Hughes v Western Australian Cricket Association (inc)

Re: KIMBERLEY JOHN HUGHES
And: WESTERN AUSTRALIAN CRICKET ASSOCIATION (INC.) and MT. LAWLEY DISTRICT
CRICKET CLUB (INC.); MELVILLE CRICKET CLUB (INC.); NORTH PERTH CRICKET CLUB
(INC.); SUBIACO FLOREAT CRICKET CLUB (INC.); BAYSWATER-MORLEY CRICKET CLUB
(INC.); PERTH CRICKET CLUB (INC.); FREMANTLE DISTRICT CRICKET CLUB (INC.);
CLAREMONT-COTTESLOE CRICKET CLUB (INC.); SOUTH PERTH CRICKET CLUB (INC.);
MIDLAND-GUILDFORD CRICKET CLUB (INC.); WANNEROO DISTRICT CRICKET CLUB (INC.)
and LESLIE ANNISON (sued on behalf of himself and all other members of the
Southern District Cricket Club); GREGORY BUNNEY (sued on behalf of himself and
all other members of the Scarborough Cricket Club); MICHAEL SNELL (sued on
behalf of himself and all other members of the Nedlands Cricket Club); PHILLIP
CLIFFORD (sued on behalf of himself and all other members of the University
Cricket Club) and KEVIN MORRIS TAYLFORTH (sued on behalf of himself and all
other members of the Cricket Council of Western Australia Australian Cricket
Association (Inc.)
No. WA G14 of 1986
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Trade Practices - application under s.82 of Trade Practices Act and accrued jurisdiction - alleged contravention by respondents of s.45 of the Act - first and second respondents incorporated under Associations Incorporation Act - whether trading corporations in terms of s.4(1) of Trade Practices Act - summary of relevant principles - whether jurisdiction of the Court conditional upon existence of a trading corporation - disqualification of applicant from district cricket consequent upon applicant's participation in South African cricket tour - applicant disqualified pursuant to amended Cricket Council rule - no provision in original rule for disqualification for breach of rule - rule amended by resolution at Cricket Council meeting - Council's understanding of operation of original rule in relation to South African cricketers the subject of a resolution at an earlier meeting - whether conduct of Council members at relevant meetings constituted a contract arrangement or understanding in terms of s.45 of the Act - resolution to amend found to amount to an understanding between first, second and third respondents - whether understanding contained an exclusionary provision in terms of ss.45 and 4D of the Act - meaning of 'purpose' in s.4D - competition between second and third respondents for services of cricketers - whether second and third respondents 'competitive with each other' in terms of s.4D - disqualification provision directed inter alia at applicant and other 'rebel cricketers' - whether 'particular persons' in terms of s.4D - exclusion of South African cricketers from district cricket competition as a result of rule - whether likely effect thereof to substantially lessen competition in terms of s.45 - meaning of 'substantial lessening of competition' - consideration of relevant markets - decision by Cricket Council to reject motion for reinstatement of applicant - whether decision constitutes giving effect to an exclusionary provision or a provision likely to substantially lessen competition in terms of s.45 - contravention of s.45 by first respondent - whether second and third respondents involved in the contravention in terms of s.75B - disqualification provision automatic in operation and indefinite in duration - whether unreasonable restraint of trade - whether in breach of applicant's alleged right to work - rule prohibits participation in unrecognised matches without the consent of the Cricket Council - permission to play in South Africa sought by applicant - no reply received - whether failure by Council to give any or proper consideration to applicant's application for consent - whether decision to disqualify ultra vires - alleged agreement between respondents to injure or punish applicant by disqualifying him from district competition - whether a conspiracy between respondents - whether respondents acted in bad faith or as a result of bias - allegation that applicant disqualified for political reasons - whether disqualification contrary to the Equal Opportunity Act - first respondent party to deed in settlement of litigation concerning effect of South African tour on applicant's participation in test and interstate cricket - whether disqualification of applicant from grade cricket in breach of express or implied term of deed - relief appropriate - measure of damages

HEARING

PERTH

#DATE 27:10:1986

JUDGE1

Introduction

In this opening address, counsel for the applicant described this case as one of immense technical difficulty but having at its core the right of a person to earn a living in a chosen trade or profession in the country and state of his choice. By way of riposte, counsel for the respondents said in his opening address that the case had nothing whatsoever to do with the applicant's right to work, that it concerned the obligation of the applicant to play the game of cricket according to its rules and that, notwithstanding the applicant's attempt to dress up his case in a wide variety of the most complex technical and legal attacks upon the conduct of the respondents, it would be found that the respondents were doing no more than exercising their responsibilities in a democratic fashion.

Of one thing there can be no argument. The applicant's case as presented was indeed complex, both as to fact and law. It involved the meaning and operation of several difficult provisions of the Trade Practices Act 1974, coupled with a detailed examination of a number of common law causes of action, in particular restraint of trade, conspiracy, ultra vires, bad faith and bias and a claim under the Equal Opportunity Act 1984 of Western Australia. At the forefront of the proceeding was a challenge to the jurisdiction of this Court to entertain the application.
The hearing occupied twenty-one days and was preceded by a number of interlocutory applications relating to pleadings, discovery, interrogatories and the issue of a subpoena duces tecum returnable before the hearing. No doubt the hearing would have been longer had it not been for two considerations. The first was that, by agreement between the parties, evidence was admitted on affidavit. Twenty-four affidavits were filed on behalf of the applicant and twenty-seven on behalf of the respondents. Most of the deponents were cross-examined and the respondents attacked much of the contents of the affidavits filed on behalf of the applicant. As a result a number of paragraphs and parts of paragraphs were disallowed. The second consideration related to the admission of documentary evidence. The Court was presented with files containing 459 documents which the parties had agreed as to authenticity. However they reserved their rights to object to the admission of documents on the ground of relevance and otherwise. In a number of cases objections were made and upheld and in other cases counsel did not press for the admission of documents. In the end 223 documents were tendered in this way; other documents were tendered through witnesses.

The parties
It is necessary now to say something about the parties to this litigation. The applicant is a professional cricketer, that much is admitted. It is also admitted that he is and was at all material times engaged as a professional cricketer by Subiaco Floreat Cricket Club (Inc.), though the terms of his engagement assume some importance. That is a matter to which I shall refer later. He first played A grade cricket as a sixteen year old in 1969. He first played for Western Australia in the 1974-75 season and for Australia in 1976. He was captain of the Western Australian side in 1980-81 and thereafter until the commencement of the 1985-86 season. He captained Australia in the second test against Pakistan in 1978-79 at the W.A.C.A. ground. The applicant's reputation as a cricketer is unquestioned.
The first respondent ("the W.A.C.A.") and the second respondents are bodies incorporated under the provisions of the Associations Incorporation Act 1895 of Western Australia. That Act provides for the incorporation of a range of associations but it has no application to "associations for the purpose of trading or securing pecuniary profit to the members from the transactions thereof" (s.2). One question that will arise for consideration in these reasons is the significance of incorporation under the Associations Incorporation Act for the argument that the respondents are trading corporations within the Trade Practices Act. The W.A.C.A. is responsible for the promotion of cricket in Western Australia.
Each of the second respondents is responsible for club cricket in a particular district. The third respondents are cricket clubs and are similarly responsible but they are not incorporated. The fourth respondent, Mr. Taylforth, is the chairman of the Cricket Council and was sued in a representative capacity. I shall refer to the fourth respondent as the Cricket Council and to Mr. Taylforth by name when it is his conduct that is under consideration. The Cricket Council is established by r.35 of the rules of the W.A.C.A. which reads:

"There shall be a Cricket Council consisting of the Chairman for the time being of the Council, the delegates elected annually by the several clubs associated with the Council (herein referred to as the Associated Clubs), two delegates appointed by the Executive, and such other delegates as the Council may from time to time admit in accordance with the rules framed by it under the power in that behalf herein conferred on it".

Rule 36 of the rules of the W.A.C.A. empowers the Cricket Council to make by-laws and regulations for the control and management of matters within its own jurisdiction and to issue its own rules under separate cover. Rule 37 sets out the functions of the Cricket Council, the first of which is the control and management of all associated club matches. (There is a difference in the numbering of these rules as they appear in Ex.10 and in "The Western Cricketer", a publication of the W.A.C.A. I have followed counsel in using the numbering in the latter.) The second and third respondents comprise the Associated Clubs. While the Cricket Council is established by the rules of the W.A.C.A., the executive of the W.A.C.A. appoints delegates to the Council. It was the applicant's case that the Cricket Council was an autonomous body and that, while the first, second and third respondents were responsible for whatever was done by their delegates, the Council was not in any sense an agent of the W.A.C.A. The respondents did not appear to dissent from this view of the matter. But they did contend that the members of the Cricket Council, though appointed by the W.A.C.A. and the Associated Clubs, were not their agents.
The applicant alleges that the W.A.C.A. and the incorporated clubs are trading corporations within the meaning of the Trade Practices Act. This is denied by those respondents. The issue is quite crucial to the application of the Trade Practices Act. The respondents say that it is crucial also to the jurisdiction of this Court to entertain any of the applicant's claims. The applicant contends that the jurisdiction of this Court does not depend upon upholding the claim that one or more of the respondents is a trading corporation, so long as the Court is satisfied that the claim is a bona fide one. This is a matter to which I shall return.
With four exceptions, the respondents were represented by the one firm of solicitors and by the same counsel and have common interests. The exceptions are Subiaco Floreat Cricket Club (Inc.) (of which the applicant is a member), Claremont-Cottesloe Cricket Club (Inc.), Gregory Bunney who is sued on behalf of members of Scarborough Cricket Club and Phillip Clifford who is sued on behalf of University Cricket Club. These four respondents were content to abide by any order the Court might make. No claim for damages or costs was pursued against them but the applicant seeks to have them bound, together with the other respondents, by any declaratory or injunctive relief that may be granted.

The applicant's concern
In essence the applicant's concern is that, by reason of his decision to play cricket in South Africa between 1 November 1985 and 31 March 1986 and again between 1 October 1986 and 31 March 1987, he has been barred from test cricket, Sheffield Shield cricket (that is, interstate cricket) and club or district cricket. The playing of club cricket is not a legal prerequisite to the playing of shield and test cricket. But there is no doubt that a player who is not available for club cricket may lose the chance to maintain his skills, is away from the eyes of the selectors and therefore has a reduced chance of selection for shield and test cricket. And in a more general way his skills as a cricketer may suffer. I accept the applicant's statement in an affidavit filed in these proceedings:

"District cricket not only provides me with valuable match practice and training for the purposes of pursuing my career generally but also affects my capacity to fulfil sponsorship obligations and also to attract future Australian sponsorship".

The applicant's disbarment from playing test and shield cricket was not directly involved in these proceedings. It was however the subject of litigation in the Supreme Court of Victoria and the terms upon which that litigation was settled have relevance to the issues with which this Court is presently concerned. The applicant's disbarment from playing club cricket, which it is said resulted from a decision of the Cricket Council, is the matter of which direct complaint is now made.

