CITATION: | DBCT Management Pty Ltd v Treasurer and Minister for Infrastructure and Planning (Qld) & Ors [2021] QSC 335 |
PARTIES: | DBCT MANAGEMENT PTY LIMITED (applicant) v TREASURER AND MINISTER FOR INFRASTRUCTURE AND PLANNING (QUEENSLAND) (first respondent) And ANGLO AMERICAN METALLURGICAL COAL PTY LTD BHP BILLITON MITSUI COAL PTY LTD BM ALLIANCE COAL OPERATIONS PTY LIMITED FOXLEIGH MANAGEMENT PTY LTD HAIL CREEK COAL HOLDINGS PTY LTD OAKY CREEK HOLDINGS PTY LTD PEABODY ENERGY AUSTRALIA PCI (C&M MANAGEMENT) PTY LTD PEMBROKE OLIVE DOWNS PTY LTD ROLLESTON COAL HOLDINGS PTY LTD SOUTH32 EAGLE DOWNS PTY LTD STANMORE IP COAL PTY LTD (second respondents) |
FILE NO/S: | BS No 7058 of 2020 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 10 December 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23, 24, 25 November 2020 |
JUDGE: | Davis J |
ORDER: |
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CATCHWORDS: | TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – SUPERVISION – OTHER BODIES – where the applicant is the operator of the Dalrymple Bay Coal Terminal (the facility) at Hay Point in North Queensland – where the facility provides port services to the mines in the Goonyella region – where the applicant enjoys a monopoly – where the service was declared or deemed declared pursuant to the Queensland Competition Authority Act 1997 (QCA Act) – where the declaration expired in 2020 – where the users of the service enjoyed contracts negotiated with approval of the Queensland Competition Authority (the Authority) – where to avoid declaration post-2020 the applicant offered terms to new users and existing users exceeding present capacity allotted to them – whether declaration would promote a material increase in competition in a market upstream or downstream from the market for the service – where there is a market for the development of new mining tenements (development stage tenements market) – where the Minister found that declaration of the service would promote a material increase in the development stage tenements market – where the Minister declared the mine – where the applicant alleges administrative error in making the declaration ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is the operator of the facility – where the Minister declared the service under the provisions of the QCA Act – whether the Minister failed to take into account relevant considerations – whether the Minister did take the considerations into account – whether the considerations were ones which the Minister was obliged to take into account ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is the operator of the facility – where the Minister declared the service under the provisions of the QCA Act – whether the Minister made an error of law by misunderstanding the test of “would promote a material increase in competition” – where the Minister consistently stated the correct test in the reasons – whether the Minister has impermissibly considered likelihood of increased competition generally as the relevant test ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is the operator of the facility – where the Minister declared the service under the provisions of the QCA Act – whether the Minister made an error of law in that there was no evidence to justify making the decision – whether there was such evidence – whether the Minister was required by law to reach the decision only if particular matters were established – whether such matters were jurisdictional facts ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ABUSE OF POWER – where the applicant is the operator of the facility – where the Minister declared the service under the provisions of the QCA Act – whether the making of the decision was an improper exercise of the power because the decision was so unreasonable that no reasonable person could make it – whether the decision was logical – whether there was evidence supporting the Minister’s findings Corones’ Competition Law in Australia 7th ed 2019 Journal of Contract Law, vol 25 (2009) 1 Queensland Government Gazette No. 31; 1 June 2020 Administrative Decisions (Judicial Review) Act 1997 (Cth), s 5 Competition and Consumer Act 2010 (Cth), s 44CA Competition Policy Reform Act 1995 (Cth) Judicial Review Act 1991 (Qld), s 4, s 20, s 23, s 24, s 30 Motor Accident Insurance and Other Acts Amendment Act 2010 (Qld): Explanatory Memorandum Motor Accident Insurance and Other Legislation Amendment Act 2010 (Qld) Motor Accident Insurance and Other Legislation Amendment Bill 2010 (Qld) Payment Systems (Regulation) Act 1998 (Cth) Queensland Competition Authority Act 1997 (Qld), s 69E, s 70, s 71, s 72, s 73, s 76, s 79, s 80, s 84, s 86, s 87, s 87C, s 88, s 97, s 99, s 100, s 101, s 248, s 250 Queensland Competition Authority Amendment Regulation (No. 1) 2012 (Qld)
Queensland Competition Authority Bill 1997 (Qld) Queensland Competition Authority Regulation 2007 (Qld) Trade Practices Act 1974 (Cth), s 44H Trade Practices Amendment (National Access Regime) Bill 2005 (Cth) Abel Point Marina (Whitsundays) Pty Ltd v Uher & Anor [2006] QSC 295, followed Antaios Compania Naviera SA v Salen Rederierna A.B. [1985] AC 191, cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, followed Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2) [2019] FCA 669, cited Australian Pacific LNG Pty Ltd & Ors v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnership and Minister for Sport [2019] QSC 124, followed Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, followed Avon Downes Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, cited Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374, cited Brown v Tasmania (2017) 261 CLR 328, cited Buck v Bavone (1976) 135 CLR 110, followed Burns v Corbett (2018) 265 CLR 304, cited Byrnes v Kendle (2011) 243 CLR 253, followed City of Enfield v Development Assessment Commission (2000) 199 CLR 135, cited Club v Edwards; Preston v Avery (2019) 267 CLR 171, cited Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, followed Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, followed DPB16 v Minister for Home Affairs [2020] FCA 781, cited DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, cited East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, cited Elderslie Property Investments No 2 Pty Ltd v Dunn [2008] QCA 158, cited Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640, cited Griffith University v Tang (2005) 221 CLR 99, cited Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, cited House v The King (1936) 55 CLR 499, cited Intel Corporation v Unwired Group Ltd [2008] FCA 1927, considered International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151, cited Kioa v West (1985) 159 CLR 550, cited Martincevic v Commonwealth of Australia (2007) 164 FCR 45, cited McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609, cited McCloy v New South Wales (2015) 257 CLR 178, cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, followed Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, cited Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, followed Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, followed Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2015) 256 CLR 104, considered Murphy v Electoral Commissioner (2016) 261 CLR 28, cited Norbis v Norbis (1986) 161 CLR 513, cited Ogawa v Carter of the Department of Home Affairs (as the Second Delegate of the Finance Minister) [2021] FCAFC 16, cited Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451, cited Pilbara Infrastructure Pty Ltd & Ors v Australian Competition Tribunal & Ors (2012) 246 CLR 379, considered Plaintiff M64/2015 v Minister for Immigration and Border Protection (2016) 258 CLR 173, cited Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39, followed Probuild Constructions(Aust) Pty Ltd v Shade Systems Pty Ltd (2017) 264 CLR 1, cited Re Application by Fortescue Metals Group Limited & Ors [2006] ACompT 6, followed Re Application by Glencore Coal Pty Ltd [2016] ACompT 6, followed Re Application by Services Sydney Pty Ltd (2005) 227 ALR 140, followed Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1, followed Re Golden Key Ltd [2009] EWCA Civ 636, cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2002) 214 CLR 1, cited Re Sydney Airports Corporation (2000) 156 FLR 10, followed Re Telstra Corporation Ltd (No 3) (2007) 242 ALR 482, cited Re Virgin Blue Airlines (2005) 195 FLR 242, followed Reardon Smith Line Ltd v Yngvar Hansen-Tangen (Trading as HE Hansen-Tangen) [1976] 1 WLR 989, cited SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294, cited Spence v Queensland (2019) 367 ALR 587, cited TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361, cited Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, cited Toll (FGCT) Pty Ltd v Alphafarm Pty Ltd (2004) 219 CLR 165, cited Vodafone Hutchison Australia Pty Ltd v Australian Competition and Consumer Commission [2020] FCA 117, cited Zhu v Treasurer of New South Wales (2004) 218 CLR 530, considered |
COUNSEL: | R Higgins SC with R Yezerski and N Derrington for the applicant J McKenna QC with G del Villar QC, J O'Regan and D Bampton for the first respondent D Clothier QC with S McCarthy for the second respondents |
SOLICITORS: | DLA Piper for the applicant GR Cooper, Crown Solicitor for the first respondent Allens for the second respondents |
Statutory context and history
“Policy Objectives of the Bill and the reasons for them
The policy objective of the Bill is to create an independent statutory body, the Queensland Competition Authority (QCA), to perform several functions associated with National Competition Policy. In particular, the QCA will:
“(c) Third party access
The underlying rationale of creating third party access rights to significant infrastructure is to ensure that competitive forces are not unduly stifled in industries which rely upon a natural monopoly at some stage in the production process, especially where ownership or control of significant infrastructure is vertically integrated with upstream or downstream operations.[4]
A key aspect of the market system is that an infrastructure owner is entitled to choose with whom it will deal. The threat of competitors providing substitutes constrains a seller’s ability to charge excessive prices or otherwise restrict supply. However, in cases where these substitutes do not exist, a seller possesses significant market power. A seller may exercise its market power to increase its profit by restricting output because doing so enables the seller to increase its price.
