Council of the City of Botany Bay v Soccer NSW Limited

[2004] NSWSC 1262

CITATION:	Council of the City of Botany Bay v Soccer NSW Limited [2004] NSWSC 1262
HEARING DATE(S):	8,9 & 10 December 2004
JUDGMENT DATE:	22 December 2004
JUDGMENT OF:	Burchett AJ at 1
DECISION:	Proceeding dismissed with costs at [28]
CATCHWORDS:	Contract-whether contractual intention in respect of rules of admission to a sporting competition for children and youths-equitable estoppel- whether representations clear and unequivocal- whether representations contravened s52 of the Trade Practices Act.
LEGISLATION CITED:	s52 Trade Practices Act 1974 (Cth); s140 Corporations Act 2001 (Cth)
CASES CITED:	Forbes v Australian Yachting Federation Inc. (1996) 131 FLR 241; Cameron v Hogan (1934) 51 CLR 358; Scandrett v Dowling (1992) 27 NSWLR 483; Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421; Onward BS v Smithson [1893] Ch 1; Patrick Stevedore Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1
PARTIES :	First Plaintiff: The Council of the City of Botany Bay Second Plaintiff: Eastern Suburbs Soccer Football Association, Inc Defendant: Soccer NSW Limited (ABN 25 003 215 923)
FILE NUMBER(S):	SC 5945/2004
COUNSEL:	T.S Hale SC/ S.J. Phillips for the First and Second Plaintiffs M. Christie/M.S.White for the Defendant
SOLICITORS:	Messrs Houston Dearn O'Connor Solicitors for the First and Second Plaintiff Diamond Peisah & Co for the Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BURCHETT AJ

Wednesday 22 December 2004

5945/04 THE COUNCIL OF THE CITY OF BOTANY BAY and EASTERN SUBURBS SOCCER FOOTBALL ASSOCIATION, INC v SOCCER NSW LIMITED

JUDGMENT

1 BURCHETT AJ: The aim of the plaintiffs in bringing this proceeding, which has been heard as a matter or urgency, is to obtain from the Court an order requiring the defendant, as the body controlling and administering representative soccer competitions in what is called the Youth League for children and teenagers of superior ability, to reconsider its decision not to admit teams known as the Sydney University Eastern Lions (“Eastern Lions”) for the competition year 2005, commencing in March, to the second of the three levels into which the Youth League competitions have been divided. Eastern Lions is a Youth League club located in the area of the City of Botany Bay, formed by a joint venture between the second plaintiff, Eastern Suburbs Soccer Football Association, Inc, and Sydney University Soccer Football Club, both of which are members of the defendant, Soccer NSW Limited.

2 The background to the case is that, for some years, the second plaintiff has conducted soccer competitions within the Botany Bay area and has entered representative teams in the defendant’s Youth League competitions. The home ground used by these representative teams playing in Youth League competitions has been a ground known as Hensley Athletic Field, which has been made available for this purpose by its owner, the first plaintiff, the Council of the City of Botany Bay. But since at least 2002, the defendant has been attempting to raise the standard of the grounds used in the Youth League competitions by the introduction of criteria for the annual admission of clubs to those competitions, including specific requirements for the clubs’ home grounds. Because Hensley Athletic Field did not meet these criteria, and although the Eastern Lions were ranked sixth out of fourteen teams in 2003 at the second level, the Super League, the first level being the Premier League and the third level being Division One, the Eastern Lions were relegated for the year 2004 to Division One. Relegation had the result, as was to be expected, that the Eastern Lions lost a significant proportion of their good players to better placed clubs, since ambitious youths regard the Youth League competitions as providing a pathway to the highest levels of semi-professional soccer later in their careers. The club also lost almost all its coaches. In 2004, at the lower level of Division One, the Eastern Lions could manage only ninth place out of eleven teams.

