Darling Casino Ltd v NSW Casino Control Authority - [1996] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S10 of 1996

B e t w e e n -
DARLING CASINO LIMITED
Appellant
and
NEW SOUTH WALES CASINO CONTROL AUTHORITY

First Respondent

SYDNEY HARBOUR CASINO PTY LIMITED
Second Respondent
MINISTER FOR GAMING AND RACING (formerly CHIEF SECRETARY AND MINISTER FOR ADMINISTRATIVE SERVICES)
Third Respondent

BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 17 JUNE 1996, AT 2.16 PM

______________________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR J.E. GRIFFITHS, for the appellant. (instructed by Minter Ellison)

MR K. MASON, Solicitor-General for the State of New South Wales: I appear with my learned friend, MR L.S. KATZ, SC, for the first and third respondents. (instructed by Clayton Utz and I.V. Knight, Crown Solicitor for the State of New South Wales)

MR P.G. HELY, QC: If the Court pleases, I appear with MR D.B. STUDDY for the second respondent. (instructed by Dunhill Madden Butler)

BRENNAN CJ: Mr Jackson.

MR JACKSON: I hand to the Court copies of our outline of submissions, together with a document which contains the rules under which the orders were made in the present case.

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Thank you, your Honours. As is apparent from the outline of submissions, the conduct in issue in these proceedings is concerned with the grant of the casino licence for New South Wales and, in particular, with the effect to be attributed to the provision of the Casino Control Act 1992, which the Court of Appeal regarded as decisive, that is section 155(1). May I take your Honours to that immediately. What your Honours will see is that section 155(1) provides that:

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.

The concluding provisions of that section then set out certain circumstances in which there may be appeals from particular decisions of the Casino Control Authority, the first respondent.

Your Honours, I will come back to the provision a little later, but the fact that the terms of section 155(1) were treated by the Court of Appeal as decisive may be seen from its reasons in volume 4 and may I take your Honour to page 971.

BRENNAN CJ: Before you leave 155(1), is it common ground that “review” there means judicial review?

MR JACKSON: We do not suggest otherwise, your Honour, yes. Could I say this, that I was going to take your Honours to the position in the Court of Appeal’s reasons where the provision was treated as decisive. That is page 971 in volume 4. Your Honours will see lines 17 to 19 where, in the reasons for judgment of Mr Justice Cole who delivered the reasons in effect of the court, his Honour said:

It follows, in my view, that s.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.

I will indicate, your Honours, in just a moment, the three decisions to which the court is there referring, but may I say that in consequence of adopting that view, the Court of Appeal held that the proceedings should be dismissed without there being a trial. The essential contention made on behalf of the appellant is that in respect of the principal decisions which were involved, that is the decisions on the one hand to grant, on the other hand to refuse to grant, the casino licence, that in respect of those decisions the terms of section 155(1) did not prevent a tax being made on the basis of non-compliance with other provisions of the Act, such provisions containing, to put it shortly, restraints on the exercise of the power. In other words, to put it shortly, matters that we would submit went to - to use, if I may say so, the jargon - jurisdiction.

Your Honours, in addition, the Court of Appeal held that section 155(1) prevented a challenge to a decision of the Minister to grant approval under section 142(1). May I take your Honours to that in just a moment. All I want to do at the moment is just to indicate the provision, if I may. Section 142(1) commences with the words, ”With the approval of the Minister”, and then your Honours will see what it goes on to say. What was held by the Court of Appeal was that a challenge to the decision of the Minister to grant approval was something to which section 155(1) applied and prevented a challenge to it. Yet, your Honours, section 155(1), to the extent to which it does provide protection for decisions, does so only for decisions of the Authority, that is what it says.

BRENNAN CJ: What does section 142 do?

MR JACKSON: Section 142 is a provision - and your Honour, I will have to take your Honours to the provisions to which it relates first of all - but in terms, it allows the Casino Control Authority to enter into agreements on behalf of the State. To do so, it has to have the approval of the Minister. Whether that approval is something that can be challenged, no doubt may be a question, but your Honours, may I come to that a little later. Certainly section 155 says nothing about such a decision because 155 speaks of decisions of the Authority.

DAWSON J: What was being complained of: the failure to grant a licence to the appellant or the granting of a licence to the second respondent?

MR JACKSON: The first two decisions attacked are - and, your Honour, I am about to indicate what they are ‑ ‑ ‑

DAWSON J: It is just that you said, “Well, the Minister is not the Authority”. That is true, but what you are really complaining about is the ultimate decision of the Authority, but I see the statement of claim is not reproduced.

MR JACKSON: It is, your Honour. I think what that is a reference to is a statement of claim before an amended form.

DAWSON J: I see, yes.

MR JACKSON: The amended form is reproduced. I will take your Honours to it.

DAWSON J: But, in any event, what is it that is being complained about, the Authority or the decision of the Minister?

MR JACKSON: In that regard, the decision of the Minister is being attacked. But, your Honour, the principal attack, of course, is the attack on the decision to grant the licence.

BRENNAN CJ: Does 142 do anything else but provide an agency regime?

MR JACKSON: Well, your Honour, it allows - that is true in one sense. That is what it does. What it also does is to, one will see from the facts of the particular case - and I will try to be as brief as I can about - one can see that in the particular case what it also does is to tie together the grant of the licence to entry into agreements with the State of the nature there referred to. And one of the conditions was that there be entry into agreements which had the approval of the Minister and the submission that is made is that the approval of the Minister was granted in circumstances where, by reason of changes that had occurred, the Minister’s approval should not have been granted.

BRENNAN CJ: I do not want to take you out of the order of your submissions, but the way you have just put it suggests that the significance of the Minister’s approval is that it conforms to one of the terms on which the basic decision was made, not that it is out of conformity with section 142.

MR JACKSON: That may, in the end, be so. May I hasten to say that we do not put the 142 point really as a point of dramatic significance in the case. I simply mention it because that is the way in which the case was dealt with by the court below and it leads us into what we say is that the Court of Appeal’s error, first of all, was an immediately apparent error, we would submit, in relation to applying it to that decision. But in any event that would not matter very much if we did not succeed on the other points.

TOOHEY J: But if you look at the section which precedes it, Mr Jackson, section 141, which identifies the general functions of the Authority, it is not easy, is it, to tie in 142 with the decisions or the specific functions to which that section relates?

MR JACKSON: Your Honour, I am about to do that actually.

TOOHEY J: The point of the question is that if it is not, then it makes it perhaps more difficult to then relate it to section 155 to a decision of the Authority.

MR JACKSON: May I come to the provisions in just a moment, because one has to look at a number of other provisions in addition to section 142 and 141, in particular, for example, section 7(1)(c), which deals with matters on which directions can be given.

Your Honours, could I come now to seek to identify more precisely, if I may, three things: first of all, the decisions which are sought to be impugned; secondly, the provisions of the Act which are germane; and thirdly, the bases of the challenge.

If I could go first to the terms of the Casino Control Act for just a moment in relevant respects. As its long title suggests, and as section 6 makes clear, there may be only one casino licence in New South Wales and that licence, as section 6 also makes clear, is not to be for multiple casinos but for one casino only. The operations of the casino under the licence, when granted, are then related to the general law by the several subsections of section 4. The power to grant the licence is vested by section 18(1) in the first respondent, which is a body established by the Act, and the provision establishing the Authority is section 133(1).

If I could take your Honours to section 18(1) for a moment, your Honours will see that the power of the Authority:

is to determine an application by either granting a casino licence.....or declining to grant a licence -

and the conduct in question in these proceedings have both those aspects in that it consisted of the grant of the licence to the second respondent, that is to Sydney Harbour Casino Pty Limited, and secondly, declining to grant the licence to us. Your Honours will see the Court of Appeal’s reference to those two decisions at page 968 in volume 4, commencing about line 13 ‑ perhaps if one goes to page 969 it puts it more shortly - about line 16. Your Honours will see:

The first decision was the grant of SHC’s application.

Then various grounds of attack are set out. Then page 970, about lines 7 or 8:

The second decision challenged was the mirror of the first -

and that goes through that paragraph. Now, your Honours, those decisions were made by the Authority on 14 December 1994. Your Honours will see that at page 874, the allegation made in the statement of claim, in paragraph 73.

BRENNAN CJ: These are decisions that are announced on pages 311 and 312, are they?

