Anthony James Sheridan (& Anor According to the Schedule) v Australian Pacific Airports (Melbourne) Pty Ltd (ACN 076 999 114)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0117

ANTHONY JAMES SHERIDAN (AND ANOTHER ACCORDING TO THE SCHEDULE)	Applicants
v
AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD (ACN 076 999 114)	Respondent

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JUDGES:	McLEISH, SIFRIS and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2022
DATE OF JUDGMENT:	20 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 222
JUDGMENTS APPEALED FROM:	[2021] VSC 440; [2021] VSC 593 (Gorton J)

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LEASES AND LICENCES – Airport operator introduced licensing scheme for hire car drivers – Whether operator entitled to impose scheme as lessee of airport land – Where operator and airline leased separate parcels of land from Commonwealth – Where airline land ‘landlocked’ – Operator entitled to impose reasonable conditions on entry – Consent of airline not required to do so – Whether easement implied by airline lease or by necessity – Non-party to airline lease not entitled to make claim based on airline lease – No easement of necessity where airline has contractual right to access land – Whether Airports Act 1996 (Cth) created public, non-proprietary right to access airport free of any conditions – Nothing identified in Act creates asserted right – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Whether judge erred in holding airline had granted operator permission to enforce scheme in terminal – Whether judge erred in holding operator acted without malice – Factual findings of judge correct in light of evidence – Whether applicants could raise new argument on appeal – Where evidence could have been adduced at trial in response to new contention – Applicants not permitted to rely upon new argument.

Airports Act 1996 (Cth) ss 22, 31, 71; Airport (Control of On-Airport Activities) Regulations 1977 (Cth).

Coulton v Holcombe (1986) 162 CLR 1; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550.

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Counsel
Applicants:		Mr I Upjohn KC with Mr J Barber
Respondent:		Mr D Collins KC with Ms RL Kaye
Solicitors
Applicants:	Mann Lawyers
Respondent:	Sparke Helmore

TABLE OF CONTENTS

PART A:. INTRODUCTION AND SUMMARY
PART B:. FACTUAL BACKGROUND
(1).... Leasing arrangements at Melbourne Airport
(2).... The LDA scheme
(3).... Mr Sheridan and his company
PART C:. GROUNDS 1 TO 5: DID MR SHERIDAN HAVE A RIGHT TO CROSS THE APAM LAND TO ACCESS THE QANTAS TERMINAL?
(1).... Claimed rights under the Qantas lease
(a)          The parties’ arguments
(b)          Consideration of the arguments based on the Qantas lease
(i)     Can the applicants raise new arguments on appeal?
(ii)    The applicants’ substantive arguments

(2).... The effect of the APAM lease
(3).... Effect of the Airports Act
(a) The parties’ arguments
(b)Consideration of the Airports Act arguments

(4).... Conclusion on grounds 1 to 5
PART D:. GROUND 6: DID QANTAS GRANT APAM PERMISSION TO ENFORCE THE LDA SCHEME IN THE QANTAS TERMINAL?
PART E:. GROUNDS 7 AND 8: MISFEASANCE IN PUBLIC OFFICE
PART F:.. GROUNDS 9 AND 10: THE TORTIOUS AND STATUTORY CLAIMS
PART G:. CONCLUSION

SCHEDULE OF PARTIES

McLEISH JA
SIFRIS JA
WALKER JA:

PART A:INTRODUCTION AND SUMMARY

Mr Sheridan, the first applicant, is a hire car driver. He has a licence from the Victorian regulator of hire cars[1] authorising him to provide a hire car service for reward. He carries on his business through the second applicant, Accident By Design Pty Ltd (‘ABD’). Mr Sheridan wishes to drive passengers to, and collect passengers from, Melbourne Airport, and he did so on many occasions between 2011 and 2018. However, it was necessary for him to travel across land over which the respondent, Australian Pacific Airports (Melbourne) Pty Ltd (‘APAM’), holds a lease (the ‘APAM land’) in order to access the airline terminals, including that occupied by Qantas Airways Ltd (‘Qantas’).
[1]Originally the Victorian Taxi Directorate (‘VTD’), subsequently the Victorian Taxi Commission and now Commercial Passenger Vehicles Victoria.
APAM is the operator of Melbourne Airport at Tullamarine. In July 2010, it required all owners of vehicles carrying passengers for reward (‘hire cars’) wishing to operate at Melbourne Airport to obtain from it a Landside Vehicle Authority (‘LVA’), and all drivers of such vehicles to obtain from it a Landside Driver Authority (‘LDA’). We will refer to this arrangement as the ‘LDA scheme’. An LDA initially cost $150 and then cost $125 per year for renewal. An LVA cost an additional modest fee. Participants in the LDA scheme were entitled to use a special area of the carpark set aside for their use, which was closer to the terminals than the public carpark, and they also received discounted parking rates.
Mr Sheridan took the view, based on legal advice, that APAM was not entitled to require that he obtain an LDA in order to drive a commercial vehicle onto the APAM land at Melbourne Airport. He did not apply for an LDA, and when it acquired a vehicle his company did not apply for an LVA. He continued to drive passengers to, and collect passengers from, the airport. On some occasions he parked in the special car park set aside for participants in the LDA scheme. His activities led to occasions of conflict; in particular, Mr Sheridan identified 18 occasions over seven years on which he was requested to produce his LDA when at the airport, and he failed to do so. Ultimately, however, he was generally able to leave the airport with his passenger.[2]
[2]In one instance, his client could not wait and made other arrangements: Sheridan v Australian Pacific Airports (Melbourne) Pty Ltd [2021] VSC 440, [72]–[73] (‘Reasons’).
Mr Sheridan and his company commenced a proceeding against APAM alleging that it had committed various torts against them: false imprisonment, harassment, intimidation, intentional interference with trade and business, trespass against the vehicle, misfeasance in public office, as well as the statutory wrongs of misleading and deceptive conduct, and unconscionable conduct under the Australian Consumer Law.[3] They sought damages and declaratory relief. Underlying each of their claims was the contention that APAM was not lawfully entitled to require them to comply with the LDA scheme.
