Australian Competition and Consumer Commission v White Top Taxis Ltd [2009] FCA 88 (13 February 2009)

Last Updated: 17 February 2009

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v White Top Taxis Ltd [2009] FCA 88

TRADE PRACTICES – exclusionary provision – whether arrangement for a proscribed purpose – class of persons excluded – appropriate penalty – determination of – factors taken into account

Competition Code of Victoria, ss 4D, 45(2)(a)(i), 45(2)(b)(i), 76

Australian Competition and Consumer Commission v Dataline.Net.AU Pty Ltd (2007) 161 FCR 513
Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162
Australian Competition and Consumer Commission v Knight [2007] ATPR 42-165
J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; (2000) 172 ALR 532
Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993
News Limited v South Sydney [2003] HCA 45; (2003) 215 CLR 563
NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134; (1997) 71 FCR 285
Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53
Trade Practices Commission v CSR Ltd [1991] ATPR 41-076
Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363; (1984) 4 FCR 296
Trade Practices Commission v Prestige Motors Pty Ltd [1994] ATPR 41-359

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WHITE TOP TAXIS LIMITED (ACN 050 026 009), REX POWELL, ALLAN BEMROSE, ANTHONY MASON and GEOFFREY GROVES

VID 629 of 2008

FINKELSTEIN J
13 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 629 of 2008

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	WHITE TOP TAXIS LIMITED (ACN 050 026 009) First Respondent REX POWELL Second Respondent ALLAN BEMROSE Third Respondent ANTHONY MASON Fourth Respondent GEOFFREY GROVES Fifth Respondent

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	13 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT DECLARES THAT:

1. Each of the second to fourth respondents, throughout the period from October 2003 to 18 June 2008, was a party to an arrangement or understanding between themselves and other operators of taxi-cabs within the meaning of the Transport Act 1983 (Vic) (Taxi-Cabs) in the Shepparton area who were members of the first respondent or lessees of licences held by members (Operators of WTT Taxi-Cabs), and the fifth respondent, that allocated shifts covering each week defined by start and finish times to Operators of WTT Taxi-Cabs pursuant to rosters published from time to time (Roster Arrangement), and which contained a provision that Operators of WTT Taxi-Cabs whose taxis were the subject of the rosters would not operate their Taxi-Cabs during other times except:
   
   • (a) in compliance with requests of the first respondent to drive at other times;
   • (b) to complete jobs commenced before the end of a shift allocated to their Taxi-Cab in the roster; or

(c) to continue to operate in the Operator’s discretion for a period after the end of a shift allocated to their Taxi-Cab in the roster for so long as there were queues at taxi ranks in Shepparton at the time,
(Roster-off Provision) which provision:

(d) had the purpose of preventing, restricting or limiting the supply of taxi services by the second to fifth respondents and other Operators of WRR Taxi-Cabs to:

• (i) passengers and potential passengers of Taxi-Cabs in the Shepparton

area; and

(ii) passengers and potential passengers of Taxi-Cabs in the Shepparton area in particular circumstances or on particular conditions; and

(e) thereby constituted an exclusionary provision or provisions within the meaning of section 4D of the Code,
and thereby contravened section 45(2)(a)(i) of the Competition Code of Victoria (the Code).

