NSW Rifle Association Inc v Commonwealth - [2012] NSWSC 818

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: NSW Rifle Association Inc v The Commonwealth of Australia [2012] NSWSC 818
Hearing dates: 12-15 June 2012
Decision date: 20 July 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paras [276]-[278] of judgment.

Catchwords:
CONTRACT - termination - contractual licence to occupy Commonwealth land - doctrine of executive necessity - whether the Commonwealth can terminate licence contrary to express contractual terms because of a change of policy concerning use of the land - contract entered into as present exercise of power as owner of land - not a fetter on future exercise of duty or discretion under statute or prerogative - held termination not justified on ground of executive necessity

CONTRACT - implied terms - whether the Commonwealth required to act reasonably and in good faith in exercising contractual power to require licensee to remedy default and to fix time for default to be remedied

CONTRACT - performance - obligation to keep buildings in good and safe repair - obligation to keep in good and safe repair includes requirement to first put into good and safe repair - whether obligation displaced by expectation of parties when entering into licence for anticipated short duration

REAL PROPERTY - whether agreement for use and occupation of land was lease or licence
CONTRACT - whether jurisdiction to grant relief against forfeiture of contractual licence to occupy land - if Commonwealth entitled to terminate licence for licensee's failure to remedy defaults within specified time limited, whether licensee entitled to relief against forfeiture
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Defence Act 1903 (Cth)
Pipeline Authority Act 1973 (Cth)
Judiciary Act 1903 (Cth)
Conveyancing Act 1919 (NSW)
Firearms Act 1996 (NSW)
National Parks and Wildlife Act 1974 (NSW)
Cases Cited: NSW Rifle Association Inc v The Commonwealth of Australia (26 April 1990, Waddell CJ in Eq, unreported; BC9002511)
NSW Small-Bore and Air Rifle Association Inc v Commonwealth of Australia; NSW Rifle Association Inc v Commonwealth of Australia (Supreme Court of New South Wales, Bryson J, 22 July 1994, unreported; BC9405172)
NSW Rifle Association Inc v Commonwealth of Australia (Court of Appeal, 15 August 1997, unreported; BC9703604)
Ayr Harbour Trustees v Oswald (1883) 8 HL 623; (1882-83) LR 8 App Cas 623
Watson's Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268
William Cory & Son Ltd v London Corporation [1951] 2 KB 476
Commissioners of Crown Lands v Page [1960] 2 QB 274
Cugden Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520
L'Huillier v State of Victoria [1996] 2 VR 465
City of Subiaco v Heytesbury Properties Pty Ltd [2001] WASCA 140; (2001) 24 WAR 146
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 ("The Amphitrite")
Robertson v Minister of Pensions [1949] 1 KB 227
Reilly v R [1934] AC 176
Suttling v Director-General of Education [1985] 3 NSWLR 427
Dunn v R [1896] 1 QB 116
Director-General of Education (NSW) v Suttling [1987] HCA 3; (1987) 162 CLR 427
Jarratt v Commissioner of Police for NSW and State of New South Wales [2005] HCA 50; (2005) 224 CLR 44
Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54
A v Hayden [1984] HCA 67; (1984) 156 CLR 532
Board of Trade v Temperley Steam Shipping Co Ltd (1926) 26 Ll L Rep 76
Board of Trade v Temperley Steam Shipping Co. Ltd (1927) 27 Lloyds L Rep 230
William Cory & Son Limited v London Corporation [1951] 2 KB 476
Portland Pty Ltd v State of Victoria [2009] VSC 282; (2009) 27 VR 366
Northern Territory of Australia v Skywest Airlines Pty Ltd (1987) 48 NTR 20; 90 FLR 270
Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164
Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362
Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254
State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455
Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351
Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605
Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93
Manock v State of South Australia (1979) 83 LSJS 64
Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151
Byrne & Frew v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410
Breen v Williams [1996] HCA 57; (1996) 186 CLR 71
Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33
Vodafone Pacific Limited & Ors v Mobile Innovations Limited [2004] NSWCA 15
Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; (1972) 128 CLR 529
Pierce Bell Sales Pty Ltd v Frazer [1972] HCA 13; (1972) 130 CLR 575
Gardiner v Orchard [1910] HCA 18; (1910) 10 CLR 722
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153
Oliver v Commonwealth Bank of Australia [2011] FCA 1440
Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 588
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268
Proudfoot v Hart (1890) 25 QBD 42
Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703
Mannai Investment Co Limited v Eagle Star Life Assurance Co Ltd [1997] AC 749
Delta Vale Properties Ltd v Mills [1990] 1 WLR 445
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
Fletcher v Nokes [1897] 1 Ch 271
Radaich v Smith (1959) 101 CLR 209
Addiscombe Garden Estates Limited v Crabbe [1958] 1 QB 513
Chaka Holdings Pty Limited v Sunsim Pty Ltd (1987) NSW ConvR 55-367
Lewis v Bell (1985) 1 NSWLR 731
Lace v Chantler [1944] KB 368
Proctor v Milton (1987) NSW ConvR 55-321
Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679
Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana [1983] 2 AC 694
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 456
Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489
Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315
Hewitt v Debus [2004] NSWCA 54; (2004) 59 NSWLR 617
Australis Media Holdings Pty Ltd v Telstra Corp Limited (1998) 43 NSWLR 104
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (Thomson's Case) [1948] HCA 24; (1948) 77 CLR 1
Texts Cited: "A Case Book on Constitutional Law" (1929) 45 LQR 162
A History of English Law, 1938 Vol 10
Hogg & Monahan, Liability of the Crown, 3rd ed (2000)
Mitchell, "The Contracts of Public Authorities", London School of Economics and Political Science, 1954
M Allars, Administrative Law, Government Contracts and the Level Playing Field, (1989) 12 UNSWLJ 114
Commonwealth of Australia v Hooper [1992] NSWCA 44; (1992) Aust Contract R 90-010
Seddon, Government Contracts, 5th ed, Federation Press
Blackstone, Commentaries on the Laws of England, 1765, Book 1
R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th ed LexisNexis Butterworths
Greig & Davis, The Law of Contract, Law Book Co 1987
P Butt, Land Law, 6th ed, Thomson Reuters
Category: Principal judgment
Parties: NSW Rifle Association (Plaintiff)
Representation: Counsel:
R J Ellicott QC with N Kabilafkas (Plaintiff)
B R McClintock SC with B D Kaplan (Defendant)
Solicitors:
Hunt & Hunt (Plaintiff)
Ashurst (Defendant)

File Number(s): 2011/393228 2012/41950

Judgment

HIS HONOUR: The ANZAC Rifle Range is situated on the Malabar Headland. The Malabar Headland is Commonwealth land. The plaintiff ("the NSWRA" or "the Rifle Association") occupies parts of the ANZAC Rifle Range under a contractual licence given on 15 March 2000. The Commonwealth Government proposes to transfer the Malabar Headland to the State of New South Wales for a national park.

The first question in these proceedings is whether the Commonwealth is entitled to evict the Rifle Association from the rifle range and associated buildings. If not, the second question is whether the Commonwealth can in any event transfer part of the Malabar Headland, known as lot 2, to the State of New South Wales for use as a national park. Most of lot 2 is a safety template for the rifle range. The NSWRA says that if lot 2 is transferred, it will be unable to use the rifle range contrary to what it says are the rights granted by the licence.

Background

The NSWRA is incorporated under the Associations Incorporation Act 1984 (NSW). A predecessor organisation was established in 1860. The members of NSWRA are the members of shooting clubs who are affiliated with the NSWRA.

For many decades rifle clubs were associated with the Defence Force. They were regulated by regulations made under the Defence Act 1903 (Cth). Until 1949 rifle clubs were part of the Military Reserve Force. Military ranges were maintained by the Army and available for rifle club use.

For many years the NSWRA conducted its activities at the Holsworthy Rifle Range, Liverpool. The predecessor to the NSWRA, an unincorporated association, had carried on its activities at Holsworthy from 1926 until the end of 1967. In a judgment given on 26 April 1990 (NSW Rifle Association Inc v The Commonwealth of Australia (26 April 1990, Waddell CJ in Eq, unreported; BC9002511)) Waddell CJ in Eq recorded that the Association had established a number of buildings at Holsworthy. All the member clubs had built their own huts which contained their club facilities and there were about 50 of these buildings. The Association had no documentary title to use the land or the Holsworthy range. His Honour recorded that in 1962 the Association was informed by the Department of the Army that the ANZAC Rifle Range at Holsworthy would be closed in not less than five years time, that at least two years' clear notice would be given before the range was finally closed, and that it was proposed that the Long Bay range at Malabar could be developed as an alternative range to be a worthwhile home for the Association in Sydney.

The Commonwealth provided financial assistance to the NSWRA for the construction of buildings at Malabar. In January 1968, the NSWRA's predecessor and its affiliated clubs moved to Malabar, which was then renamed the ANZAC Rifle Range. The Association occupied the rifle range under a permissive occupancy.

In July 1986 the Commonwealth Government resolved to sell the ANZAC Rifle Range. On 16 March 1988 the Commonwealth gave the Association a notice of termination which stated that as from 1 June 1988 the land would no longer be used as a rifle range and that the Association's right to occupy the land on which its buildings were situated was terminated as at midnight on 31 May 1988.

On 26 April 1990 Waddell CJ in Eq held that the notice of termination was invalid. His Honour held that the permissive occupancy could only be terminated when the Association's licence to use the land as a rifle range was validly terminated, and that the licence could only be terminated on reasonable notice. The notice given was not reasonable. His Honour expressed the view that a period of "perhaps three years' notice" should have been given.

On 20 August 1990 the Commonwealth issued a new notice of termination purporting to terminate NSWRA's right of occupancy on 25 August 1993. That notice was valid. On 22 July 1994 Bryson J gave judgment for the Commonwealth for possession of the land known as ANZAC Rifle Range (NSW Small-Bore and Air Rifle Association Inc v Commonwealth of Australia; NSW Rifle Association Inc v Commonwealth of Australia (Supreme Court of New South Wales, Bryson J, 22 July 1994, unreported; BC9405172). An appeal to the Court of Appeal was dismissed on 15 August 1997 (NSW Rifle Association Inc v Commonwealth of Australia (Court of Appeal, 15 August 1997, unreported; BC9703604).

