Darling Casino Ltd v NSW Casino Control Authority - [1997] HCA 11

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON AND GUMMOW JJ

DARLING CASINO LIMITED v NEW SOUTH WALES CASINO CONTROL AUTHORITY & ORS; F.C. 97/011
Administrative law

(1997) 191 CLR 602

3 April 1997
Administrative law

Administrative law—Judicial review of decisions of Casino Control Authority—Challenge to grant of licence to establish and operate casino—Jurisdictional error—Errors of law—Privative clause—Application of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598—Summary dismissal of proceedings.

Orders

Appeal dismissed with costs.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decision

BRENNAN CJ, DAWSON AND TOOHEY JJ.

1. In our opinion the appellant's attack on the validity of the decision of the respondent Authority to grant a casino licence to Sydney Harbour Casino Pty Limited under the Casino Control Act 1992 (NSW) fails. For the reasons stated by Gaudron and Gummow JJ, we would hold that the Authority's decision was taken in conformity with the general provisions of the Act including ss 9 and 10. It is therefore unnecessary to express any view as to the operation of s 155 of the Act.

2. Although we agree with Gaudron and Gummow JJ that the administrative procedure adopted by the Authority in this case did not affect the validity of the exercise of its power under s 18 to grant a casino licence, it should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. In such a case, an exercise of the power adversely to the interests of the person denied natural justice is liable to be set aside.

3. The examination of the several provisions of the Act undertaken by Gaudron and Gummow JJ shows that that is not the present case. We would dismiss the appeal.

GAUDRON AND GUMMOW JJ.

Introduction

4. This is an appeal from a decision of the New South Wales Court of Appeal (Kirby P, Powell and Cole JJA). The appellant, Darling Casino Limited ("DCL"), is an unsuccessful applicant for a casino licence under the Casino Control Act 1992 (NSW) ("the Act"). The respondents are respectively the New South Wales Casino Control Authority ("the Authority") established by the Act, Sydney Harbour Casino Pty Limited ("SHC") which was the successful applicant for a licence, and the Minister for Gaming and Racing ("the Minister") who is the responsible Minister.

5. DCL sought from the Administrative Law Division of the Supreme Court of New South Wales an order setting aside the grant to SHC, together with injunctive and declaratory relief. SHC applied for summary dismissal of the proceedings, and, alternatively, for the striking out of the amended statement of claim. The primary judge (Hulme J) struck out certain portions of the amended statement of claim with the result that DCL remained at liberty to proceed with some of its claims for judicial review. By leave, an appeal by DCL and cross-appeals by SHC, the Authority and the Minister were taken to the Court of Appeal. The Court of Appeal set aside the orders of Hulme J and ordered that the proceedings be dismissed, on the footing that they were barred by the privative clause in s 155 of the Act.

6. The appeal to this Court raises issues of construction of the Act and the application of the so-called "Hickman"¹ principle in relation to privative clauses. DCL relies upon alleged jurisdictional error and submits that s 155 does not exclude judicial review on this ground.

The Act

7. The object of the Act is to provide for the establishment of one casino and the control of its operations. The Authority is constituted by s 133 of the Act. The functions of the Authority include, inter alia, "at the direction of the Minister, to invite expressions of interest for the establishment and operation of casinos and applications for casino licences and to consider and determine those applications" (s 141(2)(a)). The reference in that section to "casinos" must be read in the light of s 6 which provides that "[o]nly one casino licence may be in force under this Act at any particular time" and a "casino licence is to apply to one casino only".

8. The provisions relevant to the determination of applications for the casino licence are found in Pt 2 of the Act (ss 6-28). DCL relies on two "groups" of provisions: ss 9, 10 and 17 which relate to the scheme of decision-making; and ss 11, 12, and 13 which relate to the necessary considerations in determining applications. Sections 9 and 10 are headed "Authority may invite expressions of interest" and "Application for casino licence" respectively:

"9. (1) At the direction of the Minister, the Authority is to publicly invite expressions of interest for the establishment and operation of a casino and may provide information concerning the requirements for the casino to any person who expresses interest. (1) The same information is to be provided to the persons who express interest in a particular casino, so as not to advantage or disadvantage any interested person. (2) The invitation must be in terms that are consistent with any applicable directions of the Minister under section 7. (3) The invitation need not relate solely to the establishment and operation of a casino but may also relate to any other matter that the Authority considers relevant, such as the development of a hotel or other complex of which the casino is to form part. (4) The Authority is entitled to charge a fee for the provision of information under this section and persons provided with information are to be charged the same fee. (5) The Authority is not to invite expressions of interest except at the direction of the Minister but the fact that the Minister has directed that expressions of interest be invited does not necessarily mean that the Minister will direct the Authority to invite applications for a casino licence. (6) (1) At the direction of the Minister, the Authority is to publicly invite applications for a casino licence and must not invite applications except at the direction of the Minister. (7) The invitation must be in terms that are consistent with any applicable directions of the Minister under section 7. (8) A person is not entitled to make an application for a casino licence unless and until the Authority invites applications and is only entitled to make an application that conforms with the terms of the Authority's invitation. (9) Unless the Authority otherwise permits in a particular case, an application must comply with the following requirements: (10) it must be made in a form approved by the Authority; (11) it must be accompanied by such fee as may be determined by the Authority in respect of applications for the licence concerned; (12) it must contain or be accompanied by such information as the application form requires and such additional information as the Authority may request. ..."

9. The reference to directions of the Minister in those sections picks up s 7 which provides that "[t]he Minister may from time to time give a direction in writing to the Authority" as to various matters (s 7(1)). Sub-section 7(5) states:

(1) "The Authority must exercise its functions under this Act in respect of the grant of a casino licence, the conduct of negotiations and the entering into of agreements in a manner that is consistent with the directions of the Minister under this section."

10. Section 17 is headed "Updating of applications":

"(1) If a change occurs in the information provided in or in connection with an application for a casino licence before the application is determined, the applicant must as soon as possible give the Authority written particulars of the change verified by statutory declaration. (1) Maximum penalty: 50 penalty units[2]. (2) (2) Particulars of any change given by the applicant are then to be considered to have formed part of the original application for the purposes of the application of subsection (1) to any further change in the information provided. (3) (3) This section does not apply to a change in information if the Authority has notified the applicant in writing that the Authority does not require particulars of any change in the information concerned or does not require particulars of the type of change concerned."

