JJ Richards & Sons P/L v Bowen SC

**[1] THE COURT: On 31 January 2008 the learned primary judge dismissed the appellant's application under the Judicial Review Act 1991 (Qld) ("the Act") for review of the decisions of the respondent ("the Council") to terminate the tender process designated H16/08 and institute a new tender process designated H20/08. The tenders are concerned with the provision to the Council of refuse removal services.

[2] The learned primary judge concluded that the Council's decisions were not subject to review under the Act because the appellant did not have standing to challenge those decisions and dismissed the appellant's application. The appellant seeks to appeal against that order on the basis that his Honour erred in failing to appreciate that the appellant had standing to seek review of the Council's decisions as a person "aggrieved" thereby within the meaning of the Act.

[3] The Council resists the appellant's argument and seeks to uphold the decision of the learned primary judge by, inter alia, the argument raised by a notice of contention that the Council's decisions were not susceptible of review under the Act because they were not decisions made under an enactment. This argument was raised before, but not decided by, the primary judge.

[4] It is necessary to set out the relevant provisions of the Act, and of the Local Government Act 1993 (Qld) ("the LGA") as well as a short statement of the facts before turning to discuss the decision of the learned primary judge and the parties' arguments on appeal.**

**[5] Section 20(1) of the Act provides that "a person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision."

[6] Section 4 of the Act provides relevantly that:**

(a) a decision of an administrative character made, proposed to be made, or required to be made, under an enactment ... or

(b) a decision of an administrative character made, or proposed to be made, by ... a ... local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part) -

(ii) from a tax, charge, fee or levy authorised by or under an enactment."

[7] The relevant provisions of the LGA are s 481, s 481A and s 490. These provisions are in the following terms:

"481 Principles governing the making of contracts

(1) In entering into contracts for the carrying out of work, the supply of goods or services or the disposal of assets, a local government must have regard to the following principles -

(c) encouragement of the development of competitive local business and industry;

(2) For contracts for the carrying out of work, or the supply of goods or services, the principles are the procurement principles.

481A What are procurement activities of a local government

The procurement activities of a local government are its activities that are, or relate to, the making of contracts for the carrying out of work, or the supply of goods or services.

(1) The local government must prepare a manual of procedures for how it carries out its procurement activities.

(b) be consistent with the local government's procurement plan.

(1) If the local government decides to accept a tender or quotation, it must accept the tender or quotation most advantageous to it.

(2) In deciding the tender or quotation most advantageous to it, the local government must have regard to the procurement principles.

(3) However, a local government may decide not to accept any tender or quotation available to it."

[8] Tender invitation H16/08 was issued by the Council in the latter part of 2007. Clause 2.5 of the tender document provided that:

(a) terminate this tendering process at any time at no cost to Council; or

**[9] The appellant, which is currently the provider of refuse collection services to the Council, submitted a conforming tender.

[10] The tender invitation H16/08 provided by cl 4.3 that tenders were required to be received by Council no later than 1.00 pm on Friday 4 January 2008. The tenders were opened at that time. There were three tenders. When the tenders were opened the only person present, apart from officers of the Council, was a representative of the appellant. The appellant's representative was informed of the price bid by each tenderer in respect of the service to domestic tenements. The appellant was the lowest tenderer in terms of that price.

[11] At about 2.15 pm the Council received a late tender from Cleanaway, a competitor of the appellant.

[12] Thereafter Council decided to terminate tender H16/08 and to invite new tenders. The new tender closed on 29 January 2008.

[13] The Council's "purchasing policy and contract procedures document" provided relevantly:**

"All tenders shall be received and placed unopened in the tender box by the closing time. Staff shall check the Post Office Box immediately prior to closing time of tenders and any then received shall be placed in the tender box before it is opened.

Late tenders will not be taken into consideration and are to be handed to the appropriate director.

The public may attend the opening of tenders at which time all tenders received shall be briefly identified and authenticated by at least two staff members.

NOTE: The purpose of permitting the public to attend is to have the integrity of the procedure witnessed, independently of Council staff. It is not primarily to give information on the tenders received."

**[14] The appellant's initial complaint was that the Council had failed to take account of the principles stated in s 481 of the LGA. It may be said that there is a difficulty for the appellant in that it is far from clear that the Council did not, in fact, have regard to these principles if they were applicable to the decisions which are challenged, an assumption which is itself doubtful. That difficulty may, however, be put to one side for the purposes of the argument because there are more immediate obstacles at the threshold of the appellant's claim to statutory review.

[15] In this Court, Senior Counsel for the appellant has been at pains to focus on the issue of standing, and to stress that the decisions of which it seeks review under the Act are the decisions of the Council to terminate the tender process and to issue fresh tenders. The appellant contends that the learned primary judge failed to appreciate this point in that his Honour treated the application as being concerned with a complaint about the disclosure at the public opening of the tenders. In this regard, the learned primary judge said:**

"When pressed in the course of argument, Senior Counsel for the applicant conceded that the complaint about the process on this occasion is limited to the disclosure at a public opening of the tenders of the scheduled item price for each individual domestic service. It was submitted that the applicant was aggrieved by this because it was no longer a fair and ethical procedure because this commercial in confidence material might be known to other persons.

The difficulty I have with this primary submission is that if the only person present, apart from the council officers who would in any event open and consider the tenders, was the applicant's representative, it seems impossible to see that the applicant has been in any way disadvantaged by having revealed to it the price for the first item in the schedule of each of the two competing tenderers. It might well be that the competing tenderers have cause to complain, but it seems to me that the applicant is under a difficulty in establishing that it is in any way disadvantaged.

