FEDERAL COURT OF AUSTRALIA Canberra International Airport Pty Ltd v ACCC [2001] FCA 1172 PRICE SURVEILLANCE – construction of declaration made pursuant to s 21 Prices Surveillance Act 1983 (Cth) – whether particular area of land was used as "landside road" within terms of the declaration. WORDS & PHRASES – "road" Administrative Decisions (Judicial Review ) Act 1977 (Cth) Prices Surveillance Act 1983 (Cth) 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 Clarke v General Accident Fire & Life Assurance Corporation plc [1998] 1 WLR 1647 followed CANBERRA INTERNATIONAL AIRPORT PTY LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION BEAUMONT, WHITLAM & STONE JJ 24 AUGUST 2001 SYDNEY (HEARD IN CANBERRA) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 15 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED APPELLANT AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT JUDGE: BEAUMONT, WHITLAM & STONE JJ DATE OF ORDER: 24 AUGUST 2001 WHERE MADE: SYDNEY (HEARD IN CANBERRA) THE COURT ORDERS THAT: The appeal be dismissed with costs. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 15 OF 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: CANBERRA INTERNATIONAL AIRPORT PTY LIMITED APPELLANT AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION RESPONDENT JUDGE: BEAUMONT, WHITLAM & STONE JJ DATE: 24 AUGUST 2001 PLACE: SYDNEY (HEARD IN CANBERRA) REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 The appellant, Canberra International Airport Pty Limited ("CIA"), applied to the Court under the Administrative Decisions (Judicial Review ) Act 1977 (Cth) ("the AD(JR) Act") for judicial review of a decision of the respondent, the Australian Competition and Consumer Commission ("the ACCC"), 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"). A Judge of the Court (Gyles J) dismissed the application. CIA now appeals from this order. THE LEGISLATIVE SCHEME 2 Relevantly, s 21(1) of the Act provides that the Minister may (a) declare services of a specified description to be "notified" services for the purposes of the Act; and (b) declare a person to be, in relation to services of a specified description, a declared person for the purposes of the Act. "Services" are defined in s 3 so as to include "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 Act further provides (by s 22), in effect, that, in relation to declared services of a particular description, a declared person cannot increase prices without giving notice to the ACCC and a regime being established to deal with such notices and such prices. 4 Relevantly, by Declaration 84, the Minister declared as follows: "(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; [emphasis added] (2) the following to be declared persons for the purposes of the Act: … (c) [CIA] 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. [emphasis added] Note: These services are subject to prices monitoring under section 27A of the Act. [It was common ground that the disputed area did not fall within sub-para (3)(g).] (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." (Emphasis added) THE ISSUE AT FIRST INSTANCE 5 His Honour noted that the parties had agreed that the only issue which arose for determination was whether a particular area of the Airport ("the disputed area") was used as a "landside road" within cl 4(b)(ix) of Declaration 84. The parties also agreed that this was to be regarded as a "jurisdictional fact" 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. THE BACKGROUND FACTS 6 There was no real dispute about the background facts, which the primary Judge stated as follows: · CIA is the lessee of the Airport pursuant to the Airports Act 1996 (Cth). The disputed area (and the road system of the Airport) is privately held by CIA, with no public rights existing over the road system. · 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 rectangular paved area (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 gives access to the terminals otherwise than by backtracking to the main road. · In 1999, CIA 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. · 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 (referred to as the "Taxi Parking Area" in these agreements rather than the "feeder" area). By way of illustration, the agreement with Canberra Cabs provided 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." (Emphasis added) · The scheme outlined in this agreement was followed in practice. · A count was taken, firstly, of the number of taxis that passed through the boom gate and picked up passengers at the rank; and, secondly, of 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 count indicated 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. · The disputed area was constructed as part of Stage 1 of a major redevelopment programme of the Airport. A description of those works in a draft plan of CIA was 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) the primary judge's reasons 7 His Honour noted that the parties had agreed that the disputed area, the taxi rank and the roads mentioned were are all "landside" and that there was no definition of "road" or "roads" in Declaration 84 or in the Act. Thus, his Honour observed, whether the area in question was a "road" was to be determined according to the ordinary meaning of the word. 8 Gyles J concluded that the area was best seen as part of the overall road system of the Airport in a way which, for example, car parks are not. It was not, in any real sense, a parking area. It was 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 was 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 formed 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. The disputed area might appropriately be called a "marshalling" or "holding" area, and the description of "feeder" area in the 1999 agreement also captured the concept. That is, part of the road system was used for the purpose of marshalling, holding or feeding, as an alternative to having taxis queuing along the main road. The words emphasised in the extract from CIA's draft plan (set out above) are consistent with this. The presence of a boom gate did not detract from this conclusion – it was simply a means of