The Director-General of the Department of Transport of New South Wales & Anor v Oliveri Transport Services Pty Ltd [2001] NSWCA 231

New South Wales Court of Appeal

CITATION : The Director-General of the Department of Transport of New South Wales & Anor v Oliveri Transport Services Pty Ltd [2001] NSWCA 231 FILE NUMBER(S) : CA 40134/01 HEARING DATE(S) : 23 May 2001 JUDGMENT DATE : 20 July 2001

PARTIES : The Director-General of the Department of Transport of New South Wales & Anor - Appellants Oliveri Transport Services Pty Ltd - Respondent JUDGMENT OF : Mason P at 1; Meagher JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED(Com List) 50028/00 FILE NUMBER(S) : LOWER COURT Rolfe J JUDICIAL OFFICER :

COUNSEL : M H Tobias QC & R P L Lancaster - Appellants J C Kelly SC & N A Confos - Respondent SOLICITORS : Deacons - Appellants Harmers - Respondent CATCHWORDS : ADMINISTRATIVE LAW - determination to vary the routes within a region for operation of bus services on renewal of the contract for their operation - statute empowers variation if necessary for improvement of transport services in the public interest - whether determination vitiated because made for ulterior purpose - whether determination vitiated by uncertainty - finding as to purpose - not to derive maximum revenue from competitive tender of excised routes within the region - distinction between the means to an end and the end - purpose within the power - determination not uncertain. D. Passenger Transport Act 1990; Passenger Transport Amendment Act 1997; LEGISLATION CITED : Road Transport (General) Act 1999; Statute Law (Miscellaneous Provisions) Act (No 2) 1999; Transport Administration Act 1988. Fawcett Properties Ltd v Buckingham County Council (1961) AC 636; Knuckey v Commissioner of Taxation (1998) 87 FCR 187; Minister for Aboriginal Affairs v Peko-Walsend Ltd (1986) 162 CLR 24; CASES CITED: Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435; Samrein Pty Ltd v Metropolitan Water, Sewerage and Drainage Board (1982) 56 ALJR 678; Television Corportation Ltd v The Commonwealth (1963) 109 CLR 59; Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87; Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491. DECISION : 1. Appeal allowed; 2. declarations and orders 2 and 3 made by Rolfe J on 14 February 2001 set aside, and in lieu thereof order that the summons be dismissed; 3. Respondent to pay the appellants' costs of the appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified.