Case: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446
Outcome: cited
accept that evidence that was not before the decision-maker may be admissible if it is relevant to a particular ground of review, such as unreasonableness: see, eg, Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 ; (2005) 148 FCR 446 , 564-66 per Weinberg J; but see Aronson M, Dyer B, and Groves M, Judicial Review of Administrative Action (4 th ed, Lawbook Co, 2009) at 256-58. In addition, sometimes it will also be necessary to have established the facts upon which legal issues can be resolved. In the Singapore Airlines proceeding, the parties filed a statement of agreed facts concerning the supply of international air cargo services, which included the following statements and facts: The following facts are agreed between the parties for the purpose of s 191 Evidence Act 1995 (Cth). Unless stated otherwise, the facts are applicable as at all relevant times, being the period 1 January 2000 to date. 1. Singapore Airlines Ltd (SIA) is incorporated in Singapore. SIA supplies international air transport services to passengers on routes between many different countries, including on routes between Australia and other countries. The hub of SIA's international passenger services is in Singapore. Prior to 1 July 2001, SIA operated a Cargo Division which supplied air transport services for cargo on routes between many different countries, including on routes between Australia and other countries. Air freight is transported either in the 'bellyhold' or lower deck of passenger aircraft or in cargo 'freighters', i.e. planes dedicated to carrying cargo. Prior to 1 July 2001, SIA's Cargo Division supplied international air freight services using both passenger aircraft and cargo freighters. Singapore Airlines Cargo Pte Ltd (SIAC) is a wholly owned subsidiary of SIA. It is incorporated in Singapore. With effect on 1 July 2001, SIA transferred to SIAC the assets, liabilities, cargo-related contracts, operations and business activities of the Cargo Division of SIA. With effect on 3 July 2001, employees of the Cargo Division of SIA ceased to be employed by SIA and were transferred to SIAC. Since that time, only SIAC has supplied international air transport services for cargo within the Singapore Airlines group of companies. SIAC conducts business in 57 countries worldwide including Australia and SIA or SIAC operate aircraft in 38 countries. SIAC or its general sales agents operate out of 76 stations located at international airports to or from which SIAC will carry or arrange for the carriage of cargo. A list of those countries and stations is annexed and marked "A". Each station provides services in relation to the airport at which it is located. In Australia, SIAC currently operates stations at Brisbane, Sydney, Melbourne, Adelaide and Perth international airports. The stations that SIA previously operated at Cairns and at Darwin were closed in March 2001. To supply international air transport services for cargo, SIAC purchases from SIA all non-passenger baggage space in the bellyhold of SIA's passenger airplanes and also operates cargo freighters. The operating fleet of SIAC as at 31 March 2007 comprised 14 B747-400 cargo freighters. SIAC also purchases cargo space from other carriers, or carriage services by road transport operators. Typically SIAC will do this in order to deliver freight to airports which are not serviced by either SIA or SIAC aircraft or to allow stations to access available cargo space on SIA or SIAC aircraft which are operated from another station. Singapore is the main hub and freight distribution centre for SIAC. Charts depicting the routes flown by SIAC freighter aircraft and SIA passenger aircraft as at March 2007 are shown in the routing charts annexed and marked "B". SIAC can offer a freight service from any of its origin ports to Australia, routed through Singapore. The types of freight that are shipped from different countries and different cities can differ substantially. Carriers offer different types of air freight services from different locations in order to meet the requirements of the particular types of freight that are transported from those locations. For example, much of the freight shipped out of Melbourne is perishables such as meat, fruit and vegetables. This type of freight may need to be transported quickly and kept at special temperatures. ... (The annexures referred to above are not annexed to this judgment.) A substantial amount of additional evidence was adduced by the parties in both proceedings, and the ACCC cross-examined a number of witnesses called by Emirates and Singapore Airlines. Evidence received in each proceeding was to be treated as evidence in the other. Some objections were taken to certain evidence sought to be tendered by the parties, which in light of the approach I adopt, need not be ruled upon. No attack was made upon the credit of any witness, although the ACCC submitted that the evidence was far from conclusive and should not be relied upon as contended for by the applicants. Some of the evidence was of a confidential nature and appropriate orders were made under ss 17 and 50 of the Federal Court of Australia Act 1976 (Cth). In giving these reasons for judgment I have not found it necessary to refer to this evidence other than in a general way. The primary purpose of the evidence led was to provide the factual background concerning the markets in which international air cargo services are ordinarily supplied. Such evidence was said to support the argument that the Court could be satisfied that international air cargo services on routes into Australia, and between two points outside Australia, are not competitively provided in a market in Australia. Evidence was also led concerning what became known as the 'burden issue'. That evidence dealt with the steps required to be taken by Singapore Airlines and Emirates to comply with some of the notices. It also concerned the manner and extent to which Mr Samuel had regard to the burden imposed on the recipients, and what considerations he took into account in deciding to issue the Notices.