MR JACKSON: Pages 307, 309, your Honour, yes. There were two documents issued by the Authority at the time when it made its decision and they are the two documents which appear at page 307 and page 309 in volume 2. Your Honours will see in the first of the documents the media release, line 9, there is a reference to the grant of the licence. Then line 18 you will see - and I will come back to this - the fact that the Authority had seven months before announced the preferred applicant. The term of the licence in terms of the duration of the licence is set out in line 19, “99 years exclusive for the first 12 years”. Then, your Honours, the last paragraph refers to the other decision determining not to grant the licence to us, and may I refer your Honours also to the first paragraph on the next page to the financial offer made on behalf of Sydney Harbour Casino. Your Honours, the background paper is a matter I will come to a little later. It commences at page 309.

Your Honours, the next day the appellant brought the present challenge in the Supreme Court of New South Wales by proceedings issued there, and after some argument about the form of proceedings, the appellants were directed to file a pleading and the relevant document is now the amended statement of claim which commences in volume 4 at page 830. May I just say something about the way in which it appears in the book. Your Honours will see that some paragraphs have been crossed out. Could I refer, for example, to page 892 where you will see, for example, paragraph 94 crossed out. The paragraphs that are crossed out are the ones that were ordered to be struck out by the primary judge. Your Honours will also see that some paragraphs are underlined, and if I could take your Honours to, say, the next page, 893, paragraph 96, they are amendments which were permitted to be made by the primary judge and the pleading the subject of the proceedings before the Court of Appeal was in the form which commences at page 830.

Your Honours, I do not need to take your Honours to the particular pages. May I give your Honours just a reference, however, to the place where you will find the discussion by the primary judge of the amendments which he permitted. It is at page 709 in volume 4, paragraphs (xxii) and (xxiii), and also at page 803 from line 14 through to page 805 line 8. Now, the applications before the primary judge were applications by the second respondent, Sydney Harbour Casino, designed to result effectively in termination of the proceedings without there being a trial. Those applications, though made by the second respondent, were supported by the other respondents. They were successful, as I said, before the primary judge in part and completely before the Court of Appeal.

The applications, your Honours, were made on two bases: first of all, to dismiss the proceedings pursuant to Part 13 rule 5; secondly, to strike out the statement of claim pursuant to Part 15 rule 26. Your Honours will see the notice of motion in that regard in volume 1, pages 4 to 13 ‑ ‑ ‑

BRENNAN CJ: Do we need to trouble ourselves about these procedural steps?

MR JACKSON: No, your Honour, I am simply indicating where it is, because it was set out in very comprehensive terms, and that explains perhaps some of the reasons for the length of the primary judge’s reasons. Your Honours, the matter is summarised, I was going to say, by the primary judge at page 693 line 23 to 694 line 4. The primary judge had suggested that the two central issues be dealt with finally but that was rejected by the second respondent. Your Honours will see that at page 711 line 6 through to line 14 and at page 732 line 18.

Now, your Honours, provisions of the kind in question require the applicant to bear a significant burden. The principles are well established. May I hand your Honours a copy of a summary which we have endeavoured to do which extracts extracts from the various cases and I do not think I need to take your Honours to the detail of that.

Each of the rules permitted evidence to be adduced in support of the application. That took place. May I indicate in broad terms what it was. It consisted, essentially, of three things. They are the annexures to Mr Brown’s affidavit at page 17 in volume 1. That sets out, in effect, the chronology of what occurred and has the various documents that were part of the chronology annexed to it. Secondly, there is an affidavit by a Mr Klotz, commencing at page 314 in volume 2, which sets out an earlier draft of the Act and a report from Sir Laurence Street, these being matters of legislative history said to go to the interpretation of the provision. The third thing consists of other material which went to discovery or to matters of inconvenience if the case were to go to trial. That has not been relevantly put in the record.

The issues as alleged in the amended statement of claim relating to the decisions to grant and to refuse arose from the terms of the Act which set out the procedures to be followed to lead to grant or refusal of the applications for the licence. The provisions are primarily sections 9 to 17, but there are some other provisions which I will mention in just a moment.

TOOHEY J: I am sorry to interrupt you, Mr Jackson. Are you taking us back to this question of principles governing summary dismissal at any stage? I will explain why I ask. Is it contended that even if the reasons leading to the conclusion of the Court of Appeal’s judgment were correct, that nevertheless the proceedings should not have been struck out?

MR JACKSON: Your Honour, if the Court of Appeal was right in relation to section 155(1) having a very wide ambit covering all the claims, and if it were clear that the Court of Appeal was right on that issue, then the result, of course, would be that we would fail here, I should think, as well. If, however, it is the position that section 155(1) did not, on its face, appear to cover all the claims or, arguably, did not cover all the claims that were made, then in our submission that was a matter that should have gone to trial to enable the facts to be ascertained, and the facts being ascertained, the question would then be whether section 155(1) did apply to them. And there may be questions, of course, about construction of section 155, because the meaning of section 155 itself and its application was a question of some significance.

TOOHEY J: Yes, thank you.

MR JACKSON: Your Honours, I had not intended to go to these in detail except to adopt, in effect, what we have submitted there as being the principles. I am happy to go to any of them further, if your Honours want me to.

TOOHEY J: No, no. My question really was prompted by wondering whether, in fact, the principles really need be considered by the Court at all. If, on one view, as you have just said, section 155 has the operation contended for, then it would seem that the appeal must fail. But if it does not have the operation contended for, are we to be taken into an area of deciding what questions still remain live?

MR JACKSON: Not really, if I can put it way. That is why what we have endeavoured to do is to separate out two areas which would seem to us to be the critical ones in relation to section 155 and to seek to argue the case before the Court in relation to those two items and say if section 155 does apply to those and prevents those claims being made, then we would accept that is the end of the case. If, however, section 155 does not, then those claims are arguably open, or are open, or should succeed, then the case is one where the Court of Appeal should not have dismissed it in limine, as it were, and the whole matter should go back to that court to make its decision in the light of this Court’s view of section 155.

I was going to say, as your Honours will see from the summary by the Court of Appeal at page 969 through to page 970 in volume 4, the appellant’s allegations were framed in a number of ways. Your Honours will see at page 969, commencing essentially about line 16 through to page 970 about line 12, as I have foreshadowed a moment ago, we do not suggest that for present purposes the Court should deal with them one by one. What we have sought to do is what we have set out in our outline of submissions in, your Honours, the paragraph which is numbered 7.

The particular issues fall essentially into these categories. The first group concerns alterations made to the application of the second respondent for the licence in three relevant respects. Those respects are ‑ ‑ ‑

BRENNAN CJ: How does that arise? What is the statutory framework in which that becomes relevant?

MR JACKSON: It becomes relevant - I am about to come to that, your Honour, if I may - but what we say is this, that section 18 - perhaps I should say, your Honour, the two relevant provisions or two particularly relevant provisions will be section 9(2) and 10(3). May I seek to identify a little more precisely what we say about those things. What we are seeking to do is this: to refer to, in the first group of contentions, three matters relating to alterations made to the application of the second respondent before the grant of the licence. The respects are, your Honours, the corporate structure of the second respondent, that is the first; the second is the time for payment of the amount of the bid; and the third is in relation to the building design. Those changes were all ones which were made after the selection of the second respondent as a preferred applicant and two of them, the corporate structure and the time of payment, were made just before the announcement of the second respondent as the successful applicant. The essential contention which we make in relation to them is that they were all matters which the invitation to make applications had been contemplated must be finalised before selection of the preferred applicant, rather than later. That relates particularly to section 10(3).

BRENNAN CJ: I am sorry, I am not following this, Mr Jackson. I do not understand how this arises in the context that you have referred to. Section 9(2), if I can just take you to that for the moment:

information is to be provided to the persons who express interest -

Now, do I take it that the appellant and the second respondent both expressed interest?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: Was information provided to them?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: Was there some information provided to one that was not provided to the other?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: What was that?

MR JACKSON: The information was that they were able to change the terms of their bid at a late stage after selection as preferred applicant. That was not provided to us.

BRENNAN CJ: The information that they were able to change their bid?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: But that does not surely fall within “information” in 9(2). That is just dealing with the way in which it is going to be dealt with. Surely “information” in 9(2) refers to facts.

MR JACKSON: It is information - undoubtedly a fact is how the application is to be dealt with. In what manner the application is to be dealt with. And your Honour, one sees, of course, the concluding words of 9(2):

so as not to advantage or disadvantage any interested person.

I really need to develop that a little if I may, but that is one area but, your Honour, what I was saying in relation to it also is this. That if one goes to section 10(3), the invitation to apply for the casino licence was an invitation expressed in a way that made the need to conform timeously with the requirements of the Authority as being a condition for the continued validity of the application.

BRENNAN CJ: Again, I am not following that.

