Kidd v The State of Western Australia - [2014] WASC 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KIDD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 99

CORAM: BEECH J

HEARD: 5-7 MARCH 2014

DELIVERED : 26 MARCH 2014

FILE NO/S: CIV 2882 of 2013

BETWEEN: NEIL GRAEME KIDD AND THE PERSONS DETAILED IN SCHEDULE A TO THE WRIT OF SUMMONS
Plaintiffs
AND
THE STATE OF WESTERN AUSTRALIA
First Defendant
MINISTER FOR RACING AND GAMING
Second Defendant
BURSWOOD NOMINEES LTD
Third Defendant

Catchwords:

Contract - Government agreement - Proper construction - Agreement to be construed in accordance with principles of contractual construction - Whether additional land granted for the purposes of the agreement - Identification of purposes of the agreement - Proper construction of provision relating to 'other development' of site

Statutes - Statutory construction - Scope of provision exempting land from Metropolitan Register Scheme, local planning laws and by-laws

Legislation:

Casino (Burswood Island) Agreement Act 1985 (WA), s 4, s 7
Government Agreements Act 1979 (WA), s 3

Result:

Action dismissed

Category: A

Representation:

Counsel:

Plaintiffs:     Mr D H Solomon & Ms L M Retallack
First Defendant             :     Mr A J Sefton & Mr D E Leigh
Second Defendant         :     Mr A J Sefton & Mr D E Leigh
Third Defendant           :     Mr J A Thomson SC & Mr L A Warnick

Solicitors:

Plaintiffs:     Solomon Brothers
First Defendant             :     State Solicitor for Western Australia
Second Defendant         :     State Solicitor for Western Australia
Third Defendant           :     King & Wood Mallesons

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Chemeq Ltd v Shepherd Investments International Ltd [2007] WASCA 117
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239
Commissioner of Taxation of the Commonwealth of Australia v Word Investments Ltd [2008] HCA 55; (2008) 236 CLR 204
Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186
Hancock Prospecting Pty Ltd v BHP Minerals Pty Ltd [2003] WASCA 259
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501
McCourt v Cranston [2012] WASCA 60
Mineralogy Pty Ltd v The State of Western Australia [2005] WASCA 69
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529
Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49
Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re Cock; Ex parte Diano [2014] WASC 63
Re Environmental Protection Authority; Ex parte Chapple (1995) 89 LGERA 310
Re Introductions Ltd [1970] Ch 199
Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288; (2003) 27 WAR 574
Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323
Roe v Director General, Department of Environment and Conservation (WA) [2011] WASCA 57; (2011) 180 LGERA 38
The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Vincent Nominees Pty Ltd v Western Australian Planning Commission [2012] WASC 28
Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
BEECH J:

Introduction

The third defendant operates a casino complex on the Burswood Peninsula in the Town of Victoria Park. The establishment and operation of the casino complex is governed by a State agreement ratified by the Casino (Burswood Island) Agreement Act 1985 (WA) (the Casino Act).
The third defendant proposes to carry out construction of a third hotel and associated facilities, including restaurants, bars, a ballroom and other leisure facilities.
The plaintiffs own or lease apartments in Burswood near to the site of the casino complex. The plaintiffs seek to restrain all further work on the third defendant's project unless and until the project goes through the development approval process under the general laws of the State and local planning schemes.
The defendants' case is that development approval under generally applicable planning laws is not necessary because the site of the proposed development is exempted from the operation of those laws by s 7(1) and s 7(2) of the Casino Act. The defendants say that by cl 13 of the Casino Agreement,[1] development of the site is controlled by the second defendant (the Minister), as Minister responsible for the administration of the Casino Agreement, and the Minister has given valid consent to the proposed project.
[1] Defined in [12] below.
Part of the third defendant's proposed project is on land that was not part of the original site of the Casino complex. The additional land was sold by the State to the third defendant in 2013.
The plaintiffs' central proposition is that, for a number of reasons, the exemption in s 7 of the Casino Act does not apply to that additional land.
For the reasons below, I accept the defendants' contentions and would dismiss the plaintiffs' action.
The balance of these reasons are organised as follows:
(2)the facts [10] ‑ [54];
(3)the Casino Act [55] ‑ [64];
(4)the Casino Agreement [65] ‑ [101];
(5)the parties' contentions [102] ‑ [109];
(6)legal principles [110] ‑ [132];
(7)harmony between s 7 and cl 9(3): does par (b) apply to 'the Site' for the purposes of the Resort Lands in s 7? [133] ‑ [152];
(8)was the Sale of the Excised Land for the purposes of the Casino Agreement? [153] ‑ [225];
(9)was there a grant, whether pursuant to cl 6(5) or otherwise? [226] ‑ [245];
(10)the plaintiffs' other contentions [246] ‑ [254]; and
(11)conclusion [255] ‑ [256].
It is convenient to outline the facts, and the relevant provisions of the legislation and the Casino Agreement, before explaining the parties' competing contentions.