The respondent has taken issue not only with this, but with whether or not this is a decision made under an enactment or is, indeed, a review of a decision.

It seems to me that it's not necessary for me in this case to determine either of those issues since I am satisfied that the applicant is not a person aggrieved.

It was submitted that the fact that the disclosure was made to it in a sense publicly is an important consideration because the council officers might then go and tell other people the same information; but in fact there is no evidence at all that the council officers did that. It's a case where the council officers who were aware of the information were entitled to be aware of it and would have been aware of it in any event. It's not a case where it's suggested that this public disclosure was made for any deliberately improper or unethical purpose.

In those circumstances, it seems to me that the application by the applicant cannot be sustained and I dismiss the application."

**[16] The appellant's argument is that it was aggrieved by the decisions in question because those decisions have adversely affected its prospects of obtaining a contract with the Council pursuant to tender H16/08.

[17] It appears that the focus of the appellant's argument may have shifted away from a concern that the appellant had been prejudiced by the public disclosure of confidential information. In the end we do not think that it is necessary to determine finally whether the appellant has, in truth, shifted its ground and whether, if it has, it is open to it to do so, let alone whether the argument should be accepted by this Court. We take that view because we consider that the point taken by the Council in its notice of contention must be upheld. Whether or not the appellant had standing to challenge the decisions of Council, in our respectful opinion, the decisions were not made "under an enactment" so as to be amenable to review under the Act.

[18] So far as the Council's notice of contention is concerned, the decision of Thomas J in KC Park Safe (Brisbane) Pty Ltd v Cairns City Council[1] provides support for the proposition that a decision by a local government "not to accept any tender ..." is a decision authorised by s 490(3) of the LGA so that it is amenable to review as a decision made under an enactment.

[19] In this case, however, the decisions made by the Council were:**

(a) to terminate the tender process (without considering the tenders), this being a course of action expressly reserved to the Council by the terms of its invitation to tender; and

(b) to institute a new tender process, this being the exercise of capacity enjoyed by the Council as a legal person.

**[20] The present case is thus distinguishable from KC Park Safe (Brisbane) Pty Ltd v Cairns City Council.

[21] The decision of the High Court in Griffith University v Tang[2] makes it clear that a decision will not be amenable to review under the Act as a decision made under an enactment unless the enactment expressly or impliedly authorises or requires the making of the decision under challenge in the sense that the rights or obligations will be affected by the decision in a way provided for by the enactment.

[22] The decision of the High Court in Tang makes it clear that a decision by a governmental agency to enter a contract is not a decision under an enactment merely because the agency is a creature of statute which confers legal personality and the capacity to contract upon the agency. In this case the source of the Council's legal power to terminate the tender process is either the Council's power to enter into contractual relationships which is a characteristic of any legal person, or, more immediately, the liberty expressly reserved by the Council to itself under the terms of the tender document. So far as the Council's decision to recommence the tender process is concerned, this decision involved the exercise of a power common to all legal persons to associate with others, commercially or otherwise. In either case no authority for the decision was afforded by the LGA.

[23] The appellant sought to avoid this difficulty by arguing that the decisions in question fall within s 4(b) of the Act. This argument was not raised below; it has no substance. The appellant cannot point to a "non-statutory scheme or program" as contemplated by s 4(b) of the Act;[3] and it would be radically to misread s 4(b) of the Act to interpret it as encompassing any decision by a local government authority in the discharge of its function.

[24] The appellant advanced a further argument which was not raised below. It was submitted that the respondent had failed to comply with the prescription that "late tenders will not be taken into consideration and are to be handed to the appropriate director" in the respondent's own "purchasing policy and contract procedures" document. The better view is that there was no such breach. In context, the quoted statement is aimed at preventing the respondent from accepting a late tender; and the Council did not purport to accept Cleanaway's late tender. Nor would a contravention of that document appear to have any legal consequence. So far as could be gleaned from the evidence, the document is the respondent's internal manual of procedures, having no legal force.[4] For those reasons this argument should be rejected. It is therefore not necessary to decide whether the argument is one available in this Court, given that it finds no expression in the application for a statutory order for review and it was not put below.**

[25] We would uphold the contention advanced by the respondent that the decisions which the appellant seeks to challenge were not decisions to which the Act applies. As a result, it is unnecessary to decide whether the learned primary judge was correct in concluding that the appellant had no sufficient standing to seek review under the Act as a person aggrieved by the Council's decisions.

[26] The appellant argues that, because the respondent succeeded in sustaining the judgment below on the ground advanced in its notice of contention, this should have the consequence of displacing the usual rule that costs follow the event. But the respondent took this point below, as is apparent from the passage from the learned primary judge's decision cited above, and this difficulty was always at the threshold of the appellant's application.

[27] The appeal should be dismissed with costs.

[1] [1997] 1 Qd R 497 esp at 502.

[2] [2005] HCA 7; (2005) 221 CLR 99 at [25], [80], [82] and [89]. See also Bituminous Products Pty Ltd v General Manager (Road System & Engineering), Department of Main Roads [2005] QSC 42; [2005] 2 Qd R 344 at 353 [30].

[3] Bituminous Products Pty Ltd v General Manager (Road System & Engineering), Department of Main Roads [2005] QSC 42; [2005] 2 Qd R 344 at 351 - 352 [24] - [28].

[4] LGA, s 483H. It is to be contrasted with the "procurement plan" which the local government must adopt by resolution under s 483D, and which must be kept open for inspection under s 483F.