11. The second cluster of provisions upon which DCL founds its case begins with s 11 which is headed "Matters to be considered in determining applications":

"In considering an application for a casino licence, the Authority is to have regard to the following matters: (1) the requirements of section 12 (Suitability of applicant and close associates of applicant); (2) the standard and nature of the proposed casino, and the facilities to be provided in, or in conjunction with, the proposed casino; (3) the likely impact of the use of the premises concerned as a casino on tourism, employment and economic development generally in the place or region in which the premises are located; (4) the expertise of the applicant, having regard to the obligations of the holder of a casino licence under this Act; (5) such other matters as the Authority considers relevant."

12. The reference in s 11 to s 12 picks up the requirements of that section as a relevant and mandatory consideration for the Authority in determining an application for the casino licence. Section 12 is headed "Suitability of applicant and close associates of applicant":

"(1) The Authority must not grant an application for a casino licence unless satisfied that the applicant, and each close associate of the applicant, is a suitable person to be concerned in or associated with the management and operation of a casino. (1) For that purpose the Authority is to consider whether: (2) each of those persons is of good repute, having regard to character, honesty and integrity; and (3) each of those persons is of sound and stable financial background; and (4) in the case of an applicant that is not a natural person, it has or has arranged a satisfactory ownership, trust or corporate structure; and (5) the applicant has or is able to obtain financial resources that are both suitable and adequate for ensuring the financial viability of the proposed casino; and (6) the applicant has or is able to obtain the services of persons who have sufficient experience in the management and operation of a casino; and (7) the applicant has sufficient business ability to establish and maintain a successful casino; and (8) any of those persons has any business association with any person, body or association who, in the opinion of the Authority, is not of good repute having regard to character, honesty and integrity or has undesirable or unsatisfactory financial sources; and (9) each director, partner, trustee, executive officer and secretary and any other officer or person determined by the Authority to be associated or connected with the ownership, administration or management of the operations or business of the applicant or a close associate of the applicant is a suitable person to act in that capacity." 13. The term "close associate" is defined in s 13 as follows:

"(1) For the purposes of this Act, a person is a 'close associate' of an applicant for, or the holder of, a casino licence if the person: (1) (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the casino business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Authority) to exercise a significant influence over or with respect to the management or operation of that casino business; or (2) (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the casino business of the licence applicant or holder."

14. Sub-section (2) goes on to define the terms "relevant financial interest", "relevant position" and "relevant power".

15. It remains to refer to further relevant provisions. The Authority is empowered to determine applications by s 18. This states:

"(1) The Authority is to determine an application by either granting a casino licence to the applicant or declining to grant a licence, and is to inform the applicant accordingly. (1)A licence may be granted subject to such conditions as the Authority thinks fit. (2)The Authority is not required to give reasons for its decision on an application but may give reasons if it thinks fit. (3)If a licence is granted, it is granted on the terms (including a term as to the period for which it is in force), subject to the conditions and for the location specified in the licence."

16. The final provision to which it is necessary to have regard at this time is the privative provision. Section 155(1) relevantly provides:

"Except as otherwise provided in this section, a decision of the Authority under this Act is final and is not subject to appeal or review."

17. It will be convenient to set out the remainder of s 155 later in these reasons.

The facts

18. The Supreme Court Rules 1970 (NSW)[3] permitted the primary judge to receive evidence on the strike-out application. The evidence before Hulme J enables the history of the matter to be outlined. In May 1993 the Authority issued an "Invitation Document" wherein it invited both expressions of interest for the establishment and operation of a temporary and permanent casino and applications for a casino licence. In response to that document DCL and SHC, among others, lodged with the Authority expressions of interest and applications for a casino licence.

19. In July 1993, the Authority issued a document entitled "Brief to Applicants" ("the Brief"). The Brief provided extensive detail as to the selection process and the requirements of applications. Between the issue of the Brief and April 1994 the Authority issued 37 addenda amending the Brief. During this time the selection process continued. In August 1993, the Authority announced that four applicants (including DCL and SHC) were under consideration. In December 1993, the Authority announced that the field had been reduced to three.

20. At the end of January 1994, the Authority announced that it had decided to shortlist two applicants, those two being DCL and SHC. Negotiations continued between the Authority and the two applicants. In April 1994, both DCL and SHC lodged final financial bids, design amendments and executed legal documents including a "Compliance Deed". In May 1994, the Authority announced that both DCL and SHC had satisfied the Authority's requirements, but that SHC had been chosen by the Authority as the "Preferred Applicant". The casino licence was not yet granted.

21. In August 1994 the Authority determined to hold a public inquiry into the probity of the corporate sponsors of SHC. It was empowered to do so under s 143 of the Act. SHC had two shareholders. One was a subsidiary of a United States casino operator, the Showboat Group of Companies ("Showboat") and the other was Leighton Properties Pty Limited ("Leighton Properties"), a wholly owned subsidiary of Leighton Holdings Limited ("Leighton Holdings"). Together with Leighton Contractors Pty Ltd ("Leighton Contractors") these companies formed part of the Leighton Group of Companies ("the Leighton Group"). There were allegations that the Leighton Group had been involved in a practice of issuing false invoices and charging undisclosed tender fees in the course of its activities in the New South Wales building industry. The inquiry was presided over by Mr M H Tobias QC, a member of the Authority. In December 1994, Mr Tobias presented a report of the results of his inquiry to the Authority, which report was made public on 15 December 1994. He concluded that, by reason of the influence of certain officers, Leighton Holdings, Leighton Contractors and Leighton Properties were not of good repute.

22. On 14 December the Authority resolved various decisions which were announced on 15 December in two documents: a "Media Release" and a "Background Paper". In the Background Paper the Authority adopted the findings of Mr Tobias, concluding that the Leighton Group was not of good repute. The Authority, however, found that the Leighton Group had ceased to be a close associate of SHC by reason of the placing of its shareholding and management interests in a trust with National Mutual Trustees Limited as trustee. Pursuant to that trust the trustee was required, inter alia, to dispose of the Leighton Group's shares and management interests in SHC within five years, to refrain from exercising any voting rights or influencing the appointment of directors, and was required to accumulate all income derived from the Leighton Group shares to be part of the asset ultimately sold.

23. In the Media Release the Authority announced that it had resolved that SHC's application for the casino licence be accepted and a licence be granted to it. The Authority further resolved to determine DCL's application by declining to grant it a licence. Both of those resolutions were pursuant to s 18 of the Act. Those are two of the decisions of which DCL complains.