2. Each of the second to fifth respondents, from October 2003 to 18 June 2008, contravened section 45(2)(b)(i) of the Code, by giving effect to the Roster-off Provision of the Roster Arrangement, between themselves and other Operators of WTT Taxi-Cabs by not operating their Taxi-Cabs outside of the times when their Taxi-Cabs were rostered to be operated.
3. Each of the second to fourth respondents, from April 2006 to January 2007, engaged in conduct of the kind referred to in sections 76(1)(d) and 80(1)(d) of the Code, by attempting to induce Operators of WTT Taxi-Cabs, in contravention of section 45(2)(b)(i) of the Code, to give effect to the Roster-off Provision in the Roster Arrangement, between themselves and other Operators of WTT Taxi-Cabs by making statements at a meeting of Operators of WTT Taxi-Cabs on 9 April 2006 and producing and disseminating to Operators of WTT Taxi-Cabs rosters and other correspondence and newsletters relating to the Roster Arrangement.
4. Each of the fourth and fifth respondents, during 2004 and early 2005, engaged in conduct of the kind referred to in sections 76(1)(d) and 80(1)(d) of the Code, by attempting to induce Operators of WTT Taxi-Cabs, in contravention of section 45(2)(b)(i) of the Code, to give effect to the Roster-off Provision of the Roster Arrangement, between themselves and other Operators of WTT Taxi-Cabs by telling other Operators of WTT Taxi-Cabs who were operating Taxi-Cabs outside of the times when the Taxi-Cabs were rostered to operate to finish and go home.
5. Each of the second to fourth respondents, from October 2003 to November 2007, engaged in conduct of the kind referred to in sections 76(1)(c) and 80(1)(c) of the Code by aiding the contraventions of the Code referred to in paragraph 2 of this order by others of the second to fourth respondents and the fifth respondent by producing and disseminating rosters to Operators of WTT Taxi-Cabs.
6. The first respondent, by reason of the knowledge, intentions, purposes and conduct of the second, third and fourth respondents as directors of the first respondent:

(a) from April 2006 to January 2007, engaged in conduct of the kind referred to in sections 76(1)(d) and 80(1)(d) of the Code, by attempting to induce Operators of WTT Taxi-Cabs, in contravention of section 45(2)(b)(i) of the Code, to give effect to the Roster-off Provision of the Roster Arrangement between themselves and other Operators of WTT Taxi-Cabs by producing and disseminating to Operators of WTT Taxi-Cabs correspondence and newsletters relating to the rosters ; and

(b) from October 2003 to November 2007, engaged in conduct of the kind referred to in sections 76(1)(c) and 80(1)(c) of the Code by aiding the contraventions of the Competition Code referred to in paragraph 2 of this order by the second to fifth respondents by producing and disseminating rosters to Operators of WTT Taxi-Cabs.
THE COURT ORDERS THAT:

7. Each of the second to fifth respondents be restrained, whether by themselves, their servants or agents or otherwise howsoever, for a period of three years from the date of this order, from:

(a) making or attempting to make a contract, an arrangement or an understanding, where two or more of the parties to the said contract, arrangement or understanding are Operators of WTT Taxi-Cabs, which allocates shifts with start and finish times to Operators of WTT Taxi-Cabs and contains a provision that Operators of WTT Taxi-Cabs will not operate their Taxi-Cabs during other times; and

(b) giving effect to a provision of a contract, an arrangement or an understanding, where two or more of the parties to the said contract, arrangement or understanding are Operators of WTT Taxi-Cabs, which allocates shifts with start and finish times to Operators of WTT Taxi-Cabs and contains a provision that Operators of WTT Taxi-Cabs will not operate their Taxi-Cabs during other times.

8. The first respondent be restrained, whether by itself, its servants or agents or otherwise howsoever, for a period of three years from the date of this order from in any way, directly or indirectly, being knowingly concerned in or party to any Operator of a WTT Taxi-Cab:

(a) making a contract, an arrangement or an understanding, where two or more of the parties to the said arrangement or understanding are Operators of WTT Taxi-Cabs, which allocates shifts with start and finish times to Operators of WTT Taxi-Cabs and contains a provision that Operators of WTT Taxi-Cabs will not operate their Taxi-Cabs during other times; and

(b) giving effect to a provision of a contract, an arrangement or an understanding, where two or more of the parties to the said contract, arrangement or understanding are Operators of WTT Taxi-Cabs, which allocates shifts with start and finish times to Operators of WTT Taxi-Cabs and contains a provision that Operators of WTT Taxi-Cabs will not operate their Taxi-Cabs during other times.