Rules of the Cricket Council
To understand how the applicant's disqualification from club cricket is said to have arisen, reference must be made to r.2:38:1 of the rules of the Cricket Council. This rule was amended on 4 November 1985; it is necessary to have regard to its original form and its form as amended. Originally it provided:

"No Club or Affiliated Association and no member of any Club or Affiliated Association and no player registered as such under these Rules shall arrange or take part in any cricket match within or without the State of Western Australia other than a match recognised by the Australian Cricket Board or the Association without first obtaining the consent in writing of the International and Interstate Cricket Committee of the Association provided that: This Rule shall not apply to the arranging of or taking part in any match declared by the International and Interstate Cricket Committee to be a social match".

In its amended form, r.2:38:1 reads:

"No Club or Affiliated Association and no member of any Club or Affiliated Association and no player registered as such under these Rules shall arrange or take part in any cricket match within or without the State of Western Australia other than a match recognised by the Australian Cricket Board or the Association without first obtaining the consent in writing of the Cricket Council of the Association provided that: This Rule shall not apply to the arranging of or taking part in any match declared by the International and Interstate Cricket Committee to be a social match. Any player found in breach of this rule is automatically disqualified until reinstated by the Cricket Council".

The amended rule differs from the original rule in two important respects. First, the amended rule substituted the Cricket Council for the International and Interstate Cricket Committee ("the I. and I. Committee") as the body whose consent is required. The I. and I. Committee is also a creation of the rules of the W.A.C.A. It consists of seven members, to be elected annually, and a general manager (r.39). Its primary function is to arrange and control all international and interstate matches, but it also appoints the W.A.C.A. representatives to the Australian Cricket Board (r.42). The second difference is that the original rule said nothing as to the consequences for a player who was in breach of the rule. The amended rule provides automatic disqualification until the player is reinstated by the Cricket Council.
Reference must also be made to r.2:39:5 of the Cricket Council rules, which has not been amended. It reads:

"If a club allows a player disqualified pursuant to these Rules or disqualified by order of the Council, to play in a match in a team of that club after notice of that player's disqualification has been received by the club the club commits an offence and if the offence is proved upon complaint to the Council the club shall be liable to a fine and shall be deemed to have lost the match to the opposing club. If the match is so lost the Council shall declare the match to have been a first innings win or an outright win with first innings lead to the opposing club. A complaint under this Rule may be lodged by the Grade Committee or the opposing club".

As the rules of the Cricket Council stood before 4 November 1985 (and as they stand now), there was provision for disqualifying a player whose name appeared in a list of defaulters furnished by the secretary of a club (r.2:39). There was and is provision for the prosecution of a player "for an act or omission deemed to be an offence under these rules" (r.2:24). Rule 2:24 contains the procedure which must be followed in such a case - a complaint, followed by a hearing - and r.2:25:2 empowers the Council to impose the prescribed penalty or if none is prescribed "such penalty . . . as it thinks fit". But none of these rules is relevant to the situation of the applicant. I conclude that before 4 November 1985 playing in an unrecognised match could not result in disqualification of the player from playing in club matches, at any rate not without following the procedure in r.2:25. That procedure was not followed in the applicant's case.

The background
Despite the welter of evidence led on both sides, the events giving rise to this application fall within a fairly narrow compass. To a large extent the facts are not in dispute though questions of credibility arise, particularly in regard to meetings of the Cricket Council held on 25 September, 4 November 1985 and early in 1986.
On 15 May 1985 the applicant executed an agreement with The South African Cricket Union ("S.A.C.U."). He agreed to take part in cricket tours in South Africa during the periods 1 November 1985-31 March 1986 and 1 October 1986-31 March 1987. In addition to meeting costs associated with the applicant's movements to and from South Africa and costs associated with the tours, S.A.C.U. agreed to pay the applicant $A200,000. This amount was expressed to be free of tax; it is unnecessary to mention the formula by which income tax was taken into account. Other Australian cricket players entered into comparable agreements about the same time, probably a little earlier.
In or about May 1985 the Australian Cricket Board (of which the W.A.C.A. was a member along with other state cricket associations) and Frederick William Cecil Bennett, the Chairman of the Cricket Board, instituted proceedings in the Supreme Court of Victoria. There were two actions, No. 1497 of 1985 relating to players other than the applicant, and No. 1811 of 1985 relating to the applicant. In each case the plaintiffs sought injunctions, damages and other relief so as to restrain the defendants from giving effect to their agreements with S.A.C.U. The basis of the actions lay in the contention that the defendants were then bound to the Cricket Board and had undertaken not to play in a cricket match, other than a match controlled by the Cricket Board or one of its constituent members or approved by the Cricket Board, and in particular had contracted not, without the permission of the Cricket Board, to play cricket outside Australia. Those proceedings were defended.

The Victorian actions were settled right at the death knock and a deed of settlement dated 29 July 1985 was executed by all concerned including the applicant. It will be necessary, later in these reasons, to refer to certain parts of the deed because one cause of action upon which the applicant relies is that the W.A.C.A. is in breach of the deed. For the purpose of this recital of facts, it is enough to note that a consequence of the deed was that the applicant might participate in the South African tours without being in breach of any contract between himself and the plaintiffs in the actions (which included the W.A.C.A.), but that he accepted the lawfulness of bans imposed by the Australian Cricket Board rendering him ineligible to be a member of a team representing an Australian state before 1 October 1987 and rendering him ineligible to be a member of an Australian team before 1 October 1988. The deed made no reference to the playing of cricket at club level.
By letter dated 11 November 1985 Robert John Parry, who was the applicant's business manager as well as being club coach for Bayswater-Morley Cricket Club (Inc.), wrote to the chairman of the Cricket Council. He did so in the name of the applicant, pursuant to a power-of-attorney which he held. The applicant was then in South Africa. The letter read:

"I refer to Cricket Council Rule 2.38.1 concerning the playing by a club member in a match other than one organised by the Australian Cricket Board or your Association.

Accordingly I wish to seek your Councils consent to allow me to play in such games as have been organised by The South African Cricket Union during this 1985/86 summer season."

Paragraph 26 of the statement of claim pleads that the fourth respondent failed to reply to the applicant's request. Paragraph 27 pleads that the fourth respondent failed to give any or any proper consideration to the request. Paragraph 17 of the defence denies paras.26 and 27. Such a denial, without any positive affirmation that the fourth respondent did reply or did give proper consideration, offends the rules of pleading and would have been struck out, had application been made to this end. No such application was made. It is quite clear that the Cricket Council did not reply to the request. Whether it gave any or proper consideration thereto will be looked at later in these reasons.
By 11 November 1985 several important events had occurred. In particular there had been two meetings of the Cricket Council, one on 25 September and one on 4 November. At the meeting on 25 September, which was a special meeting, it was resolved:

"That the Cricket Council has come to an understanding that the Rule regarding unrecognised matches cannot be invoked until the players take part in such matches."

It was common ground that this was a reference to r.2:38:1. There was a further resolution:

"The Cricket Council, at this time, does not intend taking any action against the proposed South African tour players. The Rules as they stand would prevent them from playing upon their return; however, there has been notice given of a proposed notice of motion to review the applicable Rules prior to that time".

At the meeting on 4 November r.2:38:1 was amended in the two respects already noted. First, the Cricket Council was substituted for the I. and I. Committee as the body whose consent to play in an unrecognised match was required. Second, the following words were added to the rule:

"Any player found in breach of this Rule is automatically disqualified until re-instated by the Cricket Council".

In its amended form r.2:38:1 gives rise to several questions. When is a match "recognised" by the Cricket Board or the W.A.C.A.? What is meant by "found" in breach of the rule? What is meant by "automatically disqualified"? These questions must be looked at, but at this stage I shall continue with the sequence of events.
As at 4 November 1985 the applicant had not (nor for that matter had any of the players contracted to play in South Africa) taken part in a tour match. The first match he played in South Africa was on 9 November 1985.
There was an ordinary meeting of the Cricket Council on 6 January 1986. A number of matters were canvassed. Towards the end of the meeting there was a motion by Mr. Burgess, the president of Subiaco Floreat Cricket Club (Inc.) which was seconded by Mr. Bunney, the president of Scarborough Cricket Club (to which Thomas George Hogan and Gregory Shipperd, other South African tour players belonged) that:

". . . the South African tourists be re-instated to W.A.C.A. Grade and Toyota Cup fixtures on their return so that they may fulfil their obligations to their clubs".

The minutes of the meeting report the fate of that motion in the following terms:

"The Fremantle Club/A. Dougan was opposed to their re-instatement this season.

F. O'Driscoll considered that re-instatement would be in direct opposition to the motion carried by Council on the A.C.B. Code of Behaviour.

P. Clifford supported the motion on legal grounds.

The motion was put and LOST."

Mr. Dougan was the delegate to the Cricket Council of Fremantle District Cricket Club (Inc.). Mr. O'Driscoll was the President of Mt. Lawley Cricket Club (Inc.) and its delegate to the Council.

On 3 February 1986 there was held what the minutes describe as "special and ordinary meetings of the Cricket Council". Item 26.2 of the minutes, under the heading of "Special Business", deals with "Players undertaking unofficial tours of South Africa". As to that matter, the minutes record:

"MOVED (D. Fitzgerald/M. Parr) that T. Hogan, G. Shipperd, K. Hughes and T. Alderman be reinstated so that they may participate in Swan Gold League and Toyota Cup following their return from South Africa and enable them to fulfill their obligations to their respective District Clubs.

In support of the motion D. Fitzgerald read from a prepared statement. Following discussion the motion was put and LOST (7/8).

The University, Scarborough, Subiaco-Floreat and Claremont-Cottesloe delegates requested that the minutes record that they had voted in favour of the motion".

Mr. Fitzgerald was the delegate of Scarborough Cricket Club. Mr. Parr was the delegate from Subiaco Floreat Cricket Club (Inc.), the club to which the applicant belonged. Mention has been made already of Messrs. Hogan and Shipperd. Terrence Alderman was a member of the applicant's club.

There was a further special meeting of the Cricket Council on 19 February 1986. The meeting was requisitioned when it was learned that Charles Arthur Bull, the delegate to the Cricket Council from South Perth Cricket Club (Inc.), had at the meeting on 3 February voted against reinstatement contrary to the instructions of his club. At the meeting on 19 February Mr. Bull explained that he had misunderstood how he should vote. Mr. Taylforth, as chairman of the meeting, ruled that the Cricket Council had "no authority or power to deal with a matter concerning a delegate and his club and therefore the matter . . . was outside the jurisdiction of the Council". Mr. Burgess and Mr. Bunney moved and seconded respectively a motion of dissent to the chairman's ruling but that motion was lost six votes to eleven. The chairman then declared the meeting closed.
The circumstances in which Mr. Bull apparently misunderstood his club's instructions and voted against reinstatement rather than for it were not explained satisfactorily. Mr. Bull gave evidence in which he denied that the vote he cast in error was any more than a misunderstanding of what had taken place at the meeting of his club preceding the Cricket Council meeting on 6 January. It was not his club's practice to arm its delegate with written instructions as to how to vote on matters arising or likely to arise at a meeting of the Cricket Council. But its delegate was expected to vote in accordance with the views of the club as made known at its meetings. Despite cross-examination and re-examination of Mr. Bull, I am by no means clear what he meant by saying that he had misunderstood his instructions. Did he mishear what he was told at the meeting of the club, did he hear correctly and then become confused or did he simply forget what he had been told by the club? Later in these reasons I shall say more about Mr. Bull's conduct, in the context that the members of the Cricket Council were acting in bad faith and were biased. At this stage I voice my concern that, on such an important matter, the explanation forthcoming went little further than that there had been a misunderstanding.
Had Mr. Bull voted in accordance with the views of his club, the motion to reinstate the applicant would have been passed eight votes to seven. While one cannot forecast what might have happened thereafter, at least in terms of r.2:38:1 and while the motion for reinstatement stood the applicant would not have been disqualified from playing for his club. This might have had the further consequence that this long and costly piece of litigation could have been avoided.