24. There is a third "decision" which DCL impugns in these proceedings. At some stage in December 1994, prior to the grant of the licence to SHC, DCL alleges that the Minister approved variations to the agreements earlier entered into between SHC and the Authority[4]. Such approval was pursuant to s 142(1) of the Act which provides:

"With the approval of the Minister, the Authority may conduct negotiations and enter into agreements on behalf of the State for or in connection with the establishment and operation of a casino and any development of which a casino or proposed casino forms part."

25. It will be necessary to refer in greater detail to aspects of matters alleged by DCL but for present purposes it is important to identify the three documents mentioned above which are the pivot for DCL's submissions. These are the Invitation Document, the Brief, and the Background Paper. In essence, the first two documents establish the scheme of decision-making which DCL says miscarried, and the third document is the nearest thing to the "reasons" for decision of the Authority which is available to DCL.

The proceedings

26. On 15 December 1994, DCL commenced proceedings by summons and statement of claim in the Administrative Law Division of the Supreme Court of New South Wales. DCL sought orders, inter alia, quashing the grant of the casino licence to SHC and directing the Authority to determine the applications of DCL and SHC according to law.
27. As we have indicated, the Court of Appeal, by orders entered 14 November 1995, set aside the orders of Hulme J and in lieu thereof ordered that the proceedings be dismissed.

28. In reaching that decision Cole JA, with whom Kirby P and Powell JA agreed, considered only the argument addressed to the Court of Appeal concerning the contention of SHC, the Authority and the Minister that s 155 of the Act precluded the Court from reviewing the challenged decisions. The challenged decisions, it will be remembered, are the decision of the Authority to grant SHC the casino licence, the decision of the Authority to refuse DCL's application for the casino licence, and the Minister's approval of variations to the agreements between the Authority and SHC. Cole JA said:

"[Section] 155 prohibits the challenge contained in the summons and statement of claim to the three decisions of the Authority there challenged. In consequence the proceedings should have been, and must be, dismissed."

29. This statement appears to confuse the third decision, that of the Minister, for a decision of the Authority. However, the statement accurately reflects the basis of the orders of the Court of Appeal.

The appellant's contentions

30. As we have indicated, in this Court DCL relies upon jurisdictional error to which it submits s 155 does not apply. DCL accepts that if it fails to show jurisdictional error in relation to the conditions for the exercise of power under s 18 of the Act the appeal must be dismissed. It makes no submission in respect of any other ground of review, such as want of procedural fairness. Accordingly, the only ground of review to which we attend is the alleged jurisdictional error.

31. Before this Court DCL sought to isolate two errors of the Authority to which s 155 would not apply. As we understood it, the submission involved a three-stage process. At the first stage DCL sought to make out errors said to have been committed by the Authority in reaching its decisions. At the second stage there was a submission that these errors were in relation to conditions for the exercise of power under s 18 of the Act. The third stage of the argument was to demonstrate that the decision was not protected by the privative clause in s 155.

32. What then, in terms of the first stage of the reasoning, were the errors which the appellant alleges were committed by the Authority? In the amended statement of claim the decisions were attacked on a number of bases but in this Court the appellant limits itself to two. First, DCL submits that alterations made to SHC's application after the Authority had nominated it "preferred applicant" caused the Authority's decisions under s 18 to miscarry. Second, DCL contends that the Authority failed to carry out the functions necessary in determining the probity of SHC and its close associates after the Leighton Group trust arrangement was put in place.

33. The appellant, in its outline of submissions (par 7), stated that "[i]f those both fail, the appeal challenging the decisions ... will have failed." That concession indicates the preferable approach to the issues raised by the appeal: there must be an error shown before it is necessary to consider the conditions of the exercise of power under s 18 and any immunising effect of s 155. This differs from the approach of the Court of Appeal which considered only the question at the third stage, determining it in such a way that the other questions were unnecessary to answer. Accordingly, the first step is to determine what, if any, errors were made by the Authority.

34. These matters were before the primary judge on a strike-out application, not a final hearing. Nevertheless, upon such an application the Court may decide that the case is so clearly untenable in law that it cannot possibly succeed at trial[5]. In such cases, an order in effect finally disposing of the proceeding may properly be made.

35. Further, on appeal to this Court it may appear that the intermediate appellate court should have allowed the appeal on the footing that the primary judge erred in not acceding fully to the strike-out application, and, in particular that, if the action were to be sent to trial, the plaintiff would be bound to fail because the trial judge would be obliged to apply this Court's decision as to the proper construction of the critical provisions of the legislation in issue. In such circumstances this Court may make orders finally disposing of the proceedings[6]. Counsel for the Authority and the Minister submitted that this course should be followed here. Those submissions should be accepted.

36. Upon this basis we turn to consider, in turn, the categories of alleged error by the Authority.

Alterations made to SHC's application after its selection as "preferred applicant"

37. The appellant points to three alterations which were made to SHC's application after its selection as "preferred applicant". These were changes in the corporate structure of SHC, changes in the time for the payment of the lump sum to the Authority and changes to the building design. These changes are said to found an error in relation to all three decisions. The third decision, that of the Minister approving the alterations, stands or falls with the propriety of the decisions of the Authority which were based on allowing the alterations. It was conceded by counsel for DCL that "if we fail on the other issues, the Minister's decision does not matter"[7].

38. The allowance of these alterations was said by the appellant to constitute a reviewable error by the combined operation of, on one hand, the Invitation Document and the Brief and, on the other, ss 9(2) and 10(3) of the Act.

39. The appellant's submissions rely, in different ways, on the Invitation Document and Brief. The Invitation Document sets out in a section headed "ASSESSMENT PROCESSES" the various "PROJECT STAGES" to be adopted in the review and assessment of applications. There were to be three stages and it was expressed that:

"[t]he requirements of each stage must be fully complied with and an Applicant must have submitted a complete Application strictly in accordance with the Authority's requirements before the Successful Applicant will be determined."

40. Stage 1 requires invitees to lodge expressions of interest and applications following which they will be forwarded the Brief. The Invitation Document began:

"Pursuant to directions issued under sections 9(1) and 10(1) of the Act, the Authority hereby publicly invites: . expressions of interest for the establishment and operation of the Temporary Casino to be followed by the Permanent Casino and any other related development pursuant to sections 9(1) and 9(4) of the Act; and . applications for a Casino Licence pursuant to section 10(1) of the Act."

