FEDERAL COURT OF AUSTRALIA BGC (Australia) Pty Ltd v Minister for Infrastructure & Transport (No 2) [2013] FCA 733 Citation: BGC (Australia) Pty Ltd v Minister for Infrastructure & Transport (No 2) [2013] FCA 733 Parties: BGC (AUSTRALIA) PTY LTD ACN 005 736 005 v MINISTER FOR INFRASTRUCTURE & TRANSPORT and PERTH AIRPORT PTY LTD ACN 077 153 130 File number: WAD 155 of 2011 Judge: MCKERRACHER J Date of judgment: 26 July 2013 Catchwords: HIGH COURT AND FEDERAL COURT – settling of final orders in relation to trial of preliminary issue – declaratory relief – whether appropriate to grant – respondent airport corporation sought declarations that the Minister for Infrastructure & Transport did not act beyond power in approving a Final Master Plan under the Airports Act 1996 (Cth) and that the Master Plan was not invalid – where no cross-claim filed by respondent airport corporation – whether declarations sought were appropriate, necessary and of real consequence to the parties Legislation: Federal Court of Australia Act 1976 (Cth) s 21 Cases cited: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 BGC (Australia) Pty Ltd v Minister for Infrastructure & Transport [2013] FCA 603 IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) (2005) 143 FCR 274 JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 Date of hearing: Determined on the papers Date of last submissions: 10 July 2013 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr C G Colvin SC and Mr GA Flynn Solicitor for the Applicant: Hotchkin Hanly Lawyers Counsel for the First Respondent: Ms G A Archer SC and Ms C H Thompson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr M H Zilko SC and Mr J C Vaughan Solicitor for the Second Respondent: Norton Rose Fulbright Australia IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 155 of 2011 BETWEEN: BGC (AUSTRALIA) PTY LTD ACN 005 736 005 Applicant AND: MINISTER FOR INFRASTRUCTURE & TRANSPORT First Respondent PERTH AIRPORT PTY LTD ACN 077 153 130 Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 26 JULY 2013 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. Paragraphs 1, 2, 3 and 4 of the applicant's amended application dated 23 August 2011 ('the application') be dismissed. 2. The applicant's claim against the first respondent be dismissed. 3. The applicant pay the first respondent's costs including reserved costs, to be taxed if not agreed. 4. There be no order as to costs (including reserved costs) between the applicant and the second respondent, in respect of the applicant's claims in paragraphs 1, 2, 3 and 4 of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 155 of 2011 BETWEEN: BGC (AUSTRALIA) PTY LTD ACN 005 736 005 Applicant AND: MINISTER FOR INFRASTRUCTURE & TRANSPORT First Respondent PERTH AIRPORT PTY LTD ACN 077 153 130 Second Respondent JUDGE: MCKERRACHER J DATE: 26 JULY 2013 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 In BGC (Australia) Pty Ltd v Minister for Infrastructure & Transport [2013] FCA 603 (BGC 1) BGC, in effect, failed against the Minister and, in my assessment, substantially succeeded as against Perth Airport. I have adopted the same abbreviations as used in that judgment for consistency. 2 The proceeding initially commenced by way of an application for a declaration that Perth Airport was not entitled to install on BGC's sub-lease High Intensity Approach Lighting (HIAL) or equivalent airport infrastructure. 3 In its amended application, BGC joined the Minister as a respondent and sought the following declarations and orders in relation to the preliminary issue: 1. A declaration that upon a proper construction of the Airports Act 1996 (Cth), the power of the Minister to approve a final master plan does not extend to approving a plan which requires works to be undertaken which the airport-lessee is unable to undertake by reason of the terms of the sub-lease granted by [Perth Airport] in accordance with the Act. 2. A declaration that in the events which have occurred, the [Master Plan] is invalid to the extent that it provides for HIAL to be constructed on land the subject of [the sub-lease]. 3. A declaration that the purported refusal by Perth Airport of consent to the application for building approval by BGC dated 25 January 2011 is invalid. 4. An order requiring Perth Airport to consent to BGC's application for building approval dated 25 January 2011. 4 This resulted in a further amended substituted defence being filed by Perth Airport. It maintained its claim advanced in its first defence that pursuant to a term to be implied into the sub-lease as a matter of law, Perth Airport was entitled to install airport infrastructure on the Land where such infrastructure was specified in a Final Master Plan for Perth Airport. Perth Airport failed in that contention. It also adopted the Minister's contention and advanced supportive arguments that resulted in the rejection of BGC's argument that the Master Plan power invalid. 5 The opposition by the Minister was wholly successful and it is not in dispute that the Minister is entitled to costs to be paid by BGC, to be taxed if not agreed. 6 In BGC 1, I indicated that I doubted whether declaratory relief was necessary in relation to the dismissal of BGC's application for relief in the terms set out above. Perth Airport urges me to grant 'reverse' declaratory relief to give effect to my findings and orders that BGC pay its costs of the trial of the preliminary issue. DECLARATORY RELIEF? 