facilitating payment of what amounts to a toll. "Road" is not limited to public road, and the exclusion of ordinary vehicles from the area was immaterial. conclusions on the appeal 9 In the course of argument before the primary Judge, and before us, both counsel sought to rely upon the decision of the House of Lords in Clarke v General Accident Fire & Life Assurance Corporation plc [1998] 1 WLR 1647. The question there was whether, for personal injury insurance purposes, a car park at the rear of a parade of shops was a "road" within a statutory definition of that term, namely, a highway or "any other road" to which the public had access. The House held that it was not. 10 Lord Clyde (with the concurrence of the other members of the House), said (at 1652) that, without formulating a comprehensive definition whereby a place may be identified as a road: "… some guidance should be found by considering its physical character, and the function which it exists to serve. One obvious feature of a road as commonly understood is that its physical limits are defined or at least definable. It should always be possible to ascertain the sides of a road or to have them ascertained. Its location should be identifiable as a route or way. It will often have a prepared surface and have been manufactured or constructed. But it may simply have developed by the repeated passage of traffic over the same area of land. It may be continuous, like a circular route, or it may come to a termination, as in the case of a cul-de-sac. A road may run on a single line without diversion or it may have branches. A branch which leads for example to a hotel or some other place of refreshment may qualify as a road, particularly, but by no means exclusively, where it leads into and continues out of the place in question. I do not find it helpful to use the language of a 'through route' beyond recognising that a road should lead from one point to another". 11 Turning then (at 1652 – 1653) to consider the function of a place, in order to see if it qualifies as a road, Lord Clyde observed that: "Essentially a road serves as a means of access. It leads from one place to another and constitutes a route whereby travellers may move conveniently between the places to which and from which it leads. It is thus a defined or at least a definable way intended to enable those who pass over it to reach a destination. Its precise extent will require to be a matter of detailed decision as matter of fact in the particular circumstances. Lines may require to be drawn to determine the point at which the road ends and the destination has been reached. Where there is a door or a gate the problem may be readily resolved. Where there is no physical point which can be readily identified, then by an exercise of reasonable judgment an imaginary line will have to be drawn to mark the point where it should be held that the road has ended. Whether or not a particular area is or is not a road eventually comes to be a matter of fact." 12 In addressing the case at hand, Lord Clyde said (at 1653) that: "In the generality of the matter … in the ordinary use of language a car park does not so qualify [as a road]. In character and more especially in function they are distinct. It is of course possible to park on a road, but that does not mean that the road is a car park. Correspondingly one can drive from one point to another over a car park, but that does not mean that the route which has been taken is a road. It is here that the distinction in function between road and car park is of importance. The proper function of a road is to enable movement along it to a destination. Incidentally a vehicle on it may be stationary. One can use a road for parking. The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking. A hard shoulder may be seen to form part of a road. A more delicate question could arise with regard to a lay-by, but where it is designed to serve only as a temporary stopping place incidental to the function of the road it may well be correct to treat it as part of the road … circumstances can occur where an area of land which can be reasonably described as a car park could qualify as a road for the purposes of the legislation … [although] such circumstances would be somewhat exceptional." 13 We respectfully agree with these observations, which provide guidance in the present case. 14 In our opinion, both as a matter of physical characteristics and of function, the disputed area should be characterised as in the nature of a "lay-by" in the sense explained by Lord Clyde. 15 The relevant dictionary definition (British) of "lay-by" is "a part of a road…where vehicles may park up out of the stream of traffic;" that is, something distinct from a car park, and not the main tarmac or thoroughfare of a highway. The subject area is, to borrow Lord Clyde's words, a place "designed to serve only as a temporary stopping place incidental to the function of the (main) road". We agree with the primary Judge's characterisation hereof a "marshalling" or "holding" area, which is consistent with the parties' own "feeder" concept. 16 The point is ultimately one of impression. In our view, the area is, in its physical aspect, sufficiently connected to the main thoroughfare, and, in its functional aspect, properly seen as incidental to the purpose served by that thoroughfare, to warrant itself the description of "road". We would dismiss the appeal. 17 We should add that both parties urged the Court to have regard to various "policy" considerations, mainly economic, in construing the Declaration. Since we have not found any of these considerations of assistance on the construction issue, we have not found it necessary to refer to them. 18 Finally, for completeness, we have not found it necessary to consider the ACCC's Notice of Contention. 19 We propose that the appeal be dismissed, with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 24 August 2001 Counsel for the Appellant: Dr J Griffiths Solicitor for the Appellant: Mallesons Stephen Jaques Counsel for the Respondent: Mr S Gageler S.C. Solicitor for the Respondent: Phillips Fox Date of Hearing: 9 August 2001 Date of Judgment: 24 August 2001