Trading corporations
The jurisdiction of the Federal Court is attracted by reason of the claim made under the Trade Practices Act. Put shortly, the claim is that the conduct of the respondents at each of the meetings on 25 September and 4 November 1985 constituted a contract, arrangement or understanding which contained an exclusionary provision contrary to sub-para. 45(2)(a)(i) of the Act and that a provision of that contract, arrangement or understanding had as its purpose, or had or was likely to have the effect, of substantially lessening competition in contravention of sub-para. 45(2)(a)(ii) of the Act. Furthermore, it is said, their conduct thereafter gave effect to each such provision in contravention of sub-paras. 45(2)(b)(i) and (ii) of the Act.
Sub-section 45(2) strikes at conduct by a corporation. The applicant contends that all the incorporated respondents are trading corporations, hence corporations within sub-s.4(1) the Trade Practices Act. But he says that in any event it is sufficient if there be one corporation that engaged in conduct in breach of the sub-section. It is enough, he says, if the W.A.C.A. be a trading corporation even if, contrary to his submission, the incorporated clubs are held not to be. The respondents, while recognising a distinction between the activities of the W.A.C.A. and the clubs, contend that none of the incorporated respondents is a trading corporation.
The last few years have seen several decisions, particularly by the High Court, in which the notion of a trading corporation has been examined. It is not my intention to refer to those decisions in great detail but rather to state the principles that appear to emerge from them and then to apply those principles to the facts of the present case.

1. The mere fact that a corporation trades does not mean that it

is a trading corporation. Reg. v. Trade Practices Tribunal; Ex parte St. George County Council (1974) 130 CLR 533 at 543, 562 ("St. George County Council"); Reg. v. Federal Court of Australia; Ex parte W.A. National Football League

(1978-1979) 143 CLR 190 at 219, 234 ("Adamson")

The purpose of incorporation, propounded in St. George County

Council, is no longer a valid test. The test is one of the current activities of the corporation. Adamson; State Superannuation Board v. Trade Practices Commission (1983) 57 ALJR 89 at 96 ("State Superannuation Board").

But the current activities test is not the sole criterion for

determining whether a corporation is a trading corporation. Thus where a corporation has not begun to trade, its character may be found in its constitution. Even when there are current activities, the corporation's constitution is not completely irrelevant Fencott v. Muller (1982-1983) 152 CLR 570 at 602.

Views as to the necessary extent of trading activity have

varied. It must be a substantial corporate activity (Barwick C.J. in Adamson at 208); the trading activities must form a sufficiently significant proportion of the corporation's overall activities (Mason J. in Adamson at 233, with Jacobs J. concurring at 237); the trading activities should not be insubstantial (Murphy J. in Adamson at 239); the corporation must carry on trading activities on a significant scale (Mason, Murphy and Deane JJ. in State Superannuation Board at 96; Deane J. in Commonwealth v. Tasmania (1983) 46 ALR 625 at 833).

An incorporated sporting body can be a trading corporation if

its activities meet the required test. Adamson.

In particular, incorporation under a statute such as the

Associations Incorporation Act does not prevent a corporate body from being a trading corporation if its activities warrant that description. Adamson at 232.

Trading denotes the activity of providing, for reward, goods

or services. Re Ku-ring Gai Co-operative Building Society (No. 12) Ltd. (1978) 22 ALR 621 at 624-625; St. George County Council at 569-570; Bevanere Pty. Ltd. v. Lubidineuse

(1985) 7 FCR 325 at 330-331

The Trade Practices Act itself draws a distinction between

trading corporations and financial corporations; nevertheless the two classes are not mutually exclusive. State Superannuation Board at 96.

Adamson repays closer consideration for it is the nearest on the facts to the case now before the Court. It concerned a professional football player who was registered with the West Perth Football Club (Inc.) ("West Perth"), a body incorporated under the Associations Incorporation Act 1895. The club was a member of the Western Australian National Football League ("the W.A. League") which was incorporated under the same Act. Adamson received an offer inviting him to play with the Norwood Football Club (Inc.) ("Norwood") in South Australia, a body which was incorporated under the Associations Incorporation Act 1956 of that state and which was a member of the South Australian National Football League ("the S.A. League"), also incorporated under that Act. The W.A. League and the S.A. League were members of the National Football League of Australia, a company limited by guarantee incorporated under the Companies Act 1961 of Victoria.
The case concerned the refusal of West Perth and in turn the W.A. League to grant a clearance to Adamson to play for Norwood. Adamson sued West Perth, the W.A. League and the S.A. League in the Federal Court, alleging that they were trading corporations and that their actions in relation to the clearance application were breaches of sub-s.45(2) of the Trade Practices Act. At this point of these reasons for judgment, I am concerned only with the view taken by the majority of the High Court - Barwick C.J., Mason, Jacobs and Murphy JJ., with Gibbs, Stephen and Aickin JJ. dissenting - that West Perth and the W.A. League were trading corporations.
Mention has already been made of the tests propounded in Adamson for determining whether an incorporated body is a trading corporation. In the course of his reasons for judgment, Mason J. considered in some detail the activities of the relevant bodies. It is in that regard that the facts of Adamson have particular application to the present case.
In finding that the W.A. League had trading activities so extensive as to leave no doubt that it was a trading corporation, Mason J. said at 234:

"The W.A. League has as its principal object the promotion, control, management and encouragement of Australian Rules football matches and competitions. It controls and manages the competition between the Perth clubs, adjudicating on disputes between clubs and on complaints against officials and players, imposing penalties where they are considered appropriate. The clubs are members of the League and pay a small subscription to it. The proceeds of each League competition match are received by the League. Under its constitution the W.A. League retains 20 per cent of these proceeds or such greater percentage as it may require, and the balance is equally divided among the member clubs. . . . Apart from gate receipts from competition matches the League has a variety of other sources of income. They include: (a) receipts from interstate and other matches which it promotes or arranges; (b) receipts from broadcasting and television rights granted in respect of games which it promotes or arranges; (c) income from promotion, sponsorship and advertising; (d) rent for use of part of its premises;

(e) catering rights at Subiaco Oval in Perth which it holds on lease; (f) income from the sale of, and advertising revenue from, its weekly programme".

His Honour rejected the argument that the trading activities of the League were incidental to its main objects viz. the promotion and encouragement of the sport as a recreation. He continued at 235:

"This to my mind is an inversion of the true position. To me it seems that the sport is promoted and encouraged as a means of ensuring the receipt of the large financial returns which are associated with it. The financial revenue of the Leagues is so great and the commercial means by which it is achieved so varied that I have no hesitation in concluding that trading constitutes their principal activity. In saying this I treat all their activities which I have listed and which produce revenue as trading activities. I do not limit the concept of trading to buying and selling at a profit; it extends to business activities carried on with a view to earning revenue".

Mason J. recognised that West Perth stood in a somewhat different category to the W.A. League. Its principal objects were to foster Australian Rules Football, to provide facilities for playing it and to provide recreational and sporting facilities for its members. At 236 he said:

"West Perth derives income from two main sources: first, from the operations of its football team in the competition run by the W.A. League; secondly, from various trading activities which it conducts. The first source of income includes the distribution received by it as a member club of the W.A. League and membership fees for admission to matches in which its teams participate. The second source of income is from bar trading and catering . . . a third and minor source of income is revenue from the sale of club ties, objects and souvenirs.

The fact that West Perth is a club and that therefore its sales of liquor and food are largely made to members does not in my view affect its character as a trading corporation. There is no reason why an incorporated club which is heavily engaged in trading activities should not be held to be such a corporation, despite the fact that its trading activities are related to its character as a club and that it provides social functions, amenities and services for its members.

The principal activity of the Club is its participation as a member club of the W.A. League in the competitions which it runs. Indeed, that is West Perth's major source of income. The comment which Fletcher Moulton L.J. made of the Crystal Palace Club in Walker v. Crystal Palace Football Club Ltd. (1910) 1 KB 87 applies with equal force to West Perth. His Lordship said at p. 92:

'Here is a company that carries on the game of football as a trade, getting up and taking part in football matches'.

The only qualification to be made is that West Perth does not arrange or manage the competition matches".

In State Superannuation Board at 96, Mason, Murphy and Deane JJ. referred with approval to what Mason J. had said in Adamson at 233 when he noted that "trading corporation" is essentially:

". . . a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation".

While the authorities to which I have referred seek to define or describe a trading corporation, they do not in express terms offer a process by which the question whether a corporation is a trading corporation may be determined. Mr. Archer, of counsel for the respondents, suggested what he described as a "three-stage test". This involved identifying the totality of the activities of the corporation, identifying those activities properly characterised as trading activities and then evaluating the extent of the trading activities against the totality of activities.
That approach seems to me consistent with what the High Court said in Adamson and other cases and I am content to adopt it. But as I shall point out, especially in relation to the clubs, there are difficulties involved in comparing economic and non-economic activities.
Against the background of the general principles to which I have referred and the detailed analysis by Mason J. in Adamson, I now look at the position of the W.A.C.A. and thereafter at the incorporated clubs.

