid.

Appeal CACV 132 of 2014: the grounds of appeal

TPI's grounds of appeal in CACV 132 of 2014 read:
1.The learned judge erred in fact and in law in concluding that the [Proposal] was a valid proposal under s 8 of the [Code] for access to TPI's railway.
2.The learned judge erred in fact and in law in failing to conclude that the Proposal was not, within s 8(1) of the Code, a proposal for 'access', namely, for the use of TPI's railway infrastructure in that, on any objective view, Brockman had no real (or genuine or actual) need for such 'access' in late 2016 or at any relevant time.
3.The learned judge erred in fact and in law in failing to conclude that the Proposal was not, within s 8(2)(b) of the Code, made for the purpose of carrying on 'rail operations' (namely, the operation of rolling stock on a part of TPI's railway), and for no other purpose because, on any objective view, Brockman had no real (or genuine or actual) need to carry on such rail operations in late 2016 or at any relevant time.
4.Further or in the alternative to ground 3 above, the learned judge erred in fact and in law in failing to conclude that, because Brockman had the dominant motive of obtaining leverage over TPI in obtaining a haulage agreement on commercial terms, Brockman did not have the sole purpose of carrying on 'rail operations' as required by s 8(2)(b) of the Code.
5.The learned judge erred in fact and in law in:
(a)failing to conclude that the Proposal was not as mandatorily required by s 8(3)(d) of the Code accompanied by an effective notice of Brockman's intention to enter into negotiations for an access agreement under the Code because, on any objective view, Brockman could not possibly have had a real (or genuine or actual) intention to negotiate for an access agreement under the Code for access to TPI's railway in late 2016 or [at] any relevant time;
(b)treating the learned judge's finding that Brockman had the motive of negotiating for the possibility of a favourable access agreement as sufficient to meet the requirements of s 8(3)(d) of the Code.
6.The learned judge erred in fact and in law in failing to conclude that the Proposal did not as mandatorily required by s 8(3)(b) of the Code indicate the times when the access was required. (original emphasis)
The grounds allege in essence that the trial judge's decision in relation to each of the three broad issues between the parties at the trial was erroneous.

Appeal CACV 132 of 2014: broad overview of the scheme of the Code

All of TPI's grounds of appeal turn, in essence, upon the proper construction of s 8 of the Code. Section 8 is, of course, to be construed in the context of the Code as a whole. By way of broad overview, the scheme of the Code may be summarised as follows.
The Code is made under the Act. The main object of the Act is to establish a rail access regime that encourages the efficient use of, and investment in, railway facilities by facilitating a contestable market for rail operations.
The Code establishes a regime under which entities can obtain access to regulated rail routes. The regime involves a combination of negotiation and arbitration.
The process is initiated by an entity submitting a proposal for access. The Code sets out a number of steps in the process, and prescribes short time frames for each of those steps.
The Code requires a railway owner to publish information. The railway owner must publish required information concerning its standard access agreement and other matters including a geographical description of the railways network and details concerning the route sections of the railways network, the running times of existing trains, and the total gross tonnages of, and the tonnages of freight carried on, all trains operated during a period provided for by s 7D (s 6, s 7A to s 7E, sch 2).
An entity can request further information from the railway owner, including an initial indication of the current available capacity of the route, the price that the entity might pay for access, and the terms, conditions and obligations that the railway owner would want to be included in any access agreement (s 7).
An entity may make a proposal in writing to the railway owner for access by the entity (s 8).
Within 7 days of receiving the proposal, the railway owner must:
(a)acknowledge receipt of the proposal; and
(b)provide the proponent with the floor and ceiling prices for the proposed access and the route section costs on which the floor and ceiling prices have been calculated (s 9).
The railway owner must also inform the proponent whether the railway owner requires the proponent to show that:
(a)the proponent has the managerial and financial ability to carry on the proposed rail operations; and
(b)the proponent's operations are within the capacity of the route or proposed expanded route (s 9, s 14, s 15).
The proponent may withdraw the proposal at any time prior to referral to arbitration (s 9A).
Within a specified period, the length of which varies depending upon the circumstances, the railway owner must give the proponent a draft access agreement (s 9(3a)).
Where a proposal has been made, and the railway owner considers that it would involve the provision of access to railway infrastructure to an extent that may, in effect, preclude other entities from access to that infrastructure, negotiations on the proposal must not be entered into by the railway owner without the approval of the Regulator (s 10). The Regulator must conduct a process involving submissions from the public before the Regulator makes a decision whether to grant approval to negotiations on the proposal (s 10).
If the railway owner requires information under s 14 or s 15, and the information is provided, the railway owner must within specified times either notify the proponent that it is not satisfied as to all of the matters mentioned in s 14 and s 15 or notify the proponent of its readiness to begin negotiations (s 18, s 19).
If a railway owner notifies the proponent that it is not satisfied as to all of the matters mentioned in s 14 and s 15, and the proponent notifies the railway owner that there is a dispute between them in relation to that issue, and if there is a proposal that complies with the Code, the proponent can refer the dispute to arbitration (s 18, s 25, s 26).
Not later than 7 days after it has received the railway owner's notice to begin negotiations, the proponent must give notice that it is ready to begin negotiations (s 19(3)).
Once that has occurred, and subject to the proponent meeting the requirements of s 14 and s 15, the railway owner must negotiate in good faith with the proponent with a view to making an access agreement (s 13). The parties must agree to a negotiation period which is no more than 90 days (s 20). That period can be extended only by agreement between both parties (s 20).
If a railway owner refuses to negotiate, or if negotiations fail, the proponent can, so long as there is a compliant proposal, refer the dispute to arbitration (s 25, s 26). There are other circumstances in which, and disputes in respect of which, the proponent can initiate arbitration.
The determination in the arbitration may deal with any matter relating to use by the proponent of the railway infrastructure, may require the proponent to use and pay for the railway infrastructure and may specify the terms and conditions on which the proponent may use the railway infrastructure (s 33).
An arbitrated determination is binding on both parties except where the proponent decides not to obtain access under the arbitrated terms (s 34).

