Canberra International Airport Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 289

FEDERAL COURT OF AUSTRALIA

Canberra International Airport Pty Ltd v Australian Competition & Consumer Commission [2001] FCA 289

PRICES SURVEILLANCE – construction of declaration made pursuant to s 21 Prices Surveillance Act 1983 (Cth) WORDS AND PHRASES – "road" Prices Surveillance Act 1983 (Cth) ss 3, 21, 22 Airports Act 1996 (Cth) Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 cited McBain v Reyne (1998) 69 SASR 580 referred to Clarke v General Accident Fire & Life Assurance Corporation plc [1998] 1 WLR 1647 referred to

CANBERRA INTERNATIONAL AIRPORT PTY LIMITED ACN 080 361 548 v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

A 48 OF 2000

GYLES J

CANBERRA

23 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 48 OF 2000

BETWEEN: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED ACN 080 361 548

APPLICANT

AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 23 MARCH 2001

WHERE MADE: CANBERRA

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 48 OF 2000

BETWEEN: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED ACN 080 361 548

APPLICANT

AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

RESPONDENT

JUDGE: GYLES J

DATE: 23 MARCH 2001

PLACE: CANBERRA

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the respondent, the Australian Competition and Consumer Commission ("ACCC"), made on 14 April 2000 in relation to the application of a declaration ("Declaration 84") made pursuant to s 21 of the Prices Surveillance Act 1983 (Cth) ("the Act") in relation to certain activities at Canberra International Airport ("the Airport"). 2 The relevant provisions of s 21 of the Act are: "21. (1) The Minister, or the Commission with the approval of the Minister, may by instrument in writing published in the Gazette: (a) declare goods or services of a specified description to be notified goods or services for the purposes of this Act; (b) declare a person to be, in relation to goods or services of a specified description, a declared person for the purposes of this Act; …" The definition of "services" in s 3 includes: "… any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce …" 3 The effect of s 22 of the Act is that a declared person in relation to notified services of a particular description cannot increase prices without giving notice to the ACCC and a regime is established to deal with such notices and such prices. 4 The terms of Declaration 84 (so far as relevant) are as follows: "I, PETER COSTELLO, Treasurer, pursuant to sub-section 21(1) of the Prices Surveillance Act 1983 ("the Act"), hereby declare: (1) subject to paragraph (3), the provision of aeronautical services, limited to: (a) aircraft movement facilities and activities; and (b) passenger processing facilities and activities to be notified services for the purposes of the Act; (2) the following to be declared persons for the purposes of the Act: … (c) Canberra International Airport Pty Ltd in relation to the provision of the services referred to in paragraph (1) at Canberra Airport; … (3) The notified services referred to in paragraph (1) do not include provision of the following: (a) aircraft refuelling; (b) aircraft maintenance sites and buildings; (c) freight equipment storage sites; (d) freight facility sites and buildings; (e) ground support equipment sites; (f) check-in counters and related facilities; or (g) public and staff car parks. Note: These services are subject to prices monitoring under section 27A of the Act. (4) In this declaration: (a) 'aircraft movement facilities and activities' means any of the following: … (b) 'passenger processing facilities and activities' means any of the following (i) forward airline support area services; (ii) aerobridges, airside buses; (iii) departure lounges and holding lounges (but excluding commercially important persons lounges); (iv) immigration and customs service areas; (v) public address systems, closed circuit surveillance systems, security systems; (vi) baggage make-up, baggage handling, baggage reclaim; (vii) public areas in terminals, public amenities, public lifts, escalators and moving walkways; (viii) flight information display systems; (ix) landside roads, landside lighting and covered walkways. 5. This declaration commences on 1 July 1998 and ceases on 1 July 2003. PETER COSTELLO 22 May 1998" (emphasis added) 5 To make Declaration 84 consistent with the Act it is necessary to understand that the definition of "passenger processing facilities and activities" in cl 4 of Declaration 84, when considered with cl 1, relates to the use of a physical facility. 6 The parties are agreed that the only issue which arises for determination is whether use of a particular area of the Airport, which I will call "the disputed area", is use as a "landside road" within cl 4(b)(ix) of Declaration 84. The parties are also agreed that this is to be regarded as a jurisdictional fact for decision as explained in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. 7 The applicant is the lessee of the Airport pursuant to the Airports Act 1996 (Cth). It is agreed that the area in dispute (and the road system of the Airport) is privately held by the applicant, with no public rights existing over the road system. 8 The parties have tendered plans, diagrams and photographs of the Airport and witnesses have deposed to the taxi system which lies at the heart of the issue. It is not necessary that all of this evidence be set out in the judgment. There is little debate about the primary facts. I shall state the facts, as I understand them, sufficiently to identify the features of the Airport and the taxi system which are necessary to construe that part of Declaration 84 which is in question. 