Is the W.A.C.A. a trading corporation?
Much of the W.A.C.A.'s activities can be gleaned from The Western Cricketer, its 1984-85 year book, and from the affidavit of Peter Brian Rakich, its treasurer, to which are exhibited a number of documents relating to the association's financial affairs.
The total revenue derived by the W.A.C.A. during 1984-85 was $3.2 million and its expected revenue for 1985-86 is $3.4 million. The income for the earlier year produced a surplus of $195,000; a surplus of about $100,000 is expected for the latter year. It is revenue rather than profit to which the courts look in determining the character of a corporation. That is not to say that profit is irrelevant; but clearly the amount of profit may not, for various reasons, reflect the extent of trading activities.
The income of the W.A.C.A. is derived principally from ground revenue (it receives 15% of gate takings for international and interstate matches conducted by the Australian Cricket Board), membership subscriptions, bar trading and bottle shop, sponsorship (including perimeter advertising and sponsors' boxes), interest on investments, money from such sources as the lease of indoor cricket nets, fund-raising and catering facilities. As well it receives a distribution from the Australian Cricket Board of the W.A.C.A.'s share, not only of gate receipts but of sponsorship and advertising and the sale of television rights for international and interstate matches.
The activities producing these sources of income closely resemble those of the W.A. League considered in Adamson. One point of distinction is that, while it is clubs that constitute membership of the W.A. League, the W.A.C.A. has members in the ordinary sense. They are persons who pay annual subscriptions which entitle them to use the various facilities of the association including attendance at interstate and international matches without charge. Persons do not join the W.A.C.A. to play cricket but rather to watch it. If they wish to play, they join clubs.
The income derived from the W.A.C.A. is expended mainly in administration costs, the expense of maintaining stands and other equipment, the cost involved in approaching sponsors and arranging promotions, and depreciation.
Within this overall picture of income and expenditure, the W.A.C.A. treats as separate entities the I. and I. Committee and the Cricket Council. According to Mr. Rakich, the costs of the I. and I. Committee generally exceed the revenue it generates. Its sources of revenue comprise a distribution from the Australian Cricket Board, sponsorship of the Sheffield Shield team and a proportion of gate receipts for interstate and international matches held at W.A.C.A. ground. The expenses of that committee relate to coaching and administering the Sheffield Shield team, paying out prize money to the state team, some of the expense of staging shield and international matches and paying state players for their involvement in shield cricket.
The revenue of the Cricket Council is derived mainly from sponsorships received for district competition as a whole. Its expenses relate to the costs of organising fixtures and the competition at district cricket level.
As I understand the picture from the evidence of Mr. Rakich and the various documents tendered in evidence, the I. and I. Committee and the Cricket Council do not operate at a profit and their losses are absorbed by the W.A.C.A. itself. For the purpose of determining whether or not the W.A.C.A. is a trading corporation, it is appropriate to look at the overall situation of the W.A.C.A. Counsel for the parties did not suggest otherwise in the course of their final addresses.
The W.A.C.A.'s income of $3.2 million for 1984-85 included membership fees amounting to $650,000 or thereabouts and a distribution from the Australian Cricket Board of $375,000. Because of the way in which various statements of revenue and expenditure have been prepared, it is not easy to set out all the relevant information in a concise manner. But by way of illustration, the income from members' catering was $224,345, the income from the public bar was $119,112, and $249,155 came from what was described as members' club trading. The anticipated figures for 1985-86 reflect much the same pattern.
The president of the W.A.C.A.'s review, in his annual report for 1984-85 (The Western Cricketer 66-67), speaks of a dream to transform the W.A.C.A. ground into an international stadium beginning to come true. It speaks of an expectation that league football will be played at the W.A.C.A. in 1987; of plans for the America's Cup season that include an England Australia test match, a W.A.C.A. international tournament as part of a festival of sport, a commemorative mass to welcome the Pope to Western Australia - "dramatising the W.A.C.A.'s exceptional facilities for the handling of huge crowds at major public events"; and of what are described as three "huge night-time spectaculars under the new floodlights - a New Year's Eve Concert with leading world artists, an America's Cup Ball, and a Military Tattoo climaxing the 1987 Festival of Perth - all in the open air on the historic Oval".
I accept that, in accordance with its rules, a primary object of the W.A.C.A. is the promotion and control of cricket in Western Australia (r. 3(a)). However its objects do include the promotion of "recreation entertainment and amusement" in general terms (r. 3(d)) and the availability of the ground "for the purposes of public recreation, gatherings of societies, concerts, entertainments and amusements" (r. 3(f)). It is apparent that a very substantial part of the activities of the W.A.C.A. are of a trading character, involving the provision of goods and services not only to its members but to the large numbers of the public who make use of those facilities. I do not accept the submissions of counsel for the respondents that the only trading activities of the W.A.C.A. are "the conducting of the bar and catering facilities". In promoting and controlling cricket in Western Australia the W.A.C.A. has found itself a complex and sophisticated organisation, receiving and disbursing large sums of money, forever expanding the scope of its activities beyond cricket to other forms of entertainment, charging admission to its ground for cricket and other activities, providing bar and restaurant facilities for all who attend (not just members) and generally engaging in many activities that are of a trading nature. By any test those activities are substantial.
I find that the W.A.C.A. is a trading corporation.

Are the incorporated clubs trading corporations?
The position of the incorporated clubs must now be considered. While some of their activities have a counterpart in the activities of the W.A.C.A., there are important differences. The membership of the clubs is mainly made up from those interested in playing cricket although some members are supporters only. The clubs do not charge entrance fees to their games; anyone may watch a club game without payment, though bar facilities are only available to members and their guests in accordance with the licensing provisions of Western Australia. There are differences in degree, though not in kind, in the activities conducted by different clubs.
With the clubs, a comparison of activities is more difficult than in the case of the W.A.C.A. Where all activities are income producing, it may not be hard to single out some as trading activities and quantify their signficance, even if only in a broad way. But where some activities are income producing and others are not, the exercise is not so straight-forward. For instance, it is apparent that most of the time spent by members of the clubs is on the playing of cricket, whether at training sessions or at matches. This is an activity which does not directly produce income at the club level though of course it has incidents such as sponsorships which are income producing. How then is the comparison to be made? The amount of revenue produced from a particular activity may not be a satisfactory guide. A trading activity may represent a significant part of a club's income but be relatively insignificant in an overall consideration of the club's activities. There is no ready answer to these difficulties: in the end. I must come back to what Mason J. said in Adamson at 233:

"'Trading corporation' is not and never has been a term of art or one having a special legal meaning. . . . Essentially it is a description or label given to a corporation when its trading activities form a sufficiently significant proportion of its overall activities as to merit its description as a trading corporation."

The clubs' incomes are derived from a number of sources. They include subscriptions (there are different rates for players and non-players), a grant from the W.A.C.A., prize money from competitions in the Swan Gold League and Toyota Cup games for A grade palyers, donations, fund-raising, interest on investments, bar trading, sponsorship and advertisements.
It will be necessary to look at sponsorships when considering whether there is a relevant market for the purpose of s.45 of the Trade Practices Act. At this point in the reasons for judgment their relevance lies in the income that they provide to clubs. At the time of the hearing the Swan Brewery Co. Ltd. sponsored each cricket club, though it did so through an arrangement made with the W.A.C.A. Individual clubs have their own sponsors. For instance, during the 1985-86 season Subiaco Floreat Cricket Club (Inc.) had as sponsors Town & Country W.A. Building Society, Kimberley N.Z.I. Finance Ltd., Fortron Automotive Treatments Pty. Ltd., Ledge Leasing Pty. Ltd., Ray Fitzgerald & Co., The York Motor Museum and Settlers House Pty. Ltd. In most, but by no means all, cases sponsors have their place of business within the district of the particular cricket club. And in most cases sponsorships are obtained through some personal connection with a player or club supporter.
Counsel for the applicant prepared graphs showing, in respect of the clubs for which figures were available, their gross incomes for 1985 and 1986 and the break up of those incomes. Because of the significance attached by the applicant to these figures, I shall set out in a summary way their import.

Bayswater-Morley Cricket Club (Inc.) 1986

Gross income: $27,207.79 Players subscriptions: 11.77% Investment interest: .15% Fund-raising: 7.06% Sponsorship and advertisements: 11.92% Bar trading: 63.94% Other: 5.16%

Claremont-Cottesloe Cricket Club (Inc.) 1985

Gross revenue: $38,693 Subscriptions: 15.85% Non-playing members: 2.22% W.A.C.A. grant 7.75% Prize money: 2.61% Investment interest: 2.40% Fund-raising: 18.69% Sponsorship and advertisements: 8.96% Bar trading: 32.40% Other: 9.12%

Fremantle District Cricket Club (Inc.) 1986

Gross income: $63,970.17 Subscriptions: 3.89% Non-playing membership: 3.56% W.A.C.A. financial grant: 6.22% Donations: .54% Fund-raising: 7.53% Sponsorships and advertising: 12.93% Bar trading: 56.48% Other: 8.85%

Midland-Guildford Cricket Club (Inc.) 1985

Gross income: $52,683.67 Subscriptions: 7.61% Non-playing membership: 1.14% W.A.C.A. financial grant: 5.69% Prize money: 9.32% Investment interest: .13% Donations: 7.42% Fund-raising: 16.36% Bar trading: 46.64% Other: 5.69%

Mt. Lawley District Cricket Club (Inc.) 1985

Gross revenue: $50,202 Subscriptions: 11.23% Non-playing membership: 2.76% W.A.C.A. financial grant: 6.51% Prize money: 5.58% Investment interest: 1.82% Donations: 1.55% Fund-raising: 6.58% Sponsorship and advertisements: 5.88% Bar trading: 52.66% Other: 5.43%

Mt. Lawley District Cricket Club (Inc.) 1986

Gross revenue: $56,383 Subscriptions: 9.36% Non-playing membership 4.03% Prizes: 2.48% Grants: 6.38% Sponsorship and advertisements: 19.55% Donations: 1.10% Investment interest: 2.38% Bar trading: 42.28% Other: 12.44%

North Perth Cricket Club (Inc.) 1985

Gross revenue: $32,152.85 Subscriptions: 11.88% Non-playing members: 1.21% Registration and ball fees: 3.84% W.A.C.A. grant: 9.33% Sponsorship and donations: 11.76% Investment interest: 1.45% Bar sales: 19.34% Other trading sales: 37.85% Other: 3.34%

Perth Cricket Club (Inc.) 1985

Gross income: $30,871 Subscriptions: 28.1% W.A.C.A. financial grant

and prize money: 13.8% Donations: 8.18% Fund-raising: .1% Bar trading: 49.82%

South Perth Cricket Club (Inc.) 1985

Gross revenue: $22,428 Subscriptions: 14.36% Non-playing membership: 2.14% Prize money: 14.31% Investment income: .95% Donations: 14.7% Fund-raising: 13.70% Bar trading: 33.35% Other: 6.49%