3 It was as this situation developed that the events occurred which have led to the present proceeding. Promptly after the relegation at the end of the 2003 season, there were significant changes in the personnel responsible for the administration of the Eastern Lions, and Mr Ron Hoenig, a barrister who has been the mayor of the Council of the City of Botany Bay for over twenty years, also took a direct interest in the situation. He became the Secretary of the joint representative committee of the Eastern Lions. Together with Mr Jim Zammit, the financial controller of the Eastern Lions, on 17 October 2003, Mr Hoenig met the defendant’s Chief Executive Officer, Mr Robert Waddell, and its Competition Secretary, Mr Greg McGriskin, to discuss the club’s prospects. At that meeting, emphasis was placed on the ground criteria which Hensley Athletic Field had failed to meet. In particular, reference was made to the need to equip the ground with lights of a sufficient standard. Following this meeting, and at the initiative of Mr Hoenig, the Council took steps and incurred expenditure in order to improve Hensley Athletic Field.

4 By the end of June 2004, although improvements had been carried out, Hensley Athletic Field still lacked the required lights, the installation of which would clearly be quite expensive. The 2004 season was then drawing to a close, and the poor performance of the Eastern Lions was apparent. Mr Hoenig appreciated that, even if all the necessary work was carried out, the failure of the club to achieve a sufficient standard of soccer could be an obstacle to its restoration to Super League. Accordingly, arrangements were made for a further meeting with Mr Waddell and Mr McGriskin at which, plainly enough, it was Mr Hoenig’s objective to obtain from them, if possible, some commitment, or at least some good ground for hope, that completion of the work would lead to the desired outcome.

5 On 6 July 2004, Messrs. Hoenig and Zammit met again with Messrs. Waddell and McGriskin. Mr Hoenig made it clear that the Council was about to accept tenders for the lights at a cost in excess of $150,000. Although the plaintiffs’ case is he was effectively seeking an assurance that, if the Council spent the money, the club would be reinstated in Super League, despite its poor performance, in his affidavit, Mr Hoenig says his object was “to find out whether or not the defendant intended to ensure that the ground criteria would be strictly applied.” Mr Hoenig’s evidence, taken as a whole, seems to me to be consistent with this indirect approach. I do not believe he ever sought and obtained a direct assurance that the club would be reinstated, once the ground criteria were met, in Super League. But the plaintiffs contend before me that an assurance of the application of the criteria was to be understood as having just that effect. For they say an application of the criteria would have meant the Eastern Lions qualified as eligible for Super League, and would also have required their admission to it because a number of other clubs would have been excluded, with the result there would have been only two levels of competition in 2005, Premier League and Super League.

6 Whatever the legal merits of the causes of action propounded by the plaintiffs, to which I shall come when I have completed this account of the facts, the plaintiffs’ case on this aspect of the facts involves some difficulty. While Mr Hoenig and Mr Zammit may have thought an application of the criteria would certainly have the consequence I have explained, it is not at all apparent that Messrs. Waddell and McGriskin should have reached, or did reach, a similar conclusion. They both say they made it clear (and if they had said nothing, the fact would still have been apparent) that they could not speak for the defendant’s Board, which would make the ultimate decisions. It might be thought unlikely that participants in sporting competitions for children and teenagers would regard the Board controlling the competitions, which established the criteria for admission to them, as incapable of exercising any discretion or of amending the criteria in a situation where a number of Youth Clubs would be wholly excluded from any competition in the absence of such a discretion or a change in one of the criteria. The probable lay feeling on this matter would, of course, be entirely consistent with the decision of Santow J in Forbes v Australian Yachting Federation Inc. (1996) 131 FLR 241. And the very example of the collapse of playing performance by the Eastern Lions following a rigid application of the criteria in 2003 might have been seen as a warning that discretions exist to be exercised. But that is not an end to the question. The plaintiffs’ reasoning also overlooks the issue of the time as at which any strict compliance with ground criteria, or any particular criterion, would have to be assessed. Common sense would indicate that the need for appropriate lighting would not exist until the competition started in March 2005, and it does not follow from a strict insistence upon the criterion of lighting at a particular standard that there would be equally strict insistence upon the date by when that lighting must be installed, a matter as to which circulars sent out by the defendant to notify clubs of the criteria were silent, or capable of raising doubts. If it be assumed, as the plaintiffs’ argument appears to do, that all criteria were required to be met at the time of application for admission to the competition, I do not think the second plaintiff itself complied; at that time, the lights were still in the process of being installed. At any rate, the evidence does not enable me to find, either that the second plaintiff did at the date of its application comply, or that any other club admitted to the competition which may not have complied at that date did not do so by the time the defendant decided to admit it, or would not have done so well before the commencement of the competition. What this means is that if the plaintiffs’ case requires clarity in the representation they allege was made to them concerning the reinstatement of the Eastern Lions, the evidence I am discussing did not provide it.