41. Expressions of interest and initial applications were rolled into one under this scheme. Stage 2 was expected to have several phases. The appellant draws particular attention to the phase which is expressed to involve the following:

"Applicants will be required to provide full details as to their corporate structure, proposed capital formation, management expertise and, ultimately, their detailed design concepts and their proposed once only lump-sum payments."

42. This list picks up the three matters of which the appellant complains: corporate structure; building design; and the timing of the lump sum payment. The Invitation Document further provided that applicants would be given "the opportunity to update their Applications in consultation with the Authority prior to a short-list ... being determined". Stage 3 was described as "Short-listing of Applicants" and included the following:

"Stage 3 will culminate in the short-listed Applicants being given the opportunity to further update their Applications prior to the Authority making its final determination as to the Successful Applicant."

43. The appellant points to a general provision in the Invitation Document that:

"[a]n Application will be a continuing process, each stage of which must be complied with in full and on time by the Applicant in order for there to be a full and complete Application, strictly in accordance with the Authority's requirements." 44. The Invitation Document contemplated variation of terms:

"The Authority reserves the right (in its absolute discretion) to vary or supersede the Invitation Terms or the Brief by written notice issued by the Authority at any time after initial lodgement of Expressions and Applications."

45. The terms were varied by the Brief itself in one major respect. The concept of a "preferred applicant" was introduced by the Brief. "Preferred Applicant" is defined by the Brief to mean "an Applicant selected from the Short-Listed Applicants as being the preferred Applicant to be further considered for determination as the Successful Applicant". It may be noted that that concept finds no life in the Act. Mr Tobias, in his Report said[8]:

"It is important to note that the nomination of a Preferred Applicant is not recognised in the Act but was an administrative decision of the Authority to nominate a casino licence applicant to whom it would grant a licence, subject to compliance by that applicant with all relevant legal, administrative and statutory requirements and obligations."

46. It is DCL's contention that it remained the position that final applications had to be made before the selection of a preferred applicant.

47. The Brief describes Stage 3 as follows:

"In Stage 3, the Authority will establish a short-list of Applicants. Short-listing will take place following an assessment of each Application against the assessment criteria contained in the Brief and related documents. This Stage is expected to culminate in Applicants making final bids and updating their Applications following which the Authority will select a Preferred Applicant."

48. After nomination as preferred applicant, the Brief provides that "[s]ubject to compliance with relevant conditions applicable following the selection of the Preferred Applicant, that Applicant will be determined to be the Successful Applicant and then granted the Casino Licence". DCL also points to the Brief at par 4.5.1:

"The Authority's intention is that Applicants should comply strictly with the timeframes and procedures set down for the Project."

49. It is subsequently provided in the Brief that the Authority may consider requests for extensions of time for compliance with the Authority's requirements "up to the stage of selection of the Preferred Applicant".

50. After alleging changes made to SHC's application and identifying certain parts of the Invitation Document and the Brief, DCL refers to two provisions of the Act. First, s 9(2) which, it will be remembered, provides that "[t]he same information is to be provided to the persons who express interest in a particular casino, so as not to advantage or disadvantage any interested person". DCL submits that there must have been "information", in the relevant sense, given to SHC that the Authority was prepared to allow fundamental changes to the application even after selection as "preferred applicant". DCL says that it was not provided with this information and accordingly there was a breach of s 9(2).

51. The second provision which is relied upon by DCL is s 10(3). This states that "[a] person ... is only entitled to make an application that conforms with the terms of the Authority's invitation". DCL contends that the Invitation Document and the Brief together formed the "invitation" in the relevant sense and that the changes made to SHC's application were not in conformity with the terms of those documents.

52. The primary judge agreed with a submission by SHC that there could be no duty to adhere to the selection process laid down in the Invitation Document and the Brief, "[e]xcept insofar as the Act may operate on or give force to the ... two documents". However, his Honour held reservations as to the effect of s 10(3) in this regard, stating that "it is arguable that the Sub-section also imposes obligations or restrictions on the Authority". The submission of the appellant in this Court in relation to s 9(2) perhaps flows from a suggestion made by Hulme J that "a variation in Invitation Terms notified to less than all applicants might well amount to a breach of Sub-section 9(2)". His Honour continued:

"Whether or not the 'information' referred to is restricted to the 'information concerning the requirements for the casino' referred to in Sub-section 9(1) it seems to me reasonably arguable that the information will include requirements of the Authority as to physical limitations, the facilities to be provided, compliance with planning instruments and attributes of an applicant and the applicant's close associates."

53. Hulme J refused to strike out the relevant paragraphs alleging these matters in the amended statement of claim:

"Because this claim is based on at least one provision of the Act expressed in mandatory terms, it is not appropriate on this application to resolve any interrelationship between this claim and Section 155."

Section 9(2)

54. DCL's submission based on s 9(2) is flawed. It involves permitting the Invitation Document to overcome the terms of the Act. No complaint has been made as to the direction of the Minister conflating the stage of expressions of interest with the stage of applications. What was done may have been consistent with the Act, but only in the sense that it could not have overridden any requirements of the Act.

55. The scheme of the Act provided for two distinct stages for expressions of interest and applications. At each stage certain requirements were laid down. The requirements of the "expressions of interest" stage were provided in s 9 and the requirements of the "application" stage by s 10 and following sections. Section 9(6) contemplates that the "expression of interest" stage may be the end of the matter. The Minister need not direct the Authority to invite applications for a casino licence, even though expressions of interest were invited. The structure of the Act supports the construction of s 9 and s 10 as distinct stages and the work of s 9 is completed once applications are invited under s 10. This is confirmed by reference to the respective headings of the sections. Section 9 is headed "Authority may invite expressions of interest" and s 10 is headed "Application for casino licence"[9].

56. Gibbs CJ in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd stated that the "words of any statutory provision must be first read in the context provided by the statute as a whole"[10]. There is persuasive indication from the context of s 9 that its requirements relate solely to the "expressions of interest" stage. Section 9(1) allows the Authority to "provide information concerning the requirements for the casino to any person who expresses interest". Sub-section (2) limits the provision of such information, namely information concerning the requirements for the casino, so that the same information is provided to all parties who express interest. This equality of information is "so as not to advantage or disadvantage any interested person" (emphasis added). The use in that sub-section of the term "interested person" is instructive. Although the term is not defined, it apparently is to be distinguished from the term "applicant" as used in sections acting on the post-application stage. It is difficult to see that a person remains "interested" even after the application stage. At that point persons either become "applicants" or disappear from the selection process. It could hardly be expected that persons who expressed interest but decided not to apply for a licence would continue to be provided with the "same information" as those who did so apply.