[3]Competition and Consumer Act 2010 (Cth) sch 2.
In contrast, APAM contended that it was lawfully entitled to require Mr Sheridan to obtain an LDA because, as the lessee of the APAM land, it was entitled to impose conditions upon the entry of people onto that land. It also disputed that the actions of its agents amounted to tortious conduct, and contended that many of the applicants’ claims were statute-barred. APAM sought a declaration that the LDA scheme is lawful.
The trial judge dismissed Mr Sheridan’s and his company’s claims, and granted a declaration, as sought by APAM, in the following terms:
The first defendant, in its capacity as tenant, is entitled to exclude the plaintiffs from entering onto the land, which it occupies under a lease from the Commonwealth of Australia entered into on or about 1 July 1997, known as Melbourne Airport (save for any part thereof in respect of which the first defendant has given a legal right of exclusive possession to another person) for the purpose of providing commercial hire care services, unless they comply with the conditions upon which the first defendant is prepared to permit them to do so.[4]
[4]Sheridan v Australian Pacific Airports (Melbourne) Pty Ltd [No 2] [2021] VSC 593, [8].
Mr Sheridan and his company now seek leave to appeal from that decision, on the following grounds:[5]
[5]The proposed grounds have been modified to use defined terms. In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
1.The learned trial Judge erred in law in concluding that APAM’s right of exclusive possession of its land entitled it to impose conditions on the entry of hire car drivers seeking to cross the APAM land to access the landlocked Qantas domestic terminal (among other parcels of land let by the Commonwealth to other tenants), and in holding that the applicants’ failure to comply with APAM’s conditions, in the form of the LDA Scheme, rendered the First Applicant a trespasser on the APAM land.
2.The learned trial Judge ought to have held that the applicants had an implied licence to cross the APAM land to access the Qantas terminal, and that no licensing scheme that APAM might seek to impose could alter that position.
3.Further or alternatively to 2, the learned trial Judge ought to have held that there was a public right of access across the APAM land to access the Qantas terminal and that no licensing scheme that APAM might seek to impose could alter that position.
4.The learned trial Judge erred in law in holding that APAM’s lease conferred on it a right of possession that was exclusive of hire cars and hire car drivers using the APAM land to access the Qantas terminal.
5.The learned trial Judge erred in law in misconceiving the applicants’ claim as being confined to a claim of a proprietary right of way over the APAM land when the relevant claim was properly characterised as, inter alia, the absence of any right on the part of APAM to exclude or prevent or make conditional the applicants’ use of the APAM land to access the Qantas domestic terminal.
6.The learned trial Judge erred in fact in holding, contrary to the evidence, alternatively contrary to the weight of the evidence, that Qantas had granted APAM permission to enforce the LDA Scheme in the Qantas terminal. The learned trial Judge ought to have held that Qantas had not permitted or authorised the enforcement of the LDA Scheme in the Qantas terminal, or at all, alternatively that such evidence as there was did not establish any such permission or authority.
7.The learned trial Judge erred in law in concluding (as his Honour must have done, though not expressed in the reasons) that APAM had the right to impose fines on hire car drivers who did not hold an LDA (or hire car vehicle owners who did not hold an LVA or whose driver did not hold an LDA) and otherwise refer to, and have resort to, its public powers and duties as an airport operator under the statutory regime of the Airports Act 1996 (Cth) and regulations made thereunder.
8.The learned trial Judge erred in law in holding that APAM did not hold a public office in respect [of] Melbourne Airport and that in its dealings with the applicants APAM had not misused that office.
9.As a result of the errors above, the learned trial Judge erred in law in concluding that APAM had not:
(a) harassed and/or intimidated the applicants;
(b) interfered in their trade or business; and
(c) committed statutory wrongs of misleading and deceptive conduct and unconscionable conduct contrary to the Australian Consumer Law.
10.The learned trial judge in consequence of the matters set out above erred in denying the applicants relief in respect of all but one of the 18 incidents complained of, and denying the applicants declaratory relief and damages for loss and damage to the second applicant’s business and in allowing the counterclaim of APAM.
For the reasons that follow, we would refuse leave to appeal. None of the grounds has any real prospect of success. In summary:
(a)As the lessee of the APAM land, APAM has the right to impose reasonable conditions on entry to or movement across the APAM Land. In circumstances where there was no argument put that the LDA scheme imposed unreasonable conditions on such access, we consider that grounds 1, 2, 3, 4, and 5 must fail.
(b)The trial judge did not err in finding that Qantas had granted APAM permission to enforce the LDA scheme in the Qantas terminal. Thus ground 6 must fail.
(c)The trial judge did not find that APAM had the right to impose fines on drivers who did not hold an LDA or on vehicle owners who did not hold an LVA, thus ground 7 must fail.
(d)The applicants have not demonstrated that the trial judge was wrong to find that APAM did not act with malice, for the purposes of the tort of misfeasance in public office. Thus it is not necessary to resolve ground 8 because even if APAM did hold a public office, it would not have been liable in tort.
(e)
Given that none of the grounds 1–8 are made out, grounds 9 and 10 must fail because they are contingent upon one or more of the errors alleged in