7 Certainly, there was discussion at the meeting of 6 July 2004 directed to the question whether certain other clubs would meet the criteria, but it must have been obvious, not only that those clubs, or at least some of them, might be able to remedy their particular problems, but also that entirely new clubs, not in 2004 involved in Youth League competition, might come forward by the time applications were received. In other words, the situation was necessarily still fluid as at 6 July 2004. In fact, the decision under challenge in this case was not made until several months after that date, and before it was made, the particular criterion which might have led to the competitions in the Youth League being reduced from three to two had been amended by the Board. This criterion had ruled out a Division One competition between less than a minimum of ten clubs.

8 It was the plaintiffs’ case, as pleaded in the Amended Statement of Claim, that the criteria to which they referred were to be found in four circulars dated 15 August 2002, 30 August 2002, 7 November 2002 and 4 July 2003, with attachments, and a letter dated 20 October 2003. Reliance was also placed on a circular letter dated 1 July 2004 and a Memorandum to Youth League clubs dated 2 September 2004. It is noteworthy that the earliest of these documents advises:

“In 2004 there will be a minimum of twelve and maximum of fourteen clubs in each of the top two (2) elite divisions of Youth League, while Division One will be described as the Inter-District League and comprise of [sic] the teams as consisted in 2003 Division One albeit there will be promotion and relegation from a proposed Club Champion of Champions coming from the Association’s Premier Youth Competitions.”

9 This makes it apparent that Division One was seen as involving a distinctly lower standard than that of the two elite divisions, Premier Youth League and Super Youth League. It was in the same circular that the first reference was made to the strict application of ground criteria. Clause 13 provided:

“Ground criteria as set out in the Youth League Advisory Committee Report (Items 1-20) will be strictly applied for clubs seeking admission to compete in Youth League.”

However, there is no statement of the date as at which the ground criteria must be satisfied, although there is a statement that the “annual term of registration for Youth League will commence from 1 November each year and remain effective until 31 October the following year.” The circular also stated that the “[r]egistration forms for all Youth League age groups” will be available “from the first Monday of the NSW fourth school term each year” from 2002.

10 I do not think it is necessary for the purposes of this case to go through each of the circulars mentioned in detail, particularly as the circular of 4 July 2003 appears to be intended to pick up the requirements applicable as from its date. It commences with the statement that “the following criteria will form the basis of Youth League competitions for Season 2004, and in all future years”, and that it “will replace any other information that is inconsistent with the advice now provided”. In paragraph 3, it states:

“In 2004 there will be a maximum of 14 clubs in each of the top two (2) elite divisions of Youth League providing they each satisfy entry criteria. The composition of Division One [Inter-District] League will be considered on the basis of clubs that meet the criteria. If there are not at least 10 clubs that meet the criteria in Division 1 [Inter-District] League, no competition will be offered in that division.”

There are clauses dealing with promotion and relegation. That relevant to Super Youth League is clause 7 which provides:

“Promotion and Relegation for the second highest division of Youth League [Super Youth League] and third highest division of Youth League [Division 1/Inter-District Youth League] will be one [1] team up and one [1] team down for 2003, and will remain the standard applied to those respective divisions of Youth League in all future years.

Ground criteria are again referred to. Clause 10 provides:

“Ground criteria as set out in the Section Two [2] of the 2004 Youth League Application form [items 1-21] will be strictly applied for clubs seeking admission to compete in Youth League for season 2004 and thereafter.”

11 The annual term of registration still commences from 1 November each year. It is again worthy of note that the elite nature of the Premier Youth League and Super Youth League competitions is emphasised in clause 20, which reads:

“Should any applicant not meet the criteria for admission to Premier Youth League, consideration will be given to any applicant within the top four [4] places of Super Youth League that meets the criteria and satisfies the criteria in relation to geographical boundaries. If any club does not satisfy the criteria for Premier Youth League or Super Youth League, irrespective of where their club finishes in the Competition table for the season just completed, then that club will be relegated to a division in keeping with the standard of that division.”