57. The submission by DCL fails at the threshold in relation to s 9(2). There is thus no necessity to answer the question of whether the "information" alleged to have been provided unequally was information of the character contemplated by s 9(2). As mentioned, the "information" to be provided is limited to that "concerning the requirements for the casino". "[C]asino" is defined in s 3(1) to mean "premises, or part of premises, defined as a casino for the time being under section 19". DCL claims not to have received information as to the willingness of the Authority to accept alterations in applications after nomination as a preferred applicant. Without deciding this issue we would observe that the information of which DCL claims to have been deprived is more readily characterised as information concerning the requirements of the application or of the Authority.

Section 10(3)

58. DCL sought to show that SHC's application, while it had initially been in conformity with the terms of the invitation, subsequently lost that status by reason of the alterations made to the application after the nomination of SHC as preferred applicant. DCL's submission sought to use s 10(3), in effect, to give statutory force to the Invitation Document and the Brief. A person was only "entitled" to apply in such a way as to "conform" with the "terms" of those documents. SHC had not so conformed, was thus not entitled to apply, and the Authority was not entitled to grant the application.

59. The respondents attack the argument at several levels. First, they say that s 10(3) does not have the effect contended for. They point to the word "entitled" as indicative simply of a situation where the Authority is not bound to deal with an application which a person was not entitled to make. That submission should be accepted as putting the proper construction of the provision.

60. That construction is confirmed when s 10(3) is read in the context of s 10(4). Section 10(4) provides that applications "must comply" with certain requirements. Those are that the application must be in a form approved by the Authority (par (a)), must be accompanied by the fee prescribed by the Authority (par (b)), and, crucially, "must contain or be accompanied by such information as the application form requires and such additional information as the Authority may request" (par (c)). Section 10(4) provides for certain "requirements" of applications. It may be noted that applications "must comply" with those requirements "[u]nless the Authority otherwise permits in a particular case". There is given the Authority a specific power of dispensation from any requirements under s 10(4) of the Act.

61. In the light of that power of dispensation it makes little sense to say, as DCL submits, that s 10(3), when it speaks of the entitlement of a person to apply in accordance with the terms of the Authority's invitation, implies that the Authority may not dispense with such conformity. The Act did not intend to prevent the Authority from considering an application which did not strictly conform to the terms of its invitation.

62. Indeed, various provisions of the Brief and the Invitation Document indicate that one of the "terms" of the "invitation" in the sense of s 10(3) was that the Authority could consider a non-conforming bid at its discretion. Part of cl 5 of the Invitation Document provided:

"The Authority will not be obliged to entertain any Expression or Application unless it is a full, accurate, proper and bona fide Expression or Application prepared and delivered in accordance with this Invitation Document or, where appropriate, the Brief. ... False, misleading or incomplete information could result in the Authority declining to grant a Casino Licence to that Applicant" (emphasis added).

63. The portions of that clause which we have emphasised assume a power of the Authority to dispense with strict conformity. The Brief is introduced in cl 1.4 of Pt B as follows:

"The Brief documentation has been structured so as to enable Applicants to prepare submissions which meet the Authority's basic criteria, and thus facilitate the assessment process, but the Authority would accept additional information considered by Applicants to be relevant to their Applications for the Casino Licence."

64. No temporal limitation is placed on this ability of the Authority to accept "additional information". Clause 2.1 of Pt D of the Brief provided:

"Applications must comply in all respects with the Brief provided that if in the Authority's sole opinion an Applicant has lodged a bona fide Application and has used its best endeavours to ensure such Application complies in all respects with the Brief, then at the Authority's sole option, the relevant Application may be deemed to comply with the Brief."

65. Next, the respondents submit that there was no disconformity between the "invitation" and the application of SHC. This submission splits into two. First, it is argued that the initial application did conform with the invitation. DCL concedes this. Second, changes which were subsequently made were in conformity with the provisions by which changes were allowed by the Act and by the "invitation". We accept this submission.

66. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J noted as a general proposition "that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made"[11]. His Honour continued:

"But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker."

67. There is nothing in the Act to suggest that this general principle does not apply to the Authority making a determination of a casino licence application under s 18. It will be remembered that s 17 is concerned with the bringing of applications up to date. It contemplates that there will be changes to the information provided in connection with an application at any time "before the application is determined" (sub-s (1)). The determination there referred to is a determination under s 18 of the Act, and not a determination of a "preferred applicant" pursuant to the Brief. Sub-section (2) provides that "[p]articulars of any change given by the applicant are then to be considered to have formed part of the original application". DCL endeavoured to limit these provisions to passive changes, that is, changes beyond the control of the applicant. DCL eschewed any reading of s 17 which would make it a "charter for change". However, there is no warrant to read down s 17 in that way, especially in the light of the general principle enunciated by Mason J in Peko-Wallsend.

68. Change is expressly contemplated elsewhere in the Act. For instance, s 7 provides that the Minister may "from time to time" give directions to the Authority, which the Authority is bound to follow. The Minister "may vary or revoke a direction by a further direction" (s 7(4)). Section 10(4)(c) contemplates the changing nature of applications by requiring that an application "must contain or be accompanied by ...such additional information as the Authority may request".

69. These are clear indications in the Act that applications were not to be immutably fixed after a certain point, but were subject to change and negotiation under the broad discretionary regime within which the Authority was to act. It is doubtful whether the Authority could have overridden s 17 by restricting change after selection of a "preferred applicant". However, it is evident that it did not purport to do so. Clause 9.1 of Pt D of the Brief provided:

"The Invitation Terms (including the Brief) are in addition and without prejudice to any person's rights and obligations under the Act."

70. It is made clear in cl 7.1 of Pt D of the Brief that:

"[t]o the extent that there is any inconsistency or conflict between the Act, the Invitation Document, the Brief, or the Invitation Terms, the following priority shall apply to the extent of any such inconsistency or conflict: (1) the Act shall take precedence over all else; (2) the Brief shall take precedence over the Invitation Document; (3) Invitation Terms made later in time shall take precedence over those made earlier in time."