In the meantime there had been a change of Government. The Liberal National Party coalition was elected in March 1996. Notwithstanding that the Commonwealth had been found to be entitled to possession of the rifle range, it did not seek to enforce that remedy. The new Government took a different view as to how the interests of rifle shooters should be accommodated with the preferred uses for the headland. On 21 September 1998 the Commonwealth Government issued a joint media release by the Minister for Finance and Administration and the Minister for Sport and Tourism. Under the heading "Sydney Sporting Shooters to get New Range" the Ministers announced:

"SYDNEY SPORTING SHOOTERS TO GET NEW RANGE

We are pleased to announce that after years of uncertainty the sporting shooters of NSW will be able to establish new headquarters at Holsworthy, under a Federation Grant of $9 million from the Commonwealth Government.

The Government has allocated the $9 million from the Federation Fund, as established by the Prime Minister in the 1997/98 Budget, for the construction of the new firing range facilities at Holsworthy and the provision of public open space at Malabar.

Since 1986 the NSW Rifle Association and the 36 metropolitan gun clubs that regularly use the ANZAC Rifle Range at Malabar have been facing closure. Encroaching residential housing and increasing competing land uses mean that shooting is no longer an appropriate activity for the site.

Target shooting is a recognised sport, as legitimate as football or cycling, and, as such, competitive and sporting shooters have a right to facilities where they can enjoy their sport and compete at a national and international level.

The ANZAC Rifle Range is currently home to the premier national shooting event, the NSW Queens Prize. ANZAC Rifle Range [is] used by 160 NSW gun clubs for competitions and is used by many schools with cadet corps, and by the NSW and Australian Federal Police, Defence Services, Australian Protective Services and the NSW Department of Corrective Services for weapon training and target practice.

Given the lack of alternative facilities within the Sydney basin the inevitable eviction from Malabar would have been a significant blow to a sport which is enjoyed by thousands of enthusiasts within NSW.

The previous Labor Government was unwilling to provide any alternate accommodation after eviction from Malabar. Labor was prepared to consign rifle sports shooting by Sydney residents to oblivion.

The Coalition Government, with the Federation Funding, will purchase the land and fund the construction of the facilities at Holsworthy.

Subject to a formal License Agreement being negotiated satisfactorily the shooters will be permitted to remain on the Malabar site until 2001. Future ownership of the Holsworthy range and the Malabar site will be subject to negotiations with the State Government.

The NSW Rifle Association has its origins in the local volunteer defence forces which were formed in various of the Australian Colonies in the years preceding 1860.

Upon Federation, the voluntary unpaid rifle companies became Australian Rifle Clubs which, under the provisions of the Defence Act 1903, were made part of the Military Reserve Forces of the Commonwealth. These provisions were repealed in 1949 but it was not until 1997 that the whole of the statutory rules governing firearms exemptions and other privileges enjoyed by the clubs, were repealed.

Target rifle shooting was amongst the first sports to send an official Australian national team overseas. Currently Australia's sporting shooters are successfully competing at the Commonwealth Games in Kuala Lumpur.

The Coalition is pleased to have been able to assist in ensuring the future of one of the country's oldest sports which is enjoyed by thousands of Australians."

For this proposal to be implemented it was necessary for the Commonwealth to purchase land and construct a new firing range at Holsworthy. It was then anticipated that this would be done by 2001. The NSWRA and the Commonwealth negotiated a deed of licence for the NSWRA's continued occupation of the ANZAC Rifle Range at Malabar until an alternative site became available.

This was the background to the parties' entering into the licence deed dated 15 March 2000.

Rifle Range Licence of 15 March 2000

The deed is made between the Commonwealth of Australia (described as the "Owner") and the NSWRA (described as "User"). The deed recites that the Owner owns the Range. The "Range" is defined to mean "the land in folio identifier 1/809094 known as ANZAC Rifle Range off Franklin Street, Malabar."

Clauses 2.1 and 2.2 provide:

"2.1 Licence

The Owner grants to the User during the Term:

(a) an exclusive licence to use the Licensed Area in accordance with this document;

(b) a non-exclusive licence for the User and the User's Agents to use the Licensed Range;

(c) a non-exclusive licence for the User and the User's Agents to use the Caravan Park; and

(d) an exclusive licence to use the Buildings,

for the uses described in clause 5.

2.2 Nature of licence

(a) The licence granted under this document is personal to the User.

(b) Nothing in this document:

(i) confers on the User any rights as a tenant of the Licensed Area, the Licensed Range or the Caravan Park; or

(ii) creates the relationship of landlord and tenant between the Owner and the User."

The "Licensed Area" means part of the Range which is identified on an attached plan. These are areas immediately surrounding the "Buildings".

The "Licensed Range" is defined as "the ranges listed in Item 6". Item 6 provides:

"Licensed Range

Fullbore Classification Range

Service Classification Range

100 metre zero/Pistol Range

25 metre - zero Range"

The "Buildings" in respect of which an exclusive licence is granted to NSWRA are known as the NSW Rifle Association Building, Barrack Buildings identified by letters A, B, C and D and a storage shed. These are identified on the plan attached to the licence.

The "Term" for which the licence is given is defined as follows:

"Term

(a) The period commencing on the Commencing Date and ending on the Termination Date

(b) Commencing Date: 1 June 1999

(c) Terminating Date:

The later of:

(i) 30 June 2001; or

(ii) the date being 14 days after the Owner gives to the User a Relocation Notice."

A "Relocation Notice" is defined as follows:

"Relocation Notice means a notice by the Owner to the User to the effect that the Holsworthy Range (or a comparable range nominated by the Owner) is available for the User's use."

Clause 3.1 provides:

"Term of licence

The term begins on the Commencing Date and ends on the Terminating Date."

The NSWRA is required to pay an annual licence fee of $24,363 per annum which is to be adjusted for changes to the Consumer Price Index.

This licence effected a significant change to the legal relationship between the NSWRA and the Commonwealth. Subject to one, and possibly two, qualifications, the NSWRA was entitled to continue to occupy the buildings and to use the designated firing ranges until at least 2001 and in any event, until the Commonwealth gave a notice to the effect that the Holsworthy range, or a comparable range nominated by it, was available for the Rifle Association's use. One qualification to that right is if the Commonwealth is entitled to terminate the licence because the NSWRA is in default (as defined). The Commonwealth submits that there is a second qualification, namely, that the Commonwealth is entitled to terminate the licence in the public interest.

The Commonwealth has not given a Relocation Notice. Apparently it was decided that it was not appropriate that the Holsworthy Army Base be made available to provide a range for private shooting clubs. Although other potential rifle ranges have been identified, so far as appears, no steps have been taken, other than the carrying out of studies, to relocate the ANZAC Rifle Range.

The Malabar Headland is in the Commonwealth electorate of Kingsford Smith. The local member is the Honourable Mr Peter Garrett MP. He has consistently campaigned for the Malabar Headland to be transferred to the State of New South Wales for use as a national park and for public open space.

Prior to October 2011 there was no indication from the Commonwealth that transfer of the Malabar Headland would proceed otherwise than by first relocating the NSWRA to a comparable range. As late as 28 September 2011, Mr Rick Scott-Murphy, First Secretary, of the Property and Construction Division of the Department of Finance and Deregulation advised the treasurer of the NSWRA and others that the NSWRA would remain on Malabar until a suitable alternative site was available for its relocation.

On 7 October 2011 Mr Scott-Murphy wrote to the chairman of the NSWRA to "clarify" (more accurately to correct) the discussion that took place on 28 September 2011. In his letter of 7 October 2011 Mr Scott-Murphy stated:

"I wish to advise that my comments at the meeting were specifically intended to confirm that the Commonwealth will abide by, and rely upon, the terms of the relevant Licence, both express and implied. I advise that at no time did I intend to create any impression on the part of the Rifle Association that it can stay on the site until a comparable site can be found.

As you are aware, the Commonwealth has expressed its concerns on a number of occasions about a diverse range of health and safety risks at the Malabar Headland including site contamination arising from previous and current usage of the site; safety concerns in relation to shooting activities; and general safety concerns, including trip and fall hazards. The safety of all users of the site is the Commonwealth's priority."

On 21 October 2011 the Department of Finance and Deregulation sent a fax to the NSWRA as follows:

"The Commonwealth of Australia has determined to terminate the licence in favour of the New South Wales Rifle Association Inc in respect of the Malabar Rifle Range.

We attach a copy of the Termination Notice.

Clause 3.1 and Item 3 of the Reference Schedule to the licence are of no effect. There is no legal obligation on the part of the Commonwealth of Australia to provide a Relocation Notice (as defined in clause 1.1 of the Licence). The Commonwealth of Australia relies on an implied term allowing the termination of the Licence on reasonable notice."

The termination notice stated that the Licence would terminate on 31 January 2012, being three months after the date of the notice. The termination notice demanded that the NSWRA remove all its fixtures, fittings, equipment, furnishings, vehicles and other items brought onto the Range by the NSWRA or its agents by 5pm on 31 January 2012.

On 5 December 2011 the NSWRA commenced the first proceeding (2011/393228) claiming a declaration that the termination notice was void and of no effect. The licence is for a term that does not end until 14 days after the Commonwealth gives to the NSWRA a Relocation Notice to the effect that the Holsworthy Range, or a comparable range nominated by it, is available for the NSWRA's use. The suggested implication that the licence could be terminated on reasonable notice is inconsistent with the express terms of the licence deed. (The notice also ignored the decision of Waddell CJ in Eq referred to at para [8] above that three years would be reasonable notice of termination.)

On 7 December 2011 the Commonwealth gave an undertaking that it would not take steps to enforce the termination notice up to and including 3 February 2012. That undertaking was subsequently extended. On 25 May 2012 the Commonwealth withdrew its termination notice of 21 October 2011.

On 25 January 2012, that is, six days before the Commonwealth had purportedly required the NSWRA to vacate the site, the Commonwealth changed tack. Clause 6.2 of the licence deed provides:

"6.2 Condition of improvements

The User must at all times at its own expense:

(a) keep in a good and safe state of repair:

(i) the Buildings; and

(ii) the target platforms, the target mechanisms and the target butts on the Fullbore Classification Range and the Service Classification range; and

(b) comply with the Environmental Management Plan and Fire Safety Management Plan."

The "Environmental Management Plan" and "Fire Safety Management Plan" are defined as follows:

"Environmental Management Plan means the Environmental Management Plan of DASCEM Holdings Pty Ltd dated September 1999 in the Licence Exhibit.

Fire Safety Management Plan means the Fire Safety and Adequacy Survey by DASCEM Holdings Pty Limited dated September and October 1999 in the Licence Exhibit."

Clause 1.2(g) provides:

"1.2 Interpretation

In this document, headings and underlining are for convenience only and do not affect interpretation, and unless the context otherwise requires:

...

(g) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time."

