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

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

The Director-General's determination to vary the contract under s 24 of the Passenger Transport Act 1990, by excising the Liverpool-Parramatta Transitway route from Oliveri's exclusive service area, was a valid exercise of statutory power for the purpose of improving transport services in the public interest; the means used (competitive tender) did not render the purpose ulterior or improper. There was no operative uncertainty in the offer or variation, as the effect was to remove exclusivity, not the right to operate, and the timing of another operator using the excluded route did not invalidate the decision.

Jurisdiction
Australia
Judgment Date
20 July 2001
Procedural Posture
Appeal / Court of Appeal Decision on Appeal From Supreme Court Equity Division
Outcome
Appeal allowed; orders of Rolfe J set aside; summons dismissed
Legal Topics
['statutory Interpretation' 'improper Purpose' 'contract Renewal' 'exclusive Rights Under Public Transport Legislation' 'uncertainty in Administrative Decisions']
['administrative Law' 'transport Law' 'government Contracts'] ['statutory Interpretation' 'improper Purpose' 'contract Renewal' 'exclusive Rights Under Public Transport Legislation' 'uncertainty in Administrative Decisions']

Case Brief

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Procedural Posture

Appeal / Court of Appeal Decision on Appeal From Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the determination to vary the bus service contract was vitiated because it was made for an ulterior purpose' 'Whether the determination was vitiated by uncertainty' 'Whether s 22 or s 24 of the Passenger Transport Act 1990 was the correct source of power for the variation' "Whether the statutory requirements for variation for 'improvement of transport services in the public interest' were met"]

Ratio Decidendi

The Director-General's determination to vary the contract under s 24 of the Passenger Transport Act 1990, by excising the Liverpool-Parramatta Transitway route from Oliveri's exclusive service area, was a valid exercise of statutory power for the purpose of improving transport services in the public interest; the means used (competitive tender) did not render the purpose ulterior or improper. There was no operative uncertainty in the offer or variation, as the effect was to remove exclusivity, not the right to operate, and the timing of another operator using the excluded route did not invalidate the decision.

Court Disposition

Appeal allowed; orders of Rolfe J set aside; summons dismissed

Orders

  • ['Appeal allowed' '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' "Respondent to pay the appellants' costs of the trial and of the appeal, and to have a certificate under the Suitors Fund Act if otherwise qualified"]