71. Further, even if the terms of the Brief and Invitation Document were capable of restricting s 17 of the Act and were intended to be capable of doing so, it is evident that neither document in fact did so restrict s 17. Change to applications after the nomination of a preferred applicant appeared to be left open. The terms of the invitation were themselves subject to change. Clause 8.1 of Pt D of the Brief provided:

"The Authority may from time to time at its discretion and without giving reasons add to, supplement or vary the Invitation Terms either generally or in relation to particular Application(s) by notice in writing".

72. The Brief also made clear that:

"as the selection of the Successful Applicant is to be undertaken on a continual competitive bidding basis, as opposed to a tender in the strict sense, the assessment process and timeframes may need to be altered or adjusted from time to time in order to meet the exigencies existing at particular stages of the Project" (cl 4.5.2, Pt B).

73. Such changes to invitation terms necessarily comprehend changes to applications. The possibility of unilateral change to applications is confirmed by cl 4.1 of Pt D of the Brief which picked up s 17 of the Act:

"If a change occurs in the information provided in or in connection with an Application before the Application is determined the Applicant must, as soon as possible, give the Authority written particulars of the change." (emphasis added)

74. This provision contemplates change in applications up to the determination of the application. It will be remembered that the application is not "determined" at the preferred applicant stage.

75. It is apparent that there has been no failure by the Authority to conform with the requirements of either s 9(2) or s 10(3). We turn now to consider the second category of error alleged by DCL.

Probity assessment

76. DCL seeks to show that it was at least arguable that the Authority committed an error in its determination that the Leighton Group was no longer a "close associate" of SHC. Section 11(a) provides that the Authority must have regard to "the requirements of section 12". Section 12 lays down various matters which go toward a determination that the applicant and each close associate of the applicant "is a suitable person to be concerned in or associated with the management and operation of a casino". DCL places particular reliance on s 13 which provides the definition of "close associate". Section 13(1)(a) provides that a person is a close associate if two conditions are fulfilled. The first condition is expressed in the alternative and provides that a person will be a close associate who:

"holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the casino business of the licence applicant or holder".

77. It is only "relevant financial interest" which is alleged in this case, and it is defined in sub-s (2)(b) to mean:

"any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise".

78. The second condition is expressed as follows:

"and by virtue of that interest or power is or will be able (in the opinion of the Authority) to exercise a significant influence over or with respect to the management or operation of that casino business".

79. DCL then points to the Background Paper which was released on 15 December 1994 upon the announcement of SHC as the successful applicant. DCL relies upon the following statement as indicating error in the application of s 13:

"Within the last few days the Leighton Group and its officers were quarantined from being concerned in or associated with the management and operation of the Sydney Casino. In other words, they have ceased to be close associates of Sydney Harbour Casino. The quarantining does not affect the development and building obligations of the Leighton Group."

80. This statement is said to indicate that the Authority performed only part of the function which was required of it by s 13. In identifying the precise nature of this failure one encounters a discrepancy between the issue raised in the amended statement of claim and that contended for by DCL before this Court.

81. DCL's allegations as to the misapplication of s 13 appeared in pars 93 and 101 of the amended statement of claim. In par 93 it is asserted that "[i]n concluding that Leighton and its officers ceased to be close associates of" SHC, the Authority "misconstrued and misapplied" ss 12 and 13 in various ways. One way, expressed in par (a), was as follows:

"[I]n considering whether Leighton and its officers were able to exert a significant influence over or with respect to the management or operation of [SHC's] casino business, the [Authority] erroneously confined its attention and consideration to the legal form of The Trust and, in particular, the absence of voting rights and did not address or consider practical or commercial ways in which Leighton and its officers could exercise relevant significant influence".

82. In addition, par 101 of the amended statement of claim alleged that the Authority's decision to grant the licence was "unreasonable" for failure to give adequate weight to various matters, including:

"(a) ... Leighton remained a 'close associate' of [SHC] despite The Trust; ... (1) Leighton's financial interest in [SHC]; (2) Leighton's association or connection with the ownership, administration or management of the operations or business of [SHC] and its close associates of [SHC]; ... (3) the practical and commercial ways in which Leighton was able to exercise significant influence over or with respect to the management or operation of [SHC's] casino business".

83. Hulme J struck out par 93(a) of the amended statement of claim for the following reason:

"[T]he suggested need to address the 'practical or commercial ways' in which Leighton and its officers could exercise significant influence over the management and operation of the Casino ignores the words in Section 13(1)(a) 'by virtue of that (financial) interest or power'. Absent a relevant interest or power, practical or commercial influence does not make a person a 'close associate' within Section 13."

84. This recognises the two-stage definition in s 13(1)(a). By saying that the second stage never arose because the first stage was not made out, his Honour appeared to apply the definition of "relevant financial interest" to exclude the Leighton Group's interest under the trust arrangement.

85. Hulme J also struck out par 101. This was partly for the reason that the Leighton Group "had no 'relevant financial interest'". However, his Honour also said:

"The requirement ... of the definition of 'close associate' ... depends on the opinion of the Authority and there is nothing to suggest that the Authority had the requisite opinion."

86. Paragraph 93(a) of the pleading assumes that the Authority did consider the issue of exertion of influence, albeit wrongly. However, before us, counsel for DCL contended that the Authority failed to consider that issue at all. The submission was that because the Leighton Group was entitled to income from the shares and partnership interest, it had a relevant financial interest, and accordingly the Authority was required, and failed, to consider whether the Leighton Group was, or would be, able by virtue of that interest to "exert a significant influence over or with respect to the management or operation of [that] casino business".
87. It was noted in the Background Paper that:

"all income derived by the trustee from the Leighton Group shares and partnership interest is to be accumulated in the trust and will form part of the assets to be sold".

88. We are prepared to assume that, as DCL contends, it was at least arguable that the Leighton Group held a "relevant financial interest" by reason of the trust arrangement. Counsel for the Authority before this Court was prepared to assume, if not concede, a relevant financial interest. On that assumption, it became necessary for the Authority to consider the second stage of the definition provided in s 13(1)(a). The appellant says that this consideration either took place on the wrong basis (statement of claim, par 93) or did not take place at all. We agree with Hulme J that there is nothing in the Background Paper to suggest such a conclusion.