Thirdly, s 8 requires that a proposal be in writing: s 8(1). In other words, there will be a written instrument against which the criteria in s 8(2) and the mandatory requirements in s 8(3) may be measured. Section 8(4) and s (5) also direct attention to the written proposal and combine to provide that any proposed extensions or expansions may be raised in the course of negotiations, even if not in the written proposal.
Fourthly, the written proposal for the use of facilities for the operation of a railway can only be made in respect of a route covered by the Code, and then only for the purpose of carrying on rail operations on that route: s 8(2)(a) and s 8(2)(b). In other words, the proposal cannot relate to a route not covered by the Code and it may not extend to or cover the use of railway infrastructure for any other purpose.
Fifthly, the mandatory requirements of a proposal are contained in s 8(3). The only things that a proposal 'must' do, in addition to meeting the criteria in s 8(2), are:
(a)to specify the route, including the railway infrastructure to which access is sought;
(b)to indicate the 'times' when access is required;
(c)to set out the 'nature' of the proposed rail operations; and
(d)to have submitted with it, a written notice of the proponent's intention to enter into negotiations for an access agreement under the Code.
Section 8(3) contains no express requirement for a proposal to state the proposed 'period for which access' is sought or 'arrangements for renewals' in respect of periods of access, although those matters must ultimately be agreed if there is to be a concluded access agreement: s 17(1a), sch 3, cl 1. The word 'times' (plural) in s 8(3)(b) suggests that what is required by s 8(3)(b) is an indication of the 'times' when a proponent's rolling stock is proposed to use the railway line, rather than the overall period of proposed access.
Section 8(3) is to be read in the context that it is intended that the proponent will have regard to the statutory information previously provided by the owner. This will include the running times of existing trains (eg, A to B on the route takes three hours), maximum axle loads and maximum train speeds, permanent speed restrictions, rolling stock dimension limits and indicative maximum train lengths: s 6(b) and sch 2, cl 4(g) ‑ (k).
In this context, the requirement to 'indicate' the 'times' when access is required appears to refer at least in general terms to the number of times within a day (or perhaps some other period such as a week or a month) for which access is sought. More detailed information concerning entry and exit times may be sought by the owner under s 15(1)(a).
There may be an argument that insofar as s 8(3)(c) requires a proposal to set out the 'nature' of the proposed rail operation, the word 'nature' would cover the essential features[6] of the proposed operation, one of which might, arguably, be the period of the proposed operation. However, that point was not argued by TPI.
[6] See definition of 'nature', Moore B (ed) The Australian Concise Oxford Dictionary of Correct English (3rd ed, 1997) 892.
TPI argued that s 8(3)(b) required the proponent to indicate the period for which access is sought. For the reasons given above, the word 'times' more naturally relates to the times when the proponent's rolling stock may be used on the track, rather than the overall period for which access might ultimately be agreed. Nevertheless, it may be observed here that even if s 8(3)(b) required Brockman to indicate the period over which access was sought, it did so, as discussed later in these reasons.