Clauses 10.1 and 10.2 of the Licence Deed provide:

"10. DEFAULT AND TERMINATION

10.1 Default

The User is in default if:

(a) (non-payment) it does not pay the Licence Fee or any other money payable under this document within fourteen days of the due date, after written demand by the Owner;

(b) (breach) the Owner gives the User a notice asking the User to remedy any breach of this document and the User does not remedy the breach within fourteen days or such longer time as is specified in the notice;

(c) (Range Safety Rules) the Owner gives the User a notice asking the User to comply with the Range Safety Rules and the User does not comply with the notice immediately or within such longer time as is specified in the notice;

(d) (Management Plan) the Owner gives the user a notice asking the User to comply with its obligations under the Management Plan and the User does not comply with the notice immediately or within such longer time as is specified in the notice;

(e) (repudiation) it repudiates its obligations under this document; or

(f) (company) the User is a company and:

(i) an application or order is made for its winding-up or dissolution, or a resolution is passed or any steps are taken to pass a resolution for its winding-up or dissolution, or to place it under administration;

(ii) it enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;

(iii) a receiver, receiver and manager, provisional liquidator, trustee, administrator or similar official is appointed, or steps are taken for such an appointment, over any assets or undertaking.

10.2 Owner's rights on default

If the User is in default the Owner may:

(a) rectify the default, and the User must immediately reimburse the Owner for the cost of the rectification; or

(b) terminate this document by written notice and also exercise any other legal right."

The Commonwealth prepared a document entitled "Remedy Notice" dated 25 January 2012 which asserted that the NSWRA was in breach of its obligations under clause 6.2(a)(i) of the Licence in that it had failed to keep in a good and safe state of repair the NSWRA building, the four buildings known as the Barrack Buildings and a Storage Shed. These were the "Buildings" as defined in the Licence Deed. Attached to the Remedy Notice were four reports running to 260 pages: namely, a report prepared by Parsons Brinckerhoff for UGL Limited dated 24 January 2012 entitled "Hazardous Materials Assessment - Malabar Headlands, NSW Rifle Association Buildings", a report entitled "Building Condition Report" dated January 2012 prepared by AssetFuture Pty Limited, and two reports dated December 2007. One of these was from a company called "Robson" for United Group Limited Services entitled "Hazardous Material Survey and Management Plan ANZAC Rifle Range". The other was prepared by "Strategic Facility Services", also dated December 2007 and prepared for UGL, entitled "Condition Report on the Buildings at ANZAC Rifle Range Malabar - New South Wales". The Remedy Notice stated that the breaches requiring "remediation" were those identified in certain parts of the Parsons Brinckerhoff report and the AssetFuture report. The notice stated that the breaches had to be remedied within 14 days of the date of the notice.

Notwithstanding this last statement, the Remedy Notice was not served until 31 January 2012. It was served under cover of a letter from Blake Dawson Waldron, solicitors for the Commonwealth, to Hunt & Hunt, solicitors for the NSWRA, dated 27 January 2012 and was received by Hunt & Hunt on 31 January 2012.

The NSWRA does not admit the alleged breaches of the covenant in clause 6.2(a)(i) that it failed to keep the Buildings in a good and safe state of repair. However, its principal submission is that even if a breach of that covenant were established, the notice dated 25 January 2012 was ineffectual.

On 8 February 2012 the NSWRA filed a summons seeking a declaration that the notice issued by the Commonwealth dated 25 January 2012 is void and of no effect. (These are proceedings 41950 of 2012.)

On about 2 April 2012 the Commonwealth served a Second Remedy Notice dated 29 March 2012. That notice alleged that the NSWRA was in breach of its obligations under clause 6.2(b) of the Licence in that it had failed to comply with the Environmental Management Plan, defined in subclause 1.1 of the Licence as the Environmental Management Plan of DASCEM Holdings Pty Ltd ("DASCEM Holdings") dated September 1999. Specifically it was alleged that the NSWRA had failed to repair damaged asbestos materials and either seal them with an acrylic paint or have them removed by a licensed contractor in accordance with the Worksafe Australia Asbestos Code of Practice; had failed to label all asbestos containing materials in accordance with the Worksafe Australia Asbestos Code of Practice and to maintain them in a condition that prevented the generation of airborne asbestos fibres or, if this were not possible, to remove them; and had failed to paint the exposed edges of damaged sheeting with an acrylic paint to seal the fibres into the matrix. The work required to be done to remedy the alleged breaches was described by reference to a further report of Parsons Brinckerhoff dated 5 March 2012. The alleged breaches were required to be remedied by 19 April 2012.

On or about 9 May 2012 the Commonwealth served a Third Remedy Notice dated 7 May 2012. The Third Remedy Notice alleged that the NSWRA was in breach of clause 6.2(b) of the Licence in that it had failed to comply with the Fire Safety Management Plan as defined in subclause 1.1 of the Licence. Sixteen breaches of the Fire Safety Management Plan were alleged. The work required to be done was identified in a report of Elk-Seagren Consulting Pty Ltd dated 3 April 2012. The notice gave the NSWRA 14 days within which to remedy the alleged breaches.

The NSWRA filed a statement of claim in the 2012 proceedings. The statement of claim was amended and re-amended to challenge the validity of the Second and Third Remedy Notices.

The Commonwealth admitted that it would not have been possible for the NSWRA to carry out all the work required by each remedy notice within the times specified.

Prior to the service of the remedy notices the Commonwealth had made no complaint about NSWRA's compliance with clause 6.2 of the Licence.

Clause 12.4(a) of the Licence provides:

"12.4 Waiver

(a) The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver."

The NSWRA did not admit that it was in breach of its obligation to keep the Buildings in good and safe repair. It submitted that that obligation was to be measured having regard to the state of repair of the buildings at the commencement of the licence or the date of the Licence Deed, and there was no evidence that the buildings are in a materially worse condition than they were at those times. The NSWRA submitted that the obligations to deal with asbestos-containing material as set out in the Environmental Management Plan of DASCEM Holdings dated September 1999 had been replaced by a new environmental management plan for dealing with asbestos on the site under which it did not have those obligations. It did not contend that the requirements of the Fire Safety Management Plan had all been complied with. It pointed to the long delay of the Commonwealth in raising a complaint about fire safety measures.

The NSWRA's principal contention was that the Commonwealth was under a duty to act reasonably and in good faith in the exercise of its power under clause 10.1(b) to specify a time for the remedying of the alleged breaches. It submitted that in requiring the alleged breaches to be remedied in 14 or 16 days the Commonwealth did not act reasonably and in good faith. It also submitted that the remedy notices were issued as part of a political campaign to evict the Rifle Association from the range, in order to satisfy a political promise made by Mr Garrett, in circumstances where the Commonwealth was unwilling to fund the Rifle Association's relocation to a suitable alternative location. It submitted that the Commonwealth was not in truth concerned about the state of the Buildings, as evidenced by the fact that the two reports concerning the state of the Buildings dated December 2007 which accompanied the First Remedy Notice of 25 January 2012 had not been provided to the Rifle Association prior to the service of that notice. It submitted that specification of a period of 14, 16 or 17 days to comply with the notices was unreasonable. It relied on the Commonwealth's admission that the notices could not have been complied with within the times specified.

The NSWRA also sought relief against forfeiture if it were found that the termination of the licence was effective. It submitted that the Commonwealth was estopped or ought to be restrained from asserting the validity of any of the remedy notices. A claim that the Commonwealth was in breach of the Australian Consumer Law was not pressed. Nor did the NSWRA press a claim of estoppel in final submissions.

On 18 May 2012 the Rifle Association became aware that, on 9 May 2012, the Commonwealth had introduced the Malabar Headland Protection Bill 2012 to Parliament together with a proposal that Lot 2 be transferred by the Commonwealth to the State of New South Wales once remediation works had been completed, and that such transfer might occur on or after 31 July 2012.

As noted above at para [13] the licence deed defined "the Range" as being land in folio identifier 1/809094. Lot 2 of DP 809094 is the perimeter of the headland. (Lots 1 and 4 of DP 809094 were later subdivided. Lot 4 lay to the west and inland of lots 1 and 2. Lot 1 is now folio identifier 101/1162245.)

The NSWRA submits that the transfer of Lot 2 to the State of New South Wales would have the effect that the Commonwealth could no longer fulfil its contractual duty to make the Licensed Range available for use by its members as a rifle range. The Commonwealth admits that the transfer of that part of Lot 2 that constitutes the danger zone or safety template would have the consequence that the NSWRA and its members would no longer be permitted to undertake rifle and pistol shooting on the Range unless the conditions of the Shooting Range Approval were varied or the NSWRA constructed further barriers to prevent projectiles leaving the Range.

The NSWRA seeks an injunction to restrain the Commonwealth from transferring Lot 2 while it is in possession of the Range.

The Commonwealth proposes to transfer Lot 2 (and ultimately Lot 1) to the State of New South Wales in the exercise of its power as owner of the land. The Malabar Headland Protection Bill 2012 was introduced into the House of Representatives and read a second time. The Bill does not itself provide for the transfer of land from the Commonwealth to New South Wales. Nor does it authorise such a transfer. Rather it provides a framework for the regulation of the use of such land once it is transferred. The Bill provides that the land must be used as a national park.

The Commonwealth advances what is sometimes known as a doctrine of executive necessity. The Commonwealth pleads that no term will be implied in the Licence which would have the effect of precluding the Commonwealth "from exercising its Executive discretion or common law right to determine the appropriate use of [Lot 2]". It pleads that the Licence "contains an implied term that the Commonwealth may determine the Licence or decline to perform its obligations thereunder either as a matter of convenience or in the exercise of Commonwealth Executive discretion". The Commonwealth pleads that no term will be implied that would restrict the right of the Commonwealth to deal with Lot 2. The Commonwealth pleads:

"Insofar as, and to the extent that it may be found that, the Licence contains a provision that is terminable otherwise than at will or on reasonable notice, the said term is void, or alternatively, unenforceable, because it would fetter the exercise of the discretion of the Executive of the Commonwealth to determine the use of the land identified in folio identifiers 101/1162245 and 2/809094 in the public interest."

It pleads that even if there is an implied term that the licence is terminable otherwise than at will or on reasonable notice, such term is qualified "so as not to impinge upon the future exercise by the Commonwealth of its Executive discretion and common law right to determine the appropriate use" of that land. It alleges that the Commonwealth is entitled to terminate the Licence at will, or alternatively, upon reasonable notice.