grounds 1–8 being made out.
APAM also filed a notice of contention. In light of our conclusions in relation to the grounds of appeal, it is not necessary to determine the issues raised by the notice of contention.[6]
PART B:FACTUAL BACKGROUND
(1)Leasing arrangements at Melbourne Airport
[6]These included: that the claimed tort of harassment does not exist in Australian law; that the applicants were not under a ‘special disadvantage’ for the purposes of assessing whether APAM had engaged in unconscionable conduct; that the applicants’ claims concerning incidents prior to 14 November 2012 were barred by s 5 of the Limitation of Actions Act 1958; and that APAM was not vicariously liable for the conduct of persons who were not its employees.
On 24 December 1987 the Commonwealth leased to the Australian National Airlines Commission an area at Melbourne Airport now known as the Qantas domestic terminal (the ‘Qantas lease’). The Qantas domestic terminal was (and is) ‘landlocked’, in that it could not be accessed without entering onto other airport land. Earlier, the Commonwealth had entered into leases with respect to a variety of other shops and premises in the terminal concourse.
On 1 January 1988, by operation of the Federal Airports Corporation Act 1986 (Cth), Melbourne Airport was vested in the Federal Airports Corporation which, under the same Act, became the lessor under the Qantas lease.
In 1988, by the operation of the Australian Airlines (Conversion to Public Company) Act 1988 (Cth), the Australian National Airlines Commission became Australian Airlines Ltd. In 1993, Qantas acquired all the issued shares in Australian Airlines Ltd. Since then Qantas has used the Qantas domestic terminal as a domestic airline terminal.
By deed dated 15 October 1996, the Qantas lease was varied to reflect the above changes.
The Qantas lease relevantly provides as follows:
(a)the Lessor ‘hereby leases unto the Lessee the Premises … together with the right to use, in common with the Lessor and other persons entitled to use the same, the Infrastructure and such common areas, services and facilities of the Terminal as may be requisite for the normal use of, access to and enjoyment of the Premises …’ (clause 1.1);
(b)‘Infrastructure’ means ‘Landside Infrastructure and Airside Infrastructure’ (clause 2.1);
(c)‘Landside Infrastructure’ means ‘items reasonably required for or incidental to the Lessee’s handling and processing of airline passengers, visitors and invitees in the Premises on the landside of the Premises and includes without limitation car, bus and taxi access, passenger pick-up and setting-down areas and pedestrian and road access to the Premises’ (clause 2.1);
(d)‘Premises’ means ‘the area identified on the Plan of the Premises being the land and building known as the Qantas Melbourne Airport domestic terminal’ (clause 2.1);
(e)‘Purpose’ means ‘the use of the Premises as a domestic airport terminal for the processing of passengers travelling by air and persons accompanying such passengers including ancillary purposes such as: … (k) embarkation and disembarkation of coach, limousine, taxi and rental car passengers; … but excluding: (t) public carparks …’ (clause 2.1);
(f)‘Terminal’ means ‘the Australian Airlines domestic terminal (known as the Qantas domestic terminal) at the Airport’ (clause 2.1);
(g)the Lessor ‘covenants and agrees with the Lessee as follows: … The Lessee paying the rent and observing and performing the provisions on the part of the Lessee to be observed and performed shall during the tenancy quietly enjoy the Premises without interruption by the Lessor or any person lawfully claiming through under or in trust for the Lessor or otherwise howsoever subject always to clause 8.7’ (clause 7.1); and
(h)the Lessor ‘shall not do or omit or permit to be omitted or done anything that will derogate from the grant of this Lease or which will adversely affect the Lessee’s use of the Premises as a domestic airport terminal for any Purpose’ (clause 8.7(b)).
On 1 July 1997 the Commonwealth leased to APAM the whole of Melbourne Airport (the ‘APAM Lease’) on terms that relevantly included the following:
(a)‘the Lessor grants to the Lessee pursuant to the Airports (Transitional) Act 1996 a Lease of the Airport Site (including the Structures) for the Term. This Lease operates as a concurrent lease over all that part of the Airport Site which is the subject of leases existing as at Grant Time’ (clause 1.1);
(b)‘Airport Site’ means ‘the site (including the Structures thereon) which at Grant Time is named Melbourne (Tullamarine) Airport and the boundaries of which are specified in regulations made pursuant to the Airports Act …’ (clause 2.1);
(c)‘Grant Time’ means ‘the time at which the Commonwealth grants this Lease to the Lessee, such time being the time on 2 July 1997 immediately after the FAC Land for Melbourne (Tullamarine) Airport vests in the Commonwealth’ (clause 2.1);
(d)‘Structures’ means ‘all fixtures (including buildings and other improvements of whatever nature) affixed to the Airport Site, whether constructed before or after the grant of this Lease, and includes without limitation such items as runways, taxiways, aprons, roads and dams on the Airport Site’ (clause 2.1);
(e)the Lessee ‘must at all times … provide for the use of the Airport Site as an airport …’ (clause 3.1(a)(i));
(f)throughout the term of the lease, ‘the Lessee must develop the Airport Site at its own cost and expense consistent with a Major International Airport having regard to: … Good Business Practice’ (clause 12.1(c));
(g)‘Good Business Practice’ means ‘the good business practices expected of an airport operator having regard to the duties and obligation of the Lessee including, without limitation, providing appropriate facilities for the comfort, ease of access, expeditious movement and efficient use of the Airport Site by passengers and other users’ (clause 12.11); and
(h)‘Major International Airport’ means ‘an airport: (a) servicing a large population centre in a major industrial country and used by air carriers as the entry point for international passengers and cargo traffic; and (b) that has been renovated and developed from time to time according to international best practice’ (clause 12.11).
(2)The LDA scheme
In July 2010, APAM introduced the LDA scheme in relation to drivers and providers of commercial vehicle services at Melbourne Airport. The issue of an LDA and an LVA required the driver and owner respectively to enter into written terms and conditions. Amongst other matters, the terms of the LDA scheme required drivers to present their LDAs for inspection on demand.
APAM authorised various persons to request production of an LDA, including AFP officers, Victorian police officers, VTD officers, certain of its own staff and security contractors.
(3)Mr Sheridan and his company
At all relevant times Mr Sheridan held a licence issued by the VTD entitling him to provide a hire car service to his company’s customers for reward. The VTD issued him with identification in relation to that licence. Mr Sheridan and his company provided hire car services for reward using registered hire cars provided by agreement with third party owners, and later through a vehicle of ABD’s own.