MR JACKSON: Your Honour, it is difficult to express it shortly and in the abstract, but what I am seeking to say is this, that your Honours will see that section 10(3) speaks of a person being only entitled to make an application that conforms with the terms of the Authority’s invitation.

BRENNAN CJ: Was there an Authority’s invitation?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: Did the two applicants make an application that conformed to it?

MR JACKSON: Yes, your Honour, initially.

BRENNAN CJ: What happened then?

MR JACKSON: Well, after that happened, your Honour, in a way that did not conform with the terms of the invitation, the second respondent was allowed to change its bid in three relevant respects after the final bids had elapsed.

BRENNAN CJ: Yes.

MR JACKSON: Now, your Honours, may I just say one other thing at this point, and that is that the invitation under section 9 and the invitation under section 10 were given at the same time.

BRENNAN CJ: Where is it, in the documents?

MR JACKSON: Yes, your Honour. It commences at about page 24, your Honour. I wonder if before taking your Honours to the terms of that, which I intend to go to in just a moment, if I could just take your Honours to a couple of the Act before doing that? The first is section 141(2). Your Honours will see that in paragraph (a), one of the functions of the Authority is:

at the direction of the Minister, to invite expressions of interest for the establishment and operation of casinos and applications for casino licences -

and so on. Your Honours will see some disconformity between the use of the term plural “casino licences” and the fact there can only be one casino, but the Act, in its form as a Bill, originally provided for there to be more than one casino. That was changed in the course of passing through the Houses of Parliament. Your Honours, if one looks at the concepts that are referred to in paragraph 2(a) of section 141, they relate back to sections 7, 9 and 10 which reflect some of those concepts. Section 7(1) empowers the Minister to give directions to the Authority in relation to any of the matters that are there set out and they are, to put it shortly, location, size and style, related development and other matters, and those directions can be varied or revoked, subsection (4), but during their subsistence, they are important because as subsection (5) makes clear, the Authority is bound by them in relation to the grant of a licence. Your Honours, from section 7, one goes to section 9. Section 9(1) requires:

At the direction of the Minister, the Authority is to publicly invite expressions of interest for the establishment and operation of a casino ‑-

and, your Honours, that wording reflects section 141(2)(a). Section 9(3) requires that:

The invitation must be in terms that are consistent with any applicable directions of the Minister under section 7.

Your Honours will also see - if I could return to section 9(1) empowers the Authority to provide information to any person who expresses interest, and the same information is to be provided to the persons who have expressed interest in a casino, and it goes on, as I said before, so as not to advantage or disadvantage any interested person.

DAWSON J: The information referred to is information concerning the requirements for the casino?

MR JACKSON: Your Honour, that is the probable view of it, but subsection (2) is not so limited, of course.

DAWSON J: It seemed to be.

MR JACKSON: Your Honour, it does not really matter very much whether it is or is it not, with respect, but all I am simply saying is it is not in terms so limited but, of course, the expression “the requirements for the casino” is, itself, a term of some ambit. If I could take your Honours then to section 10. What your Honours will see is that section 10 relates to inviting the applications for the licence and in section 10(1), your Honours will see:

The invitation must be in terms that are consistent with any applicable directions -

that is section 10(2) and is to be publicly made - that is section 10(1). Your Honour, subsection (3) provides that a person is only entitled to make an application for a licence that conforms with the terms of the invitation and one is not entitled to make an application unless and until the applications have been invited. Your Honours, section 11 then requires the Authority, in considering the application, to have regard to a number of specified matters including, particularly, the requirements of section 12.

Now, your Honours, the procedure in fact adopted by the Minister and in consequence by the Authority, was to combine the two steps or stages referred to in sections 9 and 10. Your Honours will see that is alleged, if I could just indicate where it is, your Honours, in paragraph 13 of the statement of claim at page 835, but the relevant document is that which appears at page 24. Your Honours, that is a document which is described as the invitation document and, your Honours, if I could leave aside what is at pages 25 and 26, you will then see at page 27 a number of definitions and at page 28, what your Honours will see at the top of the page is that the document is expressed to be, “Pursuant to directions issued under sections 9(1) and 10(1)”. It states specifically in the part with the border around it on page 28 that:

It is a term and condition of an Application for the Casino Licence that the Applicant has lodged an Expression of Interest in the establishment and operation of the Casino.

Your Honours will also see that at page 42, the document in the left column sets out the form of expression of interest that is to be lodged, and in the right column the form of application for a casino licence. Your Honours, if I can just pauseto say the words in capitals that one sees in the invitation document are, or are in the main, terms which are defined at page 27. Your Honours, the invitation document, as one might expect, dealt with a number of matters both substantive and procedural in character.

Could I indicate those which are relevant for present purposes? At page 33, you will see a heading “3.4 Casino Duty” and your Honours will see then that there is a reference to the provisions of the Act in section 114, and then in the left column on page 34, there is a reference to provisions to the way in which duty is to be fixed. Your Honours, I should say that at the top of page 34 in the word “The Act”, the reference is to section 117. It does not actually say which one, but section 117. The invitation document then goes on to say, at the top of page 35, that one of the items of duty is to be, “A once only non-refundable lump sum payment” to be made on “the grant of the Casino Licence”. Your Honours, that was, in reality, the only variable feature in relation to duty. The other rates had been fixed by the Minister.

The assessment processes are set out at page 35 under the heading, “4. Assessment Processes”. Your Honours will see if one moves over to page 37, having set out some assessment criteria, there is then set out under the heading, “Project Stages”, the stages which are to be adopted in choosing the successful applicant. Your Honours will see that it is to be done in three stages, and your Honours will see at the top of the page:

The 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.

Now, it then, your Honours, divides up the procedure into a number of stages which your Honours will see listed as stages 1, 2 and 3 on pages 37 and 38. The stages, your Honours, are summarised in a table on page 39. Your Honours, if I could go to the left column on page 38, at the top of it, your Honours will see that, it is the fourth line:

Stage 2 will involve the following:

The first block, your Honours:

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.

Your Honours, reading through there, one sees, going down to the third block, that:

During the Stage 2 process, Applicants will be given the opportunity to update their Applications in consultation with the Authority prior to a short-list of a maximum of 6 Applicants being determined.

“Formal presentation” is the next block and then, your Honours, there will be a short list and then, this is the fifth line:

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 -

and so on. What your Honours will also see is, if one goes to the table at page 39, in items 3, 4 and 5 divided up into three phases, the last of them being:

Stage 2: Phase 3
Lodgement of Applicants’ final corporate details, financial bid and detailed building design.

Your Honours, if I could refer to the paragraph on page 39 immediately above the table in the right column, what your Honours will see half‑way through the paragraph:

An 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.

And I referred your Honours also to the paragraph at the top of page 37. Your Honours will have seen in the document to which I have referred that it contemplated that there would be short-listed applicants and that they would be given an opportunity to further update their applications before the successful applicant was chosen. Your Honours, that was changed by a document to which I will come next, called the brief, in one relevant respect, and that was that after there being a selection of a short-list, there was then to be the selection of a preferred applicant and the updating was to take place before the selection of the preferred applicant.

Your Honours, could I mention a couple of other features of the invitation document? The first is at page 40 in the right column between lines 5 and 10. Your Honours will see that it was said that:

Where the Close Associates of an Applicant are varied, then any new Close Associate which has not already been subject to a probity assessment by the Authority will be required to undergo such an assessment.

Your Honours, the next feature was that an applicant had to give notice:

(verified by statutory declaration) of any change in or to any information provided -

that is at page 41 and, your Honours, that is in the left column second block down on the page. The third feature, your Honours, was in the right column on that page, page 41, that the Authority purported to -

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.

Now, your Honours, I say “purported”, no doubt it could do to some extent, but that must be, in our submission, subject to compliance with any relevant directions of the Minister or by giving notice to all relevant parties, because your Honours will appreciate that this document, and any information given after there had been expressions of interest in accordance with this document, would relate to, in our submission, information provided to persons who had expressed interest in the casino in terms of section 9(2).

BRENNAN CJ: I do not understand that either. If we look at sections 9 and 10, do we not see that they are dealing with distinct aspects of the procedure which the Authority is to follow? The first is to ask for expressions of interest and that section imposes upon the Authority specific instructions as to what they are to do in seeking expressions of interest. Section 10 then goes on to deal with applications for a casino licence and gives directions to those who are minded to make the application. Now, when the function referred to in section 9 is complete, one would have thought that that section had done its work. When one sees that the application is lodged in accordance with section 10, one would think that that section has then done its work. As I understand your arguments, you are seeking to take from this and from the events that followed some retrospective affection of the procedure that is ordained by those sections. Am I right or wrong on that?