Grounds of appeal and disposition of the appellant's grounds

Grounds 1 - 4

Grounds 1 to 4 of the grounds of appeal contain a number of related arguments to the effect that the document submitted by Brockman to TPI dated 15 May 2013 was not a valid proposal within the meaning of s 8 of the Code.
The first argument is that s 8 requires 'a real or actual or genuine proposal for use'.[7] It is important to note the substance of what is sought to be advanced by this argument. The argument is not simply that a proposal is 'real', 'actual' or 'genuine' if it conforms with s 8. That proposition would, in a sense, be true, but it would not assist TPI in its attack on the proposal. Rather, what is said in effect to be a formula for testing the validity of a proposal, ie, that a proposal must be 'real', 'actual' or 'genuine', is advanced to invest those concepts with connotations and consequences which then provide their own discrete requirements against which it is said the validity of the proposal is to be measured, and against which it (allegedly) may be seen to fall short. In substance, TPI seeks to gloss the provision by adding words which are not there in order to supply various criteria foreign to s 8 and its operation within a coherent statutory structure, to attack the validity of the proposal. The true position is that a proposal is valid if it complies with s 8, properly construed. It does not otherwise have to be 'real', 'actual' or 'genuine', and the connotations and consequences attached to the formula advanced by TPI have no foothold in the language of s 8 read in the context of the Code as a whole.
[7] TPI's written submissions, par 11; appeal ts 2 - 3, 17.
One expression of the argument is that a proposal is only valid if it is a proposal 'actually or really or genuinely' to use the owner's railway infrastructure.[8] That is then used as a platform for saying that a proposal is not valid 'if a person purports to seek access for possible future use'.[9] The emphasis in this phrase is that of TPI. Plainly any use would be in the future. The gravamen of the argument is that the proposal is not a valid proposal unless it conveys an unconditional and unqualified intention to use the owner's track. That intention is inconsistent with the very nature of a 'proposal'; it is inconsistent with the fact that a proponent may withdraw a proposal at any time before dispute over its terms is referred to arbitration; and is also inconsistent with s 8(3)(d), where all that is required of a proponent in terms of intention is to state, in writing, an intention to negotiate. As the primary judge in effect observed,[10] the inherently uncertain nature and outcome of negotiations with a view to agreement is inconsistent with the implication of a need for a definite and unqualified intention to use.
[8] TPI's written submissions, par 14.
[9] TPI's written submissions, par 14.
[10] Primary reasons [147] - [150].
A variation on the argument is to say that because a proposal must be 'real', 'actual' or 'genuine', s 8 requires that a proposal must not be 'premature'.[11] This is allied to the propositions that the proponent must have a 'real need' to use the railway track,[12] and that unless a proponent has an unconditional 'real need' for access to the railway, the proposal is 'premature' and is for that reason invalid.
[11] TPI's written submissions, pars 24, 39 ‑ 41.
[12] TPI's written submissions, par 33. See also appeal ts 7, 9, 17.
The word 'propose' ordinarily means to put forward a matter for consideration, acceptance or action.[13] The 'proposal' to which s 8 refers is a document proposing, in effect, the use of the owner's railway infrastructure for consideration or action by the owner in accordance with the Code. The document is either a proposal for the use of the owner's railway infrastructure for the purpose of carrying on rail operations (s 8(1) and s 8(2)(b)), or it is not. That will involve the proper construction of the document purporting to be the proposal. If the document, objectively construed, is a proposal by the entity to use the owner's railway infrastructure only for the purpose of carrying on rail operations, and complies with s 8(3), it is a proposal within the meaning of s 8. If the document is, properly construed, such a proposal, it matters not whether it can be described as 'real', 'actual' or 'genuine'.
[13] Macquarie Online Dictionary, definition of 'propose'.
The primary judge set out a number of the relevant features of the proposal in his reasons.[14] Buss JA has also set out various material aspects of the proposal in [243] ‑ [244] of his reasons. It is unnecessary to repeat all of them here. In my view, those matters collectively indicate that the document submitted by Brockman was a proposal for the use of TPI's railway infrastructure only for the purpose of carrying on railway operations.
[14] Primary reasons [112] - [117].
Amongst other things, the document, dated 15 May 2013, indicated that Brockman would seek access to commence over 3½ years later, subject to conditions precedent. The commencement of the period of access was said to coincide with what was proposed to be the 'ramp up' stage of the proposed mine in 2017 and 2018. The proposal stated:[15]