The facts

The facts were not in dispute. No witnesses were called. The parties tendered a statement of agreed facts and each party tendered documents in the trial bundle, which were received by consent, subject to some objections.
In 1984, Parliament enacted the Casino Control Act 1984 (WA). Section 19 of that Act empowered the Minister for Racing and Gaming to enter into an agreement with respect to the construction and establishment of a new casino complex. Any such agreement would be enforceable if, and only if, ratified by an Act of Parliament: s 19(3).
On 20 February 1985, the State of Western Australia made an agreement, known as the Casino (Burswood Island) Agreement (Casino Agreement), with West Australian Trustees Ltd as Trustee and Burswood Management Ltd as Manager. The third defendant in this action, Burswood Nominees Ltd, is the successor to West Australian Trustees Ltd.
The Casino Agreement is scheduled to the Casino Act. The Casino Agreement is ratified and its implementation authorised by s 4 of the Casino Act. By s 4(3), the Casino Agreement operates and takes effect notwithstanding any other Act or law.
Before the Casino Agreement was executed, development proposals had been submitted to the Minister by the Trustee and the Manager, and these development proposals had been approved in principle by the Minister. The proposals described in some detail the proposed Resort, including a casino, hotel, convention centre, theatre restaurant, exhibition centre, recreation facilities and other facilities. The proposals also referred to a proposed stage 2, that involved the construction of a second hotel.
I will outline relevant provisions of the Casino Agreement later in these reasons.
The Casino Agreement has been amended by 12 supplementary agreements set out in schedules to the Casino Act. There are two supplementary agreements of significance to the present case: the supplementary agreement of 1987 and the seventh supplementary agreement made in 1997. I will detail those agreements in section 4.
The initial resort development was constructed in 1985 to 1986. It included the casino, a hotel, an indoor theatre and other facilities. The hotel, then known as the Burswood Island Hotel, opened in October 1987.
Between 1988 and 1994, the Minister gave four approvals to four separate developments under the cl 13(1)(b) process:
(1)by letter of 15 November 1988, the Minister issued consent for the proposal to build a multi‑level car park within the boundaries of the Site;
(2)by letter of 20 July 1989, the Minister issued consent for the Manager's proposal to extend the casino building and casino gaming floor at the north eastern end of the casino building;
(3)by letter of 15 October 1992, the Minister issued consent to the Trustee's proposal to modify the existing guest services area by the construction of two new offices immediately adjacent to the guest services area by extending through the wall of the casino building; and
(4)in or about August 1994, the Minister issued consent for the Manager's proposal as it related to refurbish the international room and the other areas within the existing casino gaming premises, and rejected the Manager's proposal relating to the extension of the casino building.[2]
[2] See statement of agreed facts (SAF) 55 ‑ 58, 68 ‑ 69, 72 ‑ 73.
In 1991, the Minister refused an application by the Trustee/Manager for consent to development of two further hotels and other facilities.[3] The plaintiffs rely on the reasons given by the Minister. I will say more about that when I deal with the question of extrinsic evidence relevant to the proper construction of the Casino Agreement as amended.
[3] SAF 66, document 47 in the trial bundle. The trial bundle was received as exhibit B. I will refer to documents by reference to their number in the trial bundle, so this document is TB 47.
By letter of 20 May 2003, the Minister issued consent to the Manager's proposal to develop a new 300 room hotel on land that was part of the Site.[4]
[4] SAF 76, TB 73.
In the years to 2005, that hotel, being the second hotel on the Site, was constructed on the Site. It was initially known as the Holiday Inn and is now known as Crown Promenade.[5]
[5] SAF 50.
In August 2011, Mr Felstead, CEO of the Manager, wrote to the Premier in relation to possible further development of Burswood. The letter raised, among other things, the question of whether the Manager could acquire further land.[6]
[6] TB 74.
By letter of 19 October 2011,[7] the Premier wrote to Mr Felstead. In that letter, it was said that the government was open to future land acquisitions by Burswood providing development plans for any land acquired are consistent with the overall plans for the Burswood Peninsula.
[7] TB 75.
By letter of 13 January 2012, Mr Felstead wrote to the Premier.[8] The letter:
(a)stated that Burswood had undertaken a review of the facilities;
(b)as a result of the review, Burswood proposed to develop the complex and adjoining parklands through construction of a new 6‑star luxury hotel and serviced apartment complex;
(c)stated that development was proposed to be situated on part of Burswood's existing landholding, together with a further 5.8 ha of Burswood parkland reserve;
(d)requested consideration of the granting to Burswood of 5.8 ha of land and approvals to start work on the third hotel in the near future.
[8] TB 76.
By letter of 13 July 2012, Mr Conran, Director General of the Department of Premier and Cabinet, wrote to Mr Felstead.[9] The letter stated that subject to satisfactory resolution of the matters set out below, the government was agreeable to the sale of 5.823 ha of Burswood Park. The matters to be resolved were:
(a)the entry into of a satisfactory agreement for the sale of the Site at a purchase price above $50 million;
(b)Burswood's agreement to consent to land on the Burswood Peninsula being excised from the reserve for the development of a new major stadium for Perth and the associated sports precinct on the balance of the golf course.
[9] TB 79.
The letter invited Burswood to provide a revised offer for the purchase of the Site.
By letter of 18 July 2012, Mr Felstead wrote to Mr Conran.[10] The letter set out an offer including the following terms:
(a)a purchase price of $60 million excluding GST;
(b)the Site would be used solely for the development of the proposed hotel development;
(c)for the proposed hotel development to be commenced within 12 ‑ 18 months, it was critical that streamlined planning approvals are afforded by government, similar to those incorporated within the existing Site (as defined by the Casino Agreement) form part of intended purchase and subsequent development of the Site, saying that the manner in which streamlined approvals are to be incorporated will need to be considered by the parties' lawyers;
(d)Burswood agrees to consent to the land on the Burswood Peninsula being excised from the Burswood Park Reserve for the development of a new major stadium for Perth and the associated sports precinct on the balance of the golf course and all approvals required.
[10] TB 81.
By letter of 27 July 2012, Mr Conran wrote to Mr Felstead.[11] The letter stated that Burswood's offer of $60 million was acceptable to the government subject to the legal documentation being agreed. The letter also stated that the other conditions were accepted but would need to be reflected in the legal documentation.
[11] TB 82.
From July 2012 to January 2013 the State and Burswood Nominees negotiated about the terms of the detailed agreement about the sale of the land to be excised from the Resort Site and sold to the third defendant.
On 21 January 2013, the State and Burswood Nominees entered into an agreement entitled Agreement for Sale and Development of Land (the Sale and Development Agreement).[12] The Sale and Development Agreement provided for the sale of identified land from the State to Burswood Nominees for consideration of $60 million plus GST. The land sold was an identified portion of the Resort Site, being 5.823 ha in area, and subsequently became the whole of the land comprised in Certificate of Title Volume 2812 Folio 341. I will refer to that land as the Excised Land. It is not necessary to distinguish the periods before and after the new title for the Excised Land was created.
[12] TB 100.
The Sale and Development Agreement was amended in April and July 2013.
The Sale and Development Agreement was made between the third defendant and the State, acting through the Premier and Minister for State Development, and the Minister for Lands. It included terms to the following effect:
(1)the sale and purchase of the Excised Land was subject to and conditional upon Burswood Nominees as Trustee giving to the State, within 30 days from the date of the Sale and Development Agreement:
(a)consent to the excision of the Excised Land from the Resort Site, in the form set out in Annexure A2 to the Sale and Development Agreement;[13]
[13] Clause 2.2(a)(i).
(b)consent to the excision of the Sports Precinct Land (as defined in the Sale and Development Agreement) from the Resort Site, in the form set out in Annexure B2 to the Sale and Development Agreement;[14]
[14] Clause 2.2(a)(ii).
(c)consent to the excision of the Stadium Land (as defined in the Sale and Development Agreement) from the Resort Site, in the form set out in Annexure C2 to the Sale and Development Agreement;[15]
[15] Clause 2.2(a)(iii).
(2)the sale and purchase of the Excised Land was subject to and conditional on Burswood Nominees as Trustee receiving from the Minister for Racing and Gaming, by 28 February 2013, the consent required under cl 2.2(b)(ii);
(3)the sale and purchase of the Excised Land was subject to and conditional on Burswood Nominees being satisfied with its due diligence enquiries about the Excised Land and its suitability for the development of Stage 1 (as defined in the Agreement to mean the hotel development proposal set out in sch 1 to the Sale and Development Agreement) (I refer to that hotel development proposal as the Third Hotel Development) by 28 February 2013;[16]
[16] Clause 2.2(b(i).
(4)upon satisfaction or waiver of the conditions in cl 2.2(a) and cl 2.2(b), Settlement (as defined) was then conditional upon:
(a)completion of the process for excision of the Excised Land from the Reserve (defined to mean 'the land comprising Western Australia Reserve 39361') pursuant to cl 6(2A), cl 6(2B) and cl 6(2D) of the Casino Agreement;[17] and
[17] Clause 2.2(h)(i).
(b)publication of a notice in the Government Gazette pursuant to cl 6(5) of the Casino Agreement by the Minister for Racing and Gaming, setting out the terms and conditions on which the State was to sell the Excised Land to Burswood Nominees;[18]
[18] Clause 2.2(h)(ii).
(5)(a) in the event that the conditions in cl 2.2(h)(i) and (ii) above were not satisfied (through no reason attributable to the delay of Burswood Nominees) within 120 days of satisfaction or waiver of the conditions contained in cl 2.2(a) and cl 2.2(b) (set out above) (or such other period as Burswood Nominees and the Minister for Racing and Gaming agreed), then Burswood Nominees was entitled to give notice terminating the Agreement;[19]
[19] Clause 2.2(h).
(b)in the event that Burswood Nominees did so terminate the Agreement then it would have no right to purchase the Excised Land or any other right or interest in the Excised Land;[20]
[20] Clause 2.4(ii).
(6)Burswood Nominees was obliged to:
(a)cause construction of the Third Hotel Development to be commenced within 30 days of settlement under the Sale and Development Agreement, and to be completed within three years of commencement (or such later period as may be approved by the State and the Minister for Racing and Gaming in writing);[21]
[21] Clauses 14.1(a) and 14.3(b) and sch 2.
(b)cause construction of any Subsequent Stages as defined (Subsequent Stages) to be commenced within four years from practical completion of the Third Hotel Development and all Subsequent Stages to be completed within eight years from the commencement of the first Subsequent Stage (or such later period as may be approved in writing by the State and Minister for Racing and Gaming);[22]
[22] Causes 14.1(a) and 14.3(b) and sch 2.
(7)Burswood Nominees acknowledged and agreed that, other than as set out expressly in the Sale and Development Agreement, no warranty or representation had been given or made to it, or anyone on its behalf, by the State, a State Entity (as defined in the Sale and Development Agreement), the Minister for Lands or any agent, employee or any other person on the State's or Minister for Lands' behalf as to, inter alia:
(a)the zoning of the Excised Land and the use to which the Excised Land or any other land adjoining or in the vicinity of the Excised Land may be put;[23]
(b)the requirements of each and every authority, body or government department which had control or jurisdiction over the Excised Land and the current and prospective use and development of the Excised Land;[24]
(8)(a) nothing in cl 12.2 of the Sale and Development Agreement prevents Burswood Nominees from relying upon any approval provided by the Minister for Racing and Gaming as contemplated by cl 2.2(b)(ii) of the Sale and Development Agreement;[25]
(b)other than as specified in the Sale and Development Agreement, Burswood Nominees would not be entitled to make any objection, requisition or claim for compensation, or rescind the Sale and Development Agreement, in respect of the fact that its proposed use of the Excised Land may not be an authorised use under any applicable zoning or use law, scheme or regulation;[26]
(c)Burswood Nominees must carry out any development of the Excised Land in accordance with the relevant Development Approval (defined in the Sale Agreement to mean, in effect, all approvals for the Third Hotel Development and Subsequent Stages required to be granted by the Minister for Racing and Gaming pursuant to the Casino Agreement) and not for any other purposes;[27] and
(d)Burswood Nominees shall ensure that the Third Hotel Development and any Subsequent Stages shall be completed in compliance with all applicable laws and regulations and the requirements of all relevant local governments having jurisdiction over the Excised Land or part thereof, or public authorities.[28]
[23] Clause 12.2(a)(iv).
[24] Clause 12.2(a)(vi).
[25] Clause 12.2.
[26] Clause 12.3(f).
[27] Clause 14.1(b).
[28] Clause 14.1(c)(iii).

By letter of 14 November 2012, Mr Felstead wrote to the Minister requesting approval for the construction of the third hotel and associated facilities in accordance with plans included.[29]
[29] TB 85.
After some further correspondence,[30] by letter of 31 January 2013 the Minister advised that he granted the consent.[31] The consent was expressed to be subject to, among other things, the State conveying to Burswood Nominees approximately 5.823 ha of the reserve and Burswood purchasing that land for the sum of $60 million plus GST subject to and upon the terms and conditions in the Sale and Development Agreement dated 21 January 2013.
[30] TB 86, 87.
[31] TB 88.
The consent was also subject to:
(a)compliance with the conditions recommended by the Minister for planning attached to the 31 January 2013 consent including 'securing all the necessary clearances authorisations and otherwise complying with all requirements of the Environmental Protection Act 1986 (WA); the Swan and Canning Rivers Management Act 2006 (WA); the Aboriginal Heritage Act 1992 (WA); the Heritage of Western Australian Act 1990 (WA); and any other statutory requirements relevant to the development project'; and
(b)preliminary works being confined to land owned by Burswood Nominees until settlement on the sale of Excised Land was completed.
The validity of this consent (the January Consent) is one of the issues in the action.
By letters of 5 February 2013, the Burswood companies enclosed their consent to the amendment of the boundary of the Resort Site to excise the Excised Land[32] and to excise the Stadium Land.[33]
[32] TB 89, SAF 33.
[33] TB 90, SAF 34.
The consent of 31 January 2013 satisfied the condition in cl 2.2(b)(ii) of the Sale and Development Agreement.
Notice to that effect was given by letter of 28 February 2013 from Burswood Nominees to the Department of Premier and Cabinet.[34]
[34] TB 95.
On 19 February 2013, Burswood Nominees gave consent to the State amending the boundaries of the Resort Site by excision of the Sports Precinct Land.[35]
[35] SAF 35, TB 92.
On or about 12 April 2013, by a document titled Consent to Amend Boundary, Burswood Nominees gave an amended consent to the State to amendment of the boundaries of the Resort Site by excision of the Excised Land.
By that date, at the latest, the conditions in cl 2.2(a) of the Sale and Development Agreement had been satisfied.
On 9 July 2013, a notice of amendment to the boundary of the Resort Site by the excision of the Excised Land was published in the Government Gazette pursuant to cl 6(2B) of the Casino Agreement.[36]
[36] TB 103.
By letter dated 9 July 2013 from the Minister to the Premier, the Minister made a recommendation to the State to the effect that the Excised Land be granted to Burswood Nominees on the terms and conditions contained in the Sale and Development Agreement.[37] A copy of the Sale and Development Agreement was attached.[38] On the same day, the Minister's recommendation was accepted by the Premier on behalf of the State, by countersigning the letter.[39]
[37] TB 104.
[38] TB 105.
[39] SAF 40, TB 104.
On 10 July 2013, a notice of grant of the Excised Land to Burswood Nominees on the terms and conditions contained in the Sale and Development Agreement was published in the Government Gazette, expressed to be pursuant to cl 6(5)(a) of the Casino Agreement.[40] Upon publication of that notice, the condition in cl 2.2(h)(ii) was satisfied.
[40] SAF 41, TB 106.
On 11 July 2013:
(a)upon registration of the amendment of the reserve form M338651, the boundaries of reserve 39361 were amended by removing the area comprising the Excised Land, in accordance with cl 6(2D) of the Casino Agreement;
(b)upon the amendment of the boundaries of reserve 39361 by removing the area comprising the Excised Land, the process for excision of the Excised Land from reserve 39361 pursuant to cl 6(2A), cl 6(2B) and cl 6(2D) of the Casino Agreement was completed, and the condition in cl 2.2(h)(i) of the Sale and Development Agreement was satisfied;
(c)settlement of the Sale and Development Agreement took place; and
(d)the relevant transfer was registered, and Burswood Nominees became the registered proprietor of an estate in fee simple in the Excised Land.[41]
[41] SAF 42, TB 107, 115, 117.
One of the issues in the case is whether the steps described in the preceding four paragraphs were an efficacious grant of land under cl 6(5).[42]
[42] See section 9 below.
On 19 July 2013, Burswood sought the Minister's consent under cl 13(1B) for the concept and preliminary works associated with the Third Hotel Development and associated facilities, and submitted detailed time programme and conceptual plans and specifications for approval expressed to be pursuant to cl 7(1) and cl 7(3) of the Casino Agreement.[43]
[43] TB 109, SAF 44.
On 29 July 2013, the Minister issued final consent to Burswood Nominees for the proposed concept and preliminary works associated with the Third Hotel Development and associated facilities, and gave approval of the detailed time programme and conceptual plans and specifications submitted with its letter of 19 July 2013.[44] The validity of this consent (the July Consent) is an issue in this action.
[44] TB 110.
The consent given on 29 July 2013 was subject to:
(a)any relevant terms and conditions contained in the Sale and Development Agreement;
(b)compliance with the Department of Planning's recommended conditions attached to the 29 July 2013 consent, including 'securing all the necessary clearances and authorisations and otherwise complying with all requirements of the Environmental Protection Act 1986; the Swan and Canning Rivers Management Act 2006; the Aboriginal Heritage Act 1992; the Heritage of Western Australia Act 1990; and any other statutory requirements relevant to the development project'.
Since about mid‑August 2013 Burswood Nominees has undertaken preliminary works on the Excised Land for the purposes of the Third Hotel Development.
Burswood Nominees and Burswood Management intend to carry out the Third Hotel Development pursuant to the 31 January 2013 consent and the 29 July 2013 consent and other consents or approvals that may be granted to it under the Casino Agreement in the future, and will do so unless restrained by order of the court.
By letter of 14 February 2014 to the Minister, the Burswood companies sought the Minister's consent under cl 7(1) and cl 7(3) of the Casino Agreement for the time programme and plans and specifications for the Third Hotel Development.[45]
[45] TB 123.
I turn to the legislation and the Casino Agreement.