MR JACKSON: With respect, your Honour, wrong, and why I say that is this. What your Honour will see is that the provisions of section 9 of course could be operated in the manner to which your Honour has referred. So too could the provisions of section 10. Now, there is nothing, however, to oblige the Authority to grant any licence on the making of an application under section 10. There is nothing equally to stop the Authority doing what it did in the present case, and that was, by the same document and with the same times involved in terms of inviting expressions of interest, to both invite expressions of interest and applications for the casino licence.

In doing that, your Honours, what it had to do is in respect of persons who, by lodging the expression of interest, had expressed interest in a particular casino, and there was only one of course, then to provide information to them. Now, your Honours, the information that was provided was information, of course, partly in this document, no doubt by adoption by later things, but it is also in all the information that was conveyed after the expression of interest, because that is what section 9(2) says:

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.

Now, both we and three other people had expressed interest in this casino. We had also made applications for a casino licence. The information that was provided to us following upon the expressions of interest was information that had to be given the same to each so as not to advantage or disadvantage any particular one. Your Honour, if I could perhaps start a little at the other end then to say that the most serious way in which one might have thought any one party could be advantaged and another disadvantaged, both having expressed interests in a casino, both also having said that they would apply for a licence in respect of such a casino, would be by allowing one to have advantages which the other did not have - your Honour, I am putting shortly what I am seeking to say - with the ultimate result that one was granted the other casino licence on the basis of it having been supplied with information as to the terms on which the Authority would deal which were not provided to the other party.

So that it is right to say that the two things at 9 and 10 can be dealt with separately. They could be done in a completely serial form, in effect, but having said that, the fact of the matter is that one starts in the present case with there being invitations made under both the provisions contemporaneously and, your Honour, there is only to be one licence. None might have been granted, but during the whole of the time that information was being provided pursuant to section 9, what happened was that there was ultimately, if we are right, information provided to one but not to others.

DAWSON J: What was the information?

MR JACKSON: Your Honour, if I could just say this. The information was that the Authority was prepared to allow the second respondent to change at the last minute its corporate structure, change the time for payment of its bid and change the building design and that the Authority would accept that when it told others that it would not.

DAWSON J: But that would not seem to be information concerning the requirements for the casino.

MR JACKSON: Your Honour, the requirement for the ‑ ‑ ‑

DAWSON J: Unless you take a very broad view of that expression, which I suppose you say you do.

MR JACKSON: The requirement for the casino includes the casino buildings. The requirement for the casino includes the identity of the persons who are to be conducting it, and it also includes, in our submission, what is to be the amount of the lump sum duty in respect of the casino.

BRENNAN CJ: Let us assume that the information is of the kind that you have identified and that it was not provided and it answers the description of information. How does that affect validity of the purported exercise of power under section 18?

MR JACKSON: Your Honour, it affects the validity of it in two ways. The first is by the operation of section 18 and section 9(2). What I mean by that is that we submit that the requirement that section 9(2) be complied with is one which is, if one bears in mind that section 18 only applies to one casino, is something which is a pre-condition of the grant of a licence. Compliance with the provision is a matter which goes to the power of the Authority to grant the licence; that is the first basis. The second basis, your Honours, is this, that if one then goes not to section 9(2) but to section 10(3), what you see then is the power to grant a licence is expressly, your Honours, in terms of section 10(3), one that is based upon there being an entitlement only to make an application that conforms with the terms of the invitation.

The invitation said that those three items which I mentioned have to be completed or complied with by a certain time, and if the invitation makes it apparent that timeous compliance with those things is a condition of the application, then an application which changes after those times in circumstances where the application is expressed to be by the terms of the invitation, one that has to continue to comply is not one that conforms with the terms of the Authority’s invitation. That is fundamentally the point we would seek to make in relation to those things.

BRENNAN CJ: We are not really concerned with the construction of section 12 as a condition precedent to the exercise of ‑ ‑ ‑

MR JACKSON: We are, your Honour, I just have not come to that as yet.

BRENNAN CJ: I see.

MR JACKSON: I am sorry, your Honour, I was about to mention it before, but I think your Honour in fact asked me a question which I am afraid ‑ ‑ ‑

BRENNAN CJ: I did, I am sorry.

MR JACKSON: Your Honour, I will come to section 12 in just a moment. What I was going to say about it though, your Honour, was that in relation to this, there are two aspects of the case in respect of which we say that conditions which were conditions of the ability of the Authority to grant the licence under section 18(1) were not complied with. They fall into two groups. Group A consists of the three matters to which I have referred. Group B consists of the matter relating to sections 12 and 13, and I will come to that in just a moment if I may.

Your Honours, could I take your Honours back for just a moment to the terms of the invitation document at page 27 in the definition section? Your Honours will see that the term “expression” is defined as meaning:

an expression of interest for the establishment and operation of a Casino...made pursuant to section 9(4).

Further up that column on the page, the term “brief” is defined to mean “the Sydney Casino Brief” and so on. Your Honours, the brief itself is a document which dealt with a number of detailed matters. Only a few of them, your Honours, are ultimately relevant. The brief itself is contained in the ancillary books 1 and 2; your Honours, I will go to them in just a moment, but may I just seek to put it in its temporal context first? The expressions of interest and applications for the licence were lodged including on 18 June 1993 one on behalf of the present appellant and, your Honours, once we had lodged an expression of interest, as I submitted earlier, section 9(2) became applicable to us.

The Authority then issued its brief to the various applicants. That is alleged in paragraph 16 at page 839 of the statement of claim. It is referred to also at page 18 in the supporting affidavit. The feature introduced by the brief was the concept of a preferred applicant to be selected from the applicants who had been short-listed, but it remained the position under the brief that final submissions or bids had to be made before selection of the preferred applicant. The relevant terms of the brief in that regard - may I take your Honours to them - are to be found in ancillary book 1 at page 1016.

Your Honours will see a heading “5.3 Selection Process”. Your Honours will see a reference to a number of stages, and then at the bottom of page 1016, “5.3.3 Stage 2 - Application for Casino Licence”. Your Honours will see a reference to full corporate details, financial bid, detailed architectural designs. Then, your Honours, at the top of the next page, in the paragraph 5.3.4, your Honours will see the reference to:

This Stage is expected to culminate in Applicant’s making final bids and updating their Applications following which the Authority will select a Preferred Applicant.

Then, your Honours, “5.4 Evaluation of Applications”, and particularly 5.4.3. Again, your Honours will see final bid, final alteration as to design before making any determination as to preferred applicant. Your Honours, moving from that page to page 1021, you will see “Project Timetable”. You will see particularly around line 20, 22 November 1993:

Lodgement of Applicant’s final corporate details, financial bid and detailed building design.

And further down, the announcement of the preferred applicant. I should invite your Honours to note 1.2, that the Authority could reserve to itself the right to alter the timetable, but that does not say anything about when things had to be done by individuals. Your Honours, at page 1029, you will see again the selection process referred to E1:2, and then 2.1.3, final bids, updating applications and so on. If I could take your Honours back then to page 1014, “4.5 Applicant compliance with timetable and procedures”, 4.5.1 ‑ ‑ ‑

BRENNAN CJ: Can I just take you back to 1029 for a moment?

MR JACKSON: Yes, your Honour.

BRENNAN CJ: 2.1.3:

In Stage 3, the Authority will establish a short‑list of Applicants ‑

another sentence; then:

This Stage is expected to culminate in Applicants making final bids and updating their Applications ‑

In what respects?

MR JACKSON: Well, your Honour, probably in ‑ ‑ ‑

BRENNAN CJ: In respects of the three matters that you have referred to?

MR JACKSON: Yes, your Honour, yes. But that is before selection of preferred applicant.

BRENNAN CJ: Yes.

MR JACKSON: And, as your Honour might imagine, in cases where ‑ very large sums of money were involved, of course, as one might expect, and in a situation where the public was being invited to put in applications for this, the one thing one might expect is that there is a time at which it cuts off, the ability to change cuts off, after that the selection is to be made, or no one is selected.

BRENNAN CJ: Do you say that the variation can take place up until the time of the announcement of the preferred applicant, but not after?

MR JACKSON: Yes.

BRENNAN CJ: So that 2.2 is the relevant part of this document, whatever its effect may be, that you say precludes any further updating of the application?

MR JACKSON: Well, it is not just 2.2, but 2.2 exemplifies it. Your Honour will see it also in, for example, 1021, where there is the timetable set out, and particularly the last three items on 1021. And then, your Honours, the passage I was about to go to, 1014, and at 1014 it deals with the requirement for the applicant to comply.