Similar statistics were provided for some non-incorporated clubs but they cannot be treated as relevant for present purposes. It is apparent that bar trading represents a substantial source of revenue to the clubs, ranging from 19% to 63% approximately.
In Adamson Mason J. referred to the income of West Perth from bar trading in 1976 and 1977 and its net profit on trading in those years. Counsel for the present applicant sought to adduce evidence relating to other aspects of West Perth's finances in 1976 and 1977, with a view to showing the relationship between bar trading and other sources of income and then making some comparison of the percentages involved with those relating to the cricket clubs. The object of this exercise was to show that, if West Perth was held to be a trading corporation by reference to its activities, the inference could properly be drawn that the cricket clubs were likewise trading corporations. Counsel for the respondents objected to this course on the ground that it was an impermissible attempt to put before the Court evidence that did not emerge from the judgments themselves. I allowed the material relating to West Perth on the ground that it might afford some basis for comparison between the football club and the cricket clubs but not, as it were, to supplement the reasons for judgment. They must speak for themselves and any inferences to be drawn from them must be found within the four corners of the reasons. In any event, neither Mason J. nor the other members of the court in Adamson made percentage comparisons. It was enough for Mason J. that West Perth was "heavily engaged in trading activities" (at 236).
It is clear from Adamson that the fact that a corporation's trading activities are related to its character as a club in the provision of social functions, amenities and services for its members does not prevent it from being a trading corporation. Nevertheless there are important differences between the situation in Adamson and that existing here. Underlying the decision in Adamson is the acceptance by the High Court that the playing of football by West Perth was a means of ensuring large financial returns, that its players were all paid and that the club's principal activity was its participation as a member of the W.A. League in the competitions which it ran.
The cricket clubs are basically amateur bodies and their activities are essentially directed to the playing of cricket. They make no charge for admission to matches. Except in the case of someone who is a player coach, the general rule is that payments are not made to players other than to those in A grade. Within A grade some clubs pay an incentive related to runs scored, wickets taken or the like. But the amounts involved are small indeed and in no way capable of providing a living for a player. The evidence revealed cases of particular players in particular clubs who were paid a fixed annual fee. Usually they were player coaches who were paid because of the time they were required to spend in coaching activities. There were instances of players, sometimes brought from outside Australia, who were paid for services as a means of improving the position of the club in competition. But even then the amounts involved were minimal by contemporary sporting standards and the player depended upon the provision of a job outside cricket to obtain a livelihood. Melville Cricket Club (Inc.) did not pay its players incentive payments. Midland-Guildford Cricket Club (Inc.) offered no incentive scheme. Its players in the successful Toyota Cup team in 1985 secured one-third of the prize money in the form of cash and free attendance at the club's annual dinner. Wanneroo District Cricket Club (Inc.) offered no incentive scheme; its only payment was to its coach.
The respondents drew no distinction between particular incorporated clubs in terms of their character as a trading corporation. The applicant submitted that while all the incorporated clubs were trading corporations, it was open to the Court to find that some were and some were not. The principal activity of the clubs is the playing of cricket, a game which is played for pleasure rather than reward, though the playing of district cricket is undoubtedly the means by which players are selected for shield matches and in turn for test matches, at which point reward becomes an important consideration. Although the clubs have activities which are of a trading nature, in particular the provision of bar facilities, I do not regard these as so significant as to impose on the clubs the character of a trading corporation. To point, as the applicant did to the revenue of particular clubs and the percentage of that income derived from bar sales is relevant but not overly persuasive. It does not sufficiently account for the time spent by the clubs in activities that are not income-producing viz. the playing of cricket which is their primary function.

None of the clubs carries on the game of cricket as a trade. Though the extent of particular activities varies from club to club, there is no basis for drawing a distinction between them for the purpose of the present analysis. The applicant has failed to establish that any of the incorporated clubs is a trading corporation.

Jurisdiction
As already mentioned, the respondents challenged the jurisdiction of this Court to entertain any of the applicant's claims. The applicant submitted that the Court had jurisdiction, attracted by reason of the claim made under the Trade Practices Act whether or not that claim succeeded and whether or not the Court found that any of the respondents was a trading corporation.
Section 86 of the Trade Practices Act confers on the Federal Court jurisdiction to hear and determine actions, prosecutions and other proceedings under Part IV of the Act, being the part concerned with restrictive trade practices and into which s. 45 falls. That jurisdiction is expressed to be exclusive of the jurisdiction of any other court other than the High Court under s. 75 of the Constitution. The effect of s. 86 is to confer upon the Federal Court jurisdiction to hear and determine not only claims arising under Part IV of the Trade Practices Act but also other claims, federal or non-federal, arising out of the same matter or controversy. Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457; Fencott v. Muller supra This additional jurisdiction is part of the accrued jurisdiction of the Court; it does not derive from s. 32 of the Federal Court Act whereby, to the extent that the Constitution permits, jurisdiction is conferred on the Federal Court "in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked". The exercise of this accrued jurisdiction is discretionary. Stack v. Coast Securities (No. 9) Pty. Ltd. (1983) 57 ALJR 731.
The jurisdiction of the Federal Court is attracted whenever there is before it a claim arising under a law of the Parliament in respect of which the Parliament has conferred jurisdiction on the Court. This is the effect of ss. 75, 76 and 77 of the Constitution, read with sub-s.19(1) of the Federal Court of Australia Act 1976. When the Court has before it a claim arising under a law made by the Parliament in respect of which jurisdiction has been conferred upon the Court, the determination of the claim or matter is itself sufficient to attract the federal jurisdiction essential for the complete adjudication of the matter. Once jurisdiction is acquired, it is not lost by reason of the rejection of the claim or the matter attracting federal jurisdiction R. v. Carter; Ex parte Kisch (1934) 52 CLR 221 at 224; R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 466. Nevertheless the claim or matter attracting federal jurisdiction must be raised bona fide.
But I do not accept the applicant's submission that it is enough, for this Court to exercise jurisdiction, that there be an arguable case that one of the respondents is a trading corporation. The existence of a trading corporation is essential. The point is made succinctly by Gibbs J. (as he then was) in Adamson at 215:

"The fact that a person whose conduct is said to be regulated by s. 45 of the Act is a trading corporation within s. 51 (xx.) of the Constitution is a condition of the jurisdiction of the Federal Court in a case such as the present. If that were not so, the investiture of jurisdiction on that Court would be pro tanto invalid. In the present case the question whether the prosecutors are trading corporations is therefore a jurisdictional, preliminary or collateral fact which this Court must decide for itself on an application for prohibition".

As Gibbs J. pointed out, the Federal Court must decide for itself whether a corporation is a trading corporation for the purpose of determining whether it has jurisdiction in the application before it. Its decision however is not conclusive. In the present case I have found that the W.A.C.A., which is said to have acted in contravention of s. 45 of the Trade Practices Act, is a trading corporation.

When I have dealt with the issues arising under s. 45 of the Trade Practices Act I shall turn to the other causes of action upon which the applicant relies. It will then be necessary to consider whether those claims truly arise under the accrued jurisdiction of the Court and perhaps whether the notion of pendent party jurisdiction is relevant to the position of those respondents which are not trading corporations. For the moment, it is a sufficient basis for exercising jurisdiction in regard to the claims under the Trade Practices Act that one of the respondents alleged to have acted in contravention of the Act is a trading corporation.

Section 45 of the Trade Practices Act
Section 45 of the Trade Practices Act finds its place in Part IV - Restrictive Trade Practices. By way of introduction I refer to some remarks of Deane J. in Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation (No. 2) (1980) 44 FLR 455 at 460-461:

"The general purpose and scope of the Part can be described by saying that it contains provisions which proscribe and regulate agreements and conduct and which are aimed at procuring and maintaining competition in trade and commerce. Broadly speaking, those provisions either control or proscribe the making of certain contracts or arrangements or the reaching of certain understandings, the giving or extracting of certain covenants in relation to land, the engaging in conduct involving a secondary boycott, engaging in the practices of monopolization, exclusive dealing or resale price maintenance, engaging in predatory price discrimination, and the increasing of market share by means of a take-over or merger".

Sub-section 45(2) contains several prohibitions. Paragraph (a) prohibits a contract, arrangement or understanding if:

(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or

(ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition.

Paragraph (b) prohibits the giving effect to a provision of a contract, arrangement or understanding if that provision:

(i) is an exclusionary provision; or

(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.

The statement of claim pleads conduct on the part of the respondents both in terms of making a contract or arrangement or arriving at an understanding falling within para.45(2) (a) and giving effect to a provision of a contract, arrangement or understanding falling within para.45(2)(b). The conduct of the respondents at the meeting of the Cricket Council on 25 September 1985 is said to have constituted a contract, arrangement or understanding which contained an exclusionary provision and which also had as its purpose; or had or was likely to have the effect of substantially lessening competition. This is a reliance upon sub-paras. (i) and (ii) of para.45(2) (a). The conduct of the respondents at the meeting of the Cricket Council on 4 November 1985 is likewise pleaded as having been in contravention of sub-paras. (i) and (ii) of para.45(2) (a). There is a further pleading that since December 1985 the respondents have given effect to the contracts, arrangements or understandings reached at the meetings on 25 September and 4 November, in particular by their conduct at the Cricket Council meetings on 6 January, 3 February and 19 February 1986. In so doing, it is said, the respondents acted in contravention of sub-paras. (i) and (ii) of para.45(2)(b).
Sub-section 45(2) contains a number of concepts, some of which are defined in the Act. "Exclusionary provision" is defined in s.4D as a provision of a contract, arrangement or understanding between competitors which has the purpose of restricting either the supply of goods or services by all or any of those competitors to particular persons or the acquisition of goods or services by all or any of those competitors from particular persons.
"Competition" itself is defined in sub-s.45(3) to mean competition in any market in which a corporation that is a party to the contract, arrangement or understanding supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.
"Market" is defined in s.4E, when used in relation to goods or services, to include a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, those goods or services.
The application of s.45 to a given set of facts can be and often is a difficult exercise. But the starting point must be a consideration of whether there was any contract, arrangement or understanding within the terms of the section.
The terms "contract", "arrangement" and "understanding" are not defined in the Trade Practices Act. Contract has been taken to have its ordinary meaning of something that is enforceable at law. A number of decisions have tended to treat arrangement and understanding as synonymous, being something less than a binding contract or agreement. See Trade Practices Commission v. Tubemakers of Australia Ltd. (1983) 47 ALR 719 at 734-735 where the cases are noted. It has been generally accepted that, for there to be an arrangement or understanding, there must be some communication between the parties concerned and each must raise an expectation in the mind of the others. Whether each must accept an obligation qua the others is debatable. In Morphett Arms Hotel Pty. Ltd. v. Trade Practices Commission (1980) 30 ALR 88 at 91 Bowen C.J. commented:

"As at present advised, it seems to me that one could have an understanding between two or more persons restricted to the conduct which one of them will pursue insofar as the other party or parties to the understanding are concerned".

See also Trade Practices Commission v. T.N.T. Management Pty. Ltd. (1985) 58 ALR 423 at 446-449 ("the TNT case") Recently, in Trade Practices Commission v. David Jones (Australia) Pty. Ltd. (1986) ATPR 40-671, Fisher J. said at 47,416 in relation to sub-para.45(2)(a)(ii):

". . . I am of opinion that a person may be a party to the understanding provided he is aware of although not necessarily committed to each provision".

I respectfully adopt that approach.

Was there a contract?