The Casino Act

On 20 February 1985, the State of Western Australia made the Casino Agreement, with West Australian Trustees Ltd and Burswood Management Ltd. The third defendant is the successor to West Australian Trustees Ltd.[46]
[46] SAF 6.
The Casino Agreement is scheduled to the Casino Act. The Casino Agreement is ratified and its implementation authorised by s 4 of the Casino Act. By s 4(3), the Casino Agreement operates and takes effect notwithstanding any other Act or law.
The Casino Agreement has been amended by 12 supplementary agreements set out in sch 2 to sch 13 of the Casino Act.
The supplementary agreements relevant to this action are the (first) supplementary agreement and the seventh supplementary agreement.
The supplementary agreement was ratified and its implementation authorised by s 4A of the Casino Act.
The seventh supplementary agreement was ratified and its implementation authorised by s 4C of the Casino Act.
The effect of s 7(1) and s 7(2) of the Casino Act is that the Metropolitan Region Scheme and local planning schemes under the Planning and Development Act 2005 (WA) do not apply to land within the Resort Lands.
Section 7 provides as follows:
7.Certain planning laws modified
(1)Notwithstanding anything in the Planning and Development Act 2005 or in the Metropolitan Region Scheme but subject to any order made under subsection (2b), the Scheme does not apply to or in relation to the land within the Resort Lands.
(2)Notwithstanding anything in -
(a)the Local Government (Miscellaneous Provisions) Act 1960, the Local Government Act 1995 or the Planning and Development Act 2005, by‑laws made under section 248 of the Local Government Act 1960 as read with the Second Schedule to the Town Planning and Development Act 1928; or
(b)the Planning and Development Act 2005, local planning schemes prepared under that Act,
by the local government of the district within which the Resort Lands are situated do not, subject to any order made under subsection (2b), apply to or in relation to the land referred to in subsection (1).
(2a)Whenever any land ceases to form part of the Site by virtue of an order made under section 21F(1b) of the Casino Control Act 1984, subsections (1) and (2) do not apply to or in relation to that land and that land is reserved under the Metropolitan Region Scheme for 'Public Purposes - Special Use'.
(2b)The Minister may, on the recommendation of the Casino Control Committee established by the Casino Control Act 1984, by order declare that subsections (1) and (2) do not apply to or in relation to such part of the Resort Site as is specified in that order, and that order has effect according to its tenor.
(3)An order made under subsection (2b) is subsidiary legislation within the meaning of the Interpretation Act 1984.
(4)In this section -
Metropolitan Region Scheme has the meaning given to that term in the Planning and Development Act 2005 section 4;
the Resort Site and the Site have the respective meanings given by the Agreement.
The Resort Lands are defined in s 3 to mean the combined areas of the Resort Site and the Site as respectively defined by the Casino Agreement.
Thus, s 7 of the Casino Act exempts the Resort Lands, including the Site, from the general planning and development regime. The central question in this case is whether that exemption applies to the Excised Land.

The Casino Agreement

4.1 The 1985 agreement

It is convenient to set out the terms of the agreement historically, so as to identify the course of amendments made, since the parties all relied on the course of amendments in their submissions.
The original agreement made in 1985 recited that the Development Proposals with respect to the construction, establishment and development of a resort had been submitted and accepted in principle by the Minister. Development Proposals was defined in cl 2 to mean the proposals in respect of the construction, development and establishment of the Resort as detailed and set out in two identified reports, as from time to time amended, with the approval of the Minister.
The two identified reports[47] show the proposed location of stage 2 near the tennis courts and the casino on the riverside of those. The second stage is said to be a 400 room hotel. An estimated cost of $100 million is stated, with no breakdown. It is said that construction is expected to commence in 1987. Little other detail is provided.
[47] TB1 and TB2.
The elements of stage 1 were set out as follows:
(1)A hotel principally for overseas and interstate visitors. …
(2)A Convention Centre and Theatre Restaurant in a discrete building with separate road access for local participants but also linked to the hotel for access by overseas and interstate visitors.
(3)A casino in a separate building with road access for locals and linked also to the hotel.
(4)An Exhibition Centre to be located further from the other buildings due to its high but infrequent peak usage.
(5)A Foreshore reserved for parks, water gardens, outdoor recreation activities and indoor recreation activities located adjacent to the main cluster of buildings.
(6)A Golf Course of championship standard for the balance of the land.
Recital D states that the Minister has agreed to enter into the agreement for the purpose of providing for and facilitating implementation of the Development Proposals and the operation of the Resort and the Resort Complex subject to and in accordance with the provisions of the agreement.
The Resort was defined as:
[T]he complete and entire Burswood Island Resort (including the Resort Complex) referred to in the Development Proposals, to be constructed and developed on the Site and the Resort Site pursuant to and in accordance with the provisions of this Agreement.
The Resort Complex was originally defined as:
[T]he hotel, convention centre/theatre restaurant, exhibition centre, recreation facilities and Burswood Casino to be constructed on the Site pursuant to and in accordance with the provisions of this Agreement and includes, if and when constructed, Stage 2.
The plaintiffs say that Recital D expresses the purpose of the Casino Agreement, namely to implement and regulate the construction and establishment of a Casino Resort and Casino Complex at Burswood Island by providing for and facilitating the implementation of the then existing Development Proposals at the time of ratification of the Casino Agreement, and providing for regulation of the operation of the Casino Resort and Casino Complex.
The defendants say this was the purpose of the original Casino Agreement, and should not be taken as a complete statement of the purposes of the agreement as amended.
Resort Site was defined to mean that part of Burswood Island as is shown bordered red on plan 1512, but does not include the Site. Site was defined to mean Swan Locations 10661 and 10662 as surveyed and shown on registered Lands and Surveys Original Plan 16284. These definitions were subsequently deleted and replaced.
The Site is the land on which improvements are to be erected; it is vested in the Trustee.[48] The surrounding parkland is the Resort Site, and is vested in the Crown, as a reserve.[49]
[48] Clause 6(1)(b).
[49] Clause 6(1)(c).
Stage 2 was defined to mean the construction of the second hotel and other development facilities and amenities referred to in the Development Proposals.
Part II of the agreement provided for the development of the Resort on the Site.
Clause 7(1) provides for the Manager to submit to the Minister for approval a detailed programme for the design, construction and commissioning of the Resort. Clause 7(3) requires the Manager to submit to the Minister for approval detailed plans and specifications of each building within the Site.
By cl 8 of the Casino Agreement, the State was obliged to ensure that the Site shall be and remain zoned for use or otherwise protected so that the use to which the Trustee may put the Site in accordance with the provisions of the agreement, and the erection and use of the Resort Complex, may be undertaken and carried out without any interference or interruption by the State or any local or other authority on the grounds that such use is contrary to any town planning scheme or zoning by‑law.
Clause 9(1) imposed minimum expenditure obligations on the Trustee in respect of the Resort and the Resort Site. It also obliged the Operator to maintain and operate the Resort Complex while the Casino Agreement remains on foot.
By cl 9(3), notwithstanding the provisions of any Act, regulation, by‑law or town planning scheme, the Trustee shall not be required to obtain any approval or consent required under a law of the State, except in the case of the Site for a building licence under the local government act.
Clause 13 provided that if the Trustee resolved to proceed with stage 2, the Trustee would forthwith notify the State of such resolution and that cl 7, cl 9, cl 10 and cl 11 would apply to the construction, fit‑out and commissioning of stage 2.
That clause entitled, but did not oblige, the Trustee to construct stage 2. There was a notification requirement, but no need to obtain State consent except in the limited respects provided by cl 7(1) and cl 7(3).
Clause 13 was deleted and replaced by the supplementary agreement.[50]
[50] Supplementary agreement cl 3(b).
Clause 23(3)(a) provided that the State should be at liberty to excise from the Resort Site any part or parts thereof which may from time to time be reasonably required for public streets or for the purpose of providing services or facilities of like or similar kind to those referred to in cl 9(4), or with the agreement of the Trustee, for any other purpose, provided that the area or aggregate of the areas so excised shall not without the consent of the Trustee exceed 10% of the area of the Resort Site.
This clause was subsequently amended by the seventh supplementary agreement.