TOOHEY J: Does section 9(2) have anything to say about the selection process?

MR JACKSON: Well, your Honour, section 9(2) does not itself detail any selection process, of course, but what, in our submission, section 9(2) is speaking of includes matters such as the manner in which there will be selection, if there is to be one, of an applicant for the casino, because it is information that is ‑ these are people that have expressed interest in a particular casino, and they have to be provided with information, and the information includes, in our submission, your Honour, the information about the way in which someone, if anyone, will be selected for a casino licence, to be the holder of the licence.

TOOHEY J: But if one of the applicants updates in accordance with clause 2.1.3, does that then constitute information to be provided to other applicants, and, if so, is it simply the fact that there has been an updating? I assume it is not the content of the updating.

MR JACKSON: Your Honour, may I answer that by putting it this way? What one has is a situation where one would not expect the details of the bid of each applicant to become apparent to each other applicant until a time when the Authority chose to disclose that, if I can put it that way, or, when it was provided for that it might disclose it. Now, what the Authority is simply saying is that, “You make bids to us dealing with particular matters, up to a certain point anyone can alter the bid they have made; once that point comes, however, no one can alter the bid they made”. And that is information that is being provided to all persons who have expressed interest in the casino. Your Honour, I do not know if I can put it differently from that, your Honour. That is what we would seek to say in that regard.

But, of course, one does not just have section 9(2). Section 9(3) allows the Authority to decide, subject to any directions of the Minister, no doubt, on the way in which applications are to be made to it, and applications for the licence have to be made, and can only be made because of 10(3), in conformity with that. And then, your Honours, one goes to page 1014 and could I take your Honours to paragraph 4.5.1 on 1014, which says that its:

intention is that Applicants should comply strictly with the timeframes and procedures ‑

Then your Honours will see, in 4.5.2, that there may be a need to adjust them. And then 4.5.3, it will:

consider requests for extensions of time for compliance.....up to the stage of selection of the Preferred Applicant, but will do so only on ‑

particular terms. I will not read them out to your Honours, but we would invite your Honours to read them.

Now, your Honours, pausing at that point, may I say that there was some, but limited, power to allow change to design and, in that regard, could I refer your Honours to page 1110, paragraph 2.6, and that refers to the stage after selection of the preferred applicant, and could I refer your Honours also to ‑ I would like to take your Honours to volume 1, to one of the addenda to the brief, that is, addendum No 26, which is at page 73. Now, your Honours, what the document is that I am referring to now is a document that was sent out to the various applicants. It commences at page 63 ‑ your Honours will see it is “Brief to applicants addendum No 26”, and what it seeks to do is set out things that may be in the various agreements and arrangements that would be entered into, and the part to which I was referring, your Honours, was paragraph 4.8, at page 73, which said that the compliance agreement will:

provide that amendments to final financial/design bids can be made in certain circumstances and in particular where there is a material condition imposed on DA approval.

Now, your Honours, if one gives that the widest operation one could, it still says nothing about change to the corporate structure. And, your Honours, could I refer also to page 1025, again in ancillary book 1. The provision to which I wish to refer to clause 8.1, at the bottom of the page, and that purports to give the Authority power to:

at its discretion and without giving reasons add to, supplement or vary the Invitation Terms either generally ‑

but also says:

in relation to particular Application(s) by notice in writing to that effect given to the relevant Applicant(s).

Your Honours, in our submission, it is difficult to see how that provision, insofar as it relates to the position of an individual applicant, could operate consistently with section 9(2) and, in our submission, 10(3). Your Honours, could I go then to ‑ will do so as briefly as I can ‑ to the basic elements, the three aspects to which I have referred.

BRENNAN CJ: Mr Jackson, could I just again take you back to that 8.1? The information that is contained there is what the Authority is, as at that time, willing to do, is that correct? Does it contain any other information?

MR JACKSON: I am sorry, your Honour?

BRENNAN CJ: The information that is contained in paragraph 8.1 is what the Authority, at the time of the publication of this document, was willing to do. Does it contain any other information?

MR JACKSON: Well, so far as 8.1 is concerned, it is stating, in effect, what the Authority says is to be one of the terms of dealing with applications for the licence and the expressions of interest.

BRENNAN CJ: Well now, how does that come into conflict with 9.2?

MR JACKSON: It comes into conflict with 9.2, your Honour, because it contemplates, in one of its operations, at least, that it would be possible for the authority to give information about the way in which it would deal with the casino licence, or the establishment of the casino, would enable it to give information to one applicant as to those matters which was different to the information it had given to other applicants. And that, your Honour, would ‑ ‑ ‑

BRENNAN CJ: But 8.1 does not speak about giving any information to anybody.

MR JACKSON: Well, no, your Honour, 8.1 does not, in terms ‑ what I was saying, with respect, was that 8.1, in one of its applications, would purport to allow the Authority to give information to one applicant, different from the information which it gave to another.

BRENNAN CJ: What information could it possibly allow the Authority to give to one applicant which it would not give to another?

MR JACKSON: Where it says, for example, that it might alter:

the Invitation Terms.....in relation to a particular Application ‑

BRENNAN CJ: That is right. So that, if it did, it would simply be according with the information given at 8.1?

MR JACKSON: Yes, your Honour. If it has that application. What I am seeking to say, however, is that that would not comply with section 9(2), because what section 9(2) says is that the same information would have to be given to each person who expressed interest in the Casino. Now, if what is happening, your Honour, is that the Casino Authority is, in relation to one group of applicants or one applicant, saying the requirement is this, but saying to another applicant the requirement is something else, then that is not, in our submission, giving the same information to persons who express interest in the Casino. It is giving different information. And, your Honour, that the same information is to be given, in our submission, is made apparent by the concluding words of section 9(2), “so as not to advantage”, et cetera.

May I turn then, your Honours, to the question of the corporate structure? The second respondent was a company of which the two sponsors, as it were, were Leighton Properties Pty Ltd and the Showboat Incorporated. Your Honours will see that alleged in the statement of claim at page 848. It is referred to in Mr Brown’s affidavit ‑ in annexure L to Mr Brown’s affidavit, at page 168. Could I take your Honours to page 168, and in the first paragraph where the nomination of “as Preferred Applicant” was set out, your Honours will see that Sydney Harbour Casino Limited was a consortium sponsored by the two companies to which I referred that had been referred to as the “Preferred Applicant”. Could I take your Honours down to the paragraph commencing between - just above line 15. Your Honours will see in that paragraph, and the next paragraph, that there had been two lump sum bids, in effect, put up by Sydney Harbour Casino, as alternatives, and the second of them was the one that the Authority was said to prefer; that is:

an attractive alternative offer of $376 million payable in full 21 days after the issue of the casino licence ‑

Now, your Honours, on 24 January 1994, before that happened, of course, the appellant and the second respondent had been announced as the two short‑listed applicants. Your Honours, will see that at page 164. Between lines 5 and 10 your Honours will see that referred to, and then your Honours will see, commencing about line 19, there was to be a further stage:

of intensive discussions with each Applicant in order to finalise a range of issues prior to making its final decision.

And then, the second‑last paragraph on the page:

The remaining Applicants will be required to make any final adjustments to their designs and financial offers by 28 March 1994, and the Authority expects to makes its decision as to the Preferred Applicant by 15 April 1994.

Now, your Honours, that position, that there had to be final bids as so on made by 28 March, was maintained in correspondence which your Honours will see at page 135 ‑ page 135 is addendum No 36, I think, dated 16 March 1994, and bearing a fax date of 17 March. Your Honours will see then a reference at the bottom of page 135 to a timetable, a variation of the project timetable, and that is set out on the next page. I will not read out the various subparagraphs, but the word “final” is used more than once ‑ many more times more than once ‑ and then paragraph 7 on page 137, final offers, and so on, item 7. Then, paragraph 8, “Authority announces Preferred Applicant”, and then the admonition immediately under that box:

Applicants are advised that they are required to comply strictly with the above timeframe. No extensions of time or other forbearance will be given and information or material supply to the Authority outside the timeframe will not be considered.

The final bids were lodged on or about 22 April 1994. That appears from paragraph 26 of the statement of claim, page 847, and on 6 May the second respondent was selected as the preferred applicant. I have taken your Honours to that already, that is at page 152, and your Honours will recall that that document said that its financial offer had been a factor in its favour.