12 This clause might be applicable to meet just such a problem as may be presented by a club which does well in competition in one year, but has lost many of its best players and coaches by the time the following season comes round, so that it can no longer achieve its former high standard. It might also be seen as indicating that compliance with formal criteria may be insufficient to ensure admission to either of the elite levels of competition in the absence of the essential criterion of the achievement of a high standard of soccer. Certainly, in contemplating a necessary replacement of a club at the highest level, it expressly limits that contemplation to the top four clubs in the competition rankings at the level below.

13 Annexed to the circular of 4 July 2003 is a statement of ground criteria in respect of the season 2004, specifying requirements for playing surface, warm-up area, pitch perimeter fence, goal posts, enclosed ground, seating, arrangements for use of home ground, canteen, public address facility, telephone, toilets, car parking, lights, reserve player bench, scoreboard, change rooms and other matters. Again, it is noteworthy that the date as at which compliance must be established is not specified, even in the clause dealing with the right to use the club’s home ground. It is a requirement that evidence of a written agreement for use “must form part of the application for admission [to a Youth League competition]”, but it is not stated whether that agreement may not stipulate for commencement of the use only from the beginning of the ensuing year’s competition. Other provisions, referring to various aspects of maintenance, are plainly directed, not to the state of affairs at the time of application, but to the situation when the ground will be used. Similarly, with regard to perimeter fencing, there is provision that in certain circumstances “the pitch must be roped off in a safe manner on all four sides” – a provision which plainly looks to compliance, not at the date of application, but at the time when a game is being played. The clause dealing with lights reads as follows:

“ Lights – Night Fixtures -
For Premier Youth League lighting installations, when required, must conform to a minimum lighting level of approximately 150 Lux and be subject to inspection by Soccer NSW prior to the commencement of each season. A minimum lighting level of 100 Lux is required for Super Youth League competitions when required. A compliance certificate by a suitably qualified and independent person must be supplied with all applications for admission to any level of Youth League competition.”

14 Several things may be noted about this provision. While the requirement of a compliance certificate with an application for admission to any level of Youth League competition might suggest the provision must be satisfied at the date of application, no criteria to be complied with are stated for Division One, but only for Super Youth League and Premier Youth League, and the inspection referred to will be “prior to the commencement of each season” when, after all, the lights will need to be used. As no standard of lighting is specified for Division One, it might be inferred no lighting is required by clubs in that division.

15 The letter of 1 July 2004 advised that planning was under way for the 2005 season, and contained the following:

“The composition of each Youth league Division, as per Soccer NSW Circulars 03/07 [the Circular of 4 July 2003] and 03/11 [a Circular dated 17 September 2003] will apply.
Should Division [1] Youth League, not have at least ten [10] clubs that meet the specified criteria, those clubs will need to be assessed against the Super Youth League criteria as the next highest division.”

It will be noted that this letter does not suggest that all clubs meeting ground criteria for Super Youth League would be promoted to that Division if there were less than ten clubs in Division One, but that “those clubs will need to be assessed against the Super Youth League criteria as the next highest Division.”

16 Since the letter of 1 July 2004 refers to Circular 03/11 of 17 September 2003 as a document that will apply for the purposes of the composition of each Youth League Division, it is important to observe that this earlier circular, which announced the names of the clubs admitted to the three divisions for the 2004 season, included in the Super Youth League three clubs, and in the Premier Youth League two clubs, “conditional on completing certain works which at the time of reviewing their applications were in progress” and added a requirement that those works were “to reach a defined benchmark by 30 October 2003”, that benchmark being designed to demonstrate that the works “will be fully completed by 31 January 2004”. This makes it quite plain that the Board had in that year reserved, and by referring to that circular intimated that it might take the same approach in the following season, the power to interpret the criteria as capable of satisfaction by a date preceding the commencement of the season, but well after the date of application. The circular also noted that an earlier starting time had been fixed for Division One matches and that this “relates to the lack of satisfactory lighting on many of these grounds”, that is, the grounds used by Division One. This confirms that the ground criteria, which, as I have pointed out, did not specify a light intensity for Division One grounds, were being interpreted as strictly applicable only to the two higher divisions.

17 The memorandum of 2 September 2004 called for the submission of applications for the 2005 season, and stated:

“It is important that applications are fully completed and returned with all supporting documentation as requested to Soccer NSW by Friday 10 September 2004, or be able to provide satisfactory evidence that the club can comply at the time of application…[A]ll applicants are advised that applications best meeting the criteria in all respects will be eligible for primary consideration for Season 2005. In all other respects applications will be considered on the basis of playing performance and future contribution to the further development of the code.”