Thus the first question to be answered in relation to s.45 is - was there a contract, arrangement or understanding between the respondents or any of them at the meeting on 25 September 1985 or at the meeting on 4 November 1985?
Reference has already been made to the constitution and rules of the W.A.C.A. and also of the Cricket Council. The primary object of the W.A.C.A. is the promotion and control of the game of cricket in Western Australia (r.3(a)). The objects of the Cricket Council include the control and management of Associated Club matches, the selection of teams to represent the W.A.C.A. in international, Sheffield Shield and other representative matches, and the regulation and administration of the registration, qualification and eligibility of players to play in matches between the Associated Clubs (r.37(f)). The Cricket Council is empowered by r.36 to make by-laws and regulations for the control and management of matches within its jurisdiction. The second and third respondents in the present proceeding (fifteen clubs in all) comprise the Associated Clubs. Their delegates, together with the Chairman of the Council, two delegates appointed by the executive of the W.A.C.A. and such other delegates as the Council may admit, constitute the Cricket Council (r.35). While the rules of every club were not tendered in evidence, a number were. Allowing for differences in terminology, each of those tendered referred to the affiliation of the club with the W.A.C.A. It is a reasonable inference that all the respondent clubs, incorporated and unincorporated, have a similar provision. Certainly there was no suggestion to the contrary.
A resolution of the Cricket Council made pursuant to its rules is binding upon the Associated Clubs. That much is clear from the overall structure of the rules of the Cricket Council and the place of clubs within that structure. In principle too I think a resolution is binding upon the W.A.C.A., though it is hard to know what action could be taken against that body to enforce the resolution. There was some debate by counsel as to whether the W.A.C.A. and the clubs, as opposed to their delegates, were the members of the Council. I am of opinion that, by appointing delegates, there was no "denudation of power and authority", to borrow the words of Lord Coleridge C.J. in Huth v. Clarke (1890) 25 QBD 391 at 394. A delegate, as generally understood, "means little more than an agent" (Wills J. in Huth v. Clarke at 395). To the extent that conduct at a meeting of the Cricket Council does give rise to a contract, arrangement or understanding between those present, it is a contract, arrangement or understanding by which the W.A.C.A. and the Associated Clubs would ordinarily be bound or be parties to. As to the fourth respondent - Mr. Taylforth in his representative capacity - I do not see the Cricket Council itself being a party to a contract, arrangement or understanding, independently of the W.A.C.A. and the Associated Clubs who comprise it.
Does it follow that a resolution of the Cricket Council constitutes a contract between the constituent members? This must be a question of intention. Whether the rules of an organization form part of a contract between its members depends upon the existence of an intention that the rules "should give rise to enforceable legal relations". Buckley v. Tutty (1971) 125 CLR 353 at 374. In the present case I think one needs to be careful in applying too readily judicial decisions and statements relating to an individual member of a particular industrial union or club. Whether the rules of a particular club constitute a contract between its members is not necessarily the same question as whether the rules of the Cricket Council give rise to a contract between its constituent members. The position is somewhat complicated because r.24(2)(c) of the W.A.C.A.'s rules provides that a person who is a financial playing member of one of the Associated Clubs may be elected as an ordinary member of the W.A.C.A. Nevertheless the question here arises, not vis-a-vis a player and his club or a player and the W.A.C.A., but as to the W.A.C.A. and the clubs vis-a-vis each other.
When a club becomes an Associated Club, it undoubtedly assumes obligations which are intended to have contractual effect. It undertakes to provide and maintain to the satisfaction of the Council various facilities (Cricket Council r.2:16:3) and there are fines and penalties provided for a breach of those obligations (rr.2:24, 2:31). And a club that allows a disqualified player to play in a match, after notice of disqualification, commits an offence. If the offence is proved upon complaint to the Council (a complaint may be lodged by the Grades Committee of the opposing club), the club is liable to a fine and is deemed to have lost the match to the opposing club (r.2:39:5). Of course a club obtains benefits in return. In my view the rules of the Cricket Council are capable of giving rise to legally enforceable rights and obligations between the Council and the Associated Clubs.
But what of the W.A.C.A.? The rules are silent as to its rights and obligations except perhaps r.2:38:1 which, as already noted, speaks of a match "recognised by the Australian Cricket Board or the Association". The W.A.C.A. stands in a peculiar position within the framework of the Cricket Council Rules. It is conceivable that in a particular situation the W.A.C.A. may be a party to a contract made by reason of something done at a meeting of the Council. But I do not think that an amendment to rules of itself involves a contract to which the W.A.C.A. is a party.
In any event I am of the opinion that the resolutions at the meeting of the Cricket Council on 25 September 1985 did not constitute a contract between those taking part. One resolution was that "the Cricket Council has come to an understanding that the rule (r.2:38:1) regarding unrecognised matches cannot be invoked until the players take part in such matches". This was no more than an expression of understanding as to what the rule meant. It was then resolved that the following statement would be issued on behalf of the Cricket Council:

"The Cricket Council, at this time, does not intend taking any action against proposed South African tour players. The Rules as they stand would prevent them from playing upon their return; however, there has been notice given of a proposed notice of motion to review the applicable Rules prior to that time".

The further resolution was, I think, no more than a consequence of the earlier resolution and a statement of present intention and advertance as to the future. Neither gave rise to enforceable legal relations.

But it seems to me that the resolution of 4 November 1985, amending r. 2:38:1 by including a provision for automatic disqualification, did constitute a contract between the Associated Clubs. It was certainly intended to affect not only the members of the clubs but the clubs themselves. By reason of r. 2:39:5, a club permitting a disqualified player to play risked the serious sanctions contained in that rule. I am satisfied that, in the language of Buckley v. Tutty, it was intended that the amendment "should give rise to enforceable legal relations" between the clubs.
Mr. Archer submitted that in reality the decisions made at the meeting on 4 November did no more than "give teeth" to r. 2:38:1. But the words added to r. 2:38:1 went much further than that. They imposed on an offending player automatic disqualification until reinstated by the Council, a provision that hitherto did not exist.
However, if the W.A.C.A. was not a party to the contract, there cannot have been a contract in contravention of sub-s. 45 (2). I deal later with the relationship between ss. 82 and 75B of the Act. For the present it is enough to say that a contract made between parties who are not corporations within the meaning of the Act cannot be a contract to which sub-s. 45 (2) applies. It follows that, notwithstanding the existence of a contract between the Associated Clubs, no corporation made a contract in contravention of sub-s. 45 (2).
This part of the applicant's claim must fail.

Was there an arrangement or understanding?
In my opinion the resolutions at the meeting on 25 September did not constitute a relevant arrangement or understanding between the members of the Cricket Council. They may have constituted an understanding as to what r. 2:38:1 meant and when it could be applied. But, that was not an understanding within sub-s. 45 (2) of the Trade Practices Act. It was merely an understanding as to what was the situation under a particular rule of the Council.
In the applicant's submission, those present at the meeting on 25 September misunderstood r. 2:38:1. Perhaps they did. But any misunderstanding carried no consequences; it merely evidenced a state of mind that might become relevant at some later date.
I am satisfied that there was an understanding at the meeting on 4 November 1985, an understanding that, by reason of the decision to amend r. 2:38:1, the applicant (as well as other players) would be prevented from playing district cricket in Western Australia because of his participation in the South African tour. There was undoubtedly communication between the delegates to the Cricket Council at the meeting and a consideration by them of events giving rise to what was seen as justification for the amendments to r.2:38:1. At the meeting on 25 September Mr. Rigg (chairman of the executive of the W.A.C.A., chairman of the I. and I. Committee and a delegate from the W.A.C.A. to the Australian Cricket Board) had in the words of the minutes of that meeting -

I turn now to the other causes of action pleaded on behalf of the applicant. I do so with the general observation that there is much overlapping and profusion of pleading that together make it difficult at times to discern precisely what is being said on the applicant's behalf.
First there must be considered what the applicant's counsel described as procedural ultra vires, an argument that there had been a failure to comply with the mandatory requirements of the rules of the Cricket Council. The relevant pleading is to be found in paras.25-27 and 33-38 of the statement of claim.
The first complaint is that by letter dated 11 November 1985 the applicant sought the consent of the Cricket Council to play in South Africa and that the Council failed to reply to that request or to give it any proper consideration. It is then said that the respondents failed to inform the applicant or his club of the fact of his purported disqualification; that the Cricket Council made no finding as required by r.2:38:1; that the applicant has never been in breach of that rule; that at all material times the South African tour games were recognised by the Australian Cricket Board; that, if they were not, the Council failed to make the necessary finding; and that in consequence the applicant was not lawfully disqualified from playing cricket for his club.
I accept, as I have said earlier in these reasons, that the Cricket Council did fail to respond to the applicant's letter of 11 November 1985. It is also clear that the Council gave no consideration to that request. Why the Cricket Council did not reply is not at all clear. Both Mr. Taylforth, the chairman of the Council and Mr. Sweetapple, its secretary, deposed that it was not the practice of the Council to supply written replies to correspondence from a member of a club. Whether this is the Council's practice (and there was evidence from Mr. Rigg, the chairman of the Executive Committee and chairman of the I. and I. Committee of the W.A.C.A. that a similar application by Mr. Alderman had been the subject of a written reply) is not greatly in point. If a player seeks the consent in writing required by r.2:38:1, surely he or his club is entitled to a written reply? In any event, there was no reply of any kind to the applicant's letter of 11 November.
While the Cricket Council's failure to reply to the applicant's letter was an act of discourtesy, it does not follow that it had any legal implications as between the applicant and the Cricket Council. Indeed, in my view, it had none. Nevertheless it has evidentiary implications, for a failure to reply might go some distance to proving that the Cricket Council gave no proper consideration to the application for consent contained in the letter of 11 November.
The contention that the respondents failed to inform the applicant of his "purported disqualification" depends upon establishing that there was in fact a purported disqualification. Paragraph 35 of the statement of claim pleads that at none of the meetings of the Cricket Council since 4 November 1985 was there a finding that the applicant was in breach of r.2:38:1. Paragraph 22 of the defence denies this allegation. This is another unsatisfactory plea since it is apparent from the way in which the case was argued that the respondents contend that no finding was necessary. They did not suggest that a finding had been made. I have already said something about the operation of the concluding portion of r.2:38:1. One thing is clear - the Cricket Council certainly proceeded on the basis that the applicant had been disqualified. The motions for his reinstatement would have made no sense otherwise. It is apparent from the evidence of those who attended the relevant meetings of the Cricket Council, in particular Messrs. Taylforth, O'Driscoll, Sweetapple, Beech and Rigg that the members of the Cricket Council gave no particular consideration to what was meant by an unrecognised match. They proceeded on the basis that, by playing in South Africa, the applicant had played in an unrecognised match and that, at any rate following the amendment to r.2:38:1 at the meeting on 4 November 1985, he was thereby disqualified in terms of the rule.
It was part of the applicant's case on the question of ultra vires that the delegates to the Cricket Council reached a decision to disqualify him without any detailed knowledge of the terms of the deed of settlement of the Victorian litigation. It may be accepted that the delegates, at any rate most of them, had no detailed knowledge of the terms of settlement of that litigation. But I am unable to see the relevance of that matter to the considerations of the meetings of the Council.
Nevertheless I am satisfied that at none of its meetings did the delegates to the Cricket Council give consideration to the applicant's letter of 11 November 1985. The letter itself sought consent "to play in such games as have been organised by The South African Cricket Union during this 1985/86 summer season". By then the applicant had played in South Africa so, strictly speaking, the application should have been for reinstatement. But since the respondents gave no consideration to the letter, the distinction is not, I think, vital to the applicant's case. On this aspect of the case, the appropriate relief is to remit that matter to the Cricket Council for its consideration. Since the applicant has made good other causes of action warranting wider relief, I need say no more about procedural ultra vires.