Your Honours, after that announcement that it was the preferred applicant, there were then allegations made concerning the involvement of the Leighton part of the preferred applicant, with various unfair building practices and with some other matters. That is referred to in the statement of claim, paragraph 29, page 849, and in the result an inquiry was convened into the probity of the second respondent and its close associates. The term “close associates” derives from sections 12 and 13. That appears at page 851. The inquiry was conducted by a member of the Authority, Mr Tobias, QC, and that was done under section 143, and it found that two directing officers of the Leighton companies were not of good repute, and that none of the three relevant Leighton companies was of good repute for the purposes of section 12(2)(a).

Your Honours, that is alleged in paragraph 60, at page 867. The report is at page 260 in volume 1, a summary of it is at pages 222 and 223. Your Honour, I am sorry to have taken a moment saying that, but it is the introduction to a last‑minute change that occurred in the structure of the Leighton Group’s interest in the second respondent. Now, your Honours, that change is alleged in paragraph 72 of the statement of claim at page 872, but it is perhaps easier to go to the document upon which that is based, and that is the background paper at page 309, volume 2.

Your Honours will recall the background paper at page 309 was one of two documents issued publicly by the Authority at the time when it announced the grant of the licence, and your Honours will see at page 309 a number of things about it, but particularly at page 311 your Honours will see a reference, after references to Mr Tobias’ report at the bottom of page 310 and the top of page 311, that they went on to say, about line six:

Within the last few days the Leighton Group and its officers were quarantined from ‑

and so on, and it goes through the remainder of that page, up to the top of the next page, page 312. Your Honours will note a few things about it. The first is the reference to it having happened “within the last few days”. The second is to the position of the trustee, line 16:

will not exercise any voting rights ‑

and so on and so on, and your Honours, the changes effected at that point, in our submission, in relation to what was described as “corporate structure” do not sit well with the temporal requirements of the invitation document and the brief. They had required full details of the corporate structure to be provided before the time came for selecting a preferred applicant ‑ I have taken your Honours to the relevant pages of that document already ‑ and the proposal being put forward was one which was very different from that of the second respondent, that which it had put forward at the time when it was competing with us to be the preferred applicant, and on the face of the proposal set out at pages 311 and 312, Leighton, the Australian part of it, of the companies, was to become, in effect, parlous and mute, leaving control in an American casino operator.

Now, your Honours, one could imagine the powerful submissions that might be mounted against the selection of such an applicant and, if I could put it another way, the anxious consideration which members of the Authority would have to give to the choice of preferred applicant if the choice had been between the appellant and the second respondent, in circumstances where the second respondent was, in effect, someone whose overseas parent, as it were, had both guardianship and custody. Now, your Honours, the Authority had indicated that the extent of Australian involvement was a matter which it would regard as relevant. Could I show your Honours that at page 38 in the invitation document; that is in the right column; the paragraph immediately above “Capital formation”:

There will be no restrictions ‑

but ‑

The Authority would view favourably Australian involvement in the Casino complex.

Your Honours, no doubt there might be a public float; one would expect that of course, but in terms of the person which became the successful applicant, the position, of course, was that the Authority had indicated that the extent of Australian involvement was relevant, not decisive but relevant. And, your Honours, I am not certain if I created the impression or not, our application, of course, remained alive after selection of the preferred applicant. I may have suggested it did not, but it did.

Your Honours, could I then say that that was the change in the corporate structure to which I referred. The second matter was the change in the time for payment of the lump sum bid. It was clear that final financial bids were to be lodged before selection of the preferred applicant. I have taken your Honours to the passages already, but could I just give your Honours the pages in the brief: 1017, sections 5.3.4 and 5.4.3, and 1021, section 1.3. Now, your Honours, the brief dealt particularly with the time or times for payment of the lump sum at page 1193 and, if I could take your Honours to that for just a moment in volume 1 of the additional material, your Honours will see a reference at page 1193 in paragraph 2.12 to there being a requirement for a “non‑refundable payment by way of lump sum”, payable:

15.0% of total payment within 21 days of granting of the Casino Licence; ‑
.....30.0%.....before commencement of operations -

and the balance “on commencement of Permanent Casino operations”. Now, your Honours, that was, in effect, the minimum requirement. The relevant bid by the second respondent had been, in respect of the lump sum:

“$376 million, payable in full 21 days after the issue of the.....licence”.

That appears from the document at page 168, the media release, at the time of selection of the preferred applicant, the paragraph commencing at about line 16. So it was payable in full 21 days after issue of the licence.

Now, your Honours, again, what occurred was that the preferred applicant was allowed to change the bid after it had been selected as preferred applicant, not in relation to the number of dollars, but it was permitted to accelerate the time for payment, and it was allowed to amend the bid so as to make the payment of $376 million a non‑refundable payment made prior to the grant of the licence, instead of quite some time later than that date. That is alleged in paragraph 71 of the statement of claim, at page 872, but could I take your Honours also then to page 307, in volume 2, which is the media release, and what your Honours will see from the media release, at the top of page 308, was that the offer, at that stage, has already been “paid in full”.

Your Honours, could we say two things about that. At the moment, of course, the case is simply at a pleading stage, and so the full details of the matter are not before the Court, but it seems, really, absolutely clear from the terms of the material before the primary judge that the money was paid before the announcement of the grant of the licence, and it would not take too much, in our submission, to enable a judge at trial to form the view that the payment of the $376 million at that point occurred because there was an offer to do it.

Yours Honours, I would also say this, that the money would otherwise have been payable some time later. That comes about because the original offer was for payment 21 days after the grant of the licence, and the setting of conditions for the licence might well take some months. It might result, for example, in the payment being made in a different financial year.

Your Honours, the third and final respect in which there was a change after the selection of the preferred applicant was in respect of the design. As your Honours will have seen from, for example, page 1017, final alterations to design had to be made before determination of the preferred applicant, but some very significant alterations were made to the design after that. Your Honours, the allegations are to be found in paragraphs 17(f) and 17(g) of the statement of claim, which your Honours will see at pages 840 and 841, but may I endeavour to summarise what the position was. The compliance deeds to which I referred had been entered into by the short-listed parties and those compliance deeds allowed some, but not major, amendments to the design proposals. Your Honours will see that alleged in paragraphs 26 and 27 at pages 847 and 848.

After selection of a preferred applicant, the development application then had to be lodged. That is referred to in paragraph 28(d) at page 848. The statement of claim in paragraphs 76 to 81 at pages 875 to 877, alleged there was a very significant change in the design. Now, your Honours, without going to the detail of it, may I take your Honours to what was said about the change in design at the time of announcement of the decision to grant the licence at page 309 and in the last paragraph on page 309 in the Background Paper, what was said was that the design originally -

announced on 6 May 1994 attracted public and architectural comment.

What was then said was that:

In response, Sydney Harbour Casino prepared and lodged a second Development Application. The second Development Application differed from the first.....The design changes are to be found in that part of the building located above the casino at podium level.

Your Honours, what we would submit is that it is apparent from the three areas, or three subject matters to which we have referred, the changes in the corporate structure, the changes in the time for payment of the bid and the changes in the design, that they were all matters in relation to which the application which was approved was an application which had not conformed with the invitation made by the Authority, and if one goes back to the terms of section 10(3), the terms of that provision make it a requirement as binding on the Authority, as on anyone else, that the applications have to conform with the terms of the invitation and the words in section 10(3):

A person is not entitled -

are very strong, particularly when one adds to that the words:

and is only entitled to make an application that conforms with the terms of the Authority’s invitation.

And that that is so, is supported, in our submission, by the terms of section 10(4), which says that:

Unless the Authority otherwise permits in a particular case, an application must comply with the following requirements -

What we would submit is, your Honours, that section 10(4) does provide a limited power to deal with cases individually, but there is a very limited power, and what we would submit also is the notion that there is some large dispensing power available to the Authority does not sit very well with the very limited dispensing power which is conferred by the opening words of section 10(4).

Your Honours, what we would submit is that because one of the terms of the invitation was that the applications must be in final form before the preferred applicant was selected, and that that is a provision that should be interpreted in a manner consistent with the principle which is embodied in section 9(2), and what we would also submit, your Honours, in relation to section 18 is that the applications to which it refers should be treated as those which comply with section 10(3). Could I refer also to section 17, a provision to which some reference was made by the Court of Appeal at page 968. At page 968 about line 5 is said:

It is alleged that during December, and prior to 14 December 1994, SHC provided to the Authority various changes to its application which changes were accepted in pursuance of section 17 of the Act.

Your Honours, that is not actually quite what the pleading says, if that is intended to refer to the terms of the statement of claim, because what the statement of claim says is at page 870 in paragraph 64(b), and what is said there is that the changes that were made were purportedly accepted pursuant to section 17.