9 There is a taxi rank at the kerb of the main road which passes the terminal buildings. Some distance away, and to the west of the rank, there is a long and relatively narrow rectangular paved area which is the disputed area. This intersects with the main road. Access to the main road is controlled by a boom gate which is coin operated. Vehicular access to the disputed area is via a detour from the main road along Nomad Drive and Airtourer Road, neither of which give access to the terminals otherwise than by backtracking to the main road. 10 In 1999 the applicant and Aerial Taxi Cabs Co-operative Society Limited ("Canberra Cabs") entered into a licence agreement covering a taxi rank consisting of six kerbside parking spaces and a feeder area with sixty five parking spaces. Plans were attached which are not in evidence. At that stage, there was a licence fee of $5,000 per annum per rank space with no fee payable for feeder spaces. 11 By April 2000 there were agreements between Capital Airport Group Pty Limited, manager of the Airport, and each of Queanbeyan Taxi Co-operative Limited (dated 16 March 2000) and Canberra Cabs (dated 4 April 2000) relating to use of the disputed area which is referred to as the "Taxi Parking Area" in these agreements, rather than a feeder area as it was previously described. The agreement with Canberra Cabs can be set out for present purposes and provides as follows: "1. Capital Airport Group will provide the Airport Taxi Parking Area for the use of taxis waiting to join the Airport Taxi Rank and pick up passengers, and will provide a signal box for the calling of taxis by the Taxi Commissionaires. 2. Taxis must use the Airport Taxi Parking Area if the Airport Taxi Rank is full. 3. Each taxi will pay a toll of $2 on exiting the Airport Taxi Parking Area, and will be issued a receipt by Capital Airport Group for payment. 4. The taxi driver will be permitted to add the toll for use of the Airport Taxi Parking Area, to the taxi fare. Where a taxi is multi-hired, the toll will be split between the different hirers. 5. Capital Airport Group will erect signs at the Airport Taxi Rank advising hirers that they are liable for the $2 toll and that it will be added to the taxi fare. 6. If the Airport Taxi Rank is not full, a taxi may join the rank without entering the Taxi Parking Area and thus without paying the toll. In these circumstances, the taxi must not charge the toll to the hirer. 7. A taxi must not pick up passengers in the Airport Taxi Parking Area (and leave without paying the toll). 8. Taxis will be permitted to exit the Parking Area without paying the $2 toll if the taxi does not proceed to the Rank. 9. Taxis which have previously paid the $2 toll will be permitted to exit the Parking Area without a further toll on production of a receipt." 12 The evidence is that the scheme outlined in these agreements is followed in practice. 13 The Australian Capital Territory Government has permitted the toll to be added to taxi fares to be charged to passengers. 14 Recently, representatives of the ACCC counted, firstly, the number of taxis that passed through the boom gate and picked up passengers at the rank and, secondly, the number of taxis picking up passengers at the rank without passing through the boom gate from 8.15am to 5.30pm on a weekday. The result was that 67% of the taxis passed through the boom gate and 33% did not. At the point where taxis have to detour from the main road to enter the disputed area the taxi rank cannot be seen. 15 The Managing Director of the applicant agreed in cross examination that the disputed area was constructed as part of Stage 1 of a major redevelopment programme of the Airport. He agreed with a description of those works in a draft plan of the applicant as follows: "Stage 1 of the Millennium Improvement Program (see fig 1) is already underway with the construction of new extended carparking facilities and access roads at a cost of $8 million. This work will ensure a smooth flow of traffic through the airport and provide improved access to parking areas. The new road works will allow for improved coordination of taxi queuing arrangements so as to minimise waiting time for those passengers leaving the airport by taxi. Further inclusions such as an undercover walkway and new automated parking equipment will further improve the convenience and functionality of the area to airport users." (emphasis added) 16 I do not think that anything useful can be gleaned from the description in an early engineering drawing of the vicinity of the area in question as Genairco Street. The redevelopment is such as to make previous descriptions irrelevant. 17 The parties are agreed that the disputed area, the taxi rank and the roads to which I have referred are all "landside". There is no definition of "road" or "roads" in Declaration 84 or the Act. It is common ground that there is no other statute which affects the question. Therefore, subject to any indirect assistance to be obtained from Declaration 84 and the Act, the issue as to whether the area in question is a "road" is to be determined according to the ordinary meaning of the word. 18 Counsel for the applicant submitted that the definitions in cl 4 are exclusive and carefully drafted. There is no occasion to give "road" any extended meaning. He submitted that the general description "passenger processing facilities and activities" in cl 4(b) could not assist the respondent as it was expressly delimited by the terms of cl 4. It was also submitted that the express reference in cl 3(g) to car parks shows that if car parks had been intended to be encompassed by cl 4(b) they would have been mentioned. 