With reference to the date for return of applications, specified as 10 September 2004, it is noteworthy that on 7 September 2004 the first plaintiff wrote to the Chief Executive Officer of the defendant a letter concerning the ground Hensley Athletic Field, which included the statement:

“Council has allocated $147,000 in the 2004/2005 budget for the installation of lighting to 150 lux standard. The contract has been formalised and the works will be completed by 8 October 2004.”

18 Mr Hoenig, the mayor of the First Plaintiff, was cross-examined on his affidavits. He acknowledged that he was “aware that Mr Waddell could do no more than recommend whether or not the second plaintiff was to be promoted in 2005”. Asked whether he understood “that it would be open to a member of the Board to reject a recommendation that the club be promoted in circumstances where that club was performing very poorly on the paddock”, he responded:

“I knew that [ scil. it] was open to the Board to do whatever it wanted to do.”

Indeed, both in his affidavit of 4 November 2004 and in his evidence in cross-examination, he indicated that Mr Waddell’s response to a question from him, as to whether the ground criteria would be applied by the Board in the manner indicated in the circulars, was to refer to the even balance of interests represented on the Board which had led in his experience to “consistent decisions from the Board for that reason”. The logic of such an answer was clearly, not that a decision in accordance with the criteria was certain, but that it was likely that no private consideration affecting one or more members of the Board would be allowed to override a consistent application of policy. Mr Hoenig may well have found such an answer reassuring, but it was not a promise or a representation that no adverse decision would be given; it was simply a reason to think an inappropriate one would be unlikely. Indeed, Mr Hoenig was asked the question in cross-examination:

“You knew it was possible that the Board of Directors would not accept a recommendation by Mr Waddell, were it to happen, that your club be promoted to the second tier?”

and answered:

“Or even be in a Youth League, yes, I agree.”

19 Evidence was also given for the plaintiffs by Mr James Zammit, the secretary of Sydney University Soccer Football Club and financial controller of the joint representative committee of the Sydney University Eastern Lions. Mr Zammit indicated that part of the reason for his attending the meeting in July 2004 was his concern that failure to perform in the 2004 competition might be a factor in preventing a promotion in 2005. He acknowledged Mr Waddell did say that “[i]f all clubs meet the ground criteria then position on the table will be taken into account”. He acknowledged that he knew the question whether competition would proceed in two divisions or three divisions in 2005 was a matter that “could only be resolved with finality if the Board decided on it.” Accordingly, he understood there was “uncertainty” about it, notwithstanding that he said Mr Waddell asserted there would be only two divisions in 2005. This, of course, is something Mr Waddell denied he had said. His evidence was that he made it clear the decision was not his decision, but the Board’s. At the time, however, the information before the defendant’s officers was that a number of clubs did not comply with the criteria, and I think it is probable Messrs Waddell and McGriskin gave Messrs Hoenig and Zammit to understand that, in their opinion, it was likely there would only be two divisions in 2005 in the Youth League. But this was not certain, both because the final list of applicants could not be known as at July and because the ultimate decision would be that of the Board. I do not believe that Mr Waddell or Mr McGriskin said otherwise. Mr McGriskin in cross-examination acknowledged that he did say ”the likely scenario for 2005 was two divisions of fourteen teams”, but subsequently the Board decided to hold a Division One competition with eight clubs, rather than the ten specified by circular. That was a decision of the Board.

20 Upon these facts, the Amended Statement of Claim propounds, first, a case that each of the plaintiffs is entitled to rely upon an estoppel arising out of the alleged representations made to the effect that applications would be required to comply with the criteria referred to in the circulars, and in particular, that the ground criteria would be strictly applied, and that the defendant was thereby estopped from determining the composition of Youth League competitions for the 2005 season other than in accordance with the application of the criteria, including a strict application of the ground criteria; secondly, that these representations were made in trade and commerce and were false and misleading, so as to attract the operation of s52 of the Trade Practices Act 1974 (Cth); and thirdly, that the second plaintiff was entitled to succeed in contract on the basis that the letter of 1 July 2004, or alternatively the memorandum of 2 September 2004, constituted an offer by the defendant to the second plaintiff to consider an application for entry into Super Youth League provided the second plaintiff complied with the criteria and strictly complied with the ground criteria, this offer having been accepted by the submission of the application and consideration having been provided by the upgrading of the Hensley Athletic field, the defendant’s promise being to consider and determine the application in accordance with the criteria and by strictly applying the ground criteria. On each of these bases, the plaintiffs seek declaratory and injunctive relief, an order for reconsideration of the application in accordance with the criteria, and in particular the ground criteria, and damages.