Now, your Honours, if one looks at the terms of section 17 it simply says in subsection (1) that if there has been a change in information provided you have to tell the Authority as soon as possible and verify the terms of the change. Your Honours, it is hardly, in our submission, a provision which gives a charter for change in the sense of allowing an applicant to change whenever they choose and allowing them to change, notwithstanding the terms of the invitation that had been made by the Authority. Your Honours, what we would submit is that section 17 should be treated as doing exactly what it says and really no more, namely that if there has been a change in the information provided you have to tell the Authority, if someone has left your employ whom you have nominated you have got to tell the Authority. If there is a further change subsection (2) says you have got to do the same thing again. But, your Honours ‑ ‑ ‑

DAWSON J: It is a curious section, because the first subsection creates an offence and the second does not.

MR JACKSON: Yes, your Honour, perhaps it is, but subsection (2) has the effect that the change situation then becomes the situation on which one operates, but I would not dissent from what your Honour put to me.

Your Honours, those are the submissions we wish to make in relation to the events which occurred and the nature of the changes in sections 9 and 10.

GUMMOW J: I am sorry, Mr Jackson, what work do you say section 17 does?

MR JACKSON: Section 17, your Honour, deals with circumstances where information has been provided to the Authority; that is the first thing. Some change occurs in the information, by that I mean a change where, to use one example, a person nominated leaves employment, some other person takes this person’s place, but something happens really independently of changing the nature of the information that is being provided, but something happens whereby some of the information has changed; it is a passive provision in effect, rather than a charter for change, I think is the expression.

GUMMOW J: You say the three matters you referred to were not passive, in that sense, as to attract ‑ ‑ ‑

MR JACKSON: Yes, they were things done to change applications very significantly. Your Honours, could I come then to the second area and that is the change in the corporate structure of the second respondent and the matters that arise under sections 11, 12 and 13. Your Honours, one starts with the section 11(a) which castes an obligation on the Authority to have regard to various matters including the requirements of section 12. Your Honours will see that the nature of the matters referred to in section 12 is such that their importance in relation to a proposed casino is really manifest, in our submission, and, your Honours, the importance of those matters is emphasised by the opening words of section 12(1), that is:

The Authority must not grant.....unless satisfied -

Now, section 12(2) requires, of course, that the Authority consider the matters referred to in it and section 14(1) imposes an obligation on the Authority to carry out all the investigations and inquiries it considers necessary.

Now, the Authority, your Honours, took the view that the Leighton Group had ceased to be a close associate by reason of the quarantining of the shares and that appears, your Honours, from the Background Paper at page 311 in the paragraph commencing at line 6, where what your Honours will see is:

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.

Now, your Honours, the state of the evidence on the application consisted relevantly of the two documents to which I have referred at page 307 to 311 or 312, and we would submit that it is apparent from what appears there that the Authority has performed only part of the function which it was required to perform under section 12, and that occurred, your Honours, because it had decided that the Leighton Group was not a close associate by considering, in effect, only part of the definition of the persons who were close associates. Your Honours, could I seek to develop that. Your Honours will see that section 12(1) required that the Authority be satisfied as to the suitability of:

the applicant, and each close associate of the applicant -

and the opening words of section 12(1) prohibit the grant of an application, unless it is so satisfied. “Close associate” is defined by section 13(1) and it is 13(1)(a)
which is relevant. Your Honours, the effect of 13(1)(a) is that a person will be a “close associate” of the applicant if the person satisfies two requirements: the first requirement is expressed in the alternative; it is that the person:

holds or will hold any relevant financial interest.....in the casino business -

and the alternative to that is that the person:

is or will be entitled to exercise any relevant power..... in the casino business -

That is the first half of it. The second half, your Honours, is that:

by virtue of that interest or power -

the person -

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;

Your Honours will see that “relevant financial interest” is defined in section 13(2); “relevant power” is defined in section 13(2). In relation to “relevant financial interest”, what your Honours will see from paragraph (b) of that definition, is that the:

entitlement to receive any income derived from the business -

even if:

the entitlement arises at law or in equity or otherwise -

is a “relevant financial interest”. If I could return then, your Honours, bearing those matters ‑ ‑ ‑

GUMMOW J: The income was to be accumulated, was it not?

MR JACKSON: Yes it was, your Honour, it was to be accumulated, but there was nothing to affect its ownership, the beneficial ownership of it by the Leighton Group.

GUMMOW J: Yes.

MR JACKSON: I then take your Honours back then to page 311, in the passage to which your Honours were referred already, commencing at line 6, what your Honours will see is that the view there expressed is that:

the Leighton Group and its officers were quarantined from being concerned in or associated with the management and operation.....In other words, they have ceased to be close associates -

Then it is said how the quarantining is achieved and what your Honours will see, in effect, is that there is, to put it shortly, a trustee. The income is referred to at the bottom of page 311, and it:

is to be accumulated in the trust -

and it is to be sold in due course. Your Honours, at the top of the next page, page 312, you will see the view expressed:

that the suitability of Sydney Harbour Casino and its close associates.....is not affected by the nature of the limited continuing business association with the Leighton Group.

The term “close associates” used in the second line of page 312 seems to refer to persons other than the Leighton Group and, your Honours, if one looks at the terms of the trust arrangement, it is clear that Leighton was entitled to the income from the shares and the partnership interest, plus had a “relevant financial interest” and a significant question which arose was whether, notwithstanding the formal terms of the trust arrangement, the Leighton Group could still, if I could take your Honours back to the words of section 13(1)(a), “exercise a significant influence” because it had an interest in the casino being managed and operated profitably.

Now the importance, your Honours, of the consideration of the importance of determination of the question whether a person is a “close associate” is that it leads on to consideration of the matters set out in section 12(2) and, your Honours, by denying a consideration of the question whether Leighton remained a “close associate”, the Authority, in our submission, had not performed the task which it was required to perform by the words of section 12(1).

TOOHEY J: Could you just identify precisely the respect in which you say that that default occurred?

MR JACKSON: Yes, your Honour. What the Authority did not do was to consider whether, if I could take your Honour to section 13(1(a), by virtue of the interest that it in fact had, the Leighton Group was, or would be able:

to exercise a significant influence over or with respect to the management or operation of that casino business -

It did not do that, your Honour, because all it did was to say that, because of the quarantining, the situation which resulted was that it was not a “close associate”. There is nothing at all to suggest that there was any consideration by the Authority of the second part of the requirement of section 13(1)(a).

DAWSON J: Why not? It simply says, by inference, that it did not consider it any longer to be a “close associate” and that, if you look at 13(1)(a), requires two things to be a “close associate”, the second of which is that it:

exercise a significant influence over.....the operation of that casino business -

They do not spell it out, but how do you know they did not consider it and come to that conclusion?

MR JACKSON: Well, your Honour, if I could just start back one stage from what your Honour put to me. The material before the court was on an application where our statement of claim was sought to be struck out and our action dismissed. The Authority did not seek to put before the court any information on the actual considerations of the Authority, and nor did any other ‑ ‑ ‑

DAWSON J: So you say it is at least arguable?

MR JACKSON: Yes, your Honour, that is what I am getting to. So the only document was the document that we have put before the court from which they came, so that if one is looking to see what they considered, the source is the document, the source so far that this case has gone, and if one looks at the document at page 311 between lines 5 and 10, the process of reasoning is one that does not address one of the two issues involved. That is the point I seek to make, your Honour.

DAWSON J: Yes, I see.

MR JACKSON: Your Honours, those two aspects of the case, the changes and the failure to perform the task required by section 12, are the two matters in relation to which it is submitted that the court was not prevented by the terms of section 155 from entering into those issues. May I come then, your Honours, to the terms of section 155. What your Honours will see from section 155(1) is that it refers to:

a decision of the Authority -

and secondly it speaks of:

a decision of the Authority under this Act.

Now the Authority under the Act is required to make a significant number of decisions, but no doubt a decision made pursuant to section 18 is a decision which is capable of being made under this Act. Your Honours, it is at this point that one encounters really two, if I could call them that, strands of authority in this Court. They lead in the end, in our submission, to the same result and perhaps it is not right to say they are two strands, but they do seem to bear that appearance.

One is the strand that says that privative clauses of the nature referred to in section 155(1) do not preclude a tax on decisions on the basis of jurisdictional error. That is one strand. I will come to that in a moment, your Honours. The other strand is what I might called the Hickman approach which makes some, but not all, jurisdictional errors subject to the operation of privative clauses. Your Honours, could I deal with those two classes of case in that order. The first class of case, that is, the type that says that privative clauses do not preclude a tax on the basis of jurisdictional error is exemplified by Public Service Association of South Australia.

