Case: Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579
Outcome: cited
Although the phrase "carries on a business" appears in a number of provisions of the TPA including s 2B, it is not defined in the Act. However it has received consideration by Courts to the extent that a number of principles have emerged which are of relevance in this case. They are as follows: 1. "Business" in the context of s 2B is normally a "wide and general" word: Gibbs CJ in Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23 ; (1982) 150 CLR 169 at 184, McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power 219 CLR at 116. Its meaning in the TPA is widened by s 4(1), since "business" includes "a business not carried on for profit": NT Power 219 CLR at 116. 2. The phrase "carries on a business" should be interpreted in light of the purpose of Parliament in introducing s 2B and related legislation, which was to ensure that "with state and territory application legislation, the prohibitions against anti-competitive conduct can be applied to all businesses in Australia." (Australia, House of Representatives, Parliamentary Debates (Hansard) 30 June 1995, p 2794). 3. Subject to a statutory qualification as to not for profit businesses, in the context of the TPA, "carrying on a business" is intended to refer to activities undertaken in a commercial enterprise or as a going concern: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 303, Corrections Corporation of Australia Pty Ltd v Commonwealth [2000] FCA 1280 ; (2000) 104 FCR 448 at 451. 4. An act of government, whether directly or through an authority, which is merely the carrying out of the functions of government in the performance of its statutory duty, is unlikely to be characterised as "carrying on a business": Village Building Company Limited v Canberra International Airport Pty Limited (No 2) [2004] FCA 133 at [90] . So, for example, the issue of certificates by a municipal council with respect to a real property pursuant to the Environmental Planning and Assessment Act 1979 (NSW) was not "carrying on a business" ( Mid Density Development Pty Ltd v Rockdale Municipal Council (1992) 39 FCR 579), nor was operating a detention centre ( Corrections Corporation of Australia [2000] FCA 1280 ; 104 FCR 448), nor were the activities of the New South Wales Department of Agriculture in acquiring cattle in endeavours to eradicate Bovine Johne's Disease, providing compensation to farmers for cattle slaughter, and reselling the carcases to recoup some of the funds: State of New South Wales v RT &amp; YE Falls Investments Pty Ltd [2003] NSWCA 54 ; (2003) 57 NSWLR 1. However, activities for reward which are those which could be performed by any citizen or private trader potentially constitutes "carrying on a business". Examples of this are Paramedical Services Pty Ltd v The Ambulance Service of New South Wales [1999] FCA 548 where the Ambulance Service of New South Wales supplied, for reward, ambulance services at sporting events and first aid training, and JS McMillan v Commonwealth (1997) 77 FCR 337 where the Commonwealth in its guise as AGPS provided general printing services, dispatch and distribution services, graphic design services and editorial services. 5. Mere repetitiveness is not sufficient to constitute carrying on of a business; further, although system and regularity are involved in the carrying on of the business it does not necessarily follow that one who has transactions of the same kind systematically or regularly is carrying on a business in those transactions: JS McMillan 77 FCR at 354, GEC Marconi Systems 128 FCR at 303, Sirway Asia Pacific Pty Ltd v Commonwealth of Australia [2002] FCA 1152 at [53] . 59 However, the position appears quite different with respect to the supply by the respondent - to end users - of data in response to individual over the counter searches. In particular, I note: &#8226; There is a clear legislative delineation between the commercial contracts concerning bulk data sanctioned by s 77 , and the compulsory provision of information required s 76. &#8226; The supply by the respondent of s 76 data does not form any part of its business relationship with the licensees, who receive bulk data from the respondent. &#8226; Obligations of the respondent in relation to valuation of land throughout Queensland, the collection of data, the maintenance of valuation records and the supply of the data are mandated by the VL Act . As Mr Hinson SC for the respondent submitted, the Department is required by s 76(1) VL Act to supply a certified copy of the particulars of a valuation entered on a valuation roll, to a person who pays the prescribed fee. I note the prescribed fee is found in the Valuation of Land Regulation 2003 (Qld). Indeed, I note that the long title of the VL Act is "An Act to make better provision for determining the valuation of land for rating and taxing purposes, and for matters incidental thereto or consequent thereon". I accept the evidence of Mr Rush that the QVAS data is the point of truth source for sales data, that is, how much a property was sold for at a particular date (Rush affidavit para 10). In my view, the supply of data by the respondent in respect of individual searches is an act of government and carrying out of the functions of government in the performance of its statutory duty, similar to the provision of a certificate by the municipal council in Mid Density Development Pty Ltd 39 FCR 579. &#8226; In light of the foregoing, the fact that the Department would undoubtedly enter into many transactions of this nature does not mean that the Department is "carrying on a business" of supplying data in response to individual searches. &#8226; Although the respondent has submitted that local governments and the applicant can supply data in response to individual searches, in my view this does not derogate from the fact that the activities of the respondent in this regard constitute a function of government in the performance of its statutory duty rather than "carrying on a business". Indeed in this respect I note that: o the provision of valuation information by local government is required by s 995 Local Government Act 1993 (Qld) to be given to parties contemplated by that section, and is itself information which the chief executive is required to give local governments pursuant to s 73(1)(f) VL Act o unlike the statutory obligation of the respondent, individual search data provided by the applicant is only to its customers, in a "commercially user friendly format" (Catelan affidavit para 3).