The Commonwealth also relies upon the doctrine of executive necessity as displacing any term, if it could otherwise be implied, that it exercise its rights under the Licence reasonably and in good faith in circumstances where it has determined that the land should be used otherwise than as a rifle range. It also relies upon the doctrine of executive necessity as precluding the grant of any relief against forfeiture.

It is convenient to deal first with this defence.

Doctrine of Executive Necessity

The Crown cannot contract so as to fetter the future exercise of a statutory power or discretion required to be exercised in accordance with the public interest or by the criteria specified in the statute. Most of the cases relied on by the Commonwealth are authority for this proposition (Ayr Harbour Trustees v Oswald (1883) 8 HL 623 at 634, 638, 640; (1882-83) LR 8 App Cas 623; Watson's Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268 at 277; William Cory & Son Ltd v London Corporation [1951] 2 KB 476 at 484; Commissioners of Crown Lands v Page [1960] 2 QB 274 at 286, 289 and cf at 291-293; Cugden Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520; L'Huillier v State of Victoria [1996] 2 VR 465; City of Subiaco v Heytesbury Properties Pty Ltd [2001] WASCA 140; (2001) 24 WAR 146). That is not the present case. The issue raised in this case is whether a contract entered into by the Commonwealth as land owner can be terminated at will or on reasonable notice (even if this is contrary to the express terms of the contract), or whether terms that might otherwise be implied cannot be implied because the Commonwealth has changed its policy in relation to the licence granted in 2000 to the NSWRA. No decision cited has gone so far.

The Commonwealth relied upon the following passage from the judgment of Mason CJ in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 17-18. His Honour said:

"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power: see Watson's Bay and South Shore Ferry Co. Ltd v Whitfeld (1919) 27 CLR 268, at 277; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54, at 74-76; Malvaso v The Queen (1989) 68 CLR 227 at 232-234; Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355, at 364; Cudgen Rutile (No. 2) Ltd v Chalk [1975] AC 520, at 533-534; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, at 423-425; Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. Accordingly, it has been said that 'a public authority ... cannot be estopped from doing its public duty', to use the words of Lord Denning M.R. in Lever Finance v Westminster London Borough Council [1971] 1 QB 222, at 230. See also Rootkin v Kent County Council [1981] 1 WLR 1186; [1981] 2 All ER 227. As Gummow J observed in Minister for Immigration v Kurtovic (1990) 92 ALR 93, at 111, the principle has been explained on the footing that:

'in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding'. cf. Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, at 638.

No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest." (Emphasis added.)

It was submitted for the Commonwealth that it follows from the last quoted sentence that where the Crown exercises its common law powers as an owner of land by entering into a contract in respect of the future use of that land, it cannot disable itself from deciding in the future that in the public interest the land should be used in a different way, namely, in the present case, as a national park.

Hence, the Commonwealth submitted that whether or not it was entitled to terminate the licence for breach, it was not bound to continue the licence for the defined Term, because it now considers it to be in the public interest that the land should be used as a national park and not as a rifle range. Counsel for the Commonwealth accepted that on the Commonwealth's contentions, its assessment of what is in the public interest and whether there has been a change of public policy is unexaminable.

The case most often cited for the proposition that a contract is not enforceable against the Crown if it would fetter future executive action in the public interest is Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 ("The Amphitrite"). That case concerned an assurance given by the British Government to the Swedish owners of a ship during the First World War. It appears from the report that the British Government had a policy of detaining neutral ships unless they were replaced by other ships of the same tonnage. Whether that power was exercised pursuant to statute, such as a Defence Regulation, or in the exercise of a prerogative power does not appear from the report. In L'Huillier v State of Victoria Callaway JA (at 483) described the power as a prerogative power relating to defence, and I assume that is so.

In The Amphitrite the ship owners sought and obtained an assurance from the British Legation at Stockholm that the ship would be allowed to leave the British port after it had discharged its cargo. Whilst waiting to reload, the owners received notice from the Government that loading facilities were withdrawn and that clearance would not be granted, except on terms with which the owners could not comply. The result was that the ship was detained and eventually sold to avoid further loss. The ship owners presented a petition of right claiming damages for breach of the Government's undertaking contained in the correspondence by which the owners were assured that the ship would not be detained. There is no suggestion that the Crown was a party to any commercial contract for the hire or use of the ship. The contract sued on was the Government's undertaking through the Legation at Stockholm that the ship would not be detained.

In an extempore judgment Rowlatt J said that there was no enforceable contract because the assurance given by the Government was merely an expression of intention to act in a particular way in a certain event (at 503). In Robertson v Minister of Pensions [1949] 1 KB 227 Denning J (at 231) considered this to be the ratio of the case, so that it was not an authority where the Crown undoubtedly had made a contract. However, the reason Rowlatt J considered there was no contract was that:

"My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State."

This was the ratio. No authority was cited for the proposition and none was referred to in argument. The only reasoning in support of the proposition was (at 503-504):

"Thus in the case of the employment of public servants, which is a less strong case than the present, it has been laid down that, except under an Act of Parliament, no one acting on behalf of the Crown has authority to employ any person except upon the terms that he is dismissible at the Crown's pleasure; the reason being that it is in the interests of the community that the ministers for the time being advising the Crown should be able to dispense with the services of its employees if they think it desirable. Again suppose that a man accepts an office which he is perfectly at liberty to refuse, and does so on the express terms that he is to have certain leave of absence, and that when the time arrives the leave is refused in circumstances of the greatest hardship to his family or business, as the case may be. Can it be conceived that a petition of right would lie for damages? I should think not."

As Denning J observed in Robertson v Minister of Pensions, that reasoning cannot stand in the light of the Privy Council's decision in Reilly v R [1934] AC 176 where Lord Atkin, delivering the advice of the Privy Council, said (at 179) that any implication that the Crown could dismiss its employee at pleasure would be excluded by an express term to the contrary. This and other decisions to like effect were followed by the Court of Appeal in Suttling v Director-General of Education [1985] 3 NSWLR 427. There the Court of Appeal held by majority that it should not follow the decision of the English Court of Appeal in Dunn v R [1896] 1 QB 116 that a servant of the Crown can be dismissed at pleasure, notwithstanding that he has entered into a contract for a fixed term. That decision was upheld in the High Court (Director-General of Education (NSW) v Suttling [1987] HCA 3; (1987) 162 CLR 427), but on a narrower ground. In Jarratt v Commissioner of Police for NSW and State of New South Wales [2005] HCA 50; (2005) 224 CLR 44) the plurality (McHugh, Gummow and Hayne JJ) described the criticisms of the principle that the Crown can dismiss its servants at pleasure made by McHugh J in Suttling v Director-General of Education as being well based and gave reasons as to why the common law principles were not readily adapted to a modern system of public administration (at [64]-[72]).

Thus the reasoning of Rowlatt J in The Amphitrite does not now support the proposition quoted at para [64], if it ever did. Moreover, Rowlatt J said that the principle did not apply to a "commercial contract". If the Government made a commercial contract "it must perform it like anybody else or pay damages for the breach" (at 503).

The decision in The Amphitrite has been criticised. Writing in the Law Quarterly Review in 1929 Sir William Holdsworth said that the proposition that the Crown "cannot by contract hamper its freedom of action in matters which concern the welfare of the State" was laid down for the first time in that case, that it was a sweeping proposition for which no authority was cited, and that the analogy with what was then an undoubted rule that the Crown has no authority, except under statutory powers, to employ any person except on terms that he is dismissible at the pleasure of the Crown was "a slender foundation for such a great superstructure". Sir William Holdsworth concluded that the principle as so expressed was opposed to the common law principles which underlay English constitutional law (Holdsworth, reviewing "A Case Book on Constitutional Law" (1929) 45 LQR 162 at 166-167). He repeated these views in Volume 10 of A History of English Law published in 1938 (at pp 657-658). It appears from Volume 10 of A History of English Law that the common law principles underlying constitutional law which Sir William Holdsworth thought were opposed to the doctrine espoused in The Amphitrite were those that defined the rights and liberties of the subject as against the Crown (at 658). These included the freedom from arrest by warrant of a secretary of State, the invalidity of general warrants, the right to liberty of discussion, the right to petition and the right of public meeting. Although these principles have no direct application to the extent to which the Crown is bound by contract, Sir William Holdsworth saw an inconsistency between the proposition asserted in The Amphitrite and the liberties of the subject that limit the freedom of action of the Crown in matters which it asserts concern the welfare of the State.

In Hogg & Monahan, Liability of the Crown, 3rd ed (2000) the learned authors noted that The Amphitrite seemed to have been followed rarely and had been severely criticised (at 9.6(a), p 227 and fn 77). However, in L'Huillier v State of Victoria Callaway JA with whom Charles JA agreed, "unhesitatingly rejected" a submission that "the Amphitrite doctrine" was wholly unsound as a matter of principle or could be reduced to a rule of construction (at 479). But that case concerned a possible fetter on the exercise of a statutory power.

In Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 Mason J (as his Honour then was) noted the criticism that the statement of principle in The Amphitrite was expressed too generally and added (at 74-75):

"Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future."

Aickin J also expressed reservations about the principle (at 113-114).

In A v Hayden [1984] HCA 67; (1984) 156 CLR 532 Gibbs CJ also said that Rowlatt J spoke too widely. I consider that case below (at [85]-[87]).

Mitchell, "The Contracts of Public Authorities", London School of Economics and Political Science, 1954, argues that Rowlatt J's attempted distinction between the agreement before him and cases of "commercial contracts" is to be explained on the basis that The Amphitrite was concerned with defence requirements based on military need, and is limited to that which is necessary for public safety (at pp 53-54). He said:

"Even so, the emphasis on public safety is a considerable limitation of a principle which was on its face widely expressed, but which must it is thought be narrowly confined, both on grounds of principle and convenience, if government contractors are to have any confidence in their dealings. It was precisely this point which was emphasized by Richards C.B. in Attorney-General v Lindegren (1819) 6 Price 287 ..."

Attorney-General v Lindegren concerned a contract for the purchase of stores on behalf of the Navy during the Napoleonic wars. Richards CB said (at 304, 146 ER 811 at 817):

"Public confidence in the dealings of the Government with persons in the character of this defendant, is of the first importance, and should be regarded above all other considerations; and that confidence ought not to be shaken in consequence of the result of any subsequent calculation and inquiry by the Commissioners of a public board, showing that their contract has been injurious to the public merely on the grounds of too great liberality in remunerating the service required and performed."