4.2 1987 supplementary agreement

The supplementary agreement was made on 14 September 1987. Clause 3(a) of the supplementary agreement deleted the definitions in the principal agreement of among others 'this Agreement', 'Resort Complex', 'Resort Site' and 'Site'.
The inserted new definition of Site was 'Swan Location 10661 and 10662 as surveyed and shown on registered Lands and Surveys Original Plan 16284, but does not include, on and from the date specified in an order made under s 21F(1b) of the Casino Control Act, any part of that land which is by the order excluded from the operation of this agreement'.
A new definition of Resort Complex was inserted as follows:
'Resort Complex' means the hotel, convention centre/theatre restaurant, exhibition centre, recreation and other facilities and the Burswood Casino established or to be established on the Site pursuant to and in accordance with the provisions of this Agreement and includes, if and when constructed, Stage 2 but does not include, on and from the date specified in an order made under section 21F(1b) of the Control Act, any of the foregoing which are by the order excluded from the operation of this Agreement.
The supplementary agreement amended cl 13. Clause 13 originally provided for approval of the single future development referred to as stage 2. It provided for a limited notification process which did not give the Minister a power of veto. The 1987 amendment extended the scope of cl 13 to establish a development regime that covered stage 2, still with its limited notification process, but also provided for 'any other development of the site', with a full approval process that required a detailed proposal to be given to the Minister and gave the Minister the power to consent or not.
Clause 13 of the principal agreement was deleted and replaced with the following, which continues to be a term of the Casino Agreement:
13(1) If the Trustee shall resolve to proceed with stage 2 or to carry out any other development of the Site the Trustee shall:
(a)forthwith notify the State of any such resolution; and
(b)in the case of any such other development, submit to the Minister a proposal in reasonable detail, and before proceeding, obtain the consent of the Minister in relation thereto.
(2)The provisions of clauses 7, 9, 10 and 11 shall, with necessary modifications, apply in relation to the construction, fit‑out and commissioning of stage 2 or any other development referred to in subclause (1).
One central issue is the meaning of 'or any other development' in cl 13(1).

4.3 The seventh supplementary agreement 1997

On 9 June 1997, the seventh supplementary agreement was made. It provided for the inclusion of additional land in the Site, either by transfer of land excised from the Resort Site, or by inclusion of land that was not within the original Casino Agreement land envelope. This was done by inclusion of a new cl 6(5) and a new par (b) in the definition of Site. A process for excision of land from the Resort Site was provided in new cl 6(2A) to cl 6(2D).
The seventh supplementary agreement inserted new subclauses (2A) ‑ (2D) in cl 6, providing a mechanism for excision of land from the Resort Site. They provide as follows:
(2A)The State may from time to time
(a)determine the boundaries of the Resort Site; or
(b)amend the boundaries of the Resort Site -
(i)to increase the area of the Resort Site with the consent of the Trustee and the Manager;
(ii)to decrease the area of the Resort Site pursuant to clause 23(3)(a);
(iii)to decrease the area of the Resort Site otherwise than pursuant to clause 23(3)(a), with the consent of the Trustee and the Manager.
(2B)Subject to subclause (2C), a determination of the boundaries of the Resort Site or an amendment of the boundaries of the Resort Site pursuant to subclause (2A) is effective from the date on which notice of the amendment is published in the Government Gazette.
(2C)A determination of the boundaries of the Resort Site pursuant to subclause (2A) may, in the notice published pursuant to subclause (2B), be expressed to be effective as of a date, prospective or retrospective, specified in the notice.
(2D)If the Resort Site is amended pursuant to subclause (2A), the State must amend the reserve created pursuant to clause 6(1)(c) accordingly.

Clause 6(5) was also inserted in the following terms:
(5)Notwithstanding the provisions of the Public Works Act 1902, the Financial Administration and Audit Act 1985 or of any other Act the State may -
(a)on the recommendation of the Minister cause part or parts of any land excised from the Resort Site not exceeding in the aggregate 10 hectares to be granted or leased to the Trustee on terms and conditions approved by the Minister by notice published in the Government Gazette; and
(b)pay or direct the payment of all or any part of any money payable by the Trustee to the State for land granted or leased to the Trustee under paragraph (a) to the person who was registered as the proprietor of that land immediately prior to its acquisition by or on behalf of the State.
The reference in cl 6(5) to 'land excised from the Resort Site' is a reference to land excised through the mechanism in cl 6(2A) ‑ cl 6(2D).
The seventh supplementary agreement also inserted cl 23(3)(aa) which reads as follows:
(3)… the State shall be at liberty to:
(aa)excise from the Resort Site any part or parts of the Resort Site agreed to be granted or leased to the Trustee under clause 6(5).
It also amended the terms of cl 23(3)(a).
All these provisions remain in operation.
The seventh supplementary agreement substituted the following definitions of Resort Site and Site which continue to apply:
'Resort Site' means those parts of Burswood Island as are -
(a)shown bordered red on Department of Land Administration Miscellaneous Plan 1512;
(b)designated as Swan Location 12057 on Department of Land Administration Plan 18634; and
(c)designated as Swan Location 11877 on Department of Land Administration Diagram 91378
or, if some other area is for the time being notified in the Government Gazettte pursuant to clause 6(2B), that other area, but subject to clause 6(2A) does not include the Site or any land which ceases to be part of the Site by virtue of an order made under section 21F(1b) of the Control Act; and
'Site' means -
(a)Swan Location 10661 and 10662 as surveyed and shown on Department of Land Administration Original Plan 16284;
(b)except in clauses 6, 9(1) and 9(3), any additional land granted or leased to the Trustee for the purposes of this Agreement whether pursuant to clause 6(5) or otherwise; and
(c)any land in respect of which an order made under section 21F(1b) of the Control Act is revoked
but, subject to paragraph (c), does not include, on and from the date specified in an order made under section 21F(1b) of the Control Act, any part of that land which is by the order excluded from the operation of this Agreement.
As will be seen, the proper construction of par (b) of the definition of the Site is of central significance to this action.

The parties' contentions

The defendants' case is that:
(1)the Excised Land was excised from the Resort Site pursuant to cl 6(2A) and cl 6(2B) of the Casino Agreement;
(2)the Excised Land was granted to the Trustee pursuant to cl 6(5) of the Casino Agreement;
(3)the grant was for the purpose of carrying out the Third Hotel Development with the consent of the Minister;
(4)that purpose is a purpose of the Casino Agreement;
(5)upon grant to the Trustee the Excised Land became part of the Site as defined in the Casino Agreement, by application of par (b) of the definition of Site;
(6)consequently, the Excised Land became part of the Resort Lands as defined in the Casino Act, to which s 7 of the Casino Act applies;
(7)as a result, all of the land on which the Third Hotel Development is to be built is within the Resort Lands as defined in the Casino Act, so that the project is exempt from the Metropolitan Region Scheme and local planning schemes pursuant to s 7(1) and s 7(2) of the Casino Act; and
(8)the Third Hotel Development is a development of the Site within the meaning of cl 13 of the Casino Agreement. The Minister has given consent to the development, and the third defendant is entitled to carry out the development in reliance on that consent.
The plaintiffs' case is best understood in the context of par (b) of the definition of Site in the Casino Agreement.
Paragraph (b) provides as follows:
(b)except in clauses 6, 9(1) and 9(3), any additional land granted or leased to the Trustee for the purposes of this Agreement whether pursuant to clause 6(5) or otherwise.
The plaintiffs' case has three central planks, each of which focuses on an element of par (b) of the definition:
(1)a harmonious construction of s 7 of the Act with the Casino Agreement, in particular cl 9(3), leads to the conclusion that the definition in par (b), expressed not to apply to cl 6, cl 9(1) and cl 9(3) of the Casino Agreement, does not apply to 'the Site' as part of the Resort Lands in s 7 of the Act;
(2)the sale and transfer of the Excised Land by the State to the Trustee was not 'for the purposes of [the Casino Agreement]' within the meaning of that phrase in par (b) of the definition of the Site; and
(3)the Excised Land was not 'granted to the Trustee … pursuant to cl 6(5) or otherwise' because:
(a)the procedure required by cl 6(5) was not adhered to; or
(b)the land was transferred in the exercise of a different statutory power, not the power under cl 6(5); and
(c)the land was sold and therefore there was no grant.
If the plaintiffs succeed in establishing any one of propositions (1) to (3), the consequence is that s 7 does not apply to the Excised Land, and the plaintiffs will be entitled to the relief they seek. There is no issue as to the plaintiffs' standing, or as to whether, if the plaintiffs succeed in any of these respects, there is any discretionary reason to decline relief including an injunction.[51]
[51] ts 18 ‑ 20.
The plaintiffs also put the following supplementary contentions, the first of which overlaps substantially with the plaintiffs' second central plank outlined above:
(4)the Minister's power to consent to any other development under cl 13 is exhausted, because a substitute for the stage 2 development has already been developed;
(5)the consents given are invalid because:
(a)at the time when the Minister's January Consent was given, the Excised Land had not been granted to the Trustee so it had not become part of the Site; and
(b)the July Consent is void because of the invalidity of the January Consent or because it failed to define the purpose for which the Excised Land was granted.[52]
[52] Reply dated 29 January 2014 [6].
It will be seen that this action turns entirely upon questions of construction of legislation and of the Casino Agreement. The merits, in planning terms or otherwise, of the Minister's decision to consent to the Third Hotel Development is not a question for the court. Whether, as the plaintiffs submit, the Third Hotel Development when built will involve a 'bombarding of a number of senses fairly constantly'[53] of nearby residents, including the plaintiffs, is not the question. The question for the court is not whether the Minister should have given consent. The question is whether, when the Casino Act and the Casino Agreement are properly construed and applied to the undisputed facts of this case, development approval is needed under the generally applicable planning regime (as the plaintiffs submit), or whether consent to a development was required to be obtained from the Minister and no‑one else (as the defendants submit).
[53] ts 45.
I will set out legal principles concerning the construction of contracts and statutes, before dealing with the plaintiffs' three main propositions in turn in sections 7 to 9. Section 10 will deal with the plaintiffs' supplementary contentions.

Legal principles

6.1 The approach to construing State agreements

By s 4 to s 4F of the Casino Act, the Casino Agreement, the Supplementary Agreement, and the Second, Seventh, Eighth, Eleventh, and Twelfth Supplementary Agreements operate and take effect notwithstanding any Act or law.
The Casino Agreement and the Supplementary Agreements are each a 'Government Agreement' for the purposes of the Government Agreements Act 1979 (WA). By s 3(a) of that Act, each provision of the Casino Agreement, as varied, operates and takes effect according to its terms, notwithstanding any other Act or law.
These provisions operate to ensure the effective operation of the contractually agreed provisions. The agreement does not have the force of law and does not create statutory duties and obligations.[54] The purpose of these provisions is to ensure that the general body of law in the State does not 'stand in the way' of implementation of the agreements.[55]
[54] Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288; (2003) 27 WAR 574 [26], [30]; Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239 [179], [275].
[55] Re Michael [21].
The terms of the Casino Agreement operate contractually, binding only the parties to it.[56]
[56] See Re Michael [26], [30]; Oz Minerals [179].
Consequently, the Casino Agreement is not to be interpreted like a statute. The principles governing the proper construction of an instrument apply.[57]
[57] Hancock Prospecting Pty Ltd v BHP Minerals Pty Ltd [2003] WASCA 259 [64] ‑ [67]; Mineralogy Pty Ltd v The State of Western Australia [2005] WASCA 69 [13] ‑ [14].
The position is different if the Act ratifying the State Agreement provides that the agreement shall 'operate and take effect as though [its] provisions were enacted in this Act',[58] but there is no such provision in the Casino Act.