In cases of natural monopoly, one facility meets all of a market’s demand more efficiently than a number of smaller and more specialised facilities. Accordingly, it is not socially desirable that the infrastructure comprising a natural monopoly be duplicated. At the same time, the absence of competition enables a natural monopoly infrastructure owner to extract excessive profits through exercising market power.
This is especially the case where the business which operates the natural monopoly also has a commercial interest in upstream or downstream markets (for example a rail operator who also owns the track). Such a business may discriminate against its upstream or downstream competitors by offering access on more favourable terms and conditions than is offered to competitors. In this way, an owner of a natural monopoly is able to stifle competition in upstream or downstream markets.
The purpose of third party access is therefore to provide a legislated right to use another person’s infrastructure. This should prevent owners of natural monopolies charging excessive prices. It should also encourage the entry of new firms into the potentially competitive upstream and downstream markets which rely on a natural monopoly infrastructure in the production process, and thereby enable greater competition in those markets. This in turn would promote more efficient production and lower prices to consumers.
The Bill provides for a streamlined approach to access, and incorporates mechanisms to increase certainty for infrastructure owners and prospective users alike.” (emphasis added)
“69E Object of pt 5
The object of this part is to promote the economically efficient operation of, use of and investment in, significant infrastructure by which services are provided, with the effect of promoting effective competition in upstream and downstream markets.”
“70 Meaning of facility
71 Meaning of market
72 Meaning of service
73 References to facilities
In this part, a reference to a facility in association with a reference to a service or part of a service is a reference to the facility used, or to be used, to provide the service or part of the service.”
“76 Access criteria
“76 Access criteria
“Item 23- Paragraph 44H(4)(a)
1.38 Item 23 amends paragraph 44H(4)(a), to provide that the designated Minister cannot declare a service unless he or she is satisfied, inter alia, that access ( or increased access) to the service would promote a material increase in competition in at least one market (whether or not in Australia), other than the market for the service. In responding to the Productivity Commission’s report, the Government indicated that while the current declaration criteria (such as ‘the national significance’ test) preclude declaration where the relevant infrastructure and subsequent public benefits are not significant, this does not sufficiently address the situation where, irrespective of the significance of the infrastructure, declaration would only result in marginal increases in competition. The change will ensure access declarations are only sought where increases in competition are not trivial.” (emphasis added)
“amend section 76(2)(a) to clarify that access (or increased access) to the service should be expected to promote a material increase in competition in order for this criterion to be satisfied. This will prevent the declaration of services where only a trivial increase in competition is expected to result;” (emphasis added)
“80 Factors affecting making of recommendation
“84 Making declaration
“86 Factors affecting making of declaration
“100 Obligations of parties to negotiations
…
“101 Obligation of access provider to satisfy access seeker’s requirements
“87 Duration of declaration
“87C Factors affecting making of recommendation
“88 Recommendation to revoke
“declaration recommendation means—
General observations about the legislation
“The content of those provisions of Pt IIIA to which reference has been made suggests that it was expected that, armed with a recommendation from an expert and non-partisan body (the NCC), the Minister would make a decision quickly and would do so according to not only the Minister’s view of the public interest but also the expert advice given by the NCC about the more technical criteria of which the Minister had to be satisfied before a declaration could be made. And it is the Minister’s decision, not the NCC’s recommendation, that was the matter that was to be reviewed by the Tribunal.”[26]
Background
“3.3.1 I accept the QCA’s recommendation for the reasons set out in the QCA analysis[30] that the relevant facility is the port infrastructure as currently defined in section 250 of the QCA Act, namely the port infrastructure located at the port of Hay Point owned by Ports Corporation of Queensland or the State, or a successor or assign of Ports Corporation of Queensland or the State, and known as DBCT and which includes the following which form part of the terminal:
And the “service”[32] as:
“3.2.1 I accept the QCA’s recommendation for the reasons set out in the QCA analysis[33] that, as currently defined in section 250[34] of the QCA Act:
“3.4 Identify the market in which the service is provided
3.4.1 I accept the QCA’s recommendation that the relevant market for Criterion B is the market for DBCT coal handling services for mines connected to the Goonyella system and that in this market there are no close substitutes for DBCT. I do so for the reasons set out in the QCA analysis.[36] In particular, I note and accept that:
3.4.2 In addition, Hay Point Coal Terminal (HPCT) has to date not been operated as a common user terminal. I accept the submission provided by BHP to the effect that BMA has no incentive or intention to operate HPCT as a common user facility in the future.[37]
3.4.3 Accordingly, I do not accept the market definition proposed by DBCTM, that the relevant market is the market for coal handling services for mines that are proximate to the Port of Hay Point. This is particularly because:
“250 Saving of declarations of particular services
“248 Definition for pt 12
In this part—
expiry day means the day that is 10 years from the day this section commences.”
The 2017 Access Agreements
“20. OPTIONS
If the period during which Coal is to be Shipped during the Term is 10 years or more, the following clauses apply:
Capacity of the terminal
“3.5.1 I accept the QCA’s recommendation that the appropriate period for assessing foreseeable demand is 10 years, for the reasons given in the QCA analysis.
3.5.2 The QCA arrived at its estimate of total foreseeable demand over the 10 year period by reconciling various estimates provided by stakeholders. The QCA’s reconciliation is outlined in detail in Appendix D of Part C and section 2.6.3 at pages 44-54 of Part C. I consider the approach adopted by the QCA in estimating total foreseeable demand to be a reasonable and objective one, and I accept the QCA’s estimate of foreseeable demand for the 10 years from 2021, being demand over the period in a range from 80 mtpa[53] to 96 mtpa on a throughput basis and 89 mtpa to 107 mtpa on a contract entitlements basis.
3.6.1 I accept DBCT currently has a capacity of 85 mtpa, for the reasons given in the QCA analysis.
3.6.2 The estimate of total foreseeable demand within the declaration period that I have accepted (89 mtpa to 107 mtpa on a contract entitlement basis) exceeds the current capacity of DBCT (85 mtpa). However, I am satisfied that incremental expansions of DBCT are reasonably possible which would enable DBCT to meet the total foreseeable demand. In this regard, for the reasons given in the QCA analysis, I note and accept the following.
3.6.3 I have considered, but do not accept, DBCTM’s submission to the effect that there is an implicit timing aspect to section 76(3) of the QCA Act, namely that the Minister cannot treat a facility as having an expanded capacity for the entire declaration period, unless it is reasonably possible to expand the facility to that capacity by the commandment of the declaration period. I agree with and accept the QCA’s approach to section 76(3) of the QCA Act as set out in the QCA Approach.
3.6.4 Accordingly, I am satisfied that DBCT (having regard to it as if it had such expanded capacity as is reasonably possible to obtain within the declaration period) could meet total foreseeable demand in the market.”
“4.7.12 I accept that in order for New Users[54] to compete for development stage tenements, New Users require capacity to be available at DBCT.
The Minister’s train of reasoning
“4.5.8 I accept the QCA’s recommendation that it is not necessary to form a concluded view on these arguments,[63] because:
“4.7.48 The QCA described the hold-up problem in detail in the Queensland Rail Final Recommendation at Part B, Appendix A where the QCA stated the following:
‘‘Hold-up’ is an economic problem that occurs where the value of an economic agent’s relationship-specific investment is potentially appropriable by that agent’s trading partner(s). Relationship-specific investments are, by definition, particular to a given business relationship. For example, a supplier’s purchase of specialised equipment or machinery to produce inputs specific to a buyer represents a relationship-specific investment.
A relevant feature of this type of investment is that, once made (sunk) its value in alternative uses is lower than its value in the current trading relationship. Further, the more specific the assets are to the current relationship, the more difficult it becomes for the investor to redeploy them to other uses. As a result, exist from the relationship is costly.
Accordingly, at the time of the initial investment decision, both parties have an incentive to make the relationship ‘work’. However, once the investment is made (ie costs are sunk), the incentives of the parties change. This is because the gains from trade are only realised after the initial investment occurs. As such, the parties have an incentive post-investment to behave strategically – should an opportunity arise – in order to appropriate a great share of the gains from trade. The risk of this type of opportunistic behaviour is known as the hold-up problem.’”
“4.7.50 In a future without declaration, with access conditions in the 2020-2030 period governed by the deed Poll and Access Framework, for the post-2030 period:
4.7.51 In considering these issues, I have considered DBCTM’s submissions, based on HoustonKemp’s[69] analysis, that if New Users were likely to be deterred from entering the development stage tenements market because of uncertainty about terms of access in the absence of declaration, this would have been seen in the period leading up to 2020. However, I am not persuaded by this submission because:
4.7.52 In my view, given the significant sunk costs involved in acquiring and developing a mine, the uncertainty for New Users as to the pricing that will apply after 2030 is likely to give rise to concerns on the part of those New Users about the risk of hold-up.