Thus even in the time of war, the Court did not adopt so wide a principle as that the Crown cannot by contract hamper its freedom of action in matters which concern the welfare of the State. It was a commercial contract. But the distinction between contracts that are commercial and those that are not is imprecise. Nor is there an obvious logical distinction. If the Crown is always to act in the public interest as it perceives it from time to time so that it cannot fetter its future actions by contract, there is no obvious reason why it should not be free to do so whether the contract is commercial or non-commercial, whatever that distinction is. Either type of contract could seriously affect the public welfare.

A better explanation of the principle, and the limitation on it, is found in Board of Trade v Temperley Steam Shipping Co Ltd (1926) 26 Ll L Rep 76, and Commissioners of Crown Lands v Page.

In Board of Trade v Temperley Steam Shipping Co Ltd the Board of Trade had compulsorily requisitioned a ship. It became subject to a charter to the Board of Trade under which the obligation to pay hire was suspended if the vessel ceased to be in working order. The vessel needed repair. Under the Munitions of War Act 1916 a surveyor with the Board of Trade was required to assess the extent of repair that would be allowed. Unless the use of materials for repairs were sanctioned, the repairs could not be done. Materials for repair were rationed. The surveyor did not treat the vessel differently from other vessels. By an error of judgment he permitted only limited repairs to be carried out. The result was that the vessel was out of operation for longer than it would otherwise have been. The ship owner contended that it was an implied term of the charter that the clause providing for the suspension of the obligation to pay hire did not apply where the ship was out of service due to the act of the Board of Trade's surveyor in refusing to allow sufficient repairs. Roche J said (at [78]):

"I think and I hold that in this charter-party it is to be implied that the Crown should do nothing in connection with and in relation to and in the carrying out of the contract contained in the charter-party to prevent the shipowners from keeping the vessel seaworthy and to prevent them earning their hire. But I am utterly unable to imply in the charter-party a term or condition that the Crown should do nothing by virtue of some general legislation or by virtue of some executive action entirely remote from the charter-party and done by persons not connected with the performance of the contract directly or indirectly to bring about the results in question."

This judgment was upheld in the Court of Appeal (Board of Trade v Temperley Steam Shipping Co. Ltd (1927) 27 Lloyds L Rep 230). It is the distinction drawn by Roche J that was subsequently endorsed by Devlin LJ in Commissioners of Crown Lands v Page (at 293).

In Commissioners of Crown Lands v Page, Devlin LJ said (at 291, 292 and 293):

"When the Crown, or any other person, is entrusted, whether by virtue of the prerogative or by statute, with discretionary powers to be exercised for the public good, it does not, when making a private contract in general terms, undertake (and it may be that it could not even with the use of specific language validly undertake) to fetter itself in the use of those powers, and in the exercise of its discretion.

...

When the Crown, in dealing with one of its subjects, is dealing as if it too were a private person, and is granting leases or buying and selling as ordinary persons do, it is absurd to suppose that it is making any promise about the way in which it will conduct the affairs of the nation. No one can imagine, for example, that when the Crown makes a contract which could not be fulfilled in time of war, it is pledging itself not to declare war for so long as the contract lasts.

... in making a lease or other contract with its subjects, the Crown does not (at least in the absence of specific words) promise to refrain from exercising its general powers under a statute or under the prerogative, or to exercise them in any particular way."

His Lordship then approved the distinction drawn by Roche J in Board of Trade v Temperley Steam Shipping Co. Ltd quoted above.

The point made is that the Crown, when contracting in one capacity, cannot fetter a power it has in another capacity, whether under statute or the prerogative, that is to be exercised in the public interest.

William Cory & Son Limited v London Corporation [1951] 2 KB 476 is an illustration. There it was held that a public authority with a duty to make bylaws in relation to the disposal of refuse could not make a contract that fettered the future exercise of that power. The London Corporation had a dual character. As sanitary authority it entered into a contract with the plaintiff for the plaintiff to remove refuse using lighters and barges. As health authority the London Corporation made bylaws regulating the fittings required for any vessel used for removing refuse from the Port of London. The bylaws made the contract commercially impossible of performance. No term could be implied, and no express term would have been valid, that would have precluded the Corporation from making such bylaws as it thought proper in the public interest.

This same principle was applied in City of Subiaco v Heytesbury Properties Pty Ltd. Ipp J, who gave the leading judgment, described the case as one of "executive necessity". His Honour appears to have endorsed the rule as stated by Rowlatt J in The Amphitrite (at 157, [43]). There an assignee of a lease contended that it was an implied term of the lease that the right of the lessee to enjoy the demised premises was a right to enjoy them for the purpose of conducting a manufacturing business. The City of Subiaco was the lessor. It exercised its statutory power under a town planning scheme to rezone the land as residential. Clearly the lease could not fetter the future exercise of its statutory power of rezoning. Ipp J said (at [55]):

"In my opinion, any contractual fetter or limitation of any kind upon executive discretion would have to be clearly and expressly stated before a court would construe a contract as qualifying freedom of executive action. That is not the case with the leases presently under consideration."

This was relied upon by the Commonwealth in the present case. However, what Ipp J said has to be read in context. The context in which his Honour referred to freedom of executive action was the future exercise by the executive of a statutory power to be exercised in a different capacity from the capacity in which it entered into the lease.

L'Huillier v State of Victoria was also concerned with the exercise of a statutory power. Callaway JA, with whom Charles JA agreed, held that a term of a contract that purportedly prevents the due exercise of a future "public law discretion" will be void. His Honour held that unless the contract prevents the due exercise of discretion when it is required to be exercised, the provision will not be void, but will be construed "subject to the repository's right not to perform the contract in the future if performance would be inconsistent with the proper exercise of the discretion." (at 481). This was approved by Nettle JA in Port of Portland Pty Ltd v State of Victoria [2009] VSC 282; (2009) 27 VR 366 at [88]. The Commonwealth submitted that on this principle the licence should be read as impliedly conferring on the Commonwealth the right to terminate the licence if it considered it necessary in the public interest to do so and that the clause providing for the licence to continue until 14 days after a Relocation Notice was given should be construed as impliedly subject to such a term.

Callaway JA did not define what he meant by a "public law discretion". It undoubtedly included the kind of statutory discretion involved in that case, namely, a discretion as to who should be appointed to a high public service office and on what terms. Callaway JA made it clear that the principle which he outlined did not apply to a case in which a discretion was properly exercised when the contract was made (at 481).

In A v Hayden officers of the Australian Secret Intelligence Service, a creature of the executive, sought to enforce terms of a contract with the Commonwealth that the Commonwealth would keep their identities confidential. They sought an injunction to restrain the Commonwealth from disclosing their identities to the Victorian Police Commissioner who was investigating whether they had committed criminal offences. Whilst Mason J (at 556-561), Murphy J (at 563), Brennan J (at 585-588), and Deane J (at 592, 595-596) held that the term was not enforceable, that was on the grounds that the term infringed public policy by interfering with the investigation of crime and hence the administration of justice.

Brennan J said (at 587):

"The Crown cannot bargain away its ability to act in the public interest."

That is to be understood in light of his Honour's fuller exposition (at 588) that:

"The Crown has no capacity to bind itself by a term which is contrary to public policy, and no servant or agent of the Crown has or can be given authority to bind the Crown by such a term. The powers of the Crown cannot be exercised contrary to what the law recognizes as public policy. It follows that the Crown's ability to assist in the investigation of crimes reasonably suspected to have been committed cannot be fettered by an unqualified contractual obligation not to disclose the identity of a person: circumstances may arise which justify disclosure in the public interest."

The contracts between the plaintiffs in that case and the Commonwealth had no statutory basis. They were entered into in the exercise of the Crown's prerogative. It is noteworthy that the case was not decided on the broad ground advanced in this case that the Crown cannot by contract fetter the future exercise of executive power in the public interest. Gibbs CJ said (at 543):

"The suggestion made by Rowlatt J in [the Amphitrite], that the Government cannot by contract fetter its executive action in matters which concern the welfare of the State is too wide. It is true that speaking generally the Government cannot by contract disable itself or its officers from performing a duty cast on it by statute or from freely exercising a statutory power or discretion ... The same principle may apply when the Crown is entrusted with powers under the prerogative. ... However this principle has no application to the present case, where there exists no relevant power or duty granted or imposed by statute or available under the prerogative ..."

In Northern Territory of Australia v Skywest Airlines Pty Ltd (1987) 48 NTR 20; 90 FLR 270, the Northern Territory did not raise a defence of executive necessity to seek to justify its refusal to be bound by a contract that had been entered into following a competitive tender. The contract was made in the exercise of executive authority for the supply of aerial medical flight services in the Territory. Nonetheless, Kearney J observed (at 47, 294):

"In general, and for good reasons, a government rightly regards itself as bound to carry out a contract it has lawfully and properly entered into, when the other party is not in breach. The reasons are rooted in commonsense and good government - in general, in a proper concern to protect the public revenue against unnecessary and unwarranted loss, to preserve the government's reputation for integrity and to retain its credibility, particularly with the business community. Because of its responsibilities to the people, a government may nevertheless sometimes have to break its contract because of some overriding public interest, such as the exigencies of war; there is however no suggestion that any public interest requires that the Government break this contract ..."

I do not think it correct to say that Kearney J intended to confine the circumstances in which the doctrine of executive necessity might qualify the executive's contractual obligations to cases of war or public safety (compare M Allars, Administrative Law, Government Contracts and the Level Playing Field, (1989) 12 UNSWLJ 114 at 123). Nonetheless, this judgment also gives no encouragement to a wider doctrine of executive necessity as qualifying a government's contractual obligations otherwise than where the contract attempts to fetter the future exercise of a statutory power or discretion in the public interest, or where the contract would fetter the future exercise of a prerogative power which the Crown enjoys separately and distinctly from the capacities of its subjects, such as the prerogative to declare war.

In Commonwealth of Australia v Hooper [1992] NSWCA 44; (1992) Aust Contract R 90-010, a contract to which the Commonwealth was found to be a party gave to the Australian Gaslight Company ("AGL") a right of first refusal to acquire a pipeline on terms no less favourable than those offered to any third party. The pipeline was owned by the Pipeline Authority established under the Pipeline Authority Act 1973 (Cth). The Commonwealth contended that the Authority did not have the power to dispose of the pipeline as a going concern. Gleeson CJ, and on appeal, the Court of Appeal, held that even if that were so, the Commonwealth was still required to ensure that AGL had the first right of refusal to acquire the pipeline. In the Court of Appeal the Commonwealth argued that if the contract were interpreted in this way:

"... it imposed a fetter on the Commonwealth, discouraging it from considering legislation of a certain kind (that is, which would enable the contractual obligation be avoided) at pain of being liable in damages or possibly having to comply with s 51(xxxi) of the Constitution if it did not. It was said that there is an established principle that the Crown cannot make such fettering contracts. For this proposition counsel relied upon 'The Amphitrite' (1921) 3 KB 500; Commissioners of Crown Lands v Page (1960) 2 QB 274; and West Lakes Limited v South Australia (1980) 25 SASR 389.