6.2 Construction of contracts, general principles

[58] The Wik Peoples v The State of Queensland (1996) 187 CLR 1, 99, 258; for an example see Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216; (2012) 45 WAR 29 [12].

The principles relevant to the proper construction of contracts are well established, and not in dispute in this case. I apply the principles stated in Red Hill Iron Ltd v API Management Pty Ltd.[59]
[59] Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 [106] ‑ [112]; Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd [2014] WASCA 28 [55]; for recent confirmation of these principles see Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 [35].
In summary:
(1)the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2)it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters, not the parties' subjective intentions. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood the terms to mean;
(3)the objectively ascertained purpose and objective of the transaction may be taken into account in construing the instrument. That may invite attention to the genesis of the transaction, its background and context;
(4)the apparent purpose or object can be inferred from the express and implied terms of the contract, and from any admissible evidence of surrounding circumstances; and
(5)an instrument can be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However it must be borne in mind that business common sense may be a topic on which minds may differ.
The plaintiffs submit that the approach to construction of commercial contracts is not applicable to the Casino Agreement because:
(a)that agreement is not, or not just, a commercial contract;
(b)some of its provisions, such as cl 9(3), operate in substance in the way a statute operates, having significant impact on persons who are not parties to the agreement.[60]
[60] ts 179 ‑ 180.
As explained in section 6.1, a government agreement takes effect notwithstanding any law to the contrary.[61] That means it overrides the generally applicable law. In my view, that in itself does not alter the approach to the construction of the agreement given that, as here, Parliament has ratified the agreement and authorised its implementation. For example, there is no presumption in favour of a narrow construction of a government agreement so as to minimise its alteration of the generally applicable law.
[61] Government Agreements Act 1979 (WA), s 3.
There are no special rules for construction of government agreements, and the plaintiffs did not suggest there was any special rule. In Hancock Prospecting v BHP and in Mineralogy v WA, the court said that the usual principles of contract construction apply. Moreover, in both cases the court applied the principle that the contract should be construed 'practically so as to give effect to its [presumed] commercial purpose, because the law seeks to uphold commercial contractual obligations and the expectations that derive from them'.[62]
[62] Hancock v BHP [72]; Mineralogy v WA [15].
That is not to say that any consequences, or potential consequences, for third parties, of a particular construction are to be ignored. To the extent that they may be an indication of the objective common intention of the parties to the contract, such consequences are among the matters to be considered in the construction process. Similarly, the nature and effect of a particular provision is to be borne in mind in its proper construction. These matters are part of what informs the proper construction of any contract, and that will be so for a government agreement.
A contract, like a statute, must be constructed as a whole. A construction that makes the various parts of an instrument harmonious is preferable.[63] If possible, each part of an instrument should be construed so as to have some operation.[64]
[63] Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109; Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522 [16].
[64] ABC v APRA (109); Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; (2013) 278 FLR 49 [80] ‑ [81].
On the proper construction of a contract, evidence of surrounding circumstances is not admissible unless the court determines that the contract is ambiguous or susceptible of more than one meaning.[65]
[65] Cape Lambert Resources Ltd v MCC Australia Sanjin Mining Pty Ltd [2013] WASCA 66 [107]; Red Hill [118].
Ambiguity is not confined to lexical, grammatical or syntactical ambiguity. It is enough if the instrument is susceptible of more than one meaning or if the scope or applicability of the contract is doubtful.[66]
[66] Hancock Prospecting v Wright Prospecting [77]; Red Hill [119].
Counsel agreed that nothing said in Electricity Generation Corp v Woodside Energy Ltd[67] affects the need for ambiguity before regard may be had to surrounding circumstances. I proceed on that basis. I note that, in any event, I am satisfied that the scope or applicability of par (b) of the definition of Site, including the phrase 'for the purposes of this Agreement' is doubtful.
[67] Electricity Generation Corp v Woodside Energy Ltd [35].
There are limits on the extent to which surrounding circumstances can influence the proper construction of an instrument. Reliance on the surrounding circumstances must be tempered by loyalty to the text of the instrument.[68]
[68] Hancock Prospecting v Wright Prospecting [78]; Red Hill [121].
There are also limits on the kind of evidence which is admissible as background to construction of a contract, and the purposes for which it is admissible. Evidence of prior negotiations is admissible for some purposes but not for others. Insofar as such evidence establishes objective background facts known to the parties or the genesis, purpose or object of the transaction it is admissible. Insofar as it consists of statements and actions of the parties reflective of their actual intentions and expectations it is inadmissible. Such statements reveal the terms of the contracts which the party intended or hoped to make. They are superseded by, or merged into, the contract.[69]

6.3 Principles of statutory construction

[69] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352; Chemeq Ltd v Shepherd Investments International Ltd [2007] WASCA 117 [155] ‑ [156]; Red Hill [123]; McCourt v Cranston [2012] WASCA 60 [24] ‑ [26].

Questions as to the proper construction of s 7, and as to the definition of 'Site' when inserted in s 7 through the term 'the Resort Lands', are questions of statutory construction.
The principles of statutory construction are well known. I apply the statement of principles in Curtin University of Technology v Woods Bagot Pty Ltd[70] and in Re Cock; Ex parte Diano.[71] I repeat the latter summary:
In broad summary, the search is for the intention of Parliament expressed and embodied in the legislation. The starting point is the text of the statute. The text is the surest guide to legislative intention. The language of the statute should be interpreted taking into account its context, including any general purpose or policy of the relevant provisions that may be discerned. The consequences of an interpretation, and any perceived improbability of result, may be capable of assisting in choosing between constructional choices that are open on the language of the statute. The statute should be construed as a whole.
In Commissioner of Taxation v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ emphasised the centrality of the text in statutory construction:
'This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text [Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.'
Martin CJ recently made observations to like effect in The Wilderness Society of WA (Inc) v Minister for Environment.
A legislative purpose, discerned from the text and extrinsic material, assists in choosing between constructional choices that are open on the language of the statute; it cannot sustain a construction that is not available as a meaning of the language of the text.
The application of the rules of construction involves the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to rules of construction.
[70] Curtin University of Technology v Woods Bagot Pty Ltd [2012] WASC 449 [34] ‑ [41].
[71] Re Cock; Ex parte Diano [2014] WASC 63 [29] ‑ [33].
A statute must be construed as a whole. So far as possible, a construction that gives a harmonious or coherent meaning to the various provisions is to be preferred. The construction of legislation should strive to give meaning and effect to every word and provision.[72]
[72] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [70] ‑ [71].
In both contractual and statutory contexts, a definition is not to be construed in isolation from the operative provision(s) in which the definition is used. Rather, the operative provision is to be read by inserting the definitions into the provision, and the provision then construed.[73]
[73] Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 [84], [103]; Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue [2011] WASCA 228; (2011) 43 WAR 186 [62], [150], [218]; Red Hill [127].

That brings me to the plaintiffs' first main argument.

Harmony between s 7 and cl 9(3); does par (b) apply to 'the Site' for the purposes of the Resort Lands in s 7?