4.7.53 I am of the view that the risk of hold-up for New Users is sufficient to discourage New Users from entering the development stage tenements market. In particular, given the concern of users expressed in the various stakeholder submissions regarding the impact on investment decisions of an increase in pricing (or uncertainty in pricing) and uncertainty in other terms of access, I regard it as reasonable to conclude, and do conclude, that New Users’ decisions to invest in the development stage tenements market will be materially impacted by that uncertainty beyond 2030.
4.7.54 In addition, the presence of hold-up risk for New Users is likely to create a further asymmetry in the market. This is because for Existing Users, the evergreen nature of their existing user agreements (including the pricing provisions) mean that they do not face the risk of hold-up in respect of capacity governed by those existing user agreements. To the extent that Existing Users have spare capacity under their user agreements which they can apply to a new tenement, this will provide those Existing Users with a risk (and hence cost) advantage over New Users when competing for the acquisition of tenements.
4.7.55 The question then is whether declaration would remove this risk of hold-up, or at least do so to an extent such that it would lead to access or increased access that would promote a material increase in competition. I have determined that it would. Declaration is unlikely to completely remove the risk of hold-up. This is because declaration is only for a finite period-in the current case, 10 years is proposed-and potential users will face some uncertainty during the declaration period as to the access regime that will apply after that period (that is, after the then-current declaration is due to expire). However, I have determined that declaration will substantially reduce the risk of hold-up. This is because access agreements entered into under the declaration are likely to be evergreen agreements. As such, New Users entering the development stage tenements market in the period 2020-2030 will know they will get the protection of an evergreen user agreement that will continue to apply after 2030. New Users therefore will likely have significantly less concern regarding the risk of hold-up in the post-2030 period. The adverse competition effects resulting from the risk of hold-up, discussed above, would thereby largely if not entirely be avoided.
4.7.56 As a result, by reducing the risk of hold-up, I am satisfied that access (or increased access) as a result of declaration of the DBCT service would promote a material increase in competition in the development stage tenements market.” (emphasis added)
The application for judicial review
“20 Application for review of decision
“23 Meaning of improper exercise of power (ss 20(2)(e) and 21(2)(e))
In sections 20(2)(e) and 21(2)(e),[73] a reference to an improper exercise of a power includes a reference to—
“24 Decisions without justification—establishing ground (ss 20(2)(h) and 21(2)(h))
The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out—
Consideration of the grounds
Ground 1(a)
“1 The Decision, in finding that declaration would reduce the risk of hold-up for New Users which were potential acquirers in the development stage coal tenements market, and consequently promote a material increase in competition in the development stage coal tenements market:
“Ground 1(a)
1 Ground 1(a) of the application raises as an issue whether the Minister erred in law by failing to consider whether the removal of the risk of hold-up was sufficient to materially affect competition in the Development Stage Tenements Market.”
“The Tribunal does not consider that the notion of ‘promoting’ competition in s 44H(4)(a)[78] requires it to be satisfied that there would be an advance in competition in the sense that competition would be increased. Rather, the Tribunal considers that the notion of ‘promoting’ competition in s 44H(4) involves the idea of creating the conditions or environment for improving competition from what it would be otherwise. That is to say, the opportunities and environment for competition given declaration, will be better than they would be without declaration.
We have reached this conclusion having had regard, in particular, to the two stage process of the Pt IIIA access regime. The purpose of an access declaration is to unlock a bottleneck so that competition can be promoted in a market other than the market for the service. The emphasis is on ‘access’, which leads us to the view that s 44H(4)(a) is concerned with the fostering of competition, that is to say it is concerned with the removal of barriers to entry which inhibit the opportunity for competition in the relevant downstream market. It is in this sense that the Tribunal considers that the promotion of competition involves a consideration that if the conditions or environment for improving competition are enhanced, then there is a likelihood of increased competition that is not trivial.”[79] (emphasis added)
“DR HIGGINS: So in short, your Honour, in determining whether criterion (a) was satisfied in this case, the Treasurer was required to assess whether declaration would promote a material increase in competition in the development stage tenements market. It was not sufficient for the Treasurer to identify respects in which the opportunities and environment for competition might be improved by declaration. And in truth, the respondents contend that the phrase ‘promote a material increase in competition’ requires only a material improvement in the conditions for competition, or that competitive outcomes are materially more likely to occur, and your Honour sees that in paragraphs 107 and 108 of the Treasurer’s submissions – which your Honour may still have open – in particular, the first sentence of 108, your Honour.”[80]
“108. The concept of promoting an increase in competition requires an improvement in the conditions for competition such that competitive outcomes are more likely to occur, but does not require an effect on the actual level of competition to be demonstrated.”
“to further the growth, development, progress. etc, of; encourage.”[81]
“83 The Tribunal does not consider that the reasoning of the Full Court in Sydney Airport FC becomes inapplicable or less appropriate to the present issues by reason of any of those amendments.
84 The introduction of the objects of Pt IIIA expresses objects which are consistent with the approach of the Full Court in Sydney Airport FC.
85 The amendment to s 44H(4)(a) means that the declaration will only occur (if the criteria are all met) where the promotion of competition in the dependent market is material, or non-trivial. The Explanatory Memorandum to the Trade Practices Amendment (National Access Regime) Bill 2005 (Cth) at Item 16 (p 21) records that the amendment is to be made so that declaration will only occur where the promotion of competition in the dependent market is non-trivial. The Explanatory Memorandum states that the original drafting of criterion (a) did:
‘… not sufficiently address situation where … declaration would only result in marginal increases in competition. The change will ensure access declarations are only sought where increases in competition are not trivial.’
86 It did not propose any change to the expression ‘access (or increased access)’ or to the word ‘promote’. It may require a more robust, rather than a merely technical, measure of whether access (or increased access) would promote competition in a dependent market. It does not, by refining that measure, undermine or suggest that the reasoning of the Full Court in Sydney Airport FC is no longer apt and/or that that decision should not be followed by the Tribunal.” (emphasis added)
“In our view, we need to be satisfied that if the Airside Service is declared there would be a significant, finite probability that an enhanced environment for competition and greater opportunities for competitive behaviour — in a non-trivial sense — would arise in the dependent market.”[90] (emphasis added)
The first issue: misunderstanding the test
“4.5.1 I accept that the approach to assessing the service under Criterion A taken by the QCA, that is, by considering whether access (or increased access) on reasonable terms as a result of declaration would promote a material increase in competition in a dependent market compared to a scenario without declaration (that is, a future with and without approach).” (emphasis added)
“4.7.55 The question then is whether declaration would remove this risk of hold-up, or at least do so to an extent such that it would lead to access or increased access that would promote a material increase in competition. I have determined that it would. Declaration is unlikely to completely remove the risk of hold-up. This is because declaration is only for a finite period—in the current case, 10 years is proposed—and potential users will face some uncertainty during the declaration period as to the access regime that will apply after that period (that is, after the then-current declaration is due to expire). However, I have determined that declaration will substantially reduce the risk of hold-up. This is because access agreements entered into under the declaration are likely to be evergreen agreements. As such, New Users entering the development stage tenements market in the period 2020-2030 will know they will get the protection of an evergreen user agreement that will continue to apply after 2030. New Users therefore will likely have significantly less concern regarding the risk of hold-up in the post-2030 period. The adverse competition effects resulting from the risk of hold-up, discussed above, would thereby largely if not entirely be avoided.”
“4.8.1 For the foregoing reasons, I have determined that access (or increased access) to the DBCT service, on reasonable terms and conditions, as a result of declaration of the service would promote a material increase in competition in a dependent market (ie the development stage tenements market).” (emphasis added)
“4.7.16 In light of the above, I have assessed whether access (or increased access) to the service, on reasonable terms and conditions as a result of declaration would promote a material increase in competition in the development stage tenements market. This involves consideration of whether there is an improvement in the opportunities and environment for competition such that competitive outcomes are materially more likely to occur in a future with declaration compared to a future without declaration.” (emphasis added)
“As the Full Court said in Repatriation Commission v Thompson (1988) 9 AAR 199 at 204:
‘… the nature of the task of this Court is clear. It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law.’
This translates to a practical as well as principled restraint. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).”[92]
“These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[94] In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennen J in Attorney-General (NSW) v Quin:[95]
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’”[96]
“The language signifies a strong causal nexus, ie a consequence that it is extremely likely or near certain to occur.”[97] (emphasis added)
The second issue
“4.7.53 I am of the view that the risk of hold-up for New Users is sufficient to discourage New Users from entering the development stage tenements market. In particular, given the concern of users expressed in the various stakeholder submissions regarding the impact on investment decisions of an increase in pricing (or uncertainty in pricing) and uncertainty in other terms of access, I regard it as reasonable to conclude, and do conclude, that New Users’ decision to invest in the development stage tenements market will be materially impacted by that uncertainty beyond 2030.”