7 Perth Airport seeks three declarations to give effect to the findings reached at the trial of the preliminary issue, namely: (a) The first respondent did not act beyond power in approving the Perth Airport's Final Master Plan dated 2 November 2009 pursuant to s 81(2) of the Airports Act 1996 (Cth); (b) The Perth Airport Final Master Plan dated 2 November 2009 is not invalid; and (c) The second respondent's refusal to consent to the applicant's application dated 25 January 2011 for building approval was not invalid by reason that the Master Plan provides for High Intensity Approach Lighting on the premises sub-leased by the applicant. 8 As Perth Airport acknowledges, these declarations are essentially the reverse of the declaratory relief unsuccessfully sought by BGC. It relies upon the Court's jurisdiction to make findings and binding declarations of rights pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). It accepts that any declaratory relief must be directed to the determination of legal controversies and not simply to answering abstract or hypothetical questions. Perth Airport accepts that the Court will not exercise its jurisdiction to make a declaratory order unless some consequence in law flows from it. 9 The argument advanced by Perth Airport is that there is utility in granting the declarations as they are not merely abstract or hypothetical but rather 'they are at the heart of the controversy' giving rise to the proceeding. Perth Airport contends that the declarations would give effect to the Court's reasons for judgment and assist BGC and Perth Airport in defining their ongoing relationship under the remaining duration of the sub-lease. 10 However, BGC submits that the declarations are sought by a party that did not press a positive claim (there is no cross-claim raised by Perth Airport). Perth Airport was content to let BGC take the running and to oppose the arguments advanced by BGC. 11 In my view it is difficult to identify any benefit served by making declarations as sought or otherwise. BGC has not persuaded me that the Master Plan is invalid or that the Minister acted beyond power in relation to it. The status quo continues. In those circumstances, it is unsurprising that the Minister, for his part, did not seek a declaration to that effect. Put another way and in the terms of Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 (at 414) the answer to the question must produce some real consequence to the parties. No real consequence would be produced in this instance: see also JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 per King CJ and the discussion in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) (2005) 143 FCR 274. For those reasons it is unnecessary to make any declaration and I decline to do so. COSTS 12 A costs order in favour of the Minister must be made and is not opposed by BGC. 13 In relation to the claim for costs by Perth Airport, Perth Airport stresses that it has succeeded in resisting, along with the Minister, the assertion that the Minister did not have power to approve the Master Plan and has succeeded in resisting the assertion that the Master Plan was invalid. Perth Airport argues that although it did not succeed in establishing the existence of the implied term of the sub-lease for which it contended, no practical effect flows from this determination because, as noted in BGC 1 (at [44]), Perth Airport has no present intention or any long term committed intention to enter the sub-lease premises for this purpose. Perth Airport also argues that, in any event, the dispute about the implied term was merely part of a larger dispute as to whether the Master Plan was invalid as being beyond power. It submits that the absence of any such implied term was simply one step in BGC's argument. As none of the relief sought by BGC is to be awarded, Perth Airport argues that costs should follow the event. It is argued that because the Minister is to have his costs awarded immediately, it is convenient and appropriate that Perth Airport's costs should also be awarded at this stage rather than being reserved pending the balance of the proceedings. Perth Airport seeks that its costs of and incidental to the separate trial (including any reserved costs) be paid by BGC, to be taxed if not agreed, and paid forthwith. 14 I am not persuaded to make such an order. I accept the submissions advanced by BGC to the effect that it achieved a significant practical success in relation to the claim against Perth Airport in that the unqualified right contended for by Perth Airport as a term implied at law in the sub-lease has been rejected. As a consequence, it would appear that should it be necessary to install HIAL at a future date, if runway 0/26 is to be extended, Perth Airport's right to proceed with those works is not to be without due regard to the express terms of the sub-lease. Issues may well arise, as BGC argues, although I expressly do not decide this point, whether BGC should receive compensation for property acquisition and, if so, how much. This is by no means an insignificant issue and is the issue on which BGC did enjoy success against Perth Airport. 15 In those circumstances, while BGC failed on the invalidity of the Master Plan point, the spoils were shared reasonably equally. In the exercise of my discretion, I consider the most appropriate disposition in relation to costs is that there be no order as to costs as between BGC and Perth Airport. 16 For those reasons, the following orders are made: 1. Paragraphs 1, 2, 3 and 4 of the applicant's amended application dated 23 August 2011 ('the application') be dismissed. 2. The applicant's claim against the first respondent be dismissed. 3. The applicant pay the first respondent's costs including reserved costs, to be taxed if not agreed. 4. There be no order as to costs (including reserved costs) between the applicant and the second respondent, in respect of the applicant's claims in paragraphs 1, 2, 3 and 4 of the application. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher Associate: Dated: 26 July 2013