The plaintiffs contend that additional land granted to the Trustee falling within par (b) of the definition of the Site in the Casino Agreement is not part of the Site for the purposes of s 7 of the Casino Act. In support of that contention, the plaintiffs submit,[74] in summary:
(1)in aiming to reach a harmonised construction of the Casino Agreement and the Act, the proper starting point is the Casino Agreement, which has effect under s 4(3) of the Casino Act;
(2)within the Casino Agreement, it is cl 9(3) which creates the immunity from the need for approval under State Planning laws, Town Planning Schemes and by‑laws - neither cl 13 nor cl 8 has that effect;
(3)it is unmistakably clear, from the express words in par (b) of the definition of the Site, that additional land referred to in par (b) of the definition is not within the ambit of the Site for the purposes of cl 9(3);
(4)the reference to Resort Lands in s 7 is, by s 3 of the Casino Act, a reference to the combined areas of the Resort Site and the Site as defined by the Casino Agreement;
(5)the reference in the Casino Act to the definition of the Site in the Casino Agreement involves and requires a choice to be made between the two definitions of the Site in the Casino Agreement, and the language of the Act does not favour either of these two meanings;
(6)clause 9(3) takes effect by force of s 4(3) of the Act;
(7)section 7 of the Act and cl 9(3) of the Casino Agreement have a concurrent and coextensive operation; and
(8)given that concurrent and coextensive operation, s 7 should be construed harmoniously with cl 9(3), including in respect of the land to which each applies.
[74] ts 58 ‑ 68, 159 ‑ 165, Plaintiffs' Submissions [64], [67], Plaintiffs' Reply Submissions [6] ‑ [11].
Thus, on a proper construction, additional land granted to the Trustee within the meaning of par (b) does not fall within the definition of Site for the purposes of s 7, given such land is expressly excluded from the definition of Site for the purposes of cl 9(3).
I accept propositions (2), (3), (4) and (6). However, for the reasons that follow, I do not accept the plaintiffs' other propositions, or the conclusion invited by the plaintiffs.
First, I do not accept the plaintiffs' starting point in proposition (1). In my view, it is not appropriate to begin by consideration of the Casino Agreement alone, construing it in isolation from the Casino Act, including, in particular, s 7, and then seeking to construe s 7 to conform with the conclusions derived from consideration of the agreement alone. This is an exercise in statutory construction, involving the identification of the proper construction of s 7. The starting point is the language of the statute, which in turn refers to the definition in the agreement. That invites attention to the Act and the agreement, read together.
Secondly, in my view, while the reference in the Casino Act to the definition of Site in the Casino Agreement may be seen to involve a choice between two definitions, the ordinary meaning of the language of par (b) of the definition, and of the definition in s 3 of the Casino Act, militates against the plaintiffs' construction. Section 3 of the Casino Act states that 'the Resort Lands' means the combined areas of the Resort Site and the Site as respectively defined by the Casino Agreement. In the Casino Agreement, there is a generally applicable definition of Site, meaning those matters within par (a), (b) or (c) of the definition, and an exceptional definition for the specified clauses. The only contexts in which par (b) does not apply are the specified clauses. To my mind, the ordinary meaning of the statutory language, and of the contractual language which is incorporated by the statute, favours the application of the generally applicable definition of the Site.
Thirdly, the plaintiffs' construction invites reading cl 9(3) of the agreement, given effect by s 4(3) of the Act, as operating coextensively and substantially identically with s 7. A construction that avoids that result is preferable on that account. A court construing a statutory provision strives to give meaning and effect to every word and to every provision. The same is true in the construction of a contract.[75] This case involves the proper construction of both an agreement and an Act. The efficacy of the agreement was contingent upon its ratification by Parliament. It is common ground between the parties that the Casino Act, as the Act ratifying the Casino Agreement, and the Casino Agreement itself, should so far as possible be construed harmoniously. In doing so, in my view, a construction which gives each provision of the Act, and each provision of the agreement, some distinct work to do is preferable to a construction that does not do that.
[75] See section 6.2 and 6.3 above.
Fourthly, and in any event, I am not persuaded that cl 9(3) of the agreement and s 7 of the Act should be construed as having a coextensive operation. The asserted coextensive operation of these two provisions is the essential foundation of the plaintiffs' argument.
At different times, the plaintiffs' submissions characterised the extent of the overlap between the two provisions in different ways. In their written submissions in reply, the plaintiffs submitted that, compared to s 7, cl 9(3) 'does not [have] any wider operation at all'.[76] In oral submissions, the plaintiffs submitted that cl 9(3) specifically excludes 'exactly the same things as section 7'.[77] The plaintiffs submitted that both provisions are to the same effect.[78]
[76] Plaintiffs' Reply Submissions [9].
[77] ts 160.
[78] ts 58, 60.
However, at a different point, the plaintiffs submitted that:
(a)the two provisions are coextensive, at least within the ambit of s 7;
(b)while cl 9(3) may have a wider application to approvals not covered by s 7, cl 9(3) covers the entire field covered by s 7; and
(c)consequently, the two provisions must be construed congruently.[79]
[79] ts 60 ‑ 64.
In my view, within the scope of the legislative instruments referred to in s 7,[80] the operation of cl 9(3) and s 7 is similar, but not identical. Section 7 means the instruments do not apply to the Site or the Resort Site; cl 9(3) means that requirements for approval under those instruments do not apply to the Trustee in respect of the Site or the Resort Site.
[80] Namely the Metropolitan Region Scheme, by‑laws of the local government and local planning schemes.
But for s 7, cl 9(3), taking effect under s 4(3) of the Casino Act, would operate to exempt the Trustee from, among other things, any requirement to obtain development approval under the Metropolitan Region Scheme, local planning schemes or local government by‑laws. However, s 7(1) and s 7(2) of the Casino Act mean that there is no such requirement under the Metropolitan Region Scheme, under town planning schemes or any by‑laws. That is because, by operation of s 7, those instruments do not apply, at all, to the Site. The operation of s 7 leaves cl 9(3) with no work to do in the specific sphere of the planning instruments referred to in s 7.
Unlike the plaintiffs' construction, this construction does not mean that one of the relevant provisions does no work. This construction leaves cl 9(3) to do other work. The ambit of legislation to which cl 9(3) applies is wider than s 7's ambit. Section 7 refers only to the Metropolitan Region Scheme, by‑laws and local planning schemes. Clause 9(3) applies to all Acts or subsidiary legislation that require an approval or consent to development of the Site (or Resort Site) in accordance with the agreement, with a specified exception in respect of the requirement for a building licence. As the defendants' submissions demonstrate, a number of examples of legislation imposing such requirements may be given. See, for example, s 18 of the Aboriginal Heritage Act 1972 (WA), and s 9 and s 64 of the Heritage of Western Australia Act 1990 (WA).
I accept the plaintiffs' submission that the subject‑matter of cl 8 is the zoning of the site and that that is distinct from a requirement for development approvals.[81] I also accept the first and second defendants' submission that s 7 satisfied the State's obligations under cl 8. The effect of s 7 is that local planning schemes and by‑laws do not apply to the Site. That is an 'other measure' that ensures that erection and use of the Resort Complex could be undertaken without interference or interruption on the ground that it is contrary to any local planning scheme or zoning by‑laws.
[81] See, for example, Re Environmental Protection Authority; Ex parte Chapple(1995) 89 LGERA 310, 311; Roe v Director General, Department of Environment and Conservation (WA) [2011] WASCA 57; (2011) 180 LGERA 38 [12] ‑ [14].
For these reasons, on my construction of the legislation and agreement, cl 9(3) and s 7 do not have a coextensive operation. Clause 9(3) exempts the Trustee from any requirement for approvals under a wider range of legislation than the specific legislative instruments that are within the ambit of s 7.
Within the ambit of s 7, cl 9(3) does not operate, because the other legislative instruments do not apply and so do not impose any requirements for consent. In any event, in my opinion, the extent of the overlap in the ambit of s 7 and cl 9(3) does not sustain the plaintiffs' construction of 'the Site' when inserted in s 7. Given that cl 9(3) applies to a wider ambit of legislation than s 7, there is no necessary incongruity in an intention on the part of Parliament for cl 9(3) to apply to different land than the land to which s 7 applies.
Because cl 9(3) and s 7 are not coextensive in the scope of legislative instruments to which they apply, construing Site in s 7 differently from Site in cl 9(3) does not mean, as the plaintiffs submit, that 'the exception of cl 9(3) in the definition of Site would … be of no effect'.[82]
[82] Plaintiffs' Submissions [64.5].
For corresponding reasons, there is no sufficient foundation for the plaintiffs' alternative analysis of this scheme - that when the 1997 amending legislation was passed, the definition of Resort Lands in s 3 of the Casino Act was impliedly amended to provide that 'Site' would have the same meaning in the definition of Resort Lands as in cl 9(3) of the Casino Agreement. That contention is erected on the same foundation of the asserted co‑extensiveness of cl 9(3) and s 7 which, for the reasons I have given, I do not accept.
My rejection of the asserted coextensive operation of s 7 and cl 9(3) is reinforced by the submissions of the third defendant[83] which identify a plausible rationale for the exclusion of par (b) of the definition of Site from the definition of Site when that term is used in cl 6, cl 9(1) and cl 9(3). In essence, the view is open that cl 6, cl 9(1) and cl 9(3) so far as they applied to the Site, were seen as having an historical operation relating to the original development of the casino complex, so that it was not thought appropriate for these clauses to apply to additional land added to the Site.
[83] Third Defendant's Aide Memoire regarding par (b) of the definition of Site dated 6 March 2014.
For these reasons, I reject the plaintiffs' first major contention. In my opinion, on a proper construction of s 7 and the Casino Act as a whole, par (b) of the definition of the Site applies to 'the Site' when used in s 3 as part of the Resort Lands, when Resort Lands is used in s 7.
That brings me to whether the sale and transfer of the Excised Land is within par (b) of the definition of Site. That definition has two elements; that the land was granted (or leased) to the Trustee, and that the grant was for the purposes of the Agreement. I begin with the question of purposes.

Was the sale and transfer of the Excised Land for the purposes of the Casino Agreement?

8.1 The plaintiffs' case

The plaintiffs' case is that the sale and transfer of the Excised Land was for the purposes of the Third Hotel Development, and that that purpose is not a purpose of the Casino Agreement. Their submissions on this point may be summarised as follows:[84]
[84] Plaintiffs' Submissions [45] ‑ [63], Plaintiffs' Reply Submissions [1] ‑ [5], ts 68 ‑ 75, 166 ‑ 185.
(1)Recital D states the purposes of the Casino Agreement. No amendments have been made to Recital D. In particular, it was not amended when the Casino Agreement was amended in 1987 and in 1997. In that light, in construing the phrase 'the purposes of this Agreement' in par (b) of the definition of the Site, Recital D should be taken as a comprehensive statement of the purposes of the Casino Agreement;
(2)Recital D states that the purpose of the Casino Agreement was and is to implement and regulate the construction and establishment of the Resort at Burswood Island by providing for and facilitating the implementation of the Development Proposals (as defined in the Casino Agreement) and to provide for the regulation of the operation of the Resort and the Resort Complex;
(3)the Development Proposals is defined in cl 2 of the Casino Agreement as meaning, in effect, the proposals for the construction, development and establishment of the Resort detailed in the two identified reports;[85]
[85] TB1 and TB2.
(4)Resort is defined in cl 2 to mean the entire Burswood Island Resort (including the Resort Complex) referred to in the Development Proposals to be constructed and developed on the Site and the Resort Site in accordance with the provisions of the Casino Agreement;
(5)Resort Complex is defined to mean, in effect, the hotel, convention centre/theatre restaurant, exhibition centre, recreation and other facilities and the Burswood Casino established or to be established on the Site pursuant to and in accordance with the provisions of the Casino Agreement and includes, if and when constructed, stage 2;
(6)it can be seen from these definitions that:
(a)the Resort Complex is a subset of the Resort, in that the Resort is defined to include the Resort Complex; and
(b)the Resort is defined by reference to the Development Proposals;
(7)the Development Proposals contemplated development of the Resort in two stages. The first stage included construction of a casino, a 5‑star 400 room hotel with associated facilities, a convention centre, a theatre restaurant, an exhibition centre, an international standard 18‑hole golf course and a fully developed foreshore area with a number of associated recreational facilities;
(8)the second stage referred to and contemplated by the Development Proposals was referred to only in broad terms as the construction of a second 400 room hotel with an indicative cost estimate of $100 million and a location shown on the plans;
(9)a second hotel was constructed on the Site between about 2002 and 2005. The location of that hotel is different from the location shown on the plans in the Development Proposals for stage 2;
(10)the Development Proposals do not include or contemplate a third hotel, or any development of the Site or the Resort Site subsequent to that detailed in the Development Proposals;
(11)since the 1987 amendment by the Supplementary Agreement, cl 13 has empowered the Minister to consent to stage 2 or any other development on the Site. The expression 'any other development' in cl 13 is, on its proper construction, a proposed development other than and in substitution for (but not in addition to) stage 2 or a component of stage 2, by reason that:
(a)the word 'or' in the chapeau to cl 13(1) is disjunctive; and
(b)a disjunctive construction is consistent with the fact that the 1987 amendment was made prior to the construction of stage 2, and is consistent with its evident purpose, revealed by the Second Reading Speech, of enabling flexibility with respect to the form of the development previously proposed as stage 2, because of the then proposed sale of the Burswood Resort Hotel by the then Trustee;
(12)consequently, the 1987 amendment of cl 13 expanded the purposes of the Casino Agreement only to the extent that construction and development of an 'other development' in substitution for stage 2, and subsequent operation of the Resort Complex including that other facility, was within the purposes of the agreement;
(13)thus the development purposes of the Casino Agreement have been exhausted by the construction of the second hotel;
(14)in construing par (b) of the definition of Site, it is important to give effect and content to the limiting words 'for the purposes of this Agreement'. The defendants' construction fails to do this;
(15)the plaintiffs also rely on extrinsic evidence of facts which they contend were known to both parties in 1997 when par (b) of the definition of Site was introduced; and
(16)for these reasons, the purposes of the agreement in par (b) of the definition of Site are the purposes in Recital D, extended only to the extent of including a substitute for stage 2. Those purposes do not include the purpose of authorising or facilitating development that is not included in or contemplated by either the Development Proposals, or a development in substitution for stage 2 to which the Minister's consent has been given.
I do not accept these submissions. In broad summary, that is for the following reasons, reflecting submissions made by the defendants:
(1)in applying par (b) of the definition of the Site, Recital D is not to be taken as a comprehensive statement of the purposes of the Casino Agreement (section 8.2 below);
(2)clause 13 should not be given the restrictive construction advanced by the plaintiffs. Rather, effect should be given to the breadth of its language. When that is done, cl 13 reveals and reflects a purpose of facilitating and regulating further development of the Site, subject to and in accordance with the Minister's consent (section 8.3);
(3)a grant for the purposes of development subject to and in accordance with the Minister's consent is a grant 'for the purposes of [the Casino Agreement]' within the meaning of par (b) of the definition of the Site (section 8.4); and
(4)the grant of the Excised Land was for the purpose outlined in (3) and so is a grant for the purposes of the Casino Agreement within the meaning of par (b) of the definition of the Site (section 8.5).
I turn to explain my views in detail.