“It is important to note that the [Competition and Consumer Act 2010 (Cth)] is concerned with competition as a process rather than the ability of individual sellers to compete. If the position in the market of an individual seller is being adversely affected by the conduct of a competitor, it is unlikely that there will be a contravention of the CCA unless the conduct substantially lessens competition in the market as whole.
A common misconception is to confuse, or invalidly equate, the ‘competitiveness’ of individual buyers or sellers with the ‘competitiveness’ of the market. The [Competition and Consumer Act 2010 (Cth)], as a principal objective, seeks to foster competitiveness of markets. The courts reject, in general, the suggestion of any necessary correlation between competition in the market and individual competitive strength.”
“Accordingly, we believe it is important not to confuse the objective of promoting competition with the outcome of ensuring the greatest number of competitors. That is, the Act aims to promote competition because of the benefits that result from the process of competition, such as lower prices for consumers and the displacement of inefficient suppliers by efficient suppliers of services. As the tribunal observed in Re Sydney International Airport at [108]:
‘[108] …The Tribunal is concerned with furthering competition in a forward looking way, not furthering a particular type or number of competitors.’”[101]
“[While] it is possible that lower prices for access to a service may arise in a future with declaration of a service compared to a future without declaration, this does not necessarily mean that competition will be promoted in a related market. To the extent that a lower price for access would lead to little (if any) change in consumption or production decisions by participants in related markets, the lower price may merely have the effect of redistributing the economic surplus generated within a supply chain. It is also possible that lower prices for access to a service do not materially impact on the ability of market participants in related markets to compete against each other on their merits. This is especially the case if prices were not significantly lower, and were set at broadly equivalent levels for all access seekers.”
And later:
“The QCA’s view is that an assessment of a material increase in competition in this market requires considering whether a future without declaration would materially impact on the ability of market participants to compete against each other in developing tenements on their merits, compared to a future with declaration, all other considerations remaining unchanged.
For instance, the QCA’s view is that in a future without declaration, potential DBCT users (new users) would face a less favourable access environment (including a higher TIC) than existing users, which would not arise in a future with declaration. The ‘materiality’ threshold requires the QCA to consider whether, for instance, the higher TIC faced by new users would have the effect of making some tenements developed by new users unprofitable – that is, would it have a detrimental impact on the ability of new users to develop some tenements, relative to those developed by existing users, and compared to if they were developed in a future with declaration, all other things being equal. If the TIC new users would be subject to in a future without declaration would necessarily be at a level to have that effect, the QCA can be satisfied that declaration would promote a material increase in competition in this market. Otherwise, the QCA cannot be satisfied that declaration would promote a material increase in competition in this market. In the latter case, a higher TIC may represent a redistribution of the economic surplus generated within a supply chain.”
And:
“The QCA’s view is that it is possible that the prospect of paying a higher charge (at most $3 per tonne higher) than an existing user may lessen the value of a tenement to a potential DBCT user, all other things being equal. However, this does not necessarily means that the absence of declaration would materially impact on the ability of new users to develop tenements into mining operations. As long as mining projects are expected to remain profitable, it is not evident that there would be a material difference in the investment decisions of potential DBCT users with or without declaration. The higher charge may merely have the effect of redistributing the economic surplus generated within a supply chain.
The NCC expressed a similar view in the PNO declaration revocation matter:
‘[While] higher charges for the Service in a future without declaration may reduce the expected net present value of a mining project to which a tenement relates, this does not mean it would reduce the ability of individual miners to compete against each other for that tenement on their merits.’
Indeed, the QCA’s analysis shows that a DBCT TIC of up to $3 per tonne above the current DBCT TIC would be unlikely to have a detrimental impact on the economic viability of mining projects by new users. All other things being equal, the profit market estimates of those projects would likely be lower in a future without declaration than in a future with declaration, but that would represent a transfer of economic rents.”
“4.7.18 I first consider whether the arrangements provided for in the Deed Poll and Access Framework, if continued over the economic life of a mine, would materially impact on the ability of New Users to acquire tenements relative to Existing Users and compared to a future with declaration. As the Deed Poll and Access Framework have a term of 10 years and will prima facie expire in 2030, I then consider likely pricing arrangements beyond 2030 in a future without declaration, and whether these arrangements would materially impact on the ability of New Users to acquire and develop tenements relative to Existing Users and compared to a future with declaration.”
“4.7.31 In my view, there are limitations to the analysis undertaken by the QCA. As noted earlier, while New Users’ assessment of the profitability (or viability) of potential projects is relevant, the more pertinent question is whether the pricing differential is likely to cause New Users to access a tenement as having a value materially below that assessed by Existing Users. Where it does, I agree with the DBCT Users’ submission that the pricing differential may act as a barrier to entry for New Users, even in circumstances where New Users assess a tenement as being profitable. This is because the higher valuation arrived at by Existing Users will tend to result in Existing Users offering higher prices for tenements, thus effectively outbidding the potential new entrants.”
Ground 1(b)
“(b) was based upon findings for which there was no evidence or other material to justify the making of the decision (JR Act, section 20(2)(h)), or upon findings that were illogical or so unreasonable that no reasonable person could have exercised the power conferred on the Respondent to make them (JR Act, sections 20(2)(e) and 23(g)), namely:
“(a) whether there was any evidence or other material to support, or whether there was a logical basis for, the Minister’s finding that removing the risk of hold‑up would promote a material increase in competition in the Development Stage Tenements Market;[103] and
“Under s 39B of the Judiciary Act (which reflects the common law), the ‘no evidence’ ground requires that there be simply no evidence, or other material, to justify the findings of fact made. Aronson suggests, at 239, that ‘no evidence’ means ‘not a skerrick of evidence’. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in Bond (at 356):
‘So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.’
The position under the ADJR Act[105] is more complex. Aronson suggests that it provides for a more relaxed version of the no evidence ground. Section 5(1)(h) provides for review on the ground ‘that there was no evidence or other material to justify the making of the decision’. However, that section is qualified by s 5(3) which provides as follows:
‘The ground specified in paragraph l(h) shall not be taken to be made out unless:
Section 5(3)(a), in substance, seems merely to restate the doctrine of jurisdictional fact. However, as the RBA[106] correctly submitted, s 8 of the PSR Act,[107] which sets out the matters to which the RBA must have regard in determining whether a particular action is or would be in the public interest, does not specify any particular matter that must be ‘established’ before the RBA can designate a payment system. Rather, the section requires the RBA, in determining whether or not designation would be in the public interest, to have regard to the desirability of payment systems being, in its opinion, ‘efficient’ and ‘competitive’. A provision couched in such subjective terms does not leave much scope for the operation of s 5(3)(a).[108]
“Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power – it is not necessary to determine which, for present purposes – a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.”[111]
“[30] The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decisionmaker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody’s reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, ‘may have no particular legal consequence. As Professor Galligan wrote:
‘The general point is that the canons of rational action constitute constraints on discretionary decisions, but they are in the nature of threshold constraints above which there remains room for official judgment and choice both as to substantive and procedural matters. In other words, within the bounds of such constraints, different modes of decision-making may be employed.’
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves. That approach is an application of the principles discussed above and within the limitations they would impose on curial review of administrative discretions.”[119] (underlining deleted)
“[68] Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for circularity and vagueness’, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King,[121] before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation,[122] which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area. …
[74] In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(l)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis.”[123] (emphasis added)
“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”[131] (emphasis added)
“4.7.52 In my view, given the significant sunk costs involved in acquiring and developing a mine, the uncertainty for New Users as to the pricing that will apply after 2030 is likely to give rise to concerns on the part of those New Users about the risk of hold-up.”
The Minister did not consider these things and therefore the decision is unreasonable in Wednesbury terms. (the first submission)
The first submission
“Promotion of Competition – Hay Point catchment Coal Tenements Market
The principal issue in the Hay Point catchment coal tenements market is that, declaration (through the undertaking), currently creates conditions and an environment which facilitates competition in the tenements market.
In particular, the DBCT User Group notes that those members of the DBCT User Group that have invested in the Hay Point catchment tenements market in the last few years have confirmed that the declaration (and resulting protections in the DBCT access undertaking referred to in section 8.4 – principally regulated efficient pricing, standard terms of access, a transparent queue, and long term regulatory certainty) were a critically important part of their investment decision.
Whereas, the absence of declaration will materially impact on competition in the Hay Point catchment coal tenements market due to the differential way it would impact on potential acquirers of coal tenements in that market.