89. The determination of the casino licence was made under s 18(1). By s 18(3), the Authority "is not required to give reasons for its decision on an application but may give reasons if it thinks fit". Whether the Background Paper upon which DCL relies so heavily may properly be characterised as "reasons" is debateable. The Authority warned at the beginning of the Background Paper that it "would not be appropriate to detail every consideration given the multi-faceted nature of [SHC's] Application". In any case, the principles recently considered by this Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[12] are applicable to ensure recognition of the fundamental principle "that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned". The Background Paper must be read accordingly.

90. The second condition of s 13(1)(a) is subjective in the sense that the opinion of the Authority is necessary as to the ability of a person to exercise significant influence by virtue of relevant financial interest or relevant power. In Buck v Bavone, Gibbs J said[13]:

"[W]here the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached".

91. That statement correctly identifies the difficulty faced by DCL in the present case. There is nothing to indicate that the Authority failed to consider the question of influence. The Authority said that the Leighton Group had been "quarantined from being concerned in or associated with the management and operation of the Sydney Casino". The use in that passage of the terms "management and operation" picks up and seems to refer to the language of the second condition of s 13(1)(a). Elsewhere in the Background Paper, the Authority noted:

"After detailed and lengthy consideration the Authority is satisfied that the suitability of Sydney Harbour Casino and its close associates to be concerned in or associated with the management and operations of the Casino is not affected by the nature of the limited continuing business association with the Leighton Group. In this respect, the only continuing direct business association is the development and building obligations of the Leighton Group."

92. The factor of "business association" was something the Authority was required to consider under s 12(2)(g). Within that consideration was wrapped up the issue of whether Leighton Group was such a close associate or whether there was only a business association. There is nothing suggested to impugn the statement of the Authority that there had been "detailed and lengthy" consideration of SHC and its close associates.

93. The appellant has failed to make out any error in the application of s 13 by the Authority. It is thus apparent that the appellant's case fails at the first hurdle. In these circumstances, it would "be contrary both to good sense and to justice"[14] now after the full argument which leads to this conclusion to permit the action to go to trial. The appeal to this Court should be disposed of accordingly.

94. It is unnecessary to consider the second and third stages of the appellant's argument. However, in deference to the fullness of argument on the point and the basis of the Court of Appeal's decision we wish to express some view upon the operation of s 155 upon the circumstances of this case.

The privative clause

95. Section 155 is in the following terms:

"(1) Except as otherwise provided in this section, a decision of the Authority under this Act is final and is not subject to appeal or review. (1) A person aggrieved by a decision of the Authority to cancel or suspend a casino licence or to amend the conditions of a casino licence may appeal from the decision to the Supreme Court on a question of law. (2) The Supreme Court is to hear and determine the appeal and make such order as it thinks appropriate by reason of its decision, including, without limiting the Court's power to make such orders: (3) an order affirming or setting aside the decision of the Authority; and (4) an order remitting the matter to the Authority to decide again in accordance with the directions of the Court. (5) Proceedings or an appeal in respect of a decision of the Authority do not operate to stay the decision appealed from unless the Supreme Court otherwise orders."

96. SHC, the Authority and the Minister submit that even if the Authority erred, as DCL submits, in the two decisions said by DCL to have been made under s 18 of the Act, they were decisions rendered by s 155 "final" and "not subject to appeal or review".

97. In that regard, submissions were made as to the significance for this case of the reasoning of Dixon J in R v Hickman; Ex parte Fox and Clinton[15]. In that case, Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not "considered invalid if they do not upon their face exceed the ... authority [conferred by the legislation in question] and if they do amount to a bona fide attempt to exercise the powers [conferred] and relate to the subject matter of the [legislation]"[16]. A little later, he explained that such clauses "have a protective operation upon the action of [decision-makers] acting irregularly or outside their formal authority"[17].

98. So far as concerns impugned exercises of power, the Hickman principle allows the privative clause to operate in the fashion identified by Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd[18]:

"The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded[19]".

99. However, a privative clause will sometimes, although, perhaps, not often, protect against a refusal or failure to exercise power[20]. In that situation, it treats the refusal or failure as if there were no obligation to exercise the power in question. And by withdrawing the jurisdiction of the courts to review, it operates to reduce the scope of the decision-maker's duty. In both situations, the privative clause operates, in effect, to recast the legislative provisions which confer the power in question and which condition its exercise.

100. It is to be remembered that the Hickman principle is a rule of construction. This does not appear fully to have been appreciated in the Court of Appeal in the present case. Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle which seeks to reconcile "the prima facie inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and another provision, the privative clause, which seems to contemplate that the [decision] shall operate free from any restriction"[21]. Rather, it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickman principle requires that it be "resolved by reading the ... provisions together and giving effect to each"[22]. However, there are anterior questions: the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency.

101. Certain matters need to be borne in mind in ascertaining the extent of the inconsistency of the relevant provisions of an enactment containing a privative clause. First, it is well settled that a privative clause cannot oust the jurisdiction of this Court to review decisions and orders which exceed Constitutional limits[23]. Nor can it oust the jurisdiction conferred on this Court by sub-ss (iii) and (v) of s 75 of the Constitution with respect to matters "[i]n which the Commonwealth, or a person ... being sued on behalf of the Commonwealth, is a party" and "[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth"[24]. The various legislative powers conferred by s 51 of the Constitution are all expressed as being "subject to" the Constitution and thus to the provisions of s 75. Thus, it has been said that a privative clause cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge "imperative duties"[25] or which go beyond "inviolable limitations or restraints"[26]. On the other hand, it has been acknowledged that such a clause can protect against "a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order"[27], or "some procedural defect which would otherwise result in invalidity"[28].

102. In R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section[29], Dixon J, speaking of s 32(1) of the Conciliation and Arbitration Act 1904-1949 (Cth) and speaking in the context of s 75(v) of the Constitution, put the matter this way:

"[Section] 32(1) operates to protect an order or award ... from invalidation on the ground that the [tribunal] has not fulfilled the requirements prescribed ... for its proceedings or for the exercise of its powers or upon the ground that the limits of the relevant power ... as expressed in the definition of the power or in some restriction upon it have been exceeded if it appears that the order or award is reasonably capable of reference to a power belonging to the [tribunal] and relates to the subject matter of the jurisdiction and amounts to a bona-fide attempt to exercise an authority possessed by [it]".