8.2 The role of Recital D: is it conclusive and comprehensive on the purposes of the agreement?

The plaintiffs point out, correctly, that Recital D refers to the Minister's purpose in entering into 'this Agreement', and that term is defined to mean the agreement as amended from time to time. The plaintiffs submit that the parties to the Casino Agreement have chosen not to amend the purposes of the agreement stated in Recital D and, 'there is therefore no basis on which the Casino Agreement (as amended) can be construed as having purposes other than those stated in Recital D'.[86] I do not accept the plaintiffs' submission that what is said in Recital D is for that reason necessarily a comprehensive statement of the purposes of the agreement.
[86] Plaintiffs' Reply Submissions [1.5].
A contract must be construed as a whole. Different operative provisions of a contract may appear to be in conflict. As part of a process of seeking a harmonious construction of a contract, it may be necessary or appropriate to depart from the ordinary meaning of the words of one provision to avoid inconsistency between that provision and other parts of the instrument or with the rest of the instrument.[87] The same is true of what is said in the recitals as to the purposes of the Minister in entering into the agreement. A recital must be read in light of the contract as a whole. The purposes of the agreement can be inferred from the express and implied terms of the contract and from any admissible extrinsic evidence.[88] All of the provisions of the Casino Agreement, including cl 13, must be considered in discerning the purposes of the agreement.
[87] ABC v APRA (109).
[88] See [117] above.

In the end, as Martin CJ and Murphy JA observed in Roe,[133] the costs discretion must be exercised in the context of the particular circumstances of the case. The breadth of potentially relevant facts and circumstances and, I would add, the varying weight to be given to various circumstances, means that limited insight can be gained from a detailed consideration of previously decided cases. Particular factors may have different weight in different cases.[134]
[133] Roe v The Director General [14].
[134] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66 (S) [51].

The proper exercise of the costs discretion in this case

The plaintiffs point to the following circumstances as justifying a departure from the usual order as to costs:
(1)many hundreds of residents are affected by the proposed development. The proceedings were commenced by the plaintiffs in the interests of all residents likely to be affected;
(2)the proceedings were likely to and have resolved the process to be followed by the defendants in relation to all future planned developments on the Resort Lands;
(3)although the plaintiffs were motivated to commence the proceedings in part by the damage done or to be done to their interests by the proposed development, the primary purpose of the proceeding was to advance a legitimate public interest of ensuring that the proposed development be properly reviewed, as on the plaintiffs' case was required by law, through application of the usual planning processes; and
(4)the plaintiffs' contentions were arguable, and raised and resolved significant issues affecting a far wider class of persons than the plaintiffs.
For the reasons that follow, I am not persuaded that it is appropriate in this case to depart from the usual order as to costs.
First, there are no special legislative provisions regarding costs or standing.
Secondly, this was not a case where the plaintiffs had nothing to gain from the litigation. The parties' submissions made competing assertions about the plaintiffs' motivation in bringing the action. In this respect, the primary focus is not on the plaintiffs' subjective motivation, but on the character of the proceedings.[135] Approaching the assessment objectively, this is not a case like Oshlack[136] or Roe[137] where the plaintiffs had 'nothing to gain from the litigation' or were 'without prospect of personal gain or advantage'. As residents of the nearby apartments, the plaintiffs advanced their own interests in asserting the application of general planning regime through the non‑applicability of the special legislative regime under the Casino Act. That involves no criticism of the plaintiffs; they were entitled to make their claims in the action. However, the character of the action differs substantially from cases like Oshlack and Roe.
[135] Oshlack v Richmond River Council [140].
[136] Oshlack v Richmond River Council [20(iii)].
[137] Roe v The Director General [22].
Thirdly, it is true that other residents in the Burswood Peninsula are similarly affected by the proposed development, and that the case resolves the process for any future development of the Resort Lands. However, those circumstances do not sustain a departure from the ordinary costs rule. Any case involving questions of statutory construction will almost always have consequences beyond the parties to the action. The decision in this case does not have significance beyond the specific regime created by the Casino (Burswood Island) Agreement Act 1985 (WA) (Casino Act) and the Casino Agreement. In this respect the position is significantly different from that in Roe, where the court considered that the decision had an importance for the administration of the laws of Western Australia relating to the protection of the environment.[138]
[138] Roe v The Director General [20].

Should the defendants be awarded only one set of costs?

Order 66 r 2(d) provides as follows:
(d)where several defendants defend an action separately and it appears that the defendants or any of them might have joined in their defence, the Court may allow only one set of costs to those defendants as to whom it appears a joint defence might have been conducted and separate costs to any other or others who in the opinion of the Court were properly separately represented.
A party is entitled to be represented as it sees fit, and cannot be compelled to share representation with another party. However, if there has been unnecessary separate representation, the court may allow one set of costs only to the parties who could reasonably have had common representation.[139]
[139] Secure Parking (WA) Pty Ltd v Wilson [2005] WASC 264 (S) [14].
The costs of separate representation should be allowed where there is a difference in the facts or law relating to several defendants, if they have different interests, if there is an actual or possible conflict of interest between them, or if there is any other circumstance that makes it embarrassing for counsel appearing for one defendant to appear for them all.[140]
[140] Verduci v Catanzarita (1981) 53 FLR 156, 159; Richard Brady Franks Ltd v Price (1937) 37 SR (NSW) 37, 50; Statham v Shephard (No 2) (1974) 23 FLR 244, 246.
As Woodward J observed in Statham v Shephard,[141] there may be circumstances in which, although the defendants were united in their opposition to the plaintiff, their relationship to each other may be such that they would be acting reasonably in remaining at arm's length during the course of the litigation. To my mind this is such a case.
[141] Statham v Shephard (246).
I am not satisfied that the first, second and third defendants should appropriately have joined in their defence through a single set of solicitors. To the contrary, in my view it was appropriate for the third defendant, on the one hand, and the State of Western Australia and the Minister, on the other hand, to be separately represented. That is so, in my opinion, taking into account the following matters.
The State and the Minister had a legitimate interest in defending the exercise of the Minister's power to grant the development approvals. The State defendants could not reasonably have been expected to have left to the third defendant a defence of the Minister's exercise of statutory power.
The third defendant had a legitimate interest in actively participating in the proceedings, having paid $60 million for the land, and expended time and money in carrying out the development. Further, the terms of the Sale and Development Agreement meant that, in substance, the third defendant took the contractual risk on the question of whether the Minister had power to approve the development.
The action raised questions of the proper construction of the Casino Agreement and the Casino Act. The State and the third defendant are contractual counterparties to the Casino Agreement, under which they have an ongoing relationship. That ongoing relationship has potential to give rise to conflicting interests which had the potential to influence their approach to the defence of the proceedings.
That, in the end, all defendants took a substantially similar (but not identical) approach to the trial is not decisive. It would have been open to the two groups of defendants to take different approaches. Each group of defendants appropriately had independent solicitors conducting their defence and advising them in this regard. As contractual counterparties, these two groups of defendants could not reasonably be expected to have engaged a single set of solicitors.
The process of discovery and taking of instructions as to past events for each of the two groups of defendants could not have been appropriately been done by a single set of solicitors. Those processes could likely have involved consideration of privileged material or of internal workings of a client and potentially conflicting commercial considerations.
While there was substantial common ground between the pleadings and submissions advanced by the two groups of defendants, they were not identical. For example, the two groups of defendants advanced different constructions of the Casino Agreement, including as to the proper reconciliation of cl 7 and cl 9 of the Casino Agreement with s 7 of the Casino Act. Moreover, from the court's perspective, counsel for the defendants appropriately avoided any unnecessary repetition in the course of oral submissions.
In my view contrary to the plaintiffs' submission, this was not a case where the Hardiman[142] principle required the first and second defendants not to assume the position of protagonist. The proceedings were not concerned in any way with the merits of the Minister's decision to grant approval under cl 13 of the Casino Agreement.
[142] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 ‑ 36.

What special costs orders should be made?

All defendants seek special costs orders. There is very limited dispute in relation to the application by the first and second defendants. There is considerable dispute in relation to the orders sought by the third defendant. I will set out some uncontroversial general principles about special costs orders, before turning to the first and second defendants' application.

Special costs orders - general principles

All parties invited the application of the outline of principles in Pourzand v Telstra Corporation Ltd[143] and in Red Hill Iron Ore Ltd v API Management Pty Ltd.[144]
[143] Pourzand v Telstra Corporation Ltd [2012] WASC 210 (S2) [9] ‑ [14].
[144] Red Hill Iron Ltd v API Management Pty Ltd [2012] WASC 323 (S).
In Pourzand v Telstra Corp, Edelman J said as follows:[145]
[145] Pourzand v Telstra Corporation Ltd [9] ‑ [14].
[B]efore a discretion can be exercised to make a special costs order, the court must be of the opinion:
(1)the Scale item is inadequate, and
(2)the inadequacy arises because of the unusual difficulty, or complexity, or importance of the matter: Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty Ltd (in liq) [2007] WASC 254 (S) [11] (Martin CJ)
These questions are to be addressed as matters of impression rather than detailed evaluation EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2008] WASC 275 (S) [7] (Martin CJ). Courts should draw from their experience and act on impressions gained during the litigation to take into account the issues which have been involved, albeit without attempting to make an estimate of the time which is thought to be appropriate when the information for that assessment is not all available: Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) [43] (Pullin J).
As to (1) (inadequacy of the Scale item), the inadequacy will be demonstrated if there is a fairly arguable case that the bill to be presented to the taxing officer may tax at an amount which is greater than the limit that would be imposed by the relevant costs determination: Heartlink Ltd [16] (Martin CJ).
A conclusion that it is fairly arguable that the taxing officer might properly allow costs at an amount greater than the amount allowable under the Scale does not always require evidence of the costs actually incurred: Frigger v Lean [2012] WASCA 66 [81] (Allanson J; Newnes & Murphy JJA agreeing).
As to (2) (inadequacy arising due to the unusual difficulty, complexity, or importance of the matter), the adjective 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance: see, in relation to the identical terms of the predecessor to s 280(2): Heartlink Ltd [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J); SDS Corporation Ltd v Pasdonnay Pty Ltd [2004] WASC 26 (S2) [102] - [106] (Roberts‑Smith J).
Finally, although replacing the amount of the Scale item with a different ceiling may be appropriate where sufficient information exists to make that assessment, it is not uncommon for an order to be made removing the limit for the Scale item without replacing that limit with a different ceiling: EDWF Holdings [8] ‑ [9], [13] (Martin CJ). When the Scale ceiling is lifted a taxing officer is otherwise unconstrained and need not allow costs above the previous Scale ceiling.
In Red Hill, I applied those principles, and added the following:[146]
[146] Red Hill Iron Ltd v API Management Pty Ltd [6] ‑ [8].
Further, one of the policy considerations that should guide a court in addressing an issue under s 280(2) is that the court should not usurp the role of the taxing officer: Heartlink Ltd v Jones [2007] WASC 254 (S) [13]; O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [20].
'Importance' in s 280(2) encompasses importance to the parties; it does not require broader importance to the public or a sector of the public: Heartlink v Jones [17] ‑ [19].
'Unusual' in s 280(2) means unusual having regard to what one might describe as the usual run of civil cases determined in the Supreme and District Courts. That involves a value judgment by the court taking into account the court's experience of a particular case compared to the usual run of cases: O'Rourke v P & B Corporation Pty Ltd [23] ‑ [25].