As noted above, Mr Sheridan refused to participate in the LDA scheme, believing that APAM had no right to require him to obtain an LDA to operate his company’s business of driving pre-booked passengers to and from the airport. Thus he did not obtain an LDA, and his company did not obtain an LVA. Mr Sheridan considered it sufficient to produce the identification issued to him by the VTD.
On various occasions Mr Sheridan was approached at the airport, including in the Qantas terminal, by authorised persons (including officers of APAM, APAM’s contracted security guards, AFP officers and VTD officers) and asked to produce an LDA, which he refused to do. Mr Sheridan produced only the identification issued to him by the VTD.
At trial, 18 particular incidents in the period from 2011 to 2018 were the subject of specific evidence and particular claims. It is not necessary to set out each of these incidents in detail; it is sufficient to observe that, as a general proposition, the incidents involved Mr Sheridan waiting for a client in the Qantas terminal and being approached by an authorised officer or officers, who then requested to see his LDA. Mr Sheridan would then, in substance, assert that he was not required to produce an LDA and that the officers in question did not have the right to question him or require him to produce an LDA. He would on some occasions produce his VTD identification and his driver’s licence. He was always permitted to locate his client and return to his car. On some occasions he was escorted back to his car by an authorised person. On one occasion he was asked by a Qantas representative to leave the Qantas terminal.
Two specific incidents warrant further mention.
(a)On 18 February 2013, after Mr Sheridan returned to the car he was driving, with his client and two VTD officers, one of the officers touched the car and opened the front door of the car in an apparent attempt to remove an LVA sticker that was attached to the windscreen.[7] The judge held that, although APAM was entitled to demand the return of the LVA, it was required to demand its return from the owner of the vehicle, rather than from Mr Sheridan. This it had not done. Thus his Honour held that the touching of the car and the opening of the door was done without lawful justification. The judge further held that this constituted a trespass, but held that APAM was not liable for the conduct of the VTD officer.[8] No challenge is made on the appeal to the judge’s findings in relation to this incident.
(b)On 26 March 2013, Mr Sheridan was in a car with a client, and APAM’s Ground Transport Coordinator, Mr Murphy, prevented Mr Sheridan from moving the car and leaving the airport. This lasted for a few minutes. The trial judge concluded that APAM, through Mr Murphy, had wrongfully imprisoned Mr Sheridan. His Honour awarded Mr Sheridan $1000 in nominal damages only.[9] No challenge is made on the appeal to the judge’s findings in relation to this incident, or to his award of damages.
PART C:GROUNDS 1 TO 5: DID MR SHERIDAN HAVE A RIGHT TO CROSS THE APAM LAND TO ACCESS THE QANTAS TERMINAL?
[7]The car was owned by a third party, which had obtained an LVA for the car.
[8]Reasons, [130]. The judge stated that the sum of $1000, as nominal damages, would have been appropriate in relation to this incident: Reasons, [81].
[9]Reasons, [89], [91].
Grounds 1 to 5 are addressed, in slightly different ways, to the two fundamental issues in this case, namely whether APAM was lawfully entitled to require Mr Sheridan and his company to obtain an LDA and an LVA, respectively, in order to cross the APAM land for the purpose of providing hire car services for reward at the airport terminals, or, conversely, whether Mr Sheridan and his company had a right to cross the APAM land in order to access the Qantas terminal, which APAM could not restrict by means of the LDA scheme.
Mr Sheridan and his company rely on several distinct pathways for their argument. One pathway turns on the effect of the Qantas lease (including by reference to Qantas’ rights under the lease). Another pathway turns on an implication said to be drawn from the Airports Act 1996 (Cth). And a further pathway turns on the terms of the APAM lease. It is convenient to consider these pathways separately.
(1)Claimed rights under the Qantas lease
(a)The parties’ arguments
The applicants made several arguments based on the existence and terms of the Qantas lease, as follows:
First, Qantas had an express right in its lease to access to the Qantas terminal. The right was not just for access by Qantas staff but also for its customers and accompanying persons including those providing coach, limousine, taxi and rental car services. The Qantas Lease provided by clause 8.7(b) that ‘the Lessor shall not do or omit or permit to be omitted or done anything that will derogate from the grant of this Lease or which will adversely affect the Lessee’s use of the Premises as a domestic airport terminal for any Purpose’, ‘Purpose’ being widely defined to mean ‘the use of the Premises as a domestic airport terminal for the processing of passengers travelling by air and persons accompanying such passengers including ancillary purposes such as … embarkation and disembarkation of coach, limousine, taxi and rental car passengers’ (clause 2.1).
Secondly, both pursuant to clause 8.7 of the Qantas lease and at common law, APAM had an obligation not to derogate from the grant under the lease of the Qantas terminal as a domestic airport terminal, and Qantas had a corresponding right. This means that APAM was not entitled to prevent Qantas or its invitees or licensees from accessing the Qantas terminal or to revoke such a licence. To do so they had to cross APAM’s land. Crossing APAM’s land was not a trespass.
The matter can be tested in this way. Could APAM set up a physical barrier on its land preventing access to the Qantas terminal by passengers and family members unless they paid APAM a $10 fee? Or could APAM set up a physical barrier preventing those within the terminal from exiting unless they paid APAM for the right to do so? Plainly APAM could not do this. Nor could APAM set up a legal barrier in the form of a licensing scheme which allowed only those Qantas passengers and family members who had bought an APAM licence to access the Qantas terminal, or use its agents to prevent access or remove people from the terminal. Were APAM to purport to do so, Qantas passengers and family members who refused to purchase a licence when they crossed APAM’s land to access the Qantas terminal would not be constituted as trespassers. Given that the Applicants were there by the express invitation of Qantas passengers for purposes of pre-booked services to and from the Qantas terminal, it follows that their refusal to participate in the LDA Scheme did not constitute them trespassers when crossing APAM’s land to access the Qantas terminal for the lawful picking up or setting down of Qantas passengers.
…
Thirdly, as the lessee of a landlocked terminal, Qantas was entitled to an easement of necessity, implied by the presumed intentions of the parties.[10]
[10]Emphasis in original, citations omitted.
As developed in oral argument, the applicants asserted two different kinds of easement: an equitable easement by implication from the grant of the Qantas lease, and an easement by reason of necessity. As to the first basis, the easement was said to be implied from the grant of the lease for the purpose of use as a domestic airport terminal.[11] That purpose, and the various specific purposes set out in the definition of ‘Purpose’ in cl 2.1, it was said, could not be fulfilled without that easement. In particular, the applicants pointed to paragraph (k) of the definition, ‘embarkation and disembarkation of coach, limousine, taxi and rental car passengers’. The terms of the easement were said to be ‘the right to use such part of the APAM land as APAM may determine to access the Qantas terminal by foot or by vehicle’. The easement was said to be ‘pertinent to the Qantas land, but an easement which members of the public may use, such that they are not trespassers on the APAM land when they cross it’. As to the second basis, the applicants contended that, given the Qantas terminal is landlocked, if there was no right of access arising under the Qantas lease then there would be an implied easement by reason of necessity.[12]
[11]Equity will enforce an agreement to grant an easement if made for good consideration and in clearly defined terms: Brownsea v National Trustees Executors & Agency Co of Australasia Ltd [1959] VR 243, 246 (Monahan J).
[12]An easement of necessity arises where, on a disposition by a common owner of part of his or her land, one part is left without a legally enforceable means of access; the part left inaccessible is entitled, by necessity, to a right of way over the other part: Adealon International Pty Ltd v London Borough of Merton [2006] EWHC 1075 (Ch), [31], [35] (Kirkham J).
Based on what they said were Qantas’ rights in relation to the APAM land, the applicants then contended that they were ‘implied invitees of Qantas, [with] an implied licence to use Qantas’ right to cross APAM’s land’.
In response, APAM submitted that several of the applicants’ arguments had not been relied upon at trial, and the applicants ought not be permitted to raise them for the first time on appeal. In particular, this point was made in relation to the argument based on cl 8.7 of the Qantas lease and the claimed obligation on APAM not to derogate from the Qantas lease. APAM also contended that, although the easement argument was raised by the applicants in their opening at trial, ‘it was not ultimately specifically pursued’.