GAUDRON J: But the terms of that privative clause were quite different from the clause you have got here.

MR JACKSON: Your Honour, I am not going to the case for the particular clause, but, rather to distinguish it, but to refer to some observations of general principle in the case. I think I used the wrong method of introduction to it. I should have said the first type of case exemplified by some observations that one sees back in the Public Service Association of South Australia v Federated Clerks’ Union of Australia (S.A.) (1991) 173 CLR 132. Now, your Honours, the privative clause in that case is set out at page 153.

BRENNAN CJ: I understood that these were to be handed up, Mr Jackson?

MR JACKSON: I am sorry, your Honour. I had not appreciated that and I am not certain it was, in the end, one that was our case on our A list.

BRENNAN CJ: You may as well read it and we will get copies afterwards.

MR JACKSON: Your Honour, what I was going to say was that the relevant privative clause is set out at page 133, and the relevant privative clause was one that said that:

“(a) every award, order or decision of the Commission ... is final and no such award, order or decision can be removed to any other court; and (b) no award, order or proceeding of any kind of the Commission ... can be challenged, appealed against, reviewed, quashed or called in question -

but then went on to say -

except on the ground of excess or want of jurisdiction.”

Now, the presence of the last words in section 95, that is “except on the ground of excess or want of jurisdiction” was held by the Court to be an indication that only those grounds were available, but members of the Court, however, made some more generally expressed observations. In that regard could I go to what was said by your Honour the Chief Justice at page 140. It is a passage, your Honours, which commences at the bottom of page 140, about point 9 and the passage concludes at about point 9 on page 141. The most relevant parts of it are these, at the bottom of page 140, point 9:

The P.S.A. submits that any error of law on the part of the Full Commission was an error made within jurisdiction and that relief by way of judicial review to correct non-jurisdictional errors of law is excluded by section 95.

Your Honour set that out and then said:

Apart from the express exception......it would be necessary to determine whether the error of the Full Commission was jurisdictional or non-jurisdictional. Privative clauses which declare an order of a tribunal to be final and which exclude the quashing or calling in question of such an order are effective, unless the Constitution otherwise dictates, to oust certiorari for non-jurisdictional errors.

Your Honour referred to a number of cases and then in the last paragraph on that page said:

Making the distinction between jurisdictional and non-jurisdictional errors, this Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction.

That is the general proposition there stated. And at page 160, about point 7 on the page in the joint reasons of your Honours Justices Dawson and Gaudron, your Honours said in the penultimate paragraph on the page:

Privative clauses such as section 95 of the Act are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other that to the extent expressly stated or necessarily to be implied. Thus, a cluse which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.

Your Honours, that approach may be seen also in some observations of members of the Court in Hockey v Yelland (1985) 157 CLR 124 - I will give your Honour some copies of that - and, your Honours, if I could just pause to say Hockey Yelland, your Honours will no doubt recall, has being under consideration by the Court for other reasons in another case earlier this year, but this does not touch that point. At page 130 Chief Justice Gibbs, in the passage commencing about point 5 on the page, after a reference to subsection (12) said:

It was correctly conceded that the provisions of section 14C(11) does not oust the jurisdiction of the Supreme Court to issue writs of certiorari.

His Honour then went on to say:

It is a well recognized principle that the subject’s right of recourse to the courts is not to be taken away except by clear words. If the sub-section had provided that the determination should not be “quashed or called in question” it would have been effective to oust certiorari for errors of law not going to jurisdiction.

At page 147, your Honour the Chief Justice agreed, and your Honour Justice Dawson, immediately following that on page 147, agreed with the reasons of the Chief Justice and Justice Wilson.

Your Honours, the approach taken in those cases has been applied many times in State courts, certainly in New South Wales. Could I give your Honours three references, without the need to take your Honours to the actual decisions, and we will give your Honours copies of the decisions. The first is Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 243 to 244. That is in the reasons of Justice Priestley, with whose reasons Justices Kirby and Meagher agreed. Secondly, Walker v Industrial Court of New South Wales (1944) 53 IR 121, at page 137 per Justice Kirby, and at page 149 per Justice Sheller with whose reasons Justice Meagher agreed and, finally, your Honours, a recent example, Cepus v Industrial Court of New South Wales, (1995) 60 IR 113 at 124 per Justice Priestley, Justice Power agreed.

Now, your Honours, the application of that test involves, of course, determining whether the relevant error is jurisdictional.

GAUDRON J: The first step, though, is a constructional one, is it not?

MR JACKSON: Yes, your Honour.

GAUDRON J: You have to look to see if the words of the privative clause are to be read in that way, or are capable of being read in that way. They may not be.

MR JACKSON: Your Honour, that is so. Could I say these things about it? First, your Honour, if one is looking at the issue by applying a principle of the nature to which I have just been referring then that does seem to be imposed as an implication of the law that in the absence of very specific terms a privative clause will not be held to exclude review for jurisdictional error. That seems to be, if I could put it this way, a kind of value of the law in much the same way as the imposition, unless the terms of a statute otherwise require, the imposition of an obligation to afford natural justice or procedural fairness.

In other words, the legislature, if I could put it this way, will be treated as having not intended to exclude those doctrines unless it does so very clearly. Your Honour, if one goes to adopt the approach taken in the Hickman cases, in Hickman and the decisions which follow that, they really do seem to start from a slightly different point in that they tend to involve an underlying assumption which is that the provision which is the privative clause does have that effect. When I say that effect, I mean the effect of possibly protecting from something which is otherwise a jurisdictional error. And, your Honours, that is where - it is an expression which I do not like using, but sometimes find myself driven to use - that is where the kind of tension between the two notions or the two approaches to the issue.

May I come in just a moment to the Hickman test, but could I just say one thing in relation to the doctrine to which I have been referring. The application of the test involves determining whether the error is relevantly jurisdictional. The nature of jurisdictional error in that sense was dealt with by the Court recently in Craig v South Australia (1995) 69 ALJR 873, and, in particular, at page 877. The relevant passage commences just above letter F in the left column on page 877 in the Court’s joint judgment and it goes over to the right column between letters E and F. Now, your Honours, in that passage the Court distinguishes or draws a distinction between two classes or jurisdictional error, not in terms of quality of them, but in terms of their obviousness. Iit commences relevantly just above letter F in the left column, speaks of it being:

at its most obvious where the inferior court purposes to act wholly or partly outside the general area of its jurisdiction -

And, your Honours will see that elaborated upon. And the second type of case is referred to in the second line in the right column:

Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do.

GUMMOW J: The judgment goes on to distinguish bodies that are not inferior courts, does it not?

MR JACKSON: Yes, it does, your Honour, but to this end, what the judgment seems to do, with respect, is to be saying that in the case of bodies which are courts, then a much or a relevantly more benign view to that court will be taken of what constitutes jurisdictional error with the availability of there being an appeal procedure from a court being a matter that militates in favour of the view that the court has jurisdiction - though not uncorrectably - the court has jurisdiction to make what otherwise would be jurisdictional error. That puts it badly, your Honour, but I think it conveys what I am seeking to say. On the other hand, in the case of a tribunal where there is no equivalent appeal procedure, then the circumstances which obtain are ones where jurisdictional error has the rather wider application. Your Honours, I was going to refer at page 877, without reading, to a couple of parts of that paragraph, a particular one is the one about four lines down the page in the right column:

If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement -

et cetera. Your Honours will see that. Then, at about letter C:

Similarly, jurisdictional error will occur -

and your Honours will see that then elaborated upon. Then the third group, just below letter D:

Again, an inferior court will exceed its authority.....if it misconstrues that statute -

and so on.

BRENNAN CJ: Mr Jackson, how long will your argument take?

MR JACKSON: Your Honour, I expect to be half to three-quarters of an hour.

BRENNAN CJ: Mr Solicitor?

MR MASON: One and a half to two hours, I expect, your Honours. I have got a fairly full outline but I imagine that will be the time.

BRENNAN CJ: Could you hand up the outline this evening?

MR MASON: I am happy to do so, yes.

BRENNAN CJ: Mr Hely, how long would you expect your oral argument to take, Mr Hely?

MR HELY: It depends on my learned friends, your Honour. I would hope not to - I think perhaps half to three-quarters of an hour.

BRENNAN CJ: Yes.

MR MASON: I will hand up seven copies of it.

BRENNAN CJ: The Court will adjourn now until 10 am tomorrow morning.

AT 4.32 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 18 JUNE 1996