Priestley JA, with whom Samuels and Handley JJA agreed, said of this submission:

"Neither of the first two decisions has attracted much approval: see the discussion in M Aronson & H Whitmore; Public Torts and Contracts, at 194-7; and Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74-78 (Mason J) at 113 (Aickin J). The criticism is that the proposition for which the two English cases stand is much too widely expressed. In the Westlakes case, the second paragraph in the reasons of King CJ would seem to negate the possibility of a doctrine, if it has any effect in Australia, being of any help to the Commonwealth in the present case."

Commonwealth v Hooper also provides no encouragement to an expansive doctrine of executive necessity.

In support of its submission that where the Commonwealth enters into contract whose substance or operation involves questions of public policy, the Commonwealth may treat the contract as not binding if public policy changes, the Commonwealth cited pp 233, 236-239 and 249 of Seddon, Government Contracts, 5th ed, Federation Press.

Dr Seddon described a "special form of government privilege" that "a contract cannot, despite its binding nature, fetter the government's ability to carry out its programmes and policies." (at p 233). Dr Seddon opined that the doctrine of executive necessity permits the Government to break a contract with impunity if it needs to do so for reasons of policy (at [5.2] and [5.3]). He said (at pp 237, 238-239):

"If it turns out that at sometime in the future the government needs to take a different path from that contemplated at the time of making the contract in question, then the doctrine of executive necessity allows the government to do so with impunity even though this brings about a breach of the original obligations. ... It is suggested that the justification for a government to break a contract on the basis of executive necessity should be confined to those circumstances where a policy decision is behind the need to break the contract."

I do not consider this to be a correct statement of the law. Dr Seddon cites no authority for these propositions. He notes that in The Amphitrite the contract was broken by the necessities of war. The propositions go beyond any authority cited to me, or of which I am aware.

The high point of the authority relied upon by the Commonwealth is the dictum of Mason J in Attorney-General v Quin quoted at para [57] above. It is not clear what Mason CJ intended to encompass by his reference to the non-fettering of "common law powers and functions of the Crown or the Executive" that involve making decisions in the public interest. In Ansett Transport Industries his Honour had described the principle as stated by Rowlatt J in The Amphitrite as having been expressed too generally. I do not infer that his Honour intended to resile from that statement. I consider his Honour was referring to the Crown's exercise of a prerogative that it enjoys alone and in contradistinction to the capacities of its subjects. In other words, the kind of common law power which Devlin LJ described Commissioners of Crown Lands v Page at 291, viz. a discretionary power by virtue of the prerogative to be exercised for the public good. At the widest, his Honour was referring to common law powers and functions involving the future exercise of a duty or discretion required to be exercised in the public interest, as that was the principle in relation to the exercise of a statutory discretion his Honour addressed.

In my view, the doctrine of executive necessity has no role to play in the present case. The deed of licence did not fetter the exercise of a future duty or discretion by the Crown. It was a contract by which the Crown acted in what was then perceived to be the public interest in reconciling the competing demands for use of the Malabar Headland. It was a present exercise of the Commonwealth's power as owner of the land, not the fettering of a future exercise of a duty or discretion.

I accept that this entry into the deed of licence can be characterised as an exercise of the prerogative in some sense (Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164). However, the "prerogative" is an ambiguous term. Blackstone said (Blackstone, Commentaries on the Laws of England, 1765, Book 1, p 232):

"By the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity. ... And hence it follows, that it must be in its nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects:".

It is to the prerogative in this sense that Devlin J referred in Commissioners of Crown Lands v Page when he said (at 293) that:

"... the Crown does not (at least in the absence of specific words) promise to refrain from exercising its general powers under a statute or under the prerogative, or to exercise them in any particular way."

The power (not discretion) the Commonwealth exercised in entering into the deed of licence was not an exercise of the prerogative in this sense. It was the exercise of the Crown's power as owner of the land. In that respect, the Crown had the same capacity and stood in the same position as any other person. It was not an exercise of a "public law discretion" (to use the words of Callaway JA in L'Huillier v State of Victoria).

By asserting the alleged right to terminate the licence at will or on reasonable notice, or by asserting that the licence is not binding on it, or that terms should not be implied that would otherwise be implied, the Commonwealth is not seeking to exercise a power or discretion in a different capacity from that in which it contracted (Board of Trade v Temperley Steam Shipping Co Ltd per Roche J at 78; and Commissioners of Crown Lands v Page at 293).

No argument was addressed as to the effect of s 64 of the Judiciary Act 1903 (Cth) which provides:

"64 Rights of parties

In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject."

The section affects substantive rights and is not merely procedural (Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362). It has been said that the words "as nearly as possible" must be an acknowledgment of the existence of the doctrine of executive necessity (Seddon, p 328). Whilst this may be so, those words indicate that the doctrine should be narrowly confined, so as to assimilate the position of the Crown as completely as possible to that of a subject (Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 at 264-265).

None of the authorities cited and no other that I have considered has applied the doctrine in circumstances analogous to the present case that involves no fettering of a future discretion, no fettering of a statutory discretion, and no action by the Crown in a different capacity from that in which it contracted. All there is is a change of policy. In State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455, Evatt J observed that "the repudiation of subsisting agreements by a new administration can seldom be ventured upon with success" (at 463). That is this case.

The Commonwealth is not entitled to terminate the licence either at will or on reasonable notice. The licence is for a defined term, that is, until 14 days after the giving of a Relocation Notice. It would be contrary to that express term for the licence to be terminated by the Commonwealth either at will or on reasonable notice. There was no dispute that even though at law a mere licence to occupy the land would be terminable at will, even in breach of contract (Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351; Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605), in an appropriate case equity would restrain the licensor from revoking the licence in breach of contract (Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93; R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th ed LexisNexis Butterworths at [21-240]-[21-275]).

By its cross-claim in the 2012 proceeding the Commonwealth purported to terminate the licence. Counsel for the Commonwealth said that that was not done by way of termination for breach, but pursuant to the asserted power to bring the licence to an end because there had been a change of public policy. That purported termination should be restrained unless the Commonwealth is entitled to terminate the licence because the NSWRA is in default.

Implication of a term that the Commonwealth must exercise its power under clause 10.2(b) reasonably and in good faith

The Commonwealth submitted that if a term of reasonableness and good faith might otherwise be implied in the exercise of the Commonwealth's power to fix a period of time for the remedying of the alleged breaches, there could be no such implication where the Government was acting in what it considered to be the public interest to bring the licence to an end. It is sometimes said that The Amphitrite doctrine can be relied upon to negative the implication of a term whether or not it would be effective to displace an express term (Commissioners of Crown Lands v Page at 287; Manock v State of South Australia (1979) 83 LSJS 64 at 73; City of Subiaco v Heytesbury Properties Pty Ltd at [55], quoted at [81] above). However, for the reasons above, that doctrine does not apply in the present case. The mere fact that the Government has changed its policy and now considers that the Malabar Headland should be made available as a national park, irrespective of whether or not the Rifle Association can be relocated to another rifle range, is not a reason for qualifying any term that would otherwise be implied.

The fact that the contract is with the Government does not displace an obligation of good faith and reasonableness. If anything, that is a factor in favour of the implication of the term. In Northern Territory v Skywest Airlines Pty Ltd Kearney J said (at 294):

"... It is in the public interest that when a government contracts with an ordinary person, it deals fairly with that person, and is seen to do so."

In Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 Finn J found that the fact that one of the contracting parties was an organ of the Government was a reason for implying a term requiring fair dealing. His Honour observed (at 196):

"That the law entertains expectations of fair dealing of government and of public bodies is manifest in some number of spheres. ...

Secondly, there is what Griffith CJ referred to in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 as:

'the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary ...'

..."

NSWRA did not clearly identify whether it contended that a term should be implied that the Commonwealth must act reasonably and in good faith in the exercise of its powers under clause 10.1 on the basis that this was a term implied by law, or whether it was to be implied as a matter of fact in the particular circumstances in which the contract was made. Terms may be implied by law in particular classes of contracts where the implication has become "so much a part of common practice that the courts begin to import it into all transactions of that type as a matter of course" (Byrne & Frew v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 450; Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 at 103).

In Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33, Steytler J, with whom Malcolm CJ and Wallwork J agreed, said (at [51]-[52]):

"[51] More recently, in Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187, the Court of Appeal in New South Wales (Sheller, Beazley and Stein JJA) referred, with apparent approval, to Renard Constructions and Alcatel before saying (para159) that a review of the cases since Alcatel indicates that courts in various Australian jurisdictions have, for the most part, proceeded upon an assumption that there may be implied, as a legal incident of a commercial contract, terms of good faith and reasonableness. Their Honours referred, in that respect, to Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310, para120; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41 - 703; [1999] FCA 903 at 43,014; Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 433; and Asia Television Ltd v Yau's Entertainment Pty Ltd (2000) 48 IPR 283. They said (para164) that there also appeared to be increasing acceptance (Saxby Bridge aside) of the proposition (which they thought to be correct) that, if terms of good faith and reasonableness are to be implied, they are to be implied as a matter of law.

[52] The preference for implication as a matter of law is, no doubt, due to the difficulty of complying with the criteria for an implication in fact enunciated in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 or, where the contract is informal or incomplete, in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. However, if a term of the kind discussed is implied by law, it must be borne in mind that, as has been pointed out by McHugh and Gummow JJ in Byrne, at 450, many of the terms now said to be implied by law in various categories of case reflect the concern of the Courts that, in the absence of a term of that kind, the enjoyment of the rights conferred by contract 'would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined'. Hence, they said, the reference in the decisions to 'necessity'."

As the NSWRA does not have a proprietary interest, but seeks relief from forfeiture of its contractual right of possession, and as I am dealing with the claim for relief against forfeiture on the assumption (contrary to my earlier findings) that the NSWRA's contractual right could be terminated, I think that the NSWRA must establish that it would be unconscientious for the Commonwealth to exercise its contractual right of termination (see also Hewitt v Debus [2004] NSWCA 54; (2004) 59 NSWLR 617 at [75]).