In addition, APAM responded substantively to the applicants’ arguments, as follows:
(a)In so far as cl 8.7 was concerned, APAM contended that the LDA scheme did not interfere with Qantas’ right of quiet enjoyment under its lease. Qantas was still able to operate the Qantas domestic terminal for the purposes as defined in cl 2.1, and the applicants had not contended at trial that the LDA scheme interfered with Qantas’ ability to operate its domestic terminal, or produced any evidence to that effect.
(b)In so far as the argument of derogation from the grant of the Qantas lease was concerned, APAM contended that the LDA scheme did not derogate from the grant of the Qantas lease. Persons were not generally prevented from accessing the Qantas terminal, and the applicants and other commercial vehicle operators were not prevented from doing so provided that they obtained the requisite licences.
(c)In so far as the claimed easement was concerned, APAM observed that there was no evidence of any deed creating a legal easement, as required by s 52(1) of the Property Law Act 1958, nor any evidence of a registered easement pursuant to the Transfer of Land Act 1958. In so far as an equitable easement was alleged, APAM submitted that there were no clear and defined terms in relation to the alleged easement. For example, the servient tenement was not defined. Nor was there any agreement in writing, as is required under s 126 of the Instruments Act 1958. Further, there was no necessity for such an easement, because Qantas had the rights of access to its terminal, including across the APAM land, for which its lease provided.
In relation to the applicants’ reliance on the terms of the Qantas lease, APAM also contended that:
[A] right held by Qantas … cannot afford to non-parties to the lease (the Applicants) an irrevocable implied license from [APAM] to cross the [APAM] land to reach the Qantas domestic terminal, which precludes [APAM] from imposing any conditions on the Applicants’ right to enter the [APAM] land. [A] contractual provision between Qantas and [APAM] does not create a right in the Applicants which would override [APAM’s] proprietary right of exclusive possession as lessee of the airport land. As the trial judge found, even if [APAM] was in breach of its contractual obligations with Qantas by denying unconditional access to the Qantas domestic terminal (which is denied), that would be a breach of an obligation owed by [APAM] to Qantas, not to excluded members of the public.
(b)Consideration of the arguments based on the Qantas lease
We would reject the applicants’ arguments based on the Qantas lease, essentially for the reasons set out in APAM’s submissions.
We note at the outset that there is some indication in Hobart International Airport Pty Ltd v Clarence City Council that, if a non-party to a contract wishes to enforce the terms of that contract, it is necessary that the parties to the contract are parties to the proceeding.[13] In the present case Qantas is not (and was not) a party to the proceeding. No submission was made by APAM that the applicants could not rely upon the Qantas lease by reason only of the absence of Qantas being a party to the proceeding. The applicants asserted that they did not need to join Qantas as a party in circumstances where they were resisting being characterised as a trespasser. Given that APAM did not challenge that proposition, we will assume that it is permissible for the applicants to seek to rely upon Qantas’ rights under its lease in aid of their case in the absence of Qantas as a party to the proceeding.
(i)Can the applicants raise new arguments on appeal?
[13](2022) 96 ALJR 234, 256 [75] (Gageler and Gleeson JJ); [2022] HCA 5 (‘Hobart International Airport’). See also John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1, 46–8 [131]–[137] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); [2010] HCA 19; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, 524–5 (Lockhart, von Doussa and Sackville JJ); [1996] FCA 870.
We accept that the applicants ought not be permitted to raise for the first time their arguments based on cl 8.7 and derogation from grant. The limitations upon what parties can put forward on appeal are well established.[14] Relevantly for present purposes, ‘in a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding … the point cannot be taken’.[15]
[14]See, eg, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35; Coulton v Holcombe (1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33 (‘Coulton’); Metwally v University of Wollongong [No 2] (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1986] HCA 28; O’Brien v Komesaroff (1982) 150 CLR 310, 319 (Mason J); [1982] HCA 33; Water Board v Moustakas (1988) 180 CLR 491, 497 (Mason CJ, Wilson, Brennan and Dawson JJ); [1988] HCA 12.
[15]Coulton (1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33 (emphasis added).
APAM contended that the matters raised in relation to cl 8.7 and the alleged derogation from grant were not purely legal questions; rather, they were questions that turned on evidence. In that sense, we understood APAM’s submission to be that, had these points been raised at trial, evidence could have been adduced in response to the contention that Qantas’ quiet enjoyment was interfered with, or its lease was derogated from. We accept that submission and, for that reason, we would not permit the applicants now to rely upon an alleged breach of cl 8.7 and an alleged derogation from grant as the basis for asserting their rights to enter the APAM land for the purpose of accessing the Qantas terminal.
It is less clear whether this can be said for the argument based on an implied easement, given that that argument turns on the uncontested fact that the Qantas terminal is landlocked, and on the construction of the Qantas lease. It may be that in so far as the argument depends upon an allegation of necessity, evidence could perhaps have been adduced below. But APAM did not clearly make a submission to that effect. Further, the question of an easement was raised at trial by the applicants in their opening, and adverted to briefly in their closing. In light of those two matters, we do not think the applicants are precluded from relying on the alleged implied easement on the appeal.
(ii)The applicants’ substantive arguments
Notwithstanding our conclusion in relation to cl 8.7 and the alleged derogation from grant, it is appropriate for us to record that, had we found it permissible for the applicants to raise those matters on the appeal, we would have rejected those aspects of the applicants’ argument, and to set out our reasons for that conclusion (along with our reasons for rejecting the implied easement argument).
First, we accept APAM’s argument that each of the arguments concerning the Qantas lease is an argument that could properly be made by Qantas, in a claim for breach, but is not an argument that can avail the applicants, as non-parties to the Qantas lease. The trial judge was correct to conclude that, even if APAM was in breach of its contractual obligations to Qantas by denying unconditional access to the Qantas domestic terminal, that would be a breach of an obligation owed by APAM to Qantas, not to excluded members of the public.[16]
[16]Reasons, [23].
In that regard, we do not consider this to be a case where a person not party to a contract could enforce the contractual obligation in equity because a contractual obligation was entered into for their benefit and there can be discerned an intention that the obligation is to be held on trust for the person.[17] No argument of that kind was put by the applicants. Nor do we consider this to be a case like Hobart International Airport, where entities that were not party to the lease (local government Councils) were able to point to a clause that required the operator of the airport site to pay money to them in lieu of rates. In that case the High Court held that the Councils were able to seek declaratory relief with respect to the proper construction of the relevant clause of the leases and the operator’s obligations to make payments to them pursuant to the leases.[18] The applicants have not sought to point to any clause of the Qantas lease that operates in any similar manner in relation to them. Rather, they simply sought to rely upon Qantas’ rights under the lease.
[17]See, eg, Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, 115 (Mason CJ and Wilson J), 138–9 (Brennan J), 146–8 (Deane J), 156–7 (Dawson J), 166 (Toohey J); [1988] HCA 44; Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62, 72–3 [10]–[11] (French CJ), 100 [109] (Gageler J); [2015] HCA 6.
[18](2022) 96 ALJR 234, 247–8 [38]–[39] (Kiefel CJ, Keane and Gordon JJ), 255–6 [74] (Gageler and Gleeson JJ); [2022] HCA 5.
Secondly, even if we were to accept that the terms of the Qantas lease conferred an implied licence from APAM to the applicants to cross the APAM land in order to reach the Qantas domestic terminal, and that the applicants could rely on the Qantas lease to demonstrate that they were not trespassers on the APAM land, in our opinion the terms of the lease do not preclude APAM from imposing reasonable conditions on that licence. Halliday v Nevill,[19] on which the applicants relied, is not about the imposition of reasonable conditions and does not require a contrary conclusion. As already noted, no argument was put that the conditions imposed by the LDA scheme were unreasonable. Further, there was no evidence adduced at trial that demonstrated any interference by APAM with Qantas’ quiet enjoyment so as to demonstrate a breach of cl 8.7, and no evidence that APAM had, by the imposition of the LDA scheme, derogated from the grant of the lease to Qantas.
[19](1984) 155 CLR 1; [1984] HCA 80.

