Case: MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120
Outcome: considered
In MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120 ('Gungahlin') Higgins J, as his Honour then was, sitting in the Supreme Court of the Australian Capital Territory, found that the respondent had failed to accord tenderers procedural fairness in respect of the grant of a lease of certain land within the Territory. Tenders had been submitted by a number of tenderers but it was not apparent whether the bids that were submitted were inclusive or exclusive of goods and services tax ('GST'). After the closing date for tenders, the respondent asked the tenderers to clarify the GST aspects of their respective bids. The successful tenderer, Landco Pty Ltd, had offered $5,700,000. Following the request for clarification in relation to the GST position, Landco Pty Ltd advised that its price 'exclusive of GST' was $6,080,000. Plainly this bid involved an increase in the tender price of $380,000 independently of any GST. In the circumstances, Higgins J found that acceptance of Landco Pty Ltd's revised tender rendered the 'assessment process lacking in procedural fairness' (at [182]). 106 The present case is not such a case. In this case the only evidence of the submission of a different application for funding of up to $600 million, after the closing date for applications, related to Telstra's own application. It will be recalled that Telstra substituted a different proposal for the provision of infrastructure, following its decision to proceed with 'OF installation to Marble Bar' at its own expense for operational reasons. 107 Apart from other considerations, the Court in Gungahlin found that the obligation to accord procedural fairness to tenderers arose by virtue of an implied agreement with the respondent pursuant to the Conditions of Tender independently of the respondent's public law obligations to like effect. Given paragraph 6.1 of the guidelines, no such finding could be made in this case. 108 Telstra submits that 'the policies of the Commonwealth' in respect of the proposed grant must be found within the guidelines. It will be recalled that Part 3 of the guidelines stated that the 'Australian Government's objective' was to improve access to broadband services in regional Australia to the maximum extent possible. It would seem to me that the importance of the guidelines cannot be denied in discerning the relevant policies. However, regard must also be had to the relevant Ministerial Media Releases, notably the joint Media Release of the Minister and the Deputy Prime Minister and Minister for Trade of 21 September 2006 referred to at [1] above. That Media Release revealed that the guidelines had been 'finalised after an Expressions of Interest process earlier this year'. 109 The relevant ' BROADBAND CONNECT REQUEST FOR EXPRESSION OF INTEREST ' of June 2006 included the following: ' A. OVERVIEW: THE BROADBAND CONNECT OPPORTUNITY Since 1997 the Australian Government has demonstrated an ongoing commitment to improving the quality of communications services in regional areas, particularly where the competitive market has not proved fully effective in bringing the benefits of the digital revolution to regional communities. ... ... The Australian Government remains committed to continuing to provide targeted funding to support equitable access to high quality, sustainable broadband services across regional and rural Australia. It is becoming increasingly apparent that next generation broadband, characterised by multi-megabit capacity able to support advanced multimedia applications and improved delivery of government services, is becoming essential to Australia's economic and social prosperity. While such services are increasingly available in the major metropolitan areas, there is concern that the purely commercial roll-out of these services may not occur in regional and rural areas in a timely way. .... The Australian Government intends to test the feasibility of using a substantial portion of the Broadband Connect funding to facilitate a small number of major infrastructure projects that would also leverage significant commercial investment in order to drive a major advancement in the capacity and reach of Australia's regional broadband networks. ... ... there are a significant number of areas (and premises) that do not have access to broadband infrastructure that allows for the provision of services comparable in price and quality to metropolitan services ('metro-comparable') in a sustainable way (that is, without the need for ongoing Australian Government subsidies). These areas are considered to be under-served ... ... It is currently anticipated that up to $500 million could be available for an alternative Broadband Connect approach whereby financial assistance is provided through a competitive grants process to large scale broadband infrastructure projects primarily aimed at addressing currently under-served premises and areas. ... Under this approach Australian Government funding support would not be available for investments that were otherwise commercially viable. Funding support would be targeted at supporting the provision of infrastructure to service under-served areas that otherwise would not get timely access to metro-comparable services through commercial investment alone. ... E. GOVERNMENT OBJECTIVES The Australian Government's primary objective for any future competitive grants program would be to achieve sustainable equitable access to broadband in regional areas by supporting the extension of metro-comparable broadband services into currently under-served areas ... on a basis that would provide access to such services without the need for ongoing Australian Government subsidies. ...'