In my view, the Commonwealth's conduct does make it against conscience for it to rely on the non-compliance with the remedy notices as the basis for terminating the licence. In Tanwar Enterprises Pty Ltd v Cauchi the High Court referred to the special heads of fraud, accident, mistake or surprise as being circumstances that might make it inequitable for the vendors (in that case) to rely upon a termination of the contract as an answer to a claim for specific performance (at [58]). Their Honours noted that conduct by the terminating party that contributed to the breach, such as by lulling the opposite party into a belief that the terms of the contract would not be strictly enforced, could make it unconscientious for the terminating party to exercise its legal rights (at [39], [61]).

In the present case, the Commonwealth contributed to the breaches that led to the issue of remedy notices. It did so by making no complaint for over 11 years about the state of the Buildings. Where it considered that work needed to be done, the Commonwealth undertook that work itself. It failed to provide the 2007 reports to the NSWRA, notwithstanding that it had commissioned those reports and the breaches subsequently raised in the remedy notices were substantially based on the same matters disclosed in those reports. On 25 June 2007 the Commonwealth, through two of its Ministers, advised the NSWRA that it had not been possible to identify a suitable alternative site that would cater for the existing range of shooting disciplines conducted on the Range. The Commonwealth advised that:

"The Australian Government has now agreed to permit shooting groups to continue to use the Range. ... The Government's decision in relation to the Malabar Headland site will permit shooting groups' ongoing access to a centrally located range in the Sydney basin. ..."

No reference was made to clause 6.2 of the deed or the condition of the Buildings.

On 28 April 2011 the Commonwealth advised the NSWRA that whilst the licences of other licensees had been terminated, the NSWRA was at that time unaffected due to the relocation clause included in its licence. Mr Fitzgerald was advised that the Commonwealth was considering the appointment of a consultant to act in co-operation with it to identify a suitable alternative site. Mr Fitzgerald was advised that the licences of other licensees had been terminated due to the continuing contamination of the complex by asbestos and the obligation by the Commonwealth to implement a remediation action plan to manage the contamination. Asbestos contamination was a major consideration for the Commonwealth. For the reasons previously given, the Commonwealth assumed the obligation to deal with that problem.

As noted earlier in these reasons, on 28 September 2011 the Commonwealth through Mr Scott-Murphy advised Mr Ashton of the NSWRA that it would remain on Malabar until a suitable alternative site was available for its relocation. Although Mr Scott-Murphy resiled from that assurance on 7 October 2011, he did not say anything to indicate that the NSWRA was in breach of any of its obligations under the licence. The relevant paragraphs of his letter are quoted at para [26] above.

This letter was consistent with the Commonwealth's previous conduct that it addressed safety issues of concern itself, rather than asserting that the NSWRA was obliged to deal with such issues in accordance with clause 6.2

By its conduct over more than a decade, the Commonwealth lulled the NSWRA into the belief that the Commonwealth would not insist on punctilious performance of the NSWRA's obligations under clause 6.2. Whilst that does not preclude the Commonwealth from changing its stance, it does make it unconscientious for the Commonwealth to seek to terminate the licence on the basis of the NSWRA's failure to comply with the remedy notices.

For the reasons previously given, it is no answer for the Commonwealth to say that it is in the public interest that it be allowed to exercise its strict legal rights because it wishes to change the use of the land. Whether its reliance on its strict legal rights would be unconscientious is to be assessed, so far as possible, in the same way as if the suit were between subject and subject. Whether the Commonwealth would be acting against conscience in enforcing its strict legal rights (assuming that it were entitled to do so) is to be determined having regard to its contract with the NSWRA and its conduct towards the NSWRA, and not by wider political considerations.

For these reasons, had the question arisen, I would have found that the NSWRA was entitled to relief against forfeiture of its contractual licence.

Proposed Transfer Lot 2 to New South Wales

By clause 2.1 of the Licence the Commonwealth granted to the NSWRA during the Term a non-exclusive licence for it and its agents, employees, members, licensees, contractors and invitees to use the "Licensed Range". The grant of an exclusive licence to use the Buildings and the Licensed Area (being an area surrounding the Buildings) was ancillary to the right to use the Licensed Range as defined at [16].

The licence recited that the Commonwealth owned "the Range". This was defined to mean "the land in folio identifier 1/809094 known as ANZAC Rifle Range off Franklin Street, Malabar". The Buildings and the Licensed Area are located on that land. The NSWRA submits that the land around the former Lot 1 forming the perimeter of the headland, namely Lot 2, in so far as it forms part of the safety template for the shooting ranges, are part of the Licensed Range which the NSWRA is entitled to use. Mr Ellicott QC for the NSWRA submitted that the safety templates are an integral part of the range, and the range cannot be used without the safety template.

The fact that the "Range" is defined as being only the land in folio identifier 1/809094 does not mean that the "Licensed Range" which the NSWRA is entitled to use is limited to that lot. The definition of "Licensed Range" encompasses whatever is meant by the expressions "Fullbore Classification Range" and "Service Classification Range" plus the two other smaller ranges. The definition of the word "Range" is not incorporated into the descriptions of the four ranges. Thus the Service Classification Range is not the land in former folio identifier 1/809094 known as the ANZAC Rifle Range. The definition of "Range" applies to that part of the licence which refers to "the Range" (e.g. Recital A and the definition of "Caravan Park" and clauses 2.3 and 2.4). Clause 2.3 contains a warranty by the NSWRA that it was not induced to enter into the licence by any statement, warranty or representation made by or on behalf of the Commonwealth "in respect of the Range, the Licensed Area or the Licensed Range or the Caravan Park or anything relating to, or which could have an effect on the Range, the Licensed Area, the Licensed Range or the Caravan Park ...".

It is clear from this and other parts of the document that the "Licensed Range" is not the same thing as "the Range" as defined, being merely Lot 1. There is a plan annexed to the deed that forms part of the licence. It depicts amongst other things the Full Bore Classification Range, the Service Classification Range and the 100m Zero/Pistol range. It also depicts the danger zone that extends across substantial parts of Lot 2 and describes that area as the danger zones for particular ranges.

Clause 5.3 requires the NSWRA to comply with the "Management Plan". The "Management Plan" means the Management Plan described as such in the Licence Exhibit. There is no document in the Licence Exhibit that is described exactly as a Management Plan. There is a document entitled "ANZAC Rifle Range Management Plan" and it is this document to which reference is made. The Management Plan in turn includes the Range Safety Rules. Clause 5.2 also requires the NSWRA to comply with the Range Safety Rules. Attached to the Management Plan is a map which again shows both the rifle ranges and the firing templates (that is, the safety templates) across Lot 2.

The Rifle Range Safety Rules contain operating instructions in respect of the use of the shooting ranges, prescribe a grid for the line of fire for each range, and define the danger template for each range. Behind the targets there is a stop butt, being an earthen mound. It is rare for any projectile to go beyond the stop butt, but the danger zone or safety template is provided to ensure safety to the public. The principal risk in the danger zone would be from a ricochet. Use of the shooting range requires the approval of the NSW Police Firearms Registry. This is given under the Firearms Act 1996 (NSW). A condition of the approval is that prior to any live firing, the ANZAC Rifle Range User Committee (which includes the NSWRA) is:

"To ensure that a full physical check is made of the Range complex and all restricted areas including the headland, to ensure that the areas are devoid of any unauthorised person/s."

The approval also states that whilst live firing is in progress, picquets are to be positioned at predetermined locations to deny or report any unauthorised access to any restricted areas.

I infer that such conditions would have been in place from and prior to the commencement of the licence. The Rifle Range Safety Rules (forming part of the Licence Exhibit) provide for the flying of red danger flags when the area is a live firing range. Clause 5.1 of the Rifle Range Safety Rules provides that if a member of the public "enters a live firing range during a practice or event, all shooting must cease immediately ...". I infer that this refers both to a member of the public entering the areas designated as shooting ranges on Lot 1 and entering the danger zone on Lot 2.

In my opinion the licence given to the NSWRA to use the Licensed Range included a licence to use that part of Lot 2 that was designated as the danger zone.

The NSWRA pleaded that the licensed ranges of which it had a non-exclusive licence were "on the Range", the Range being the land formerly in folio identifier 1/809094 and now in folio identifier 101/1162245. It pleaded that it was an implied term of the deed of licence that the Commonwealth do all things necessary on its part to enable the NSWRA to have the benefit of the Licence and to refrain from doing anything which would have the effect of rendering the benefit of the Licence to the NSWRA nugatory. It pleaded that:

"The transfer of either the Range or that part of Lot 2 which constitutes the Danger Zone from the defendant to a third party during the Term would:

(a) have the consequence that the Plaintiff and its members would not longer be permitted to undertake the activities of rifle and pistol shooting on the Range;

(b) therefore be a breach of the Licence and/or the Implied Term."

In the course of final submissions Mr Ellicott QC made it clear that the NSWRA contended that the safety template as shown on the plan annexed to the Licence Deed and the ANZAC Rifle Range Management Plan were so intrinsically and indispensably connected with the range that a licence to use the range carried with it the right to have that part of Lot 2 which represents the safety template available as such when the range is in use. (T148). He described this as the "intrinsically part of the range argument".

I understand this argument to be that the safety template or danger zone is part of the "Licensed Range" which is the subject of the grant of the licence in clause 2.1. That submission is within the plaintiff's pleading.

In its amended statement of claim the NSWRA pleads that the transfer of either the land in folio identifier 101/1162245, or that part of Lot 2 which constitutes the danger zone, would be both a breach of the licence and a breach of an implied term. The licence was described as the deed whereby the Commonwealth agreed to grant to the NSWRA, amongst other things, a non-exclusive licence to use the licensed ranges on the Range.

It is not necessary to resort to the implication of a term that the Commonwealth not derogate from its grant, nor a term of co-operation, or its corollary that the Commonwealth not act so as to prevent the NSWRA from having the benefit of the licence. Such terms are to be implied. Even if the only licence expressly conferred were in respect of the use of Lot 1, it would be implied that the Commonwealth could not do or allow things to be done on Lot 2 that was inconsistent with the purposes for which the Licence to use Lot 1 was granted (Peter Butt, Land Law, 6th ed at [1567]). But the threatened transfer of Lot 2 without securing to the NSWRA the continued right to use the Licensed Range that includes the safety template (or danger zone) on Lot 2 is an anticipatory breach of the express term giving it a licence to use the Licensed Range.