Finally, we do not accept that by reason of its terminal being landlocked, Qantas was entitled to an easement of necessity, whether implied by grant of the Qantas lease or implied by necessity.
There was plainly no legal easement, since there had been no compliance with the Property Law Act 1958 and no registration under the Transfer of Land Act 1958. Nor do we consider that the applicants have made good their case that there was an equitable easement by implication from the Qantas lease. That is because there is no basis for implying into the Qantas lease an easement in circumstances where the lease itself provides for a right for Qantas to access the APAM land. For the same reason, the requirement of necessity is not met in circumstances where Qantas has a contractual right to access the APAM land as necessary for the use of its domestic terminal. That right of access emerges from the following features of the Qantas lease:
(a)cl 1.1, by which the Lessor (originally the Commonwealth, but both parties accepted that APAM now effectively stands in the shoes of the Commonwealth) leased the premises to Qantas ‘together with the right to use, in common with the Lessor and other persons entitled to use the same, the Infrastructure’;
(b)the definition of ‘Infrastructure’, which included ‘Landside Infrastructure’; and
(c)the definition of ‘Landside Infrastructure’, which means:
items reasonably required for or incidental to the Lessee’s handling and processing of airline passengers, visitors and invitees in the Premises on the landside of the Premises and includes without limitation car, bus and taxi access, passenger pick-up and setting-down areas and pedestrian and road access to the Premises.[20]
[20]Emphasis added.
Given those aspects of the Qantas lease, there was no necessity to imply into the lease (or otherwise to identify, separately from the lease) an easement.
Again, even if there was an easement implied into the Qantas lease (or an easement identified separately from it), and even if the applicants were entitled to claim the benefit of that easement, it would not follow that APAM was denied the ability to impose reasonable conditions on persons seeking to use the APAM land in reliance on the easement. Nor would it follow that APAM could only impose such conditions with the consent or agreement of Qantas.
Ultimately, we accept that the terms of the Qantas lease did not create a right in the applicants that overrode APAM’s right, as lessee of the APAM land, to impose reasonable conditions on entry to that land. We agree with the trial judge that the Qantas lease did not create a public right of way that prevented APAM from imposing any restrictions whatsoever on the public’s right to enter and cross its land.[21]
(2)The effect of the APAM lease
[21]Reasons, [22].
The applicants’ argument based on the existence and terms of the APAM lease was that the APAM lease was inconsistent with APAM’s asserted right to exclude hire cars and drivers from using the APAM land to access the Qantas terminal. In particular, the applicants relied upon the following clauses of the APAM lease:
(a)clause 3.1(a)(i), which provided that APAM ‘must at all times … provide for the use of the Airport Site as an airport’; and
(b)clause 12.1(c), which provided that APAM ‘must develop the Airport Site at its own cost and expense consistent with a Major International Airport having regard to … Good Business Practice’, where ‘Good Business Practice’ was defined in cl 12.11 to mean ‘the good business practices expected of an airport operator having regard to the duties and obligation of the Lessee including, without limitation, providing appropriate facilities for the comfort, ease of access, expeditious movement and efficient use of the Airport Site by passengers and other users’ (emphasis added by the applicants).
However, in oral argument the applicants conceded that cl 12.1(c) did not create any positive obligation on APAM to give the applicants access to the APAM land.
In response, APAM contended that:
(a)consistently with cl 3.1(a)(i), it uses the land the subject of the lease as an airport; and
(b)clause 12.1(c) refers to APAM’s development of the site, not to its operation of the site, and does not give rise to any obligation on APAM to permit unconditional access to the APAM land.
We accept APAM’s submissions in relation to the effect of these clauses in the APAM lease. APAM was using the site as an airport, consistently with cl 3.1(a)(i); and cl 12.1(c) imposed no independent obligation in relation to access to the APAM land, as the applicants conceded. Nothing in those clauses prevented APAM from imposing reasonable conditions on entry to the APAM land. Likewise, these clauses did not create a right in the applicants that overrode APAM’s right, as lessee of the APAM land, to impose reasonable conditions on entry to that land. We agree with the trial judge that the APAM lease did not create a public right of way that prevented APAM from imposing any restrictions on the public’s right to enter and cross its land.[22]
(3)Effect of the Airports Act
(a)The parties’ arguments
[22]Reasons, [22].
The applicants’ argument based on the effect of the Airports Act was follows:
[T]here was a general, public, non-proprietary right of access to the airport. Parliament assumed such a right in a note to s 71(2)(c) of the Airports Act 1996: ‘Landside means the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public has free access’.^[[23]] This is not a grant of a public right of way, but it shows that the statutory scheme for the APAM Lease recognises such a right. The learned trial Judge held (at [30]), correctly it is respectfully submitted, that each of the Qantas and APAM Leases was an ‘airport lease’ within the definition of that term in the Airports Act.
Further, APAM, by virtue of the nature of the lease which it had been granted by the Commonwealth, did not acquire a right to simply exclude the Applicants from the airport at all, including on the terms or in the manner described by the LDA Scheme. APAM’s lease over the airport arose under the Airports (Transitional) Act 1996 (Cth) and was subsequently governed by the Airports Act 1996. The Airports Act allowed the grant of a lease to an airport-operator company, but required the airport’s operations to be performed in accordance with that Act.
[23]Emphasis in original.
In support of this second argument, the applicants referred to ss 22 and 31 of the Airports Act.
(a)Under s 22, an airport lease (ie the APAM lease) was granted subject to all existing leases (including the Qantas lease). All of the obligations and benefits of the Commonwealth under or connected with the Qantas lease passed to APAM, and the obligations and benefits under the Qantas lease continued to have effect as if a reference in the Qantas lease to the Commonwealth or the Federal Airports Corporation were a reference to APAM. Note 1 records that the lessees of existing leases (ie Qantas) became lessees of the airport-lessee company (ie APAM).
(b)Section 31(2) obliged APAM to use the airport site as an airport. That section had effect for the purposes of determining whether an airport-operator company, such as APAM, had a defence to or immunity from certain proceedings or actions. It was not a free-standing obligation.
In response, APAM contended that none of the statutory provisions referred to by the applicants restricted APAM’s right, as lessee of the APAM land, to impose conditions on entry to that land. APAM also contends that s 71(2)(c) was not relied upon at trial, and thus the applicants ought not be permitted to rely upon it on appeal.
(b)Consideration of the Airports Act arguments
We do not accept APAM’s submission that the applicants cannot now rely on s 71(2)(c) of the Airports Act because it was not raised at trial. This is a legal argument directed to the proper construction and effect of a statute, and APAM did not suggest that it would have adduced any evidence in response to this argument, had it been raised at trial. Nor did it submit any other prejudice by reason of this section being raised for the first time on appeal.
However, we accept APAM’s submissions in relation to the substantive effects of the relevant statutory provisions.
In so far as s 71(2)(c) of the Airports Act is concerned, plainly s 71(2)(c) does not create an absolute right in any person to access the APAM land, free of conditions that APAM, as lessee may wish to impose upon such access. First, s 71 specifies matters to be set out in a draft or final master plan for an airport: s 71(1). Section 71(2) then sets out what such a plan must specify, relevantly including ‘the airport lessee company’s intentions for land use and related development of the airport site’, including ‘landside’: s 71(2)(c). The term ‘landside’ is also used in s 71(2)(ga). Note 2 then defines ‘landside’[24] for the purposes of the use of that term in s 71(2) (the term is not used outside s 71). Understood in context, the notes to s 71(2) simply operate to give content to the terms used in s 71(2). A note, although part of the Act,[25] is not an operative provision capable of conferring rights and duties on persons.
[24]As set out at [49] above, ‘landside’ is defined to mean ‘the part of the airport grounds, and the part of the airport buildings, to which the non-travelling public has free access’.
[25]Acts Interpretation Act 1901 (Cth) s 13.
Further, in so far as the note refers to ‘free access’, one needs to ask: ‘free’ from what? In our opinion the note is directed to drawing a distinction between the part of the airport that members of the public cannot access without passing through a screening process (ie to which access is not ‘free’) and the part of the airport that members of the public can access without passing through a screening process (ie to which access is ‘free’ from a process of that kind). Thus the reference to ‘free access’ is not to be understood as conferring any right on members of the public to access the ‘landside’ area, let alone an absolute right, free of any conditions whatsoever. Nor is it to be understood as some form of legislative recognition that such a right exists, although its source is found elsewhere.