In particular:
It is clear from that alone, that the result of the declaration ceasing would be to severely disadvantage the very type of company that has more recently been active in buying exploration / development projects in the Hay Point catchment coal tenements market.”[150]
Second submission
“4.7.11 I accept that both New Users and Existing Users will seek to compete for development stage tenements for which capacity will be required at the DBCT terminal:
“110. The Treasurer did note that approximately 23 mtpa of DBCT’s current coal handling throughput related to mines that were expected to reach the end of their economic life over the next 10 years: D[4.7.11]. While that number is not insignificant, it suggests that over 70% of DBCT’s current throughput will remain committed to mines that already use the DBCT Service. It follows that 70% of DBCT’s current capacity could not be reallocated to new development stage tenements. Even assuming that the remaining 30% of current capacity was redeployed by Existing Users between 2020 and 2030, it is far from obvious that the effect would be to materially affect competition to acquire development stage tenements. Indeed, much may turn on the time at which that capacity would become available to Existing Users and, again, the Treasurer did not explore that question.” (emphasis added)
“If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”[156]
“4.7.26 DBCTM made further submissions that:
Ground 1(c)
“(c) was an improper exercise of the power conferred by Subdivision 4 of Division 2 of Part 5 of the QCA Act, in that the Respondent failed to have regard to the following relevant considerations (JR Act, sections 20(2)(e) and 23(b)):
“(a) whether the Treasurer failed to have regard to the following matters in assessing whether the removal of the risk of hold-up for New Users would promote a material increase in competition:
Ground 2(a)
“2 The Decision, in finding that the presence of a risk of hold-up for New Users which were potential acquirers in the development stage coal tenements market is likely to create a further asymmetry in the development stage tenements market between New Users and Existing Users:
“(a) whether the Minister erred in law in:
“Pricing arrangements beyond 3030
4.7.35 As to the second issue, the Deed Poll and Access Framework have an express term of 10 years. As such, prima facie they will expire in 10 years, ie in 2030, whereas the economic life of a coal mine typically lasts longer (about 30 years). In these circumstances I agree with the QCA that it is necessary to consider likely pricing arrangements beyond 2030 in a future without declaration, and whether these arrangements would materially impact on the ability of New Users to acquire development stage tenements.
4.7.36 I accept the QCA’s recommendations that:
4.7.37 Accordingly, I accept the QCA’s recommendation that a New User’s view when considering investing during the period 2020-2030, of what DBCTM will do at and beyond 2030, will have an impact on the New User’s decision to enter the development stage tenements market in 2020-2030.
4.7.38 In the scenario where DBCT is not declared as a result of the current declaration review process, and the Deed Poll and Access Framework govern the access conditions for New Users investing in the coal tenements market in the period 2020-2030, I agree with the QCA’s recommendation that the pricing mechanism that may apply beyond 2030 would depend on DBCTM’s action at that time.
4.7.39 It is not evident that DBCTM would voluntarily submit an access undertaking under the QCA Act or under Part IIIA of the CCA in 2030, as DBCT has an incentive to maximise profit and an access undertaking would likely lead to a reduction in rents that DBCTM receives.
4.7.40 Rather, for the period post 2030, I agree with the QCA that:
4.7.41 DBCT Users submitted that this uncertainty over pricing terms after expiry of the Access Framework term in 2030 would harm the environment for competition in the development stage tenements market in the period 2020-2030.
4.7.42 This submission was addressed by DBCTM in its submissions of 26 April 2019. DBCTM understood the DBCT User Group’s theory of harm to be:
4.7.43 In particular, DBCTM submitted that if the effect referred to by the User Group were valid, then it would be observable now, given DBCT’s declaration status post-2O2O is uncertain as the declaration expires in 2020. DBCTM presented analysis by HoustonKemp which is said shows that there is no evidence of new entrants to the coal tenements market being deterred as argued by the User Group.
4.7.44 DBCTM submitted that if the User Group’s theory was valid, one would expect to see a material increase in the proportion of acquisitions involving Existing Users (who would value tenements more highly given their evergreen rights to access post-2O2O), and a decrease in the proportion of tenements acquired by New Users (given the purported reduction in valuation and deterrent effect cited by the User Group), leading up to the expiry of declaration at DBCT. Instead what is shown is a thriving tenements market, with significant acquisitions by miners who are not Existing Users with capacity at DBCT.
4.7.45 DBCTM submitted that in 2018 (the year in which the declaration review process began and DBCT’s impending declaration expiry was made clear to stakeholders), tenement acquisitions by miners without existing capacity at DBCT were at a historic high. DBCTM stated that this is clear evidence that the User Group’s theory of harm (that an asymmetry in terms and conditions of access will deter efficient new entrants from entering the coal tenements markets, including the purported uncertainty that exists from access being required after the possible expiry of the Access Framework in 2030) is nothing more than assertion.
4.7.46 DBCTM submitted that Criterion A requires a comparison of the with and without declaration. In both scenarios, the declaration/Access Framework will expire in 2030. To presume that the 10-year declaration period was ongoing would be erroneous. DBCTM will likely renew the operation of the Framework for a further term prior to expiration. The Deed Poll sets out this process and requires DBCTM to notify its intention to renew or not renew the Access Framework 12 months before it expires. DBCTM stated that if DBCTM chose not to renew the Access Framework before its expiration it would be at risk of being declared. As such, DBCTM considers it highly likely that it will renew the term of the Access Framework, beyond 2030. If DBCTM did not renew the Access Framework and the QCA found that DBCTM was not constrained by other factors, access seekers would be able to successfully apply for declaration, and access charges post-2030 would be determined by the QCA.”
“How would prices in the 5 yearly reviews under the standard user agreement (under the proposed Access Framework) be determined after this time?
75 When the Framework is renewed then the 5 yearly reviews will proceed as they did in the initial term of the Framework:
75.1 The parties will endeavour to negotiate and agree, as early as practicable, the basis and amount of new charges to apply for the next pricing period; and
75.2 if the parties have not reached an agreement 6 months prior to the start of the relevant pricing period, either party can refer the matter for determination by an arbitrator in accordance with the renewed Framework.
76 In the unlikely circumstances that DBCTM did not renew the Framework, a similar process would be followed:
76.1 The parties would endeavour to negotiate and agree as early as practicable the basis and amount of new charges to apply for the next pricing period; and
76.2 To the extent that the parties could not agree on these matters, the matter would be resolved under clause 15 of the SAA, and ultimately be submitted to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules, under clause 15.4.
77 Following the cessation of the Framework, the arbitration would operate as a normal commercial arbitration. However, as discussed above, in practice, DBCTM would only not renew the Framework if it was confident that there was no risk of re-declaration.
…
86 Even if the User Group’s theory were valid, this effect would occur both with declaration (at the end of the declaration period), and without declaration (at the end of the Framework term (assuming that the Framework is not renewed)).”
“[192] If a decision-maker relies on irrelevant material in a way that affects the exercise of power the decision-maker makes an error of law, and doing so results in the decision-maker exceeding the authority or powers given by the relevant statute: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82].
[193] An issue of materiality may arise, such that relief could be refused on discretionary grounds. In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Mason J observed (at 40, citations omitted):
‘Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: […] A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: […]
[194] And, in this regard, Burchett J noted in Australian Conservation Foundation Inc v Forestry Commission of Tasmania (1988) 19 FCR 127 at 135:
‘It is true that a decision-maker may not take account of an irrelevant consideration; but I think he may pick up a red herring, turn it over and examine it, and then put it down, so long as he does not allow it to affect his decision […] If an insignificant irrelevant factor may not vitiate a decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; 66 ALR 299), one that plays no part at all in the decision need not do so.
[195] It follows that in order to obtain the relief which they seek in respect of this ground, the applicants must demonstrate:
“48 Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.[183]
49 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding ‘of the genesis of the transaction, the background, the context [and] the market in which the parties are operating’.[184] It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
50 Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.[185]
51 Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption ‘that the parties … intended to produce a commercial result’.[186] Put another way, a commercial contract should be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’[187].”
“It is often said that, in order to be admissible in aid of construction, these extrinsic facts must be within the knowledge of both parties to the contract, but this requirement should not be stated in too narrow a sense. When one speaks of the intention of the parties to the contract, one is speaking objectively – the parties cannot themselves give direct evidence of what their intention was – and what must be ascertained is what is to be taken as the intention which reasonable people would have had if placed in the situation of the parties. Similarly when one is speaking of aim, or object, or commercial purpose, one is speaking objectively of what reasonable persons would have in mind in the situation of the parties.”[190]
“170. On this construction, the words ‘applying … from time to time’ are important because they account for the possibility that amendments might be made to the framework implemented under the Deed Poll, prior to a New User entering into the AF SAA. Such amendments would be incorporated into an AF SAA entered into after those amendments take effect, because such amendments are part of the framework that in fact applies at the time that DBCTM and the New User enter into the agreement. But any subsequent amendments to the framework do not have any effect on the terms applicable to the New User under that user’s agreement.”