9. The first respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $30,000.00 in respect of the conduct referred to in paragraph 6 of this order payable in three equal instalments by 30 March 2009, 30 March 2010 and 30 March 2011.
10. The second respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of 14,000.00 in respect of the conduct referred to in paragraphs 1, 2, 3 and 5 of this order payable as follows:

(a) $4,666.66 by 30 March 2009;
(b) $4,666.66 by 30 March 2010; and
(c) $4,666.68 by 30 March 2011.

11. The third respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $14,000.00 in respect of the conduct referred to in paragraphs 1, 2, 3 and 5 of this order payable as follows:

(a) $4,666.66 by 30 March 2009;
(b) $4,666.66 by 30 March 2010; and
(c) $4,666.68 by 30 March 2011.

12. The fourth respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $14,000.00 in respect of the conduct referred to in paragraphs 1 to 5 of this order payable as follows:

(a) $4,666.66 by 30 March 2009;
(b) $4,666.66 by 30 March 2010; and
(c) $4,666.68 by 30 March 2011.

13. The fifth respondent pay to the Commonwealth of Australia a pecuniary penalty in the sum of $5,000.00 in respect of the conduct of the fifth respondent referred to above in paragraphs 1, 2 and 4 of this order payable as follows:

(a) $1,666.66 by 30 March 2009;
(b) $1,666.66 by 30 March 2010; and
(c) $1,666.68 by 30 March 2011.

14. The first respondent, within three months of the date of this order, establish and implement a corporate compliance program for the directors of the first respondent from time to time designed to ensure their awareness of their responsibilities and obligations pursuant to Part IV of the Code, in accordance with the terms of Annexure 1 to this order.
15. The respondents pay the applicant’s costs of and incidental to this proceeding in the sum of $15,000.00.
    

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ANNEXURE 1

COMPETITION CODE OF VICTORIA COMPLIANCE PROGRAM

1. The first respondent will cause the directors of the first respondent from time to time to attend a Code Compliance Seminar conducted by an independent person with appropriate knowledge of the Competition Code of Victoria (Code) each year for a period of three years after the date of this Order.
2. The Code Compliance Seminar will address the provisions of Part IV of the Code and will, in particular, address the issues of exclusionary provisions and arrangements or understandings that have the purpose, or have or are likely to have the effect, of substantially lessening competition.
3. The first respondent will cause the directors of the first respondent from time to time to read out a statement at each Annual General Meeting of the first respondent for a period of three years from the date of this Order informing the members of the first respondent of the operation, and the penalties for contravention, of Part IV of the Code.
4. The first respondent will publish and distribute to the members of the first respondent a newsletter each year for a period of three years following the date of this Order which informs the members of the operation, and the penalties for contravention of, Part IV of the Code.
5. The first respondent will engage an independent person with appropriate knowledge of the Code to review its business each year for a period of three years from the date of this Order to advise it on its compliance with Part IV of the Code.
6. The first respondent will ensure that documentary records of its compliance with paragraphs 1 to 5 above are maintained and are available to the Australian Competition and Consumer Commission (ACCC), to be reviewed from time to time. Such records are to be provided to the ACCC within seven working days of a written request for those records.
   

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 629 of 2008

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	WHITE TOP TAXIS LIMITED (ACN 050 026 009) First Respondent REX POWELL Second Respondent ALLAN BEMROSE Third Respondent ANTHONY MASON Fourth Respondent GEOFFREY GROVES Fifth Respondent