In so far as ss 22 and 31 are concerned, they take the applicants’ case no further.
(a)Section 22 is concerned with the leasing arrangements in relation to airports. Thus, given that we have concluded that those arrangements confer no right on the applicants to enter the APAM land, and place no prohibition on APAM imposing reasonable conditions on persons accessing the APAM land, s 22 is not an independent source of such a right or prohibition.
(b)Section 31 requires APAM to use the land as an airport. Plainly it is doing so. The section says nothing about the rights of other persons to enter the APAM land, and imposes no prohibition on APAM imposing reasonable conditions on persons accessing the APAM land. Further, the applicants accepted that s 31 was not engaged in the present case because it only has effect for the purposes of determining whether an airport-operator company has a defence to or an immunity from certain proceedings or actions.
Further, in relation to both s 31 and the note to s 71(2)(c), the applicants said in oral argument that they relied upon these sections only as relevant to the construction of other sections of the Airports Act. The only other section identified was s 22. In our opinion nothing in either s 31 or the note to s 71(2)(c) has the effect that s 22, or any other section, of the Airports Act is to be construed so as to recognise an absolute right in the applicants to access the APAM land, free from conditions imposed by APAM.
Ultimately, we do not accept that the statutory provisions upon which the applicants relied give rise to a general, public, non-proprietary right of access to the airport, including over the APAM land, that is incapable of being made subject to reasonable conditions imposed by APAM in its capacity as lessee of the APAM land.
(4)Conclusion on grounds 1 to 5
In our opinion APAM can, by reason of its right of exclusive possession over the APAM land, impose conditions on the entry of persons onto that land. It does not require Qantas’ agreement or consent to do so.
We accept that there may be limits on the nature of the conditions that APAM can impose. For example, it may be that APAM could not impose conditions that derogated from the grant of the lease to Qantas, or which unreasonably interfered with the ability of members of the public to access the Qantas terminal for the purposes of airline travel and related activities. But the applicants did not mount a case that the conditions imposed on their access to the APAM land in fact derogated from or adversely affected Qantas’ rights. Nor did they mount a case that the LDA scheme imposed an unreasonable burden on the ability of members of the public to access the Qantas terminal, or were otherwise in some more general sense unreasonable. Rather, the case was put as an absolute bar on APAM imposing conditions on access. In the course of oral argument, this was modified somewhat to being an absolute bar on APAM imposing conditions on access unless it had Qantas’ consent or agreement (which, it was said, had not been obtained in the present case). But even with that added qualification, the case remained absolute in nature. That absolute case is simply inconsistent with APAM’s status as lessee of the APAM land.
Thus, we agree with the trial judge that APAM, in its capacity as lessee, is entitled to exclude the applicants from entering onto the APAM land for the purpose of providing commercial hire care services, unless they comply with the conditions upon which APAM is prepared to permit them to enter.[26]
PART D:GROUND 6: DID QANTAS GRANT APAM PERMISSION TO ENFORCE THE LDA SCHEME IN THE QANTAS TERMINAL?
[26]Sheridan v Australian Pacific Airports (Melbourne) Pty Ltd [No 2] [2021] VSC 593, [8].
Ground 6 involves a challenge to a finding of fact made by the trial judge, namely that Qantas had granted APAM permission to enforce the LDA scheme in the Qantas terminal. The trial judge found as follows:
Although Mr Murphy [then the Ground Transport Co-ordinator for APAM] sent an email to Ms Cleary dated 22 July 2011 stating that Qantas had ‘rescinded’ its earlier permission to enter its terminal to question drivers about their LDAs, Mr Zwanikken, who was employed by APAM from June 2012 as its ground transport contracts manager, said that in his time Qantas was ‘encouraging of us to enforce the LDA scheme in their terminal’. In light of this evidence, I conclude that Qantas was aware of the LDA scheme and consented to APAM approaching drivers within its terminal for the purpose of checking that they were complying with the LDA scheme. On this basis, it could not be said that it was unlawful of APAM to approach Mr Sheridan within the Qantas domestic terminal and ask him to produce his LDA.[27]
[27]Reasons, [49].
The applicants submitted that the judge ought to have held that Qantas had not permitted or authorised the enforcement of the LDA scheme in the Qantas terminal, or at all, or alternatively that the evidence did not establish any such permission or authority.
The principal basis for the applicants’ contention was a single email dated 22 July 2011 from Mr Murphy to Ms Cleary (an employee of Qantas). The email relevantly said as follows:
David from Ops gave my details to Lynne who e-mailed me the attached comment. I gave her a call today to find out what she was after and to my surprise (not really) it is about the amount of VHA drivers inside Tl and not adhering to mustering up in the correct location (chauffeurs meeting point). I mentioned to her that her internal security provider (MSS) is responsible for the security within their Terminal. Lynne informed me that MSS stated that this was not their job and forwarded the issues back to us.
Also during the conversation I informed her that Merv Hill was with Qantas he gave us a verbal approval to enter the Terminal and question believed VHA drivers on compliance to Melair T&C (current holders and displaying LDA’s). And when Merv left this agreement was rescinded and we have not reapproached drivers within the terminal. Lynne is currently arranging for someone (believed to be her line manager) to scrip an e-mail stating that we have authority to entry T1 and question believed VHA drivers and request them to move to the approved area.
The applicants relied principally on the second paragraph, but it is necessary in our view to consider that second paragraph in the context of the first paragraph, which reflects the fact that Qantas was concerned about the behaviour of commercial vehicle drivers in the Qantas terminal and was seeking to have APAM do something about it. Mr Murphy’s email also reflects two other relevant matters:
(a)first, in the absence of authority from Qantas to approach drivers in the Qantas terminal, APAM was not doing so; and
(b)Qantas was going to take steps to reinstate the authority that had previously been rescinded.
In addition, as the trial judge observed, Mr Zwanikken gave evidence that from June 2012 Qantas was ‘encouraging’ APAM to enforce the LDA scheme in the Qantas terminal.[28] His evidence was that he had been present at a meeting when this was discussed and encouraged by Qantas; contrary to the applicants’ submissions, it was not ‘mere assertion’ or an ‘unsubstantiated conclusion lacking any evidence of actual observation’. There was no challenge to Mr Zwanikken’s evidence, other than to suggest that it was given by someone who was a ‘middle level manager’, rather than being more senior. His evidence was consistent with the terms of the email.
[28]Reasons, [27], [49].
While no document was produced recording such encouragement or permission in writing, we do not accept the applicants’ submission that a written request was required in order to make good Qantas’ consent to APAM enforcing the LDA scheme in the Qantas terminal. The Qantas lease required a written request in relation to ‘outgoings’, namely expenses incurred by the Lessor, including ‘kerbside services’, which the lessee was then required to pay. First, it is not apparent that the enforcement of the LDA scheme fell within the definition of ‘kerbside services’ in the Qantas lease, although it might have fallen within the scope of paragraph (a) of that definition.[29] But even assuming that enforcement of the LDA scheme did fall within the definition of ‘kerbside services’, and hence was capable of being an ‘outgoing’ as defined, the consequence of a lack of a written request would be that the enforcement of the LDA scheme in the Qantas terminal was not an ‘outgoing’ as defined, and thus APAM could not recover the relevant proportion of the cost of that aspect of implementing the LDA scheme from Qantas pursuant to cl 6.2(a) of the Qantas lease. The lack of a written request would not alter the fact that Qantas had encouraged — and thereby consented to — the enforcement of the LDA scheme in the Qantas terminal.
[29]The Qantas lease defined ‘Kerbside Services’ to mean ‘the: (a) regulation of vehicle movements and parking (including taxis) … ’.
It must be recalled that, as the High Court observed in Robinson Helicopter Co Inc v McDermott, an appellate court should not interfere with a trial judge’s findings of fact unless they are ‘demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.’[30] Bearing that in mind, we are unable to conclude that the judge’s finding in relation to Qantas’ authorisation to APAM to enforce the LDA scheme in its terminal (or elsewhere) is demonstrably wrong. To the contrary, having conducted our own review of the evidence, we consider that the judge was correct to so find.
[30](2016) 331 ALR 550, 558–9 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22 (citations omitted) (‘Robinson Helicopter’).