Conspiracy
The next cause of action to be considered is that of conspiracy. In The Law of Torts 6th ed. 663, Professor Fleming says:

"Today, the tort of conspiracy is regarded as anomalous, if not anachronistic. It is therefore kept within the narrowest limits of compelling precedent. Its principal remaining role is to strike at those rare combinations whose predominant motive is not self-interest but injury to the plaintiff or the promotion of some other 'unjustifiable' end".

While a malevolent intent is not an essential ingredient of the tort (Crofter Handwoven Harris Tweed Co. v. Veitch (1942) AC 435 at 471-472), it does involve a combination the real purpose of which ". . . is the inflicting of damage on A as distinguished from serving the bona fide and legitimate interests of those who so combine" (Crofter Handwoven Harris Tweed Co. v. Veitch at 443). Like fraud, it is not an allegation that should lightly be made.
Paragraph 42 of the statement of claim pleads that since July 1985, the respondents between themselves in conjunction with others "wrongfully and maliciously conspired and combined amongst themselves to injure the Applicant in his said business as a professional cricketer".
The particulars provided of the alleged conspiracy are simply a repetition of paras.29A-32 of the statement of claim which, broadly speaking, plead the various meetings of the Cricket Council to which reference has already been made and the disqualification of the applicant from club cricket. But at the very heart of a claim for conspiracy is the existence of an agreement between two or more persons, made for the purpose of injuring another. Where is the agreement from which the alleged conspiracy is said to derive? The applicant's submissions focused very much upon the requirement of intention to injure. They asserted that the intention of the respondents was to disqualify the applicant from grade cricket and that thereby the applicant suffered damage. But an intention to injure is not an element independent of the agreement made or combination entered into; it must be found in that agreement or combination.
In my view the applicant failed to show that there was any agreement made between the respondents, or any of them to injure him. There was conduct that injured him and it was the conduct of the respondents. But more is required before the respondents can be held to have conspired. For this reason I am of the opinion that there is little to be gained by referring to the many cases mentioned by counsel for the applicant that deal with the notion of intention to injure, the concept of purpose and the nature of the damage that may be suffered. These matters only arise once a relevant agreement has been proved and this the applicant failed to do. In fairness to the respondents I should say that I do not think they did conspire to injure the applicant. They were acting in what they saw as the best interests of cricket though, in doing so, they acted in contravention of the Trade Practices Act and in restraint of trade. Conspiracy is a serious allegation to make and it was not sustained.
I would add this comment. The claim for conspiracy includes a claim for exemplary damages. Exemplary damages may be awarded in actions for tort if it appears that the respondents' conduct in committing the wrong exhibited a contumelious disregard of the applicant's rights. Uren v. John Fairfax & Sons Pty. Ltd. (1965-1966) 117 CLR 118; Australian Consolidated Press Limited v. Uren (1968) 117 CLR 185 But the statement of claim did not in terms claim exemplary damages and no evidence was offered to provide a basis for such an award.
The claim in conspiracy must fail.

Equal Opportunity Act 1984
Paragraph 43 of the statement of claim pleads that, if the Cricket Council disqualified the applicant in accordance with the provisions of amended r.2:38:1, "such conduct is unlawful in that it constitutes discrimination against the Applicant on the grounds of religious or political conviction contrary to provisions of the Equal Opportunity Act 1984 (W.A.)".
The respondents made a number of answers to this claim, some, of fact and some law. Their primary answer was to point to sub-s. 154 (1) of the Act which reads:

"A contravention of this Act shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act".

The respondents drew attention to the Commissioner for Equal Opportunity, an office established by the Act, s. 80 of which empowers the Commissioner to do various things including investigate complaints. They pointed also to the Equal Opportunity Tribunal established by the Act which may hear complaints and order the payment of damages by way of compensation. Nowhere in the Act, they said, is there any entitlement to relief by reason of any discrimination, other than that to which I have just referred.

The applicant's answer is that sub-s. 154(1) is concerned with attempts to enforce the provisions of the Act by the imposition of penalties. He says that "consequence" must be read ejusdem generis as referring to an attempt to enforce a provision of the Act by the imposition of a penalty. Whatever sub-s. 154(1) means, there is no justification, in my view, for giving the term "consequence" other than its natural meaning. The terms "sanction" and "consequence" are expressed disjunctively and there is simply no genus to control those words.
The applicant argued that the power of the Federal Court, conferred by s. 21 of the Federal Court of Australia Act 1976, to make declarations is not ousted by sub-s. 154(1) of the Equal Opportunity Act. A declaration does not impose a sanction or consequence; it simply involves a statement of the existing law. His counsel referred to Forster v. Jododex Australia Pty. Ltd. (1972) 127 CLR 421 and London Borough of Ealing v. Race Relations Board (1972) 1 All ER 105 Cf Kessell v. Human Rights Commission (1986) EOC 92-146, a decision of the High Court of New Zealand.
In my view it is clear that the Act intends no consequences to arise from conduct which contravenes it, except through the Act itself. It is not that the jurisdiction of the Federal Court is ousted. Nor for that matter is the jurisdiction of the Supreme Court ousted, for clearly that Court may grant declaratory relief in regard to conduct of the Commission or the Tribunal. But the Act gives rise to no rights or obligations vis-a-vis others except through the machinery of the Act itself. That conclusion is enough to dispose of the applicant's claim under this head.
As to the merits of the claim, sub-s. 53(1) of the Equal Opportunity Act provides that a person discriminates against another on the ground of religious or political conviction if, on the ground of the religious or political conviction of the aggrieved person, "the discriminator treats the aggrieved person less favourably than in the same circumstances or in circumstances that are not materially different, the discriminator treats or would treat a person of a different religious or political conviction". Sub-section 4(3) construes "religious or political conviction" so as to include "a lack or absence of religious or political conviction".
The applicant argued that the South African tour involved strong political issues and beliefs on the part of the respondents. He pointed to The Western Cricketer where, at p. 8, reference is made to the proposed South African tour as running "counter to the policy of the Australian Cricket Board and its member States, which have decided against sporting links with South Africa. In making the tour, the players are also in complete conflict with the Australian Government's policy on South Africa as highlighted in the Gleneagles Agreement". This view, the applicant said, was reinforced by the evidence of Mr. Taylforth who referred to the applicant's "commitment to play in South Africa against the policy of the present and previous Government, and against the policy of the Australian Cricket Board and the Western Australian Cricket Association". Mr. Taylforth also referred to "those who strongly oppose personal benefit being derived by individuals from providing services to a country which practises a racial policy condemned by most of the civilised western world".
The applicant said that he held no relevant political conviction and I accept that evidence. There is no doubt that r.2:38:1 was amended against the background of the South African tour which had then begun. Nevertheless I am not persuaded that there was any discrimination against the applicant by reason of political convictions which he held or did not hold. Rather the W.A.C.A. saw the tour as inimical to cricket, as appears from a further passage on p. 8 of The Western Cricketer:

"The rebel tour poses a clear threat to Australian cricket, firstly by promoting an alternative competition to the Australian Cricket Board's International Programme and thereby weakening its standing in terms of other sports and entertainment activities. Secondly, it must inevitably weaken the standard of the Australian domestic competition and thus weaken Australia's competitive position against other cricket nations".

Both on the law and on the facts this claim must fail.

Bad faith and bias
The applicant made a further complaint, of bad faith or bias on the part of the respondents. This is pleaded in para. 44 of the statement of claim by reference to what is described as the agreement and understanding arrived at by the Cricket Council on 25 September 1985 and the subsequent disqualification of the applicant. This is said to have been a decision made in bad faith and to have been affected by bias. The particulars given of this plea are not easy to follow.
First, the applicant repeats paras. 33-38 of the statement of claim, being the paragraphs that relate to the failure of the respondents to inform the applicant or his club of his purported disqualification; the failure on the part of the Cricket Council to make a finding in accordance with r.2:38:1; the contention that the decision to disqualify the applicant was ultra vires; and the argument that the South African tour games were recognised by the Australian Cricket Board.
The particulars then refer to the applicant's disqualification for an unlimited duration; the circumstances surrounding the settlement of the Victorian litigation; the role of certain persons in relevant proceedings; the argument that the decision to disqualify the applicant was contrary to the legitimate objects of the W.A.C.A. and was not made in the best interests of the respondents but for the purpose of punishing the applicant; the fact that the decision was made in the course or furtherance of the conspiracy alleged; the failure on the part of the Cricket Council to reply to the applicant's request of 11 November 1985 or to give any proper consideration to that request; the agreement on the part of the Cricket Council to prevent the applicant and Messrs. Alderman, Hogan and Shipperd from playing district cricket in Western Australia at a time when r.2:38:1 did not provide for their disqualification; and a repetition of the proposition that the Cricket Council made that agreement or reached that understanding without full knowledge of the terms of settlement of the Victorian litigation and without knowledge of whether the South African tour matches were recognised matches.
The particulars of bad faith or bias are complex and unnecessarily confusing. Equally, many of the cases to which counsel for the applicant referred in the written submissions filed are of little assistance.
In so far as the applicant relies upon procedural ultra vires, I have dealt with that matter. It seems to me to add little to the applicant's claim to plead that matter as constituting bad faith or bias. In so far as the particulars go beyond procedural ultra vires to what the applicant describes as substantive ultra vires, I am not persuaded that any decision reached was contrary to the legitimate objects of the W.A.C.A. Whether such a decision advanced those objects is another matter. In the same way, to argue that there was a decision made to disqualify the applicant and that it was made in the course or furtherance of the alleged conspiracy, adds nothing to the applicant's claim. In any event I have rejected the conspiracy claim. As I suggested to counsel for the applicant during the course of final address, if the Court found a conspiracy as alleged, it would have little difficulty in finding that the respondents had acted in bad faith or were biased. But it would serve no purpose to make such a finding if a conspiracy was established.
Certainly a purpose of the amendment of r.2:38:1 was, borrowing Mr. O'Driscoll's phrase, to give it teeth. That is apparent also from the evidence of Messrs. Moody, Vodanovic, Edwards and Taylforth concerning the meeting on 4 November 1985. But that does not mean that its purpose was to punish the applicant. Furthermore if that was the purpose of the amendment, it does not follow as a matter of course that any decision taken was made in bad faith or was biased. There can be no doubt that many of those concerned with the administration of cricket in Western Australia saw r.2:38:1 as operating for the protection of grade cricket and in turn shield and test cricket. They may have been wrong in that view but being wrong is not equivalent to acting in bad faith or with bias.
This plea of bad faith or bias also involved, as the case was presented, questions of natural justice. The applicant pointed to the fact that the meetings which led to his disqualification were attended by Mr. Taylforth and Mr. O'Driscoll, who were executive members of the W.A.C.A., and by delegates of the W.A.C.A., which was a member of the Australian Cricket Board. In the circumstances, it is said, Mr. Taylforth, Mr. O'Driscoll and the delegates should not have participated in the decision to disqualify. It is said that they had a prior involvement or prejudgment of the matter in question, that they exhibited prejudice or personal animosity to the applicant and that generally their conduct reflected bad faith or bias on their part.
I do not accept this submission. Unquestionably Mr. Taylforth and Mr. O'Driscoll had views, and at least in Mr. Taylforth's case strong views, on Australian cricketers playing in South Africa. But one was the chairman of and the other a delegate to the Cricket Council. They were entitled to be present and to express their views although, in Mr. Taylforth's case, consistently with his position as chairman. There was no hearing of a charge against the applicant; he was disqualified by reason of the operation of r.2:38:1 as amended.