JUDGE:	FINKELSTEIN J
DATE:	13 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Australian Competition and Consumer Commission (ACCC) alleges that the second to fifth respondents, three of whom are directors of the first respondent, White Top Taxis Limited (WTT), contravened s 45(2) of the Competition Code of Victoria (Code) (as applied by the Competition Policy Reform (Victoria) Act 1995 (Vic)) and that WTT, contrary to s 45(2)(b)(i), was involved in those contraventions. The remedies sought include declarations, injunctions and the imposition of pecuniary penalties. The respondents admit the contraventions alleged against them. They have joined with the ACCC in making submissions regarding the orders to be made.
2. A thumbnail sketch of the facts is sufficient. WTT carries on business providing taxi-cab network services. It is the sole provider of taxi-cab network services in the Shepparton area. At relevant times 21 WTT taxi-cab operators were licensed under the Transport Act 1987 (Vic) to operate taxi-cabs in the Shepparton area. It was a condition of each license that the owner of the taxi-cab be a member of a network service. Hence each owner of each Shepparton taxi-cab became a member of WTT.
3. The conduct said to contravene s 45(2) is the roster system established by WTT many years ago and implemented by the individual respondents. The roster system operated as follows. From time to time the directors of WTT published rosters that set out the shifts (including start and finish times) that each taxi-cab was to operate. The directors procured each operator to agree to operate his taxi-cab or cause his taxi-cab to be operated during the shifts allotted to their taxi-cab in the roster (roster-on provision) and would not operate his taxi-cab and cause their taxi-cab not to be operated during other times (roster-off provision). There were exceptions to this arrangement. Operators could be required to operate their taxi-cab or cause their taxi-cab to be operated at times outside their roster, to complete jobs commenced before the end of a shift allotted to their taxi-cab or to continue to operate in the operator’s discretion for a period after the end of a shift allotted to their taxi-cab in the roster for so long as there were queues at taxi-cab ranks in Shepparton.
4. The purpose of the roster-on provision was to ensure the presence of taxi-cabs available to supply taxi-cab services in the Shepparton area during times when WTT predicted there would be low demand and to distribute the burden of working at those times evenly in accordance with the roster, thereby attempting to share evenly between taxi-cab operators the burden of being available during those times over the period of the roster. The roster-on provision necessarily imposed a commercial and personal burden on each operator that complied with the provision in that the operator operated their taxi-cab at personally inconvenient hours of the day when there was low demand for taxi-cab services.
5. The purpose of the roster-off provision was to restrict the number of taxi-cabs available during times when WTT predicted that there would be average and not high demand, thereby attempting to share evenly between operators the work available at those times over the period of the roster.
6. The first question that arises is whether the roster system infringes s 45(2). That sub-section prohibits a person from making a contract or arrangement or arriving at an understanding if a provision of that contract, arrangement or understanding contained an exclusionary provision. The giving effect to such a provision is also prohibited. The term “exclusionary provision” is defined in s 4D of the Code. It provides that a provision is an exclusionary provision if it was between competitors and has the purpose of preventing, restricting or limiting the supply of goods or services to particular persons or classes of persons or particular persons or classes of persons in particular circumstances or on particular conditions.
7. The issue here is whether the roster-off provision is an exclusionary provision. ACCC says that it is because it has the purpose of restricting the supply of taxi-cab services to passengers and potential passengers of taxi-cabs in the Shepparton area in particular circumstances or on particular conditions. The particular circumstances are the times under which WTT predicted there would be average and not high demand for taxi-cab services. ACCC contends that the passengers and potential passengers are classes of persons within the meaning of s 4D.
8. In Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 the High Court considered the meaning of s 4D(1) of the Trade Practices Act 1974 (Cth) (TPA), which is in the same terms as the Code. A regional newspaper, the “Murray Valley Standard”, circulated in an area where few other newspapers were published. Another newspaper, the “River News”, which had its own circulation area, moved into part of the Standard’s circulation area. The publisher of the Standard informed the publisher of the River News that unless the River News was withdrawn from the Standard’s area, the publisher of the Standard would distribute a new newspaper in the River News’ original circulation area. The publisher of the River News then removed it from the Standard’s area. ACCC alleged that each of the publishers had contravened s 45(2) of the TPA, in which s 45 of the Code is based.
9. The High Court found that there had been a contravention on the basis that there was an arrangement or understanding the purpose of which was to prevent, restrict or limit the supply of goods or services to particular classes of persons, namely “the readers and advertisers of newspaper services”: Rural Press [2003] HCA 75; (2003) 216 CLR 53, 54. In the course of their joint judgment Gleeson CJ and Callinan J said (at 61):