“E. The Framework will remain in effect and continue to apply to the use of the Terminal (including Access to the Services) through the Term, which will end on the earlier of:
a. 9 September 2030 (being the date that is ten years from the Framework’s Commencement Date of 9 September 2020); and
b. the date on, or after, 9 September 2020 on which use of the Terminal is first taken to be a service declared under Part 5, Division 2 of the QCA Act.” (emphasis added)
“4. Framework to remain in effect and compliance with Framework
4.1. Subject to any amendments permitted in accordance with clauses 7 and 8 of this Deed Poll, DBCT Management covenants in favour of the Covenantees that the Framework will remain in effect for, and continue to apply to the use of the Terminal (including Access to the Services) throughout, the Term.
4.2. DBCT Management covenants in favour of the Covenantees that it will comply with the Framework for the Term.” (emphasis added)
“2.1. Subject to clause 2.2, DBCT Management makes all of the covenants in this Deed Poll in favour of, and only for the benefit of:
2.1.1. Access Seekers who have signed an Access Application Form or Access Renewal Form as set out at Schedule A to the Framework, or who are a party to a Conditional Access Agreement (Confirmed Access Seekers);
2.1.2. Access Applicants;
2.1.3. Access Holders;
2.1.4. DBCT Holdings; and
2.1.5. The State,
(together, Covenantees).
2.2. DBCT Management makes the covenants in clause 8 of this Deed Poll in favour of, and only for the benefit of, the Covenantees and the Third Parties.
2.3. DBCT Management makes the covenants in this Deed Poll on the date of this Deed, and then each day until the end of the Term.
2.4. DBCT Management makes the covenants to the Covenantees and the Third Parties in this Deed Poll subject to the conditions set out at clauses 8, 9, 10 and 11 of this Deed Poll.”
“1.1. In this Deed Poll, capitalised terms not defined in this Deed Poll will have the same meaning as the meaning given to those terms in Schedule G – Definitions and Interpretation – of the Framework.”
“Access Holder means a party who has an entitlement to Access under an Access Agreement.
Access Agreement means an access agreement between DBCT Management and an Access Holder negotiated under Section 5 of this Framework (or otherwise entered into during the Term).”
“4. Framework to remain in effect and compliance with Framework
4.1. Subject to any amendments permitted in accordance with clauses 7 and 8 of this Deed Poll, DBCT Management covenants in favour of the Covenantees that the Framework will remain in effect for and continue to apply to the use of the Terminal (including Access to the Services) throughout, the Term.
4.2. DBCT Management covenants in favour of the Covenantees that it will comply with the Framework for the Term.” (emphasis added)
“5. Notice of intention to renew or not renew
5.1. At least 12 months before the tenth anniversary of the Commencement Date, DBCT Management will publish the following on its website:
5.1.1. notice of its intention to renew, or not renew, the operation of the Framework for a further term; and
5.1.2. where operation of the Framework is being renewed for a further term, details of the term and a copy of the Framework with any amendment(s).”
“8. Amendments to Framework
8.1. The Framework can only be amended in accordance with this clause 8.
8.2. DBCT Management can amend the Framework, from time to time, so long as the amendment(s):
8.2.1. promote the Framework Objective; and
8.2.2. are appropriate having regard to each of the mandatory considerations set out in clause 8.3.
8.3. DBCT Management covenants in favour of the Covenantees that if, and when, it amends the Framework it will have regard to each of the following mandatory considerations:
8.3.1. the legitimate business interests of DBCT Holdings in its capacity as the owner of the Terminal;
8.3.2. the legitimate business interests of DBCT Management in its capacity as the operator of the Terminal;
8.3.3. public interest, including the public interest in having competition in markets (whether or not in Australia);
8.3.4. the interests of persons who may seek access to the service, including whether adequate provision has been made for compensation if the rights of users are adversely affected;
8.3.5. the effect of excluding existing assets for pricing purposes;
8.3.6. the following pricing principles in relation to the price of access to the Terminal:
8.3.6.1. the price should generate expected revenue for the Terminal that is at least enough to meet the efficient costs of providing access to the Terminal and include a return on investment commensurate with the regulatory and commercial risks involved;
8.3.6.2. the price should allow for multi-part pricing and price discrimination when it aids efficiency;
8.3.6.3. the price should not allow DBCT Management to set terms and conditions that discriminate in favour of the downstream operations of DBCT Management or a related body corporate of DBCT Management, except to the extent the cost of providing Access to other operators is higher; and
8.3.6.4. the price should provide incentives to reduce costs or otherwise improve productivity.”
“This Framework provides for:
“This Framework will apply on and from the Commencement Date. It will apply until the Terminating Date.”[203] (emphasis added)
“3.1. Agreement to provide Access
“‘Access Framework’ means the access framework (including its schedules) applying to DBCT Management from time to time relating to provision of the Services by it, as U.” (emphasis added)
“7.1. Amendments to TIC
Subject to clause 7.2, the TIC will be amended from time to time throughout the Term in accordance with Schedule 2.
7.2. 5 year review of charges
“15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1. Governing Law
This Agreement is governed by the laws in force in the State of Queensland.
15.2. Disputes
15.3. Further steps required before arbitration
15.4. Arbitration procedure
provided that the issue(s) which each arbitrator has been asked to determine concern common questions of fact or law. Such consolidated arbitration shall be determined by the arbitrator appointed for the arbitration proceeding that was commenced first in time.
15.5. Interlocutory relief
This clause 15 does not prevent any party from seeking urgent interlocutory or declaratory relief from a court of competent jurisdiction.
15.6. Dispute not to affect performance of obligations
The parties are not relieved from performing their obligations under this Agreement because of the existence of a dispute.”
“20. OPTIONS
If the period during which Coal is to be Shipped during the Term is 10 years or more, the following clauses apply:
“175. First, as explained above, it is clear that the AF SAA is intended to operate as a long term, evergreen agreement. In circumstances where many of the terms of the AF SAA require that there be an identifiable Access Framework in respect of that AF SAA, the parties would be taken to have intended that any Access Framework would operate for so long as the renewal rights in the AF SAA operate. Commercial parties would not have intended to confer evergreen rights in the AF SAA while denuding those rights of any force by limiting the operation by reference to the termination date of the Access Framework. The more commercial construction is therefore that the parties intend the Access Framework in operation as at the date a user executes an AF SAA to govern for the life of that agreement.”
Ground 2(b)
“(b) was an improper exercise of the power conferred by Subdivision 4 of Division 2 of Part 5 of the QCA Act, in that the Respondent failed to have regard to the following relevant considerations (JR Act, sections 20(2)(e) and 23(b)):
“(a) whether the Treasurer failed to have regard to the following matters:
“202. It follows that, in concluding that the contractual pricing constraints on DBCTM would cease to be binding upon it in 2030 in an undeclared world, and that amendments to the Access Framework post-2030 could affect New Users, the Treasurer misconstrued the effect of the Deed Poll, the Access Framework and the AF SAA and thereby made errors of law within the meaning of s 20(2)(f) of the JRA. Ground 2(a) is therefore made out. Equally, Ground 2(b) is made out.”
Ground 2(c)
“(c) was based upon findings for which there was no evidence or other material to justify the making of the Decision (JR Act, section 20(2)(h)), or upon findings that were illogical or so unreasonable that no reasonable person could have exercised the power conferred on the Respondent to make them (JR Act, sections 20(2)(e) and 23(g)), namely:
“(a) whether the Treasurer made findings that:
“203. These errors[211] can also be characterised as a failure to take into account relevant considerations, and a decision made without evidence or which was so illogical or unreasonable that no reasonable person could have exercised the power in making the decision.
Ground 3
“3 The Decision, in finding that the identified risk of hold-up might affect investment decisions by New Users which were potential acquirers in the development stage coal tenements market in the period 2020-2030:
“7 The issues raised by Ground 3(a) are:
Ground 3(b)
8 The issues raised by Ground 3(b) are:
Ground 3(a)
7 The issues raised by Ground 3(a) are:
Ground 3(b)
8 The issues raised by Ground 3(b) are:
“5.4 Priority of Access Applications and execution of Access Agreements
“DBCT capacity is currently fully contracted. Nevertheless, coal mining investors would expect capacity at DBCT to become available.
First, some mines operated by existing users are expected to reach the end of their economic life over the next 10 years (about 23 mtpa). To the extent relevant existing users of an expired mine do not intend to use the associated access rights for another coal mining operation, those rights would revert to DBCT Management and would potentially be available for use by other users. Alternatively, existing users could transfer the associated rights to another user on a permanent basis. The QCA’s understanding is that permanent capacity transfers have occurred in relation to the sale of an existing mine. Effectively, there is the potential for redistribution of existing terminal capacity.
Second, DBCT Management’s master plans canvass the expansion options at DBCT to meet increased demand for the coal handling service at DBCT. Relevantly, infrastructure expansions, port as well as rail, have been undertaken to meet additional demand from coal mining when existing infrastructure capacity was inadequate to meet increasing demand.