Access is sought to the TPI Railway commencing in late 2016, subject to conditions precedent which are typical for a below rail access agreement for a new mine.
This timing will align with the completion of the Connecting Infrastructure [a spur line] and the commencement of mine production for export.
Specific information about the exact date for commencement of Access will be provided at the appropriate time.
…
The proposed duration for Access is 20 years from the date of the Access Agreement becoming unconditional.
[15] GB 274.
There was no finding by the primary judge, that, objectively, there were no conditions precedent which were 'typical' in May 2013 for a below rail access agreement for a new mine to which a commencement date in late 2016 might be made subject. Although TPI alleged in written submissions[16] 'in passing' (to use its words) that there was no relevant 'typical' condition in these circumstances, no evidence was referred to in respect of that remark
[16] TPI's written submissions, par 99.
In oral submissions, TPI emphasised that the proposal itself recognised that the mining project, in respect of which access was proposed, would not definitely proceed as it was subject to (amongst other things) the completion of a favourable bankable feasibility study.[17] This was allied to the proposition that a proposal is not a 'proposal' within the meaning of s 8 if it is made conditional upon events or matters the occurrence of which the entity cannot guarantee at the time of the making of the proposal.[18]
[17] Appeal ts 7.
[18] Appeal ts 22 - 23.
Section 8 does not contain any express provision against the making of a conditional proposal. Nor does the language used in s 8, on its own or in the broader context of the Code as a whole, imply such a proscription. Moreover, it may be inferred that the legislature understood that the viability in a remote mining area of a new mine would depend (amongst other things) upon the technical and commercial capacity to send the ore from the mine site to a port. It could not be expected that the legislature intended that an entity seeking to rely on s 8 should have first built the mine before establishing its viability having regard to the likely cost of transportation of the ore, including by rail. Such a regime, if that were its nature, would in large measure impede, rather than facilitate, access to third party infrastructure. It would also undermine the main object of the Railways (Access) Act, which is to establish a regime that encourages the efficient use of, and investment in, railway facilities by facilitating a contestable market for rail operations.
Another related point raised by TPI is that 'access validity sought under s 8 is actual access in the relatively immediate term' (emphasis added).[19] In this regard, it is alleged that the Code contemplates the calculation of capital costs, through such measurements as weighted average cost of capital and gross replacement value, by reference to currently available information, and reference is made in that regard to s 9(1)(c)(i) and s 9(4), together with sch 4 cl 1, cl 2(1), cl 2(4), cl 3(1)(a)(ia), cl 7(1), cl 8(1) and cl 10(1).
[19] TPI's written submissions par 79.
In that regard, the judge made the following observations with which I respectfully agree:[20]
The difficulty with this submission is that the same objection might be made to almost every conceivable proposal. Consider, for example, a proposal made in the first half of the year, where the proponent reasonably expects a period of delay for setting of prices, negotiation, and possible arbitration, before all the equipment of the proponent can be moved to the relevant rail line. It is almost inconceivable that the access could commence in fewer than several months and very easily conceivable that the process could take six months. The effect of a six-month delay for a proposal made on January 1st is that any weighted average cost of capital would not be current at the time of access.
[20] Primary reasons [260].
His Honour also made the following findings which are unchallenged:[21]
In any event, the Code does not appear to contemplate substantial shifts in the weighted average cost of capital. The requirement to advertise, and to invite submissions, concerning the weighted average cost of capital only applies every five years. The weighted average is also a long term weighted average cost of capital. It is not indexed for inflation. Hence, the weighted average cost of capital that is used to calculate the annuity for a 20-year access agreement will be the same weighted average used for each of the 20 years into the future notwithstanding that every year the Regulator will revise its weighted average cost of capital.
[21] Primary reasons [261].
That is not to say, however, that if it is necessary to propose an access period in a proposal, and if in May 2013 the proponent had proposed an access period commencing in (say) late 2066, rather than late 2016, the matters in sch 4 of the Code would be irrelevant to a consideration of whether the proposal was a proposal within the meaning of the Code. It may be that properly understood, the requirements in sch 4 could not objectively apply to such a proposal, with the consequence that such a proposal would not be one within the contemplation of the Code properly construed. However, that issue does not arise in this case.