19 Counsel for the respondent submitted that this approach to construction is too narrow and that it is necessary to construe Declaration 84 in the context of the Act and its purpose. It was submitted that when this is done it is evident that the purpose is to ensure surveillance of prices charged for the use of those parts of the facilities of the Airport which are capable of being exploited by reason of the monopoly position of the operator. The area in question and its use falls comfortably within that description. Clause 4(b), and "road" in particular, should not be construed narrowly. Counsel also submitted that, far from helping the applicant, the express exclusion of car parks in cl 3 pointed to them being included within cl 4 if it were not for the exclusion. 20 Turning to the ordinary meaning of the word "road", counsel for both parties agreed that although there are many authorities dealing with the word in different contexts (cf McBain v Reyne (1998) 69 SASR 580 at 601-602), the best guide for present purposes is the decision of the House of Lords in Clarke v General Accident Fire & Life Assurance Corporation plc [1998] 1 WLR 1647 ("Clarke"), although each emphasised different aspects of the reasoning. It is no disrespect either to counsel or their Lordships if I say that the decision (on the facts of that case), whilst illuminating, illustrates the issue in suit here rather than providing the answer. Indeed, the example of the layby which is given, and left unanswered, is tantalisingly close to the present problem. 21 Taking all this into account, it is submitted for the applicant that, on the facts, the area in question is properly described as a car park or marshalling yard and is simply not an access way for through traffic. 22 The primary submission on behalf of the respondent, in summary, is that the area is physically an extension of the main road and is functionally an adjunct to the taxi rank in that it facilitates the holding and movement of taxis. It is (in words borrowed from Clarke) designed to serve only as a temporary stopping place incidental to the function of the road. 23 The issue is finely balanced, with each argument capable of acceptance. My mind has fluctuated as to the correct result. In the end I am persuaded that the area is best seen as part of the overall road system of the Airport in a way which, for example, car parks are not. I do not agree that, in any real sense, the area is a parking area. It is true that some taxis will wait, perhaps remaining stationary for some time, and that some drivers may leave vehicles unattended for a short time. Fundamentally, however, the area is utilised by vehicles which are temporarily stopped waiting for the opportunity to move to the rank, some of whom will give up and leave the Airport altogether by retracing the route by which they came. It forms part of a continuous loop via Nomad Drive and Airtourer Road back to the main road and thence to the taxi rank. The loop (in reverse) can be used by those who wish to leave the Airport without going to the rank. I accept that the disputed area might appropriately be called a marshalling or holding area. The description of feeder area in the 1999 agreement also captures the concept. However, in my view part of the road system is used for the purpose of marshalling, holding or feeding. It is an alternative to having taxis queuing along the main road. The words emphasised in the extract from the applicant's draft plan set out at par 15 above are consistent with this finding. The presence of a boom gate does not detract from this conclusion. That is simply a means of facilitating payment of what amounts to a toll. It must be recalled that "road" is not limited to public road, and the exclusion of ordinary vehicles from the area does not affect my conclusion. The disputed area is a landside road. 24 In reaching my conclusion, I have given no weight to the form of cl 3 of Declaration 84, which I regard as neutral. I have given some, but limited, weight to the purpose of the legislation urged by counsel for the respondent. 25 The respondents, in the alternative, put a second contention, namely, that the charge for exiting the disputed area is in substance a charge for the use of the taxi rank which is undoubtedly a passenger processing facility as it is part of a landside road. 26 Factors said to support this characterisation are: (a) the functional operation of the disputed area as an adjunct to the taxi rank; (b) the fact that the amount of the fee does not vary with the time spent in the disputed area; (c) the fact that the amount of the fee is, and is intended by the applicant to be, added to the fare of a passenger picked up at the taxi rank; and (d) the fact that the disputed area can be used without paying the fee: the fee is payable only upon exit towards the taxi rank. 27 The applicant's answer is that the fee is collected only from those taxis which move through the boom gate. The fee is not paid by all taxis which pick up passengers at the Airport. The fee cannot, in those circumstances, be said to be a fee for use of the taxi rank. 28 Although it is not necessary to decide the issue, in my opinion the applicant's answer is correct, and the alternative contention should fail. 29 The application is dismissed, with the applicant to pay the costs of the respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.