For instance, DBCT Management’s 2018 Master Plan describes past expansions and mentions future expansion plans:
‘The Bowen Basin experienced strong production and demand growth for coal in the first decade of the 2000s. In order to accommodate this demand, DBCT Management Pty Limited (‘DBCTM’) responded by undertaking numerous capacity expansions. The DBCT 7X project was the most recent expansion and lifted terminal capacity to 85 million tonnes per annum (Mtpa), underwritten by long term take or pay contracts with the world’s biggest mining companies.
…
DBCT Management is obliged by the Port Services Agreement (PSA) and the Access Undertaking (AU) to accommodate the actual and reasonably anticipated future demand for the use of DBCT’s Users and access seekers. Accordingly, DBCTM has continued to plan post 85 Mtpa expansions to take DBCT’s nameplate capacity up to a maximum of 136 Mtpa.
DBCT Management also stated that it is ‘primarily the demand for capacity that determines expansion requirements’.
Similarly, rail network expansions have been associated with port investments. For instance, Aurizon Network’s 2016-17 Network Development Plan (NDP) identifies network expansion options to align with forecast port expansions. For the Goonyella system, the NDP identifies five future expansion scenarios, all of which are driven by port developments:
• An initial 4 mtpa from, the North Goonyella branch to DBCT in 2020, corresponding to the DBCT Zone 4 project.
• This is followed in 2021 by DBCT 8X with 13 mtpa from the Blair Athol and North Goonyella branches.
• In 2023 and 2024, 20 mtpa of capacity is provided for HPX4 from the South Goonyella and North Goonyella branches.
• In 2025, 10 mtpa of capacity is provided for the Bowen Basin Terminal from the South Goonyella branch.
• 34 mtpa of capacity is provided from the North Goonyella and South Goonyella branches for DBCT 9X, ramping up in 2026 and 2027.
Accordingly, the fact that DBCT is currently capacity-constrained is not a binding constraint for the development of tenements into mining operations, and it is unlikely to discourage the development of coal mining projects. Rather, the potential demand from coal mining projects would trigger the need to expand DBCT capacity and rail infrastructure capacity.
Therefore, the QCA’s view is that coal mining investors would expect capacity at DBCT to become available, and that expectation would remain unchanged in a future with and without declaration.”
“The QCA considers that despite tightening of provisions and some increased certainty around those participants who will contract capacity at DBCT – due to the removal of access seekers who do not wish to commit to capacity from the queue – the nature of the queue and the way it operates suggest that the volumes and timing reported in the queue are not accurate so as to represent a reliable estimate of demand at DBCT.
The QCA considers that the non-binding nature of access applications in the access queue means the queue cannot be relied upon as an accurate estimate of demand. The 2017 access undertaking provisions outline that in a notifying access seeker process, access seekers in the queue may provide signed access agreements for a ‘lower tonnage, shorter term or earlier date of commencement’ than requested in their access application, which DBCT Management can then choose to execute. The QCA considers that this ability to contract for a revised tonnage, term or date of commencement encourages access seekers to strategically provide more optimistic tonnage requests than if they were obligated to contract for those volumes.”
“213. The Applicant does not challenge the Treasurer’s ultimate conclusion with respect to Criterion (b).
Ground 4
“Criterion (d)
4 The Decision, in finding that criterion (d) was satisfied:
“Ground 4:
Dispute about the appropriate relief
“30 Powers of the court in relation to applications for order of review
“(a) Criterion (a) was not satisfied in respect of the DBCT Service in the period 9 September 2020 to 8 September 2030; and
“E. The Framework will remain in effect and continue to apply to the use of the Terminal (including Access to the Services) throughout the Term, which will commence on the first date, after execution of the deed Poll, on which use of the Terminal is not a service declared under Part 5, Division 2 of the QCA Act and end on the earlier of:
a. the date that is ten years from the Commencement Date; and
b. the date on, or after the Commencement Date from which coal handling services at the Terminal are a service declared under Part 5, Division 2 of the QCA Act.
However, notwithstanding (a) and (b), the Terminating Date will not occur if the decision of the Treasurer made on 31 May 2020 to declare coal handling services at the Terminal under Part 5, Division 2 of the Queensland Competition Authority Act 1997 (Qld) is set aside by a court, later reinstated, and then subsequently set aside.”
Conclusions
[1]Queensland Government Gazette No 31; 1 June 2020.
[2]Order of Dalton J, 18 August 2020.
[3]The Commonwealth equivalent to the Queensland Competition Authority.
[4]DBCTM has no interest in any business in the chain of supply apart from the terminal.
[5]Which includes use of a port; see s 70(1)(b).
[6]Section 79.
[7]See Part 5, Division 3.
[8]Section 84.
[9]Other than the market for the service. See Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39 at [24].
[10]Other than the market for the service.
[11]Section 99.
[12]Statutory note omitted.
[13]Which contains ss 100 and 101. As to the operation of the access rights, see generally Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39.
[14]Section 87A.
[15]A recommendation to declare the service.
[16]A recommendation not to declare the service.
[17]Which relates to water supply.
[18]Section 76(2).
[19]Of the type discussed in Norbis v Norbis (1986) 161 CLR 513.
[20]Pilbara Infrastructure Pty Ltd & Ors v Australian Competition Tribunal & Ors (2012) 246 CLR 379 at [115]-[119].
[21](2012) 246 CLR 379.
[22]Which performed the same role as does the Queensland Competition Authority under the Queensland Competition Authority Act 1997.
[23]Paragraphs [39]-[40].
[24]Paragraph [46].
[25]Paragraph [43].
[26]Paragraph [47].
[27]Kioa v West (1985) 159 CLR 550, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2002) 214 CLR 1 at [38], and see generally TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361 at [85]-[113].
[28]Queensland Competition Authority Act 1997, s 76(2)(a).
[29]Queensland Competition Authority Act 1997, s 70.
[30]Part C, section 2.3.1 at page 8.
[31]Minister’s reasons, 3.3.1.
[32]Queensland Competition Authority Act 1997, s 72.
[33]Part C, section 2.2.1 at page 7.
[34]Section 250 deems the handling of coal at the terminal to be a declared service; see these reasons, paragraphs [52]-[54].
[35]Minister’s reasons, 3.2.1.
[36]Part C, section 2.4.3 at pages 13-47; Part C, Appendix B at pages 264-269.
[37]BHP submissions, 26 April 2019, section 2 at pages 2-3.
[38]See paragraphs [73]-[75] and [182]-[188] of these reasons where capacity of the terminal is considered in depth.
[39]As to the significance on competition on vertical integration, see Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374.
[40]See paragraph [8] of these reasons.
[41]Queensland Competition Authority Act 1997, s 97.
[42]Legislative notes omitted.
[43]Queensland Competition Authority Act 1997, Part 5, Division 2, subdivision 4A.
[44]An amended Deed Poll is now contemplated but that issue is really only relevant to the discretionary granting of relief, see paragraphs [310]-[321] of these reasons.
[45]Other than the market for the service.
[46]Should be a referral to clause 20(b).
[47]Clause 11.3(a).
[48]Clause 11.3(b).
[49]Although see paragraphs [64] and [182]-[188] of these reasons. Existing users must compete for access beyond the tonnage convered by existing contracts.
[50]And existing users acquiring capacity beyond that covered by their 2017 Access Agreements.
[51]See paragraphs [210]-[214] of these reasons.
[52]Section 76(2)(b) and (3).
[53]Millions tonnes per annum.
[54]Those without 2017 Access Agreements.
[55]Considered at paragraphs [182]-[188] of these reasons.
[56]Minister’s reasons, paragraph 3.2.
[57]Minister’s reasons, paragraph 3.3.
[58]Minister’s reasons, paragraph 4.4.2.
[59]Minister’s reasons, paragraph 4.8.1.
[60]Minister’s reasons, paragraphs 4.4.1 and 4.4.2.
[61]Minister’s reasons, paragraph 4.6.1.
[62]Minister’s reasons, paragraph 4.6.2.
[63]Agreements about whether the Deed Poll is binding on DBCTM; Minister’s reasons, paragraph 4.5.7.
[64]Minister’s reasons, paragraph 4.6.10.
[65]Development stage tenements market.
[66]Minister’s reasons, paragraph 4.5.1.
[67]Minister’s reasons, paragraph 4.7.17.
[68]Minister’s reasons, paragraph 4.7.40.
[69]A consultant who provided a report.
[70]Judicial Review Act 1991, s 4(a).
[71]Griffith University v Tang (2005) 221 CLR 99.
[72]Section 20(1).
[73]Not relevant here.
[74](2005) 227 ALR 140.
[75](2000) 156 FLR 10 at [106].
[76]Re Duke Eastern Gas Pipeline Pty Ltd (2001) 162 FLR 1 at [75] and Re Virgin Blue Airlines (2005) 195 FLR 242 at [146].