[T]he statutory concept of a provision (of a contract, arrangement or understanding) which has the purpose of preventing, restricting or limiting supply to or acquisition from particular persons or classes of persons. This is a compound concept involving a certain kind of purpose, having as its object particular persons or classes of persons. The particularity of the persons or classes of persons who are the objects of the purpose as defined and proscribed is essential to the concept of an exclusionary provision. The significance of a finding that a provision is an exclusionary provision within s 4D and s 45(2)(a)(i) and (b)(i) is that such a finding engages a per se legislative prohibition. It becomes unnecessary to consider whether it has the purpose or effect of substantially lessening competition in a market

10. The judges warned that if consideration were not given to the “compound nature” of the concept “there is a danger that s 4D would be given an operation that would greatly reduce the statutory significance of lessening competition, in relation to agreements between competitors generally”: Rural Press at 61. They gave as an illustration the following (at 61):

If two hairdressers in a suburban main street were to have an understanding that one would provide services to men, and one would provide services to women, it may be unlikely that their understanding would involve a substantial lessening of competition in a market. It would be surprising if it were held, nevertheless, to contravene the Act. To the extent to which it had an anti-competitive purpose, that purpose would not be ‘directed toward’ particular persons or classes of persons.

11. It is also important to note that the High Court said that a class was adequately defined even though the identity of all its members might not be readily ascertainable: Rural Press at 90.
12. Section 4D speaks of “the purpose” of the contract, arrangement or understanding rather than any adverse effect which the arrangement might have on competition: News Limited v South Sydney [2003] HCA 45; (2003) 215 CLR 563, 584. The purpose is to be determined by ascertaining the effect or effects the parties sought through the inclusion of the impugned provision: News Limited at 585. This requires an examination of the purposes of the individuals through whom the provision was included in the contract, arrangement, or understanding in question. An examination of the objective purpose will give undue significance to the substantive effect of the provision, as opposed to the effect that the parties sought to achieve through its inclusion: News Limited at 586.
13. The issues to be determined in the instant case are: (1) what was the purpose of the exclusionary provision in the roster arrangement; specifically, did the arrangement have the subjective purpose of preventing, restricting or limiting the supply of goods or services; and (2) are the passengers of taxi-cabs in the Shepparton area; and passengers and potential passengers of taxi-cabs in the Shepparton area in particular circumstances or on particular conditions objects “on, or about whom” (Rural Press at 84) the relevant purpose of the exclusionary provisions operated?.
14. The facts here align well with those in Rural Press. The operators of taxi-cabs provide their services, by and large, to people who live in Shepparton. The roster-off provision had as its end the object of limiting or preventing the supply of taxi-cab services to passengers or potential passengers in the Shepparton area. The passengers and potential passengers were the objects “on, or about whom” the roster-off provision operated.
15. It is clear, in my opinion, that there have been contraventions of s 45(2). It is appropriate that declarations to that effect be made substantially in the terms suggested by the parties.
16. The parties also propose that injunctions issue forbidding the respondents for a period of three years from engaging in like conduct. Once again, it is reasonable that this relief be granted. The period that the injunctions are to continue is not unreasonable: compare Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (2006) 157 FCR 162 at [233]-[234].
17. It is also proposed that there be an order that within three months WTT establish a corporate compliance program designed to ensure their awareness of their responsibilities and obligations pursuant to Pt IV of the Code. That has become a common order and should be made here.
18. As regards pecuniary penalties what is proposed is that: (1) WTT pay $30,000 in three equal instalments over a period of three years; (2) the second, third and fourth respondents each pay $14,000 in three instalments over a period of three years; and (3) the fifth respondent pay $5,000 in three instalments over a period of three years. It is agreed that in addition to those amounts the respondents pay the ACCC’s costs fixed in the sum of $15,000.