21 The case bears considerable similarity to the decision of Santow J in Forbes v Australian Yachting Federation Inc. to which I have already referred. Forbes involved the selection of a team to participate in yachting events at an Olympic games. As in the present case, a disappointed team challenged the selectors’ preference for another team which the plaintiffs claimed had failed to meet required criteria, one ground alleged being a contract upon the terms of the announced criteria; an alternative ground set up being an equitable estoppel arising out of representations in respect of the criteria; and a further alternative ground being put forward upon the basis that the same representations were said to have constituted misleading or deceptive conduct in trade or commerce within the meaning of s52 of the Trade Practices Act 1974 (Cth). Although, of course, the circumstances are not identical, and the value of a case as a precedent is limited to questions of principle, much of the reasoning of Santow J seems to me to be applicable to the present case, and I find it, with respect, entirely persuasive.

22 In reaching the conclusion that the criteria in question in Forbes did not constitute contractual terms, Santow J relied upon various factors, some of which may not be thought applicable here. But his Honour’s reasoning (at 284-285) places particular emphasis on his conclusion that the criteria “contain no express prohibition upon their future alteration”, which he found telling when considered against the background of previous changes. This reasoning has clear application to the present case, where, as I have already pointed out, one of the very documents relied upon by the second plaintiff to establish a contract incorporates by reference a statement of the defendant’s decision in the immediately preceding year to accept a number of clubs into the Premier League and the Super League, at a time when the criteria stated that ground criteria would be strictly applied, although their compliance with ground criteria was deficient and was expected to remain so until the following 31 January. Plainly, the criteria were regarded as capable of variation, at least in their application, in the discretion of the defendant, and this appeared from documents which had been sent to the plaintiff club. If to that be added a feature which was not present in the case before Santow J, namely, that the defendant was administering a competition for quite young children and youths, having in itself, despite what was said about the ambitions of the youths to progress to semi-professional soccer as adults, no significant flavour of commerce, in my opinion it should not be found that there was an intention to create in respect of the selection criteria legal relations of the nature of a contract.

23 It is the second plaintiff, a member of the defendant, which advances the contractual claim. In answer to this claim, the view that, in a case of this kind, an enforceable contract would not be created in terms of the relevant selection criteria does not depend upon the single authority of Forbes. The principle was laid down by the High Court in Cameron v Hogan (1934) 51 CLR 358, where the proposition was rejected that the rules of a political party governing the selection of candidates at an election were enforceable contractually. The same approach was adopted to rules governing the affairs of a religious body in Scandrett v Dowling (1992) 27 NSWLR 483 at 506 (per Mahoney JA) and at 513 (per Priestley JA, with whom Hope AJA agreed). This decision was applied to the by-laws of a golf club in Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLC 421, a decision of Young J (as he then was). For the second plaintiff, it was sought to argue that contractual force was given to the compact between itself and the defendant by virtue of s140 of the Corporations Act 2001 (Cth). But s140 says nothing about rules of the kind here in question with respect to a competition organised by an incorporated sporting body.

24 Even if, contrary to my view, the criteria relied upon by the second plaintiff did form part of a contract, the question would remain whether the defendant was in breach of that contract. For reasons which I have already made plain when commenting on the documents put forward by the plaintiffs as containing the terms upon which the second plaintiff’s application should have been considered, it does not seem to me that any breach has in fact been shown. The criteria did not require the admission of the Eastern Lions to Super League notwithstanding their lowly place in the competition table in Division One; and in the light particularly of the letter of 1 July 2004 and the circular of 17 September 2003 incorporated in it, there was no basis for the proposition that the criteria, including the ground criteria, necessarily excluded so many other teams that the Eastern Lions had to be included in a rearrangement of Super League.