The first and second defendants' application

The plaintiffs do not oppose the first and second defendants' application for an order lifting the scale time limit in relation to item 3(b) of the scale (defence), item 7(b) (discovery) and item 20(a) (trial).
The first and second defendants also apply to lift the limit for item 17, relating to preparation of the case. Item 17 provides for 120 hours for preparation. The first and second defendants have prepared a draft bill which claims $63,000 for preparation, based on 210 hours at $300 an hour. The affidavit of Mr Quinn says that something over 225 hours of work was carried out, listing a number of items of work in general terms.[147]
[147] Affidavit of John Loftus Quinn sworn 9 April 2014, sch C.
The plaintiffs contend that some of the categories of work listed are not, or may not be, properly claimable under item 17.[148] Further, the plaintiffs submit that the first and second defendants' schedule is too imprecise and lacking in detail to sustain a favourable exercise of power under s 280(2) of the Legal Profession Act 2008 (WA) in relation to this item.[149]
[148] Plaintiffs' outline of submissions as to costs [64].
[149] Plaintiffs' outline of submissions as to costs [65].
Taking into account my knowledge of the matter, and the evidence of Mr Quinn to which I have referred, I am satisfied that there is a fairly arguable case that the bill to be presented to the taxing officer in relation to item 17 may tax at an amount greater than the limit of that item. The question of whether all the components in the draft bill are properly claimable under item 17, or under some other item or not at all, will be a matter for the taxation.

The third defendant's application

The third defendant seeks special costs orders removing the limits under the scale in relation to:
(a)the defence (scale item 3(b));
(b)discovery (item 7(b));
(c)proceedings in chambers (item 10);
(d)preparation of case (item 17); and
(e)trial (item 20(a),(b), (c), (d) and (e)).
The third defendant also seeks an order that there be allowance for the involvement of both senior and junior counsel in all of those items, apart from discovery; that there be allowance for the attendance of two instructing senior practitioners at the trial and that there be a certificate for the transcript.
The plaintiffs do not object to the lifting of the time limit relating to item 3(b), the preparation of the defence. However, the plaintiffs object to an increase in the maximum hourly rate.[150]
[150] Plaintiffs' outline of submissions as to costs [35].
The plaintiffs accept that the proceedings were of importance to all parties and that the legal issues involved were unusually difficult and complex. In my opinion, that is a concession rightly made. I accept that the action was complex, important to the parties and unusually difficult, broadly for the reasons advanced in the third defendant's submissions on costs.[151]
[151] See third defendant's submissions on costs 10 April 2014 [16] ‑ [20].
Taking into account what is said in the affidavit of Mr Lundberg[152] I am satisfied that there is a fairly arguable case that the bill may tax at an amount greater than the hourly rate applicable under the costs determination. In short, I am satisfied that it is arguable that the complexity, importance and unusual difficulty of the action made it reasonable and appropriate for the third defendant to engage solicitors and counsel at rates above those allowed in the scale. Of course, the ultimate question of whether that is so is a matter for the taxing officer.[153]
[152] Affidavit of Michael Lundberg sworn 10 April 2014 [23] ‑ [28].
[153] Heartlink Ltd v Jones [2007] WASC 254 (S) [14] ‑ [15], [26].
The plaintiffs object to the lifting of the limit in relation to discovery (item 7(b)). Item 7(b) provides a maximum amount of $4,510, reflecting 10 hours work by a senior practitioner. The plaintiffs emphasise that the third defendant discovered less than 100 documents. The work described and quantified in the relevant schedule to Mr Lundberg's affidavit includes over 75 hours for each of a senior practitioner and a junior practitioner in correspondence between the parties regarding the scope of discovery, preparation of the affidavit of discovery and further informal discovery. The schedule states that the third defendant reviewed in excess of 4,000 documents electronically and 109 boxes of documents held in archives containing documents dated from 1985 onwards.
I would remove the limit in relation to item 7(b).
The plaintiffs oppose the removal of the limit relating to item 10, proceedings in chambers. The limit for that item allows for two days preparation and one day hearing for counsel, being a maximum amount of $10,560. This item concerned a directions hearing on 20 December 2013. Ultimately, the directions hearing was very short in duration, with very little in issue between the parties. There was substantial conferral in the lead up to the directions hearing.[154] The relevant schedule states that a senior practitioner did almost 50 hours of work and a junior practitioner did 20 hours work in conferral, and in preparing a letter to the court with a minute of proposed orders and an affidavit. Over 50 hours of practitioner time was said to have been spent preparing that letter to the court, the proposed orders and Mr Noel's affidavit and conferring with counsel in relation to those. Mr Noel's affidavit contained less than four pages of text, and seven annexures.
[154] See the correspondence at annexure LMR‑1 to the affidavit of Lisa Retallack sworn 22 April 2014.
The material provided by the third defendant does not satisfy me that there is a fairly arguable case that the bill may tax in an amount greater than $10,500 in relation to the appearance on 20 December 2013.
Under item 17 the maximum scale allowance for preparation of case is $54,120, calculated on the basis of 120 hours by a senior practitioner charging $451 per hour. The plaintiffs oppose the removal of this limit. The relevant schedule to the third defendant's draft bill of costs summarises in substantial detail the work done that is claimed under this item, and the number of hours of the various practitioners' time that is claimed. The total amount of time, at the rates claimed, amounts to over $200,000, but the total sum claimed for this item is $130,000.
The plaintiffs submit that a number of the items included in the schedule are not legitimately included in a claim made under the head of 'preparation of case'.[155] Further, the plaintiffs' claim that some of the items are claimed in an exorbitant amount such that there is no prospect of an allowance being made in the amount claimed.[156]
[155] Plaintiffs' outline of submissions as to costs [61] ‑ [62].
[156] Plaintiffs' outline of submissions as to costs [63].

The question for me is whether I am satisfied that there is fairly arguable case that the bill may tax in an amount greater than the scale allowance of $54,120. Beyond that, issues as to whether all of the items claimed by the third defendant are claimable under this item, and as to the appropriate amount to be claimed for various heads of work, are all issues for the taxing officer. I am satisfied that the limit for this item should be removed.
The third defendant seeks the removal of a number of items relating to the trial of the action, namely item 20(a), 20(b), 20(c), 20(d) and 20(e).
Item 20(a) relates to the fee on brief for junior counsel, comprising the first day of trial and preparation, including submissions. The scale allows 3.5 days for preparation and a total amount of $16,335. The third defendant's schedule states that junior counsel for the third defendant spent just over 53 hours in preparation. Given the nature, content and complexity of the competing written submissions in this action, I am satisfied that the limit in item 20(a) should be removed.
The third defendant also seeks the removal of the limit in item 20(b), being the fee on brief for senior counsel. The scale item is based on 3.5 days of preparation and the first day of trial, and allows a total amount of $28,710. Given that the third defendant's schedule states that senior counsel spent 15 hours in preparation, I am not satisfied that there is a fairly arguable case that in this respect the bill, would tax in an amount above the scale item.
The third defendant seeks the removal of the limits in item 20(c) and 20(d), being counsel fees for junior and senior counsel for the second and third day of the hearing. That is opposed by the plaintiffs on the grounds that the daily and hourly rates inherent in the scale item should not be removed. For reasons already given, I do not agree with that. I would accordingly remove the limits in relation to item 20(c) and 20(d).
The third defendant seeks an order that there be an allowance for the attendance of two instructing senior practitioners at trial. The third defendant has not explained in its affidavit or submissions why it was reasonably necessary to have two instructing senior practitioners attend at trial. The third defendant was represented by both senior counsel and junior counsel, both of whom had a long involvement with the action. Moreover, the case turned essentially on legal argument and analysis. There was very little prospect of unexpected factual twists and turns, and none eventuated. I decline to order that there by an allowance for the attendance of two instructing senior practitioners at the trial.
The plaintiffs oppose a certificate for the transcript. They submit that there were no witnesses called at the trial and it was not necessary. I am satisfied that it was reasonable for the third defendant to obtain the transcript to ensure that the wide ranging submissions being put in the case were accurately and precisely grasped.

The costs of this application

The defendants have, in substance, succeeded in relation to the issues on costs. They should have their costs of this application. That can be achieved by including the costs of this application in the costs of the action.

Conclusion

For these reasons, I make orders as follows:
(1)the plaintiffs pay the first and second defendants' costs of the action, including reserved costs and including the costs application, to be taxed if not agreed;
(2)pursuant to s 280(2) of the Legal Profession Act 2008 (WA) special costs orders be made in favour of the first and second defendants, namely that the limits imposed in the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (Scale) be removed in relation to the following items:
(a)defence, scale item 3(b);
(b)discovery, item 7(b);
(c)preparation of the case, item 17; and
(d)trial, item 20(a).
(3)the plaintiffs pay the third defendant's costs of the action, including reserved costs and including the costs application, to be taxed if not agreed;
(4)pursuant to s 280(2) of the Legal Profession Act 2008, special costs orders be made in favour of the third defendant in respect of its costs of the action, namely that the limits imposed in the Scale be removed in relation to the following items:
(a)defence, scale item 3(b);
(b)discovery, item 7(b);
(c)preparation of the case, item 17; and
(d)trial, items 20(a),(c) and (d).
(5)there be allowance for the involvement of both senior and junior counsel in items (a) and (c), and (d) of par (4) above;
(6)the third defendant have a certificate for the transcript; and
(7)the obligations to pay costs imposed upon the plaintiffs by these orders be borne jointly and severally by the plaintiffs.