19. The maximum pecuniary penalty for a contravention of s 45(2) is $10 million for a corporation and $500,000 for an individual: see ss 76(1A) and 76(1B) of the Code.
20. The relevant principles governing the imposition of pecuniary penalties for a contravention of the Trade Practices Act are discussed in Australian Consumer and Competition Commission v Dataline.Net.AU Pty Ltd (2007) 161 FCR 513, 527; Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, 52,151-152, 52,154; NW Frozen Foods Pty Ltd v Australian Consumer and Competition Commission [1996] FCA 1134; (1997) 71 FCR 285, 290-295; J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; (2000) 172 ALR 532; and Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72; [2004] ATPR 41-993, 48,626. These principles should be applied to a contravention of the Code: see ACCC v Knight [2007] ATPR 42-165, 47,605.
21. In Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, 52,152–3, French J set out a checklist of factors to which judges have since frequently referred to when assessing penalties. They are: (1) the size of the contravening company; (2) the degree of power it has, as evidenced by its market share and ease of entry into the market; (3) the deliberateness of the contravention and the period over which it extended; (4) whether the contravention arose out of the conduct of senior management or at a lower level; (5) whether the company has a corporate culture conducive to compliance with the TPA, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and (6) whether the company has shown a disposition to cooperate with the authorities responsible for the enforcement of the TPA in relation to the contravention.
22. General sentencing principles are also relevant, including specific and general deterrence as well as the public interest in ensuring that competition laws are observed: Trade Practices Commission v Prestige Motors Pty Ltd [1994] ATPR 41-359, 42,699; see also Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363; (1984) 4 FCR 296, 297-8.
23. The proposed penalties fall well below those usually imposed for a contravention of s 45. But while low they are in this case justified for the following reasons.
24. First, although the roster arrangement limited competition among the operators of taxi-cabs, which imposed a commercial and personal burden on each operator, the arrangement benefited the public to the extent that it ensured the presence of taxi-cabs available to supply taxi-cab services in the Shepparton area during times when WTT predicted that there would be low demand.
25. Second, while the restriction affected taxi-cab operators, the public was not adversely affected. The nature of the taxi-cab industry is such that operators of taxi-cabs are unable to compete in respect of the prices that they may charge passengers for the supply of taxi-cab services as those prices are fixed by conditions attached to the licences applicable to those cabs: see the Transport Act 1983 (Vic), s 144(2)(d)(i).
26. Third, the roster arrangement was an inherited system that had been in place for many years. It is an example of the cooperative environment that defines the taxi-cab industry. Moreover, all the participants believed what they were doing was legal. Certainly, the roster arrangement was well documented and operated quite openly.
27. Fourth, the respondents have cooperated with the ACCC by making full and frank disclosure in the s 155 examinations, and acknowledging their liability for the contravening conduct at an early stage of the action. This has shortened the proceeding and saved substantial costs.
28. Finally, there is the financial position of each respondent. The amount each individual earns is quite modest. On top of that the individuals, mostly family men, have few assets. It will be difficult for each of them to meet the small penalties that have been imposed. So far as WTT is concerned, it is not a large organisation. Its net profit in the financial year just ended was $7,336.99 on revenue of $206,224.23. As at 30 June 2008, its net assets are worth $33,359.51. It also will have difficulty meeting the penalty.
29. There will be orders in accordance with the revised minutes submitted by the parties.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:
Dated: 13 February 2009

Counsel for the Applicant:	Mr P Gray
Solicitors for Applicant:	Corrs Chambers Westgarth
Counsel for the Respondents:	Mr M H O’Bryan
Solicitors for the Respondents:	Holding Redlich

Date of Hearing:	12 December 2008
Date of Judgment:	13 February 2009