25 I turn to the case made by both plaintiffs in reliance upon the doctrine of equitable estoppel. For the same reasons that lead me to the conclusion that there was no breach of contract in this case, even if there was a relevant contract in existence, I reject the case based upon estoppel. In my opinion, the defendant was not shown, when it failed to select the Eastern Lions in the Super League, to have acted in a manner that was contrary, or unconscientiously contrary, to any representation for which it was responsible. At all times it was clear that the levels of competition reflected standards of excellence in playing soccer, so that a team ranked near the bottom of Division One could not expect promotion to Super League even if it did otherwise satisfy the requisite criteria. Their perception of this fact was the very reason Messrs Hoenig and Zammit raised the concerns they did raise in July 2004. Mr Hoenig fairly conceded the point in cross-examination. So far as he and Mr Zammit took comfort in the parlous state of attempted compliance with criteria in which some other clubs then stood, his reliance was on what he saw as the probabilities of that situation, not upon representations made by the defendant. The circulars and letters sent out by the defendant were consistent with the Board having a broad discretion, which it had plainly exercised in the immediately preceding year, as it had advised all clubs including the second plaintiff. The plaintiffs’ argument that other clubs should have been excluded, so as to make room for the second plaintiff’s readmission to Super League, must in my opinion fail for several reasons. In the first place, I am not satisfied that the other clubs admitted were admitted contrary to the criteria. In the second place, if any club was admitted at a time when it failed to meet all of the criteria, I am not persuaded that there is any reason to think the defendant did not exercise the same discretion which it had exercised in the previous year, and of which it had notified the plaintiffs, and in precisely similar circumstances, that is to say, the defendant was at least satisfied that any club admitted would comply before the season commenced. Adherence to the Board’s decision, in the circumstances, could not be described as “unconscionable,” so as to fulfil one of the essential requirements of an equitable estoppel: Forbes at 285 – 289, where the leading Australian authorities are cited. Furthermore, no other club was joined as a party to the proceeding, and it would be quite inappropriate to make an order on the basis that a club not afforded an opportunity to defend its position should have been excluded from the competition to make way for the second plaintiff: cf. the remarks of Santow J in Forbes at 289; and see Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (1998) 195 CLR 1 at 41-42.

26 Even if the evidence did not justify the firm view, to which I have come, that 0the Board’s actions were not contrary to the circulars and letters relied upon, properly understood, there would remain a question whether any representation, expressed or implied, was of such a character as to give rise to an equitable estoppel. It is an important aspect of the doctrine of estoppel that, as it is put in Spencer Bower on Estoppel by Representation, 4th Edition (2003) at 76, “to found a valid estoppel… a representation must be clear and unambiguous, or unequivocal…[I]f the language, conduct or silence is open to more than one reasonable interpretation, only one of which carries the relevant representation, it is ambiguous or equivocal, and will not found an estoppel from denying the substance of the representation.” In a footnote to these statements, reference is made to Onward Building Society v Smithson [1893] 1 Ch 1 where Bowen LJ said at 14: “An estoppel can only be effected by what is express and clear… It would be very dangerous to extract a proposition by inference from the statements of a deed, and hold the party estopped from denying it; estoppel can only arise from a clear, definite statement.” A.L. Smith LJ, in the same case, said at 15: “But inference is not enough to create an estoppel; there must be a distinct positive statement of the fact which is relied on as creating it.” In my opinion, at the very least, a full reading of the circulars and letters relied upon by the plaintiffs reveals that the criteria, including ground criteria, stated in them are not clearly and definitely put forward as plainly having the effect for which the plaintiffs contend. On the contrary, it was at least arguable that, in the circumstances here appearing, the Board was entitled to do precisely what it did.

27 Little need be said about the third way in which the plaintiffs’ cases were propounded. Section 52 of the Trade Practices Act could only apply if the representations were made in trade or commerce and were false or misleading. I have already made it clear that I do not think they were false or misleading. And neither do I think they were made in trade or commerce. Whatever may be said of other aspects of the defendant’s operations, the circulars and letters in question related solely to the organisation of competitions for children and youths, which bore no flavour of trade or commerce: see Forbes at 293, citing Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 602-603.

28 For these reasons, the plaintiffs’ proceeding is dismissed with costs. It is unnecessary to consider a number of additional grounds relied on by the defendant.

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Last Modified: 07/16/2007