In oral submissions, it was also said that the proposal was not 'real' or 'genuine' because 'there was no way' that Brockman's proposed mining project 'could be at a stage where access to [TPI's] railway could have been required from late 2016 and during 2017 and 2018'.[22]
[22] Appeal ts 3, 7, 19, 20 - 21, 26 - 27, 28.
The contention is to the effect that if a proponent has no reasonable grounds for considering that the infrastructure project (eg, a mine), in connection with which the proponent seeks access, will be ready to utilise the railway by the time access is proposed in the proposal then the proposal is invalid.
This submission should also not be accepted. There is nothing in the language of s 8, either alone or in the context of the Code as a whole, which would suggest that s 8 is intended to open up an inquiry into the economic or technical feasibility of the underlying project generally, or the likely timing of the resolution of any economic or technical issues associated with the underlying project in particular. A collateral inquiry of that kind for which the Code makes no provision for arbitration in the event of a dispute cannot be discerned from the language of the Code.
A related step in TPI's argument envisages an inquiry into the conduct of the proponent, rather than into the terms of the proposal. It is said, in effect, that s 8(1) confers a statutory power on an entity which must be exercised by the entity in good faith and reasonably.[23] Reference was made to Westminster Corporation v London and North Western Railway Co,[24] where Lord Macnaghten said:
It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first.
[23] TPI's written submissions, pars 19 ‑ 22.
[24] Westminster Corporation v London and North Western Railway Co [1905] AC 426, 430.
Reference was also made by TPI to the High Court decision in Thompson v The Council of the Municipality of Randwick,[25] where Lord Macnaghten's observations in Westminster were applied in a case involving the purported exercise of power by a local authority for the resumption of land for purposes for which the power was not granted.
[25] (1950) 81 CLR 87, 105 ‑ 106.
Section 8(1) of the Code is not of that nature. It does not confer such a statutory power on an entity. It entitles an entity to make a proposal for access which, but for the Code, the owner would otherwise be able to reject out of hand. Broadly speaking, the statutory purpose is to facilitate competition.
The next point in the argument is that s 8 permits an inquiry, not only into the conduct of the proponent, but also, for that purpose, into the state of mind of the proponent. The argument is that s 8(2)(b) requires an objective determination of whether the proponent is making the proposal for the sole purpose of carrying on rail operations, and the proponent's subjective motives for making the proposal may be examined in this regard.[26]
[26] TPI's written submissions, pars 52 ‑ 54.
This argument should be rejected. Section 8(2), read as a whole and in its context in s 8, is concerned with the proponent's proposal being confined to a rail route covered by the Code and the carrying on, only, of rail operations on that route. Section 8(2)(b) underscores, and promotes, the main object of the Railways (Access) Act, which is concerned with 'facilitating a contestable market for rail operations'.[27] Accordingly, whilst a proposal 'can be made' for the purpose of carrying on rail operations, it cannot be made for another purpose. Like the primary judge, in my view this construction of s 8(2)(b) is reinforced by a consideration of s 36(2)(b). Both demand, in effect, that a proposal or agreement be made for the sole 'purpose of carrying on rail operations'. Both are concerned with the purpose for which it is proposed or agreed that the railway infrastructure will be used, and not with the end sought to be achieved by the proponent in making the proposal or entering into the agreement.
[27] Railways (Access) Act s 2A.
Also, the suggestion that s 8(2)(b) contemplates an inquiry into the state of mind of the proponent is difficult to reconcile with the requirement that the railway owner start the process of addressing the proposal within seven days by providing information referred to in s 9(1) and seeking the explanations referred to in s 14 and s 15. It is also difficult to reconcile with the requirement that the railway owner must turn its mind, within seven days, to the issues in s 10(1)(b) and, where appropriate, make the requisite application to the Regulator as soon as practicable thereafter: s 11. This timetable, in relation to steps exploring, in a preliminary way, the practicality and effect of the proposal, suggests that the statutory focus is on an early response to the contents of the proposal, without regard to the proponent's state of mind.
Accordingly, s 8(2)(b) is not concerned with ascertaining the end sought to be achieved by the entity in making the proposal. It is concerned with confining the proposal to the purpose of carrying on rail operations. It is unnecessary to undertake a consideration of whether an end sought to be achieved (leaving aside the reasons for seeking to achieve that end) may, in certain contexts, properly be characterised as a 'purpose' or 'motive'.[28]