For that reason, ground 6 must fail.
PART E:GROUNDS 7 AND 8: MISFEASANCE IN PUBLIC OFFICE
Ground 8 is that the trial judge erred in holding that APAM did not hold a public office and that it had not misused that office. Ground 7 is difficult to comprehend; but it appears from the written submissions filed by the applicants that it is directed to the same issue, relying on the fact that APAM had powers under the Airport (Control of On-Airport Activities) Regulations 1977 (Cth) (the ‘Regulations’) to issue infringement notices.
In relation to these two grounds, the applicants submitted as follows:
APAM, as an airport-operator company, was empowered and required to make provision for the appropriate regulation of parking activities at Melbourne Airport. This included a power to criminalise certain infringing conduct by erecting parking signage plans and traffic control devices, pursuant to Part 4 of the [Regulations]. APAM was also empowered, and required, to make ‘Standard Operating Procedures’ which would direct authorised persons in the conduct and enforcement of parking and traffic regulations at the airport and the circumstances in which infringement notices would be issued. As well as having the power to issue parking fines, authorised persons are also empowered to demand that hire car and taxi drivers produce state-issued identification on request, on pain of the issue of an infringement notice (Reg 106E) (collectively the ‘Regulatory Scheme’).
Given its rule-making powers under the Regulatory Scheme and control of authorised persons, APAM held a public office. The Full Federal Court in Nyoni considered that a parking officer exercises a public office and that issuing a ticket for an improper, private purpose is capable of constituting misfeasance in public office, even if the vehicle was parked illegally. A person statutorily empowered to direct parking officers must logically also hold a public office.
In furthering the LDA Scheme, APAM directed, by way of its making of the statutorily required and binding Standard Operating Procedures, that authorised persons — including security guards, police and APAM employees — make use of their statutory powers to demand compliance with the LDA Scheme. This included actively seeking to issue infringement notices to drivers who did not comply with the LDA Scheme. It also involved requiring authorised persons to demand the presentation of identity cards — the LDA — without differentiation between the identity cards that hire car drivers were actually required by law to produce under Regulation 106E and those APAM sought under the LDA Scheme.
The learned trial Judge failed to have regard to the content or the significance of the Standard Operating Procedures and the Regulations. He therefore erroneously concluded that APAM did not hold a public office, when it held a significant one, of which it took advantage by directing authorised persons to enforce APAM’s private LDA Scheme instead of the Regulatory Scheme, as it was entitled to do.[31]
[31]Citations omitted.
In response, APAM submitted as follows:
The trial judge found at [108] that [APAM] was a private company with certain delegated powers to control parking on its premises, rather than the holder of a public office with concomitant powers. The judge’s finding was consistent with Cannon v Tahche, where the Court held that not every position in which the occupier is required to perform a function in which the public has an interest is necessarily a public office for the purposes of the tort. The Applicants rely upon the Full Federal Court decision in Nyoni v Shire of Kellerberrin. However, the paragraphs of Nyoni relied upon by the Applicants refer to the issuing of fines by a parking officer in the context of the Court’s discussion of ‘malicious intention’, and not in considering whether the officer held a public office. Those paragraphs do not stand for the proposition contended for by the Applicants, that by virtue of [APAM] holding some powers and duties under enactments, all of its actions including in respect of the contractual LDA Scheme were done by it ‘in public office’.
The Applicants contend that the Judge failed to have regard to the significance of the Standard Operating Procedures and certain powers of APAM under regulations. However, these were referred to specifically by his Honour at [107]–[108]. The Applicants assert that [APAM] ‘actively’ sought to issue infringement notices to drivers who did not comply with its LDA Scheme. There was no evidence of any infringement notices issued for non-compliance with the LDA Scheme. The documents referred to at footnote 18 of the Applicants’ written case, insofar as they relate to the issuing of infringements, pertain to infringements for parking/stopping offences, offences under Regulations (such as touting) or under the Road Rules.
Even if it was to be found that [APAM] was the holder of a public office (which is denied), to succeed in this tort the Applicants would also have to prove ‘bad faith’ or ‘malice’. The trial judge found against the Applicants on the issue of ‘malice’, and the Applicants do not challenge those findings.[32]
[32]Citations omitted.
In oral argument the applicants made it clear that in fact they did challenge the trial judge’s findings in relation to the absence of malice. The basis for that challenge was said to be the 18 incidents that had been pleaded by the applicants, which targeted them, together with the imposition of the invalid LDA scheme. In response, APAM claimed to have been taken by surprise by that proposition, because there was no ground of appeal directed to the judge’s finding of malice. Further, APAM submitted that there were no submissions advanced by the applicants that showed how, based on the evidence, the trial judge had erred in his conclusion concerning malice.
There is force in APAM’s objection to the raising of this argument but we do not need to address it because, in our opinion, the applicants have failed in any event to make good their case that the trial judge erred in finding that APAM had not acted with malice. Again we note the principle derived from Robinson Helicopter, that an appellate court should not interfere with a trial judge’s findings of fact unless they are ‘demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.’[33] There was nothing in the matters to which the Court was referred by the applicants — namely the 18 incidents and the LDA scheme — that demonstrated that the trial judge’s conclusion in relation to malice was wrong or glaringly improbable. To the contrary, having reviewed the evidence for ourselves, the trial judge’s conclusion is in our view correct.[34]
[33](2016) 331 ALR 550, 558–9 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22.
[34]We also note that there is authority for the proposition that ‘a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers’ (Moder v Commonwealth (2012) 261 FLR 396, 416 [73] (Margaret Wilson AJA, Muir and Fraser JJA agreeing at 398 [1]–[2]); [2012] QCA 92), or upon a course of conduct, which it is claimed was improper or tainted in some way (Chapel Road Pty Ltd v Australian Securities and Investment Commission [No 10] (2014) 307 ALR 428, 444 [77] (Schmidt J); [2014] NSWSC 346.) This, it appears to us, is what the applicants have alleged in relation to the 18 incidents upon which they rely. But in light of our conclusion that the trial judge did not err, it is not necessary to consider this point further.
Nor do we accept the applicants’ submission that the trial judge failed to have regard to the Standard Operating Procedures and certain powers of APAM under the Regulations. As APAM pointed out, these matters were referred to specifically by the trial judge.[35]
[35]Reasons, [107]–[108].
Further, to the extent that the allegation concerning malice turned on the proposition that the LDA scheme was invalid, it cannot succeed in light of our conclusions in relation to grounds 1–5.
Malice, in the sense of a use of power for an ulterior purpose with the intent of harming the plaintiff (or in reckless disregard of such harm as a likely consequence), or with knowledge that the power did not exist (or reckless disregard as to its existence), is a necessary component of the tort of misfeasance in public office.[36] In light of the trial judge’s finding of an absence of malice, which we have upheld, it is not necessary to determine whether APAM was or was not a holder of public office for the purposes of the tort.
[36]Cannon v Tahche (2002) 5 VR 317, 333 [40] (Winneke P, Charles and Chernov JJA); [2002] VSCA 84.
For these reasons we would reject grounds 7 and 8.
PART F:GROUNDS 9 AND 10: THE TORTIOUS AND STATUTORY CLAIMS
Grounds 9 and 10 are by their terms predicated on the errors alleged in earlier grounds, especially grounds 1 to 5 concerning the lawfulness of the LDA scheme. Given that we have rejected those grounds, it follows that grounds 9 and 10 cannot succeed.
PART G:CONCLUSION
For the above reasons, we would refuse leave to appeal.
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SCHEDULE OF PARTIES

ANTHONY JAMES SHERIDAN First applicant

ACCIDENT BY DESIGN PTY LTD (ACN 136 691 839) Second applicant

and

AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD (ACN 076 999 114) Respondent

ANTHONY JAMES SHERIDAN	First applicant
ACCIDENT BY DESIGN PTY LTD (ACN 136 691 839)	Second applicant
and
AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD (ACN 076 999 114)	Respondent

[2022] VSCA 222

20 October 2022