103. It is to be noted that, in the passage quoted, Dixon J distinguishes between power and jurisdiction. It is a significant distinction in the context of s 75(v) of the Constitution which, as already mentioned, confers "jurisdiction" in "all matters" in which "[m]andamus or prohibition or an injunction is sought against an officer of the Commonwealth". These are constitutional expressions and their place in s 75 gives them a significance and operation beyond that understood at common law[30]. Thus, questions of standing arise within consideration of the term "all matters"[31].

104. Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful[32].

105. The Hickman principle has been treated as applying in respect both of the limits of the constitutional competence of the legislature in question and of the ambit or nature of the power conferred by a valid law[33]. The argument on this appeal was presented on the footing that the principle had both operations, not merely the first. However, the special character of s 75 of the Constitution, to which we have referred, means that considerations which apply to privative clauses intended to protect decisions and orders of State officers acting pursuant to valid State laws are somewhat different from those which apply in the case of Commonwealth law. The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied"[34]. Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record[35]. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker[36]. However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.

106. Accordingly, in the present case, the first question which is to be answered, in order then to ask whether there is any "inconsistency" to be resolved in accordance with Hickman, concerns the construction of those provisions of the Act, including s 18 itself, which were engaged in the decision-making of which DCL complains. In our view, there was no such inconsistency in the operation of those provisions upon the circumstances of the case.

107. We return first to the decision considered earlier in these reasons under the heading "Probity assessment", to the two-stage definition in s 13(1)(a), and to the assumption that the first stage, relevant financial interest, was passed. This made it necessary for the Authority to consider the second stage. That turned upon the phrase "in the opinion of the Authority". The formation of that opinion will, as pointed out earlier in these reasons, involve questions of opinion, judgment and degree.

108. But, at least where there is a bona fide attempt to form such an opinion, the following consequences flow. First, there will be subject-matter to which the Authority is to have regard under s 11(a), namely the requirement of s 12 that the Authority not grant the application unless satisfied as specified in s 12 as to each "close associate" of the applicant. Secondly, if a determination be made under s 18 to grant or to decline to grant, there is no incongruity, still less inconsistency, between those provisions and s 155, in the operation of s 155 to render the decision of the Authority final, as one made "under this Act". Accordingly, in this case no occasion arose to take into account s 155, properly construed, in ascertaining what is actually signified by any apparent restriction or restraint contained in the phrase in s 13(1)(a) "(in the opinion of the Authority)".

109. Further, we should refer again to the submissions dealing with s 9(2) and s 10(3), that is to say with provision of information and "updating". Upon their proper construction, those provisions did not apply in such a fashion as to found any complaint by DCL that there had been a determination as to the grant of a casino licence reached other than "under this Act".

110. The result is that on neither of these branches of the case has there been any "wrong determination as to the existence of a fact" upon which depended the power of the Authority under s 18, nor any "wrong construction" placed upon s 18 or any other provision engaged in the exercise of that power[37]. In particular, as regards s 13(1)(a), the relevant "fact" in the above sense is the existence of the opinion of the Authority formed in the manner we have described.

111. There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view. It concerns the content of the phrase in s 155(1), "a decision of the Authority under this Act". The phrase is not "under or purporting to be under this Act". Section 11 obliges the Authority to have regard to certain matters. Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the items specified in s 12(2)(a)-(h). Section 13 contains a definition of "close associate", a term used in s 12. Sections 11, 12 and 13 are central to the legislative scheme. Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s 18 reached other than upon satisfaction of the conditions which enliven its power. Those decisions would not have been made "under this Act".

Conclusion

112. The appeal to the Court of Appeal was disposed of by orders which are consistent with the reasoning which should be accepted by this Court. However, that reasoning proceeds upon a basis quite different from that of the Court of Appeal.

113. Nevertheless, the appropriate order in this Court is that the appeal be dismissed. The appellant should pay the costs of the respondents.

1 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
[2] This is to be read as a reference to an amount of money obtained by multiplying $100 by that number of penalty units: Interpretation Act 1987 (NSW), s 56.
[3] Pt 13 r 5(2); Pt 15 r 26(2).
[4] Amended statement of claim, par 67.
[5] General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 at 129-130.
[6] cf Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 514, 515, 523.
[7] Transcript, 18 June 1996 at 65.
[8] Report of Public Inquiry Pursuant to Section 143(4) of the New South Wales Casino Control Act, 1992, December 1994 at 8.
[9] Section 35 of the Interpretation Act 1987 (NSW) provides that headings to provisions of an Act "shall be taken to be part of the Act" only if they are headings to Parts, Divisions or Subdivisions. However, s 34 provides that the material which may be considered in the interpretation of a provision of an Act includes "all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer" (s 34(2)(a)). Such material, which includes section headings, may be used "to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act ...)" (s 34(1)(a)).
[10] (1985) 157 CLR 309 at 312. See also Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 616 per McHugh J.
[11] (1986) 162 CLR 24 at 45.
[12] (1996) 185 CLR 259 at 272.
[13] (1976) 135 CLR 110 at 118-119. See also Minister for Immigration and Ethnic Affairs v WuShan Liang (1996) 185 CLR 259 at 275-276.
[14] Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 523.
[15] (1945) 70 CLR 598.
[16] (1945) 70 CLR 598 at 617.
[17] (1945) 70 CLR 598 at 618.
[18] (1995) 183 CLR 168 at 194.
[19] O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 275.
[20] See, for example, the privative clause considered in Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132.
[21] R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418, referring to R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398-399. See also Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 193-194.
[22] R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418.
[23] R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J, 421 per Murphy J; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 250 per Mason CJ; Re Australian Railways Union; Ex parte PublicTransport Commission (1993) 67 ALJR 904 at 910; 117 ALR 17 at 25; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 per Brennan J.
[24] See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616-617. See also Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 520; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 204-205 and the cases there cited.
[25] R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248.
[26] R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248.
[27] Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 180 per Mason CJ.
[28] Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 206-207 per Deane and Gaudron JJ.
[29] (1951) 82 CLR 208 at 249.
[30] Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-654.
[31] Croome v The State of Tasmania, unreported, High Court of Australia, 26 February 1997, at 13 of pamphlet.
[32] See Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 205 per Deane and Gaudron JJ.
[33] See Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 per Brennan J.
[34] Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ.
[35] See Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ. See also Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 141 per Brennan J.
[36] Note the wider use of the expression "jurisdiction" referred to in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC147 at 171 per Lord Reid; see also at 195 per Lord Pearce.
[37] cf R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 606 per Latham CJ.