Ground 5

[28] See, for example, in a different statutory context, the discussion by Gleeson CJ in News Ltd v South Sydney District Rugby League Football Club (2003) 215 CLR 563 [18]; cf Fitzgerald P J, Salmond on Jurisprudence (12th ed, 1966) 372 - 373.

Ground 5 alleges, in effect, that the judge erred in failing to conclude that Brockman's notice, purportedly given under s 8(3)(d) of the Code, was not an effective notice in that:
(a)'on any objective view, Brockman could not possibly have had a real (or genuine or actual) intention to negotiate for an access agreement under the Code for access to TPI's railway in late 2016 or any relevant time'; and
(b)the judge treated Brockman's 'motive of negotiating for the possibility of a favourable access agreement as sufficient to meet the requirements of s 8(3)(d) of the Code'.
I would dismiss this ground.
The first point is, in substance, a reiteration of grounds 1 ‑ 4.
As to the second point, the following observations may be made. First, as TPI litigated the matter, the judge made various findings as to Brockman's motive.[29] However, s 8 does not refer to motive and, for the reasons given earlier, s 8(2)(b) is only concerned with the purpose evinced by the proposal. Accordingly, any findings by his Honour as to motive are ultimately irrelevant to the proper construction and application of s 8.
[29] Primary reasons [78], [100].
Secondly, as his Honour correctly observed,[30] ordinarily, the law recognises that motive and intention are not the same thing.[31] Section 8(3)(d) is concerned with a notice as to intention, not a notice as to motive.
[30] Primary reasons [104].
[31] Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 [140], [150]; Fitzgerald P J, Salmond on Jurisprudence (12th ed, 1966) 372 - 373.
Thirdly, in my respectful view, the judge was correct when he said that insofar as Brockman's primary motive was to attempt to procure a rail haulage agreement, that motive was 'entirely compatible with an intention to enter negotiations'.[32] That is because the harder the negotiations were pressed, the greater, ultimately, was the prospect of the motive being effectuated. Even if it were not, there would be a well‑advanced negotiation for access.

[32] Primary reasons [106].

Fourthly, I am not persuaded that s 8(3)(d) contains an implication concerning the proponent's state of mind as a precondition to the validity of a proposal. It is a substantial step to take to read that into the text when there is no good reason to doubt that the text means any more than it says. If the statement regarding intention is misleading or deceptive, that may have other consequences. The assurance given to the owner derives from the giving of the notice, and not the anterior formation of the intention prior to the making of that statement.
The Code specifically addresses the requirement for good faith in the negotiating process by s 13(1) (in relation to the owner) and via s 35 (in relation to the entity). A requirement for good faith is not implicit in s 8 nor, for that matter, in relation to the exercise of the owner's right to require information under s 14 and s 15 of the Code.

Ground 6

Ground 6 alleges that the judge erred in failing to conclude that the proposal did not comply with s 8(3)(b) in relation to an indication of the 'times' when access was required.
For the reasons given earlier, (especially [285] and [291] ‑ [293] above), I would dismiss this ground.
BEECH J: I agree with Buss JA, for the reasons that he gives, that all of the grounds of appeal fail and the appeal should be dismissed. I also agree with Murphy JA's reasons for dismissing grounds 1 ‑ 4.