[77](2000) 156 FLR 10.
[78]The Commonwealth Criterion A.
[79]Re Sydney Airports Corporation (2000) 156 FLR 10 at [107].
[80]Transcript 1-19 lines 1-13.
[81]Macquarie Dictionary, 8th Edition.
[82]Explanatory Memorandum to the Queensland Competition Authority Act 1997; see paragraph [8] of these reasons.
[83]As set out at paragraph [104] of these reasons.
[84]See the further analysis in Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39 at [24].
[85]Re Application by Fortescue Metals Groups Limited & Ors (2010) 271 ALR 456 at [584] and Re Application by Glencore Coal Pty Ltd [2016] ACompT 6.
[86][2016] ACompT 6.
[87](2005) 195 FLR 242.
[88]See these reasons at paragraphs [17] and [18].
[89](2005) 195 FLR 242.
[90]At [162].
[91](1993) 43 FCR 280.
[92]At 287.
[93](1996) 185 CLR 259.
[94]See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.
[95](1990) 170 CLR 1 at 35-36.
[96]At 272 and followed in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2016) 258 CLR 173 at [59]-[60].
[97]Written submissions of the applicant, paragraph 75.
[98]Motor Accident Insurance and Other Act Amendment Acts 2010: Explanatory Memorandum. see Re Telstra Corporation Ltd (No 3) (2007) 242 ALR 482 at [96] citing Re Sydney Airports Corporation (2000) 156 FLR 10.
[99]7th edition 2019.
[100](2007) 242 ALR 482.
[101]At [99]. And see also Middleton J in Vodafone Hutchison Australia Pty Ltd v Australian Competition and Consumer Commission [2020] FCA 117 at [11].
[102]More properly identified in ground 1.
[103]The finding the subject of ground 1(b).
[104](2005) 148 FCR 446.
[105]Administrative Decisions (Judicial Review Act) 1977 (Cth).
[106]Reserve Bank of Australia.
[107]Payment Systems (Regulation) Act 1998 (Cth).
[108]At [557]-[577], page 587.
[109]Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [36]-[39], City of Enfield v Development Assessment Commission (2000) 199 CLR 135.
[110](1999) 46 NSWLR 55.
[111]At [40]-41].
[112][2006] QSC 295.
[113]At [22]-[23].
[114](2005) 148 FCR 446.
[115]East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at [80].
[116]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[117]At page 230.
[118](2013) 249 CLR 332.
[119]At [30].
[120]As her Honour then was.
[121](1936) 55 CLR 499.
[122](1949) 78 CLR 353 at 360.
[123]At [68] and [74].
[124]Gageler J in strong disagreement; at [108]-[113].
[125](2015) 257 CLR 178.
[126]Murphy v Electoral Commissioner (2016) 261 CLR 28, Brown v Tasmania (2017) 261 CLR 328, Burns v Corbett (2018) 265 CLR 304, Club v Edwards; Preston v Avery (2019) 267 CLR 171 and Spence v Queensland (2019) 367 ALR 587.
[127]DPB16 v Minister for Home Affairs [2020] FCA 781 and Ogawa v Carter of the Department of Home Affairs (as the Second Delegate of the Finance Minister) [2021] FCAFC 16; although generally see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.
[128]Queensland Competition Authority Act 1997, s 86.
[129]Norbis v Norbis (1986) 161 CLR 513 and Buck v Bavone (1976) 153 CLR 110.
[130](1976) 153 CLR 110.
[131]At 118-119. And see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at [275].
[132]See generally Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [12].
[133][2016] ACompT 6.
[134]DBCTM submissions, paragraph [105].
[135]Houston Kemp are consultants who prepared a report.
[136]Paragraphs 3.7.3, which refers back to the QCA recommendation, as does 4.7.36, 4.7.47, 4.7.48 which refers to the QCA’s recommendation, 4.7.52, 6.7.3.
[137]Paragraphs 4.6.9, 4.6.15, 4.6.16, 4.7.3, 4.7.8, 4.7.26, 4.7.41, 4.7.45, 4.7.47, 4.7.50, 4.7.51, 4.7.51, 4.7.52, 4.7.53, 4.7.55.
[138]Reasons, paragraph 4.7.52.
[139]Reasons, paragraph 4.7.52.
[140]Reasons, paragraph 4.7.52.
[141]Reasons, paragraph 4.7.53.
[142]Reasons, paragraph 4.7.54.
[143]Reasons, paragraph 4.7.55.
[144]Reasons, paragraph 4.7.55.
[145]Reasons, paragraph 4.7.55.
[146]Reasons, paragraph 4.7.56.
[147]Reasons, paragraphs 4.7.42 and 4.7.52.
[148]Reasons, paragraph 4.7.52.
[149]Paragraphs [207]-[276] of these reasons.
[150]DBCT Users submission, 30 May 2018, page 83.
[151]Australian Competition and Consumer Commission v Pacific National Pty Ltd (No 2) [2019] FCA 669 at [922].
[152]See paragraph [173] of these reasons.
[153]See paragraphs [207]-[276] of these reasons.
[154]Written submissions, paragraph 110.
[155](2010) 240 CLR 611.
[156]At [131].
[157]Minister’s reasons, paragraph 4.7.41.
[158]Minister for Immigration v Yusuf (2001) 206 CLR 323 at [89].
[159]More properly defined in ground 1.
[160]See paragraphs [93]-[95] of these reasons.
[161]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
[162]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41.
[163]Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [62]-[65].
[164]Queensland Competition Authority Act 1997, s 86.
[165]Norbis v Norbis (1986) 161 CLR 513.
[166]Which I have called the “Standard Access Agreements”.
[167]Except for paragraphs 4.7.47, 4.7.48 and 4.7.59.
[168]Set out at paragraph [87] of these reasons.
[169]Paragraph 4.7.50(v).
[170]Paragraph 4.7.50(i).
[171]Paragraph 4.7.50(i).
[172]Paragraph 4.7.50(iii).
[173]Paragraph 4.7.50(iv).
[174]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[30], Probuild Constructions (Aust) v Shade Systems Pty Ltd (2017) 264 CLR 1 and SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294.
[175](2018) 264 CLR 123.
[176]At [29].
[177]At [30] following Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 and Martincevic v Commonwealth (2007) 164 FCR 45 at [67].
[178](2005) 228 CLR 294.
[179]At [82]-[84].
[180][2019] QSC 124.
[181]Subject to what I said at paragraphs [217] and [218].
[182](2015) 256 CLR 104.
[183]Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352. See also Sir Anthony Mason, “Opening Address”, Journal of Contract Law, vol 25 (2009) 1, at p 3.
[184]Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 at 657 [35], citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 350, in turn citing Reardon Smith Line Ltd v Yngvar Hansen-Tangen (Trading as HE Hansen-Tangen) [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574.
[185]Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; Reardon Smith Line Ltd v Yngvar Hansen-Tangen (Trading as HE Hansen-Tangen) [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574.
[186]Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 at 657 [35], citing Re Golden Key Ltd [2009] EWCA Civ 636 at [28].
[187]Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 at 657 [35], citing Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 559 [82].
[188](1982) 149 CLR 337.
[189][1976] 1 WLR 989.
[190]Reardon Smith Line Ltd v Yngvar Hansen-Tangen (Trading as HE Hansen-Tangen) [1976] 1 WLR 989 at 996, cited and followed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 351 and see DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429, Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 at [22].
[191]Toll (FGCT) Pty Ltd v Alphafarms Pty Ltd (2004) 219 CLR 165 at [40] following Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451.
[192]International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 at [8] following Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 165 at [22] and Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 at [35].
[193][2008] FCA 1927.
[194](2004) 218 CLR 530.
[195]Intel Corporation v Unwired Group Ltd [2008] FCA 1927 at [32]-[33] and Zhu v Treasurer of New South Wales [2004] 218 CLR 530 at [82].
[196]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd & Anor (2004) 251 CLR 104 at [51] and see Antaios Compania Naviera SA v Salen Rederierna AB [1985] 1 AC 191 at 201 and Elderslie Property Investments No 2 Pty Ltd v Dunn [2008] QCA 158 at [21].
[197]Clause 1.1.
[198]Clause 2.
[199]Clause 2.3.
[200]Clause 3.1.
[201]Deed Poll, clause 4.
[202]Clause 8.4. Those who hold Standard Access Agreements are “Covenantees”.
[203]Clause 1.4.
[204]And other warranties.
[205]Clause 3.2.
[206]Clause 3.3.
[207]Clause 11.1(k).
[208](2011) 243 CLR 253.
[209]More properly defined in ground 2.
[210]As more properly defined in the introductory words to ground 2.
[211]In the construction of the various agreements.
[212]Which was before both the QCA and the Minister.
[213]Reasons, paragraph 4.7.11-4.7.13.
[214]Section 30(1)(a).