In his closing address, counsel for the respondents criticized strongly the allegations of bad faith and bias on the ground that the applicant's counsel had failed to put to the respondents' relevant witnesses questions aimed at establishing bad faith and bias on their part. There is force in this criticism. When there is an allegation of bad faith and an allegation of actual bias (which was the case here), not only is it proper to put those allegations to the relevant witnesses but failure to do so must cast a real cloud over the genuineness of the claim. It may also carry the consequences arising from what is known as the rule in Browne v. Dunn (a reference to Browne v. Dunn (1894) 6 R 67), that is, acceptance of the other party's evidence on the matter. I am not suggesting that it is necessary to put in so many words to a witness that he acted in bad faith or was biased; it is enough to ask questions from which it is clear that the witnesses' motives are under attack. But in my view the cross-examination of witnesses such as Messrs. Taylforth, O'Driscoll, Rigg and Bull fell short of what was required.
For instance, in final address counsel for the applicant invited the Court to find that Mr. Bull voted contrary to his club's wishes at the instigation of Mr. Taylforth or other members of the executive committee of the W.A.C.A. Had Mr. Bull done so, it would have been a serious matter and gone very much to strengthen the applicant's claim of bad faith on the part of the respondents. If the Court was to be invited to draw this conclusion, it was imperative that the matter be put to Mr. Bull as well as to other relevant witnesses. Mr. Bull was asked in cross-examination whether he had any discussions with Mr. Taylforth about any matters on the Cricket Council agenda during the period with which this case is concerned. He was also asked whether he had any discussions with Mr. Taylforth about the way in which he should vote. But it was not put to Mr. Bull that he voted contrary to the instructions of his club at the instigation of Mr. Taylforth or anyone else. In my view that matter should have been put directly to Mr. Bull if it was intended to ask the Court to draw the inference referred to by counsel in address.
For all these reasons, the claim of bad faith and bias must fail.

Deed of Settlement
Finally, it is necessary to say something about the claim that the W.A.C.A. breached certain of the terms of the deed of settlement reached in the Victorian litigation.
Paragraph 23 of the statement of claim pleads that it was an express or implied term of that deed that the W.A.C.A. "would take no further action against the Applicant arising out of his participation in the said South African tours and in particular would not impose or seek to impose restrictions upon his eligibility to play District Cricket within the State of Western Australia".
Paragraph 23A gives particulars of the way in which the W.A.C.A. is said to have breached the deed. It alleges that the imposition of a disqualification on the applicant constituted the making of a claim or alternatively the taking of further action against the applicant "arising out of his participation in the said South African tours".
This claim can be disposed of quite shortly. There was certainly no express term of the deed that precluded the W.A.C.A. imposing or seeking to impose restrictions upon the playing of district cricket by the applicant. Of course the W.A.C.A. could not do so in any event except through the Cricket Council. Counsel for the applicant was unable to point to any provision of the deed which in express terms or as a matter of construction precluded the W.A.C.A. from taking the action it is said to have taken. As appears from its recitals, the deed is concerned with the playing of test and interstate cricket and the actions of the defendant players in contracting with S.A.C.U.
By cl.2.2 of the deed the plaintiffs (the W.A.C.A. and other state associations together with Mr. Bennett as chairman of the Australian Cricket Board) agreed, not directly or indirectly.

"(a) to institute any court proceedings seeking orders restraining or having the effect of restraining any member of the team from playing or participating in the first and second tours or restraining or having the effect of restraining S.A.C.U. from giving effect to and carrying out its contractual obligations to the defendant players and the remaining players ('any further court proceedings');

(b) to counsel, encourage or assist any person in commencing or prosecuting any further court proceedings".

There is nothing in this undertaking or in any other undertaking by the plaintiffs which can fairly be construed as a prohibition against disqualification from club cricket by reason of participation in the South African tours.
Before a term may be implied in a contract, it must be necessary to give business efficacy to the contract. It is not enough that it be reasonable to imply the term. See Codelfa Construction Pty. Ltd. v. State Rail Authority of N.S.W. (1981-1982) 149 CLR 337, especially Mason J. at 346-347 The implication of the term sought to be implied by the applicant is not necessary to give business efficacy to the deed of settlement nor is it so obvious that, in the language of the cases, "it goes without saying". The deed of settlement refers expressly to test and interstate cricket matches. It makes no reference to club matches, no doubt because this matter was left to the clubs themselves and to bodies such as the Cricket Council, none of which was a party to the deed.
I accept the submission of counsel for the respondents that the deed is directed towards alleged breaches by the applicant and other players of their obligations to the Cricket Board and through the Board to its individual constituent associations. The release contained in the deed is not concerned with district cricket nor with the entitlement of the applicant and the other players to play in any matches other than those in which they were contracted with the Cricket Board to play.
The claim under the deed must fail.

Jurisdiction revisited
I have found the W.A.C.A. to be a trading corporation. If, as I have found, the W.A.C.A. was in contravention of sub-s.45(2) of the Trade Practices Act, the other second and third respondents may be liable as parties to a contract, arrangement or understanding in breach of that provision or if they otherwise come within s.75B of the Act. No particular question of jurisdiction arises in this regard.
As to the various common law causes of action invoked by the applicant, I am of opinion that there is in this case "a single justiciable controversy of which a federal issue forms an integral part" (Stack v. Coast Securities (No. 9) Pty. Ltd. at 742). And it is appropriate for this Court to deal with those causes of action since there is a common substratum of facts relevant to them. Indeed, with the possible exception of the claim under the Equal Opportunity Act 1984, the facts relating to each of the causes of action pleaded are very much the same.
It is unnecessary therefore to consider the doctrine of pendent party jurisdiction to which counsel for the applicant referred, relying upon Kennedy v. Australasian Coal and Shale Employees Federation (1983) 50 ALR 735. See the discussion in Allen v. Sideris (1984) 9 IR 68 at 80-81

Relief
In regard to the contravention by the first, second and third respondents of sub-s.45(2) of the Trade Practices Act, the applicant is entitled to declaratory relief. I propose to hear from counsel as to the form of the declaration or declarations and also whether injunctive relief is appropriate.
The applicant claimed damages pursuant to sub-s.82(2) of the Trade Practices Act and other orders (undefined) pursuant to s.87 of the Act. There is also a claim for damages at common law. Other than the claim for exemplary damages for conspiracy (which I have rejected), the applicant drew no particular distinction between the damages to which he claimed to be entitled under the Act and at law. However the only damages to which the applicant is entitled are under the Act.
The respondents argued that, in view of the moneys the applicant will receive under his contract with S.A.C.U., there was no justification for any award of damages in favour of the applicant, whatever cause of action he might succeed in. Certainly the evidence did not warrant an award of other than minimal damages. That is not directly due to the payments to be made under the S.A.C.U. contract. Rather, because of his commitment to the South African tours, the applicant's availability for district cricket in the 1985-86 and 1986-87 seasons must necessarily be very limited. What may happen thereafter is a matter of speculation.
I approach the assessment of damages on the basis that, because of the applicant's disqualification from club cricket, he has lost the very small amount he stood to win from incentive payments in the 1985-86 season. If I am right in the view I have taken of matters arising under sub-s.45(2) and restraint of trade, the applicant will not be precluded from playing district cricket hereafter by reason of r.2:38:1. Hence no further damage may be suffered. Counsel for the applicant accepted that damages for future loss were inappropriate. A reasonable assessment of the loss incurred would be, I think, $250. The evidence did not justify any wider award of damages; nor were damages at the forefront of the applicant's case. Because of what was said by counsel for the applicant when the case began, a matter referred to earlier in these reasons, no damages are payable by Subiaco Floreat Cricket Club (Inc.), Claremont-Cottesloe Cricket Club (Inc.), Gregory Bunney and Phillip Clifford. Nor are damages payable by the fourth respondent for it was the conduct of the W.A.C.A. and the Associated Clubs that was in contravention of sub-para.45(2)(a(i) of the Trade Practices Act.
As to my finding that r.2:38:1 as amended is void, the applicant is entitled to declaratory relief to that effect against all respondents. Whether a declaration that the applicant has not been disqualified from playing district cricket is necessary or appropriate is a matter on which I shall hear from counsel.

Summary of findings and conclusions
Because of the complexity of this matter, it may be helpful to set out in a summary way my findings and conclusions. Before doing so, I would just say this. It is apparent from the evidence in this case and what has been said and written over the last twelve months that strong views are held as to the propriety of the applicant and others playing cricket in South Africa. That is not a matter with which the Court is concerned. Its task is to find the relevant facts and ascertain the relevant legal principles (relevancy being determined by the pleadings filed), then apply those principles to those facts. That is the nature of the judicial process.
I now summarise, while making it clear that what follows is by way of summary and must be read in the light of the reasons for judgment generally.

(1) The Court had jurisdiction to deal with all the applicant's claims.

(2) The W.A.C.A. is a trading corporation.

(3) None of the incorporated clubs is a trading corporation.

(4) At the meeting on 25 September 1985 there was no contract, arrangement or understanding within sub-s.45(2) of the Trade Practices Act 1974.

(5) At the meeting of the Cricket Council on 4 November 1985 there was an understanding between the W.A.C.A. and the Associated Clubs.

(6) That understanding was one that, by reason of the decision to amend r.2:38:1, the applicant would be prevented from playing district cricket in Western Australia because of his participation in the South African tour.

(7) The understanding reached at the meeting on 4 November 1985 contained an exclusionary provision in contravention of sub-para.45(2)(a)(i) of the Act.

(8) The understanding did not contain a provision having the purpose, or having or likely to have the effect, of substantially lessening competition within sub-para.(2)(a)(ii) of the Act.

(9) Rule 2:38:1 as amended at the meeting of the Cricket Council on 4 November 1985 is in restraint of the applicant's trade as a cricketer and the rule is void.

(10) The claim for breach of right to work fails.

(11) The claim based on procedural ultra vires succeeds.

(12) The claim based on conspiracy fails.

(13) The claim under the Equal Opportunity Act 1984 fails.

(14) The claim based on bad faith and bias fails.

(15) The claim based on the deed of settlement fails.

(16) The applicant is entitled to damages in the sum of, $250, payable by the first, second and third respondents, other than Subiaco Floreat Cricket Club (Inc.), Claremont-Cottesloe Cricket Club (Inc.), Gregory Bunney, Phillip Clifford.

(17) The applicant is entitled to declaratory relief in respect of r.2:38:1 against all respondents.

I shall hear from counsel, at a time to be fixed, as to the form of judgment to which the applicant is entitled in the light of these reasons for judgment including the question of injunctive relief. I shall also hear at that time as to the question of costs.

[1986] FCA 465

27 OCTOBER 1986