It was submitted for the Commonwealth that the implied term of co-operation does not require the Commonwealth to bring about something which the licence does not require to happen (citing Australis Media Holdings Pty Ltd v Telstra Corp Limited (1998) 43 NSWLR 104 at 124). The Commonwealth submitted that there is nothing in the terms of the licence which restricts the Commonwealth's power to deal with Lot 2 as it sees fit. It submitted that the Commonwealth had made no promise as to how Lot 2 should be dealt with. I do not agree. In my view, the licence to use the Licensed Range included a promise that the safety template or danger zones, which were an integral part of those ranges, could be used. No doubt if the Licensed Range were modified by the Commonwealth so that no safety template or danger zone on Lot 2 was required for their continued use, then Lot 2 could be transferred, because the danger zone or safety template would cease to be part of the Licensed Range. But whilst it is a part of the Licensed Range, the Commonwealth must permit the NSWRA to use it for so long as the licence remains on foot.

The Commonwealth submitted that whilst the principle against derogation from a grant might restrain a land owner from using or allowing the use of adjoining land that he owned or controlled in a way that derogated from a grant, that principle could not prevent the owner from selling such adjoining land.

As a general proposition that is not correct, if it means that the land owner could not be restrained from dealing with adjoining land if the proposed dealing would place the owner in breach of contract. In the present case, the Commonwealth has given the NSWRA the right to use the Licensed Range until the expiry of the Term, that is, until 14 days after it gives a Relocation Notice. The right to use the Licensed Range includes the right to use Lot 2 as a safety template or danger zone. The Commonwealth is not entitled to deal with Lot 2 (or Lot 1) inconsistently with that licence. If the land were transferred on terms that secured to the NSWRA the same rights as it presently enjoys, then the Commonwealth would not be in breach of the licence. For that to be done the contract providing for the transfer of land would have to give the NSWRA the same rights against the transferee, that is, the State of New South Wales, as it presently enjoys against the Commonwealth. The NSWRA would have to be entitled to enforce those rights against New South Wales. The proposal to transfer the land in a way that does not secure such rights is an anticipatory breach by the Commonwealth of the licence.

By an undated deed said to have been made on 27 February 2011 the Commonwealth made an agreement with the Minister administering the National Parks and Wildlife Act 1974 (NSW) as to the processes to be followed that are anticipated to lead to the transfer of Lot 2 to the Minister for reservation of the land as a national park under Part 4 of the National Parks and Wildlife Act. The agreement recites that pursuant to a deed of transfer dated on or about 27 February 2011, the Commonwealth had transferred by way of gift to the Minister a portion of land at Malabar (Lot 4) to be reserved as a national park under Part 4 of the National Parks and Wildlife Act. Lot 4 is land lying to the west of the Range. The agreement between the Commonwealth and the NSW Minister and the Director-General of the NSW Department of Environment, Climate Change and Water provides for the carrying out of fencing and remediation works and the conduct of a heritage assessment and other matters preparatory to the transfer of Lot 2 to New South Wales for use as a national park.

The Malabar Headland Protection Bill has not become law, although it might become law in the near future. The Bill defines "Malabar headland property" as any land that, as at the end of 15 March 2011, consisted of Lots 101 and 102 of DP 1162245 or Lot 2 of DP 809094. (Lots 1 and 4 in DP 809094 were subdivided into Lots 101 and 102 of DP 1162245 on 15 March 2011.) The Bill defines "transferred Malabar headland property" as any Malabar headland property that has been transferred by the Commonwealth to New South Wales, including Malabar headland property that was transferred to New South Wales before the Act commences. Lot 102 of DP 1162245 (essentially what was formerly Lot 4 of DP 809094) was transferred on 2 March 2012 pursuant to a deed of transfer of 27 February 2011. Clause 8 of the Bill provides that New South Wales must use "transferred Malabar headland property" for the purpose for which a national park may be reserved under the NSW National Parks and Wildlife Act with the primary purpose being conservation, or a purpose prescribed by regulations. Clause 9 provides that New South Wales must manage transferred Malabar headland property, or cause it to be managed, either in accordance with regulations to be prescribed for the purposes of the section or, in relation to a particular action or omission proposed in the course of the management of the property, with the prior written consent of the Commonwealth Minister to that action or omission. Once the Malabar headland property is transferred to New South Wales, New South Wales must not dispose of a legal or equitable interest in the property or do anything for the purpose of effecting such a disposition without obtaining the prior written consent of the Commonwealth Minister (clause 10).

As noted earlier in these reasons, the Bill neither effects a transfer of the Malabar headland to New South Wales, nor authorises nor regulates the transfer of the property. The Bill, if it becomes law, would regulate the use to which the property could be put once it has been transferred, that is, only as a national park and in some respects, subject to the control of the relevant Commonwealth Minister. By clause 5 of the Bill, the Act is to operate only to the extent that is reasonably appropriate and adapted for either or both of the purposes of fulfilling Australia's obligations under the Biodiversity Convention (being the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992 as amended and in force for Australia from time to time), or for the protection or promotion of Aboriginal cultural heritage, or ancillary purposes.

The Commonwealth submitted that if the Bill is passed, it will "sanction" the use of the headland as a national park. The Commonwealth submitted that this would "destroy" the contract with the NSWRA that was inconsistent with that use. The Commonwealth referred to Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (Thomson's Case) [1948] HCA 24; (1948) 77 CLR 1 per Dixon J at 28 where his Honour said, "[a] statute destroys all contracts which stand in the way of its operation."

No doubt if Lot 2 (or Lot 101 in DP 1162245) were transferred to New South Wales, the land could only be used as a national park. I understood it to be common ground that the use of either lot as a national park would not be consistent with the use of the Licensed Range as a rifle range. Lieutenant Colonel Bell deposed that the NSW Firearms Registry requires a letter of "Permissive Firing Rights" from the land owner for any portion of the danger area that is not under the direct control of the Range User. He deposed that if the area beyond the stop butt on the Malabar Range were handed over to the NSW Government, the NSWRA would require a letter of Permissive Firing Rights signed by the NSW Government for the part of the headland area used during live firing practices. If the NSW Government were to deny Permissive Firing Rights, there could be no shooting activities on the rifle range. Neither the evidence nor the parties' submissions addressed the question whether the NSW Government could provide such a letter consistently with the use of Lot 2 as a national park. The Commonwealth's submission that the Malabar Headland Protection Bill, if it became law, would destroy the contract assumes that that would not be consistent with the use of Lot 2 as a national park.

If the Bill becomes law, and if Lot 2 is transferred to New South Wales, then Lot 2 must be used as a national park. But the Bill (if it became law) would not have any operation on the anterior question whether the Commonwealth is entitled to transfer Lot 2 to New South Wales if, as a result, the NSWRA could not use the Licensed Range for rifle shooting. The Bill applies only to land once it has been transferred. It is silent as to whether the Commonwealth is entitled to transfer the land to New South Wales consistently with its contractual obligations. If the Bill becomes law it would not destroy the contract between the NSWRA and the Commonwealth. The NSWRA is entitled to an injunction to restrain the Commonwealth from transferring the land because that is an anticipatory breach of contract.

For the reasons given earlier, the so-called doctrine of executive necessity does not relieve the Commonwealth from its contractual obligations.

For these reasons the NSWRA is entitled to an injunction to restrain the Commonwealth from transferring Lot 2, unless such a transfer can be effected in a way that continues to secure the NSWRA's right to use the Licensed Range as a rifle range, which includes its use of the danger zone or safety template on Lot 2.

Application to restrain the Commonwealth from dealing with the land in Folio Identifier 101/1162245

The NSWRA seeks an injunction to restrain the Commonwealth from selling, transferring, encumbering or otherwise dealing with the land in folio identifier 101/1162245 (formerly Lot 1) while the NSWRA is in possession of any part of it. No submissions were addressed to this question. Whilst it is clear that the Commonwealth wishes to transfer the whole of the Malabar headland in due course to New South Wales, it also appears that New South Wales requires remediation of the land containing contamination before a transfer occurs. There is no immediate threat for the transfer of the former Lot 1. The Commonwealth can be expected to abide by a declaration as to the NSWRA's right to use the Licensed Range and the Buildings and the Licensed Area for so long as the licence is on foot, and to abide by declaration that it would be a breach of that licence for the land that was formerly Lot 1 to be transferred to a third party whilst the licence is on foot without securing to the NSWRA a right to enforce against a transferee the rights it enjoys under the licence.

Such a declaration should be made.

Conclusion and orders

The NSWRA sought declarations that the remedy notices were void and of no effect. It is not entitled to declarations in those terms. The remedy notices may have some effect. They could be relevant if the Commonwealth gives a future remedy notice under clause 10.1(b). A question may arise whether the Commonwealth was acting reasonably and in good faith in giving a future notice under that clause. If such a question arises, the terms of an earlier notice could well be relevant. The NSWRA is entitled to a declaration that the Commonwealth is not entitled to terminate the deed of licence by reason of the NSWRA's non-compliance with the three remedy notices.

By its cross-claim in the 2012 proceedings the Commonwealth sought a declaration that the Buildings were not in a good and safe state of repair as at 25 January 2012. Whilst I have made a finding about that, it is not appropriate to make a declaration. No legal right would be determined by the making of such a declaration.

The Commonwealth also sought a declaration that the NSWRA had failed to repair damaged asbestos materials and either seal them or have them removed by a licensed contractor in accordance with the WorkSafe Australia Asbestos Code of Practice and had failed to label asbestos-containing materials and had failed to paint the exposed edges of damaged sheeting. Whilst the NSWRA has not done that work, it is not appropriate to make such a declaration. Again, such a declaration would not affect any legal right. It would not lead to any substantive order. For the same reason, it is not appropriate to make the declaration sought by the Commonwealth that the NSWRA failed to comply with the Fire Safety Management Plan.

The NSWRA did not seek a declaration that it was not obliged to carry out work in relation to asbestos-containing materials.

The Commonwealth sought declarations that each remedy notice was valid. For the reasons I have given, those declarations should be refused. It also sought a declaration that the licence is terminable by the Commonwealth at will or upon giving reasonable notice to the NSWRA. For the reasons I have given, that declaration should be refused. The Commonwealth sought a declaration that the Commonwealth, by service of the cross-claim, had terminated the licence and sought an order for possession. For the reasons I have given, that declaration and order should also be refused.

As noted earlier in these reasons, the NSWRA did not pursue claims under the Australian Consumer Law. No claim for damages was pressed and no damages were proved. Those claims should be dismissed. The NSWRA sought relief from forfeiture pursuant to s 129(2) of the Conveyancing Act 1919 or in equity. As I have concluded that the NSWRA is not a lessee, it is not entitled to relief under s 129 of the Conveyancing Act. On my findings, it does not need relief against forfeiture.

Although the Commonwealth has withdrawn its notice purportedly terminating the Licence on three months' notice, the NSWRA is entitled to the declaration sought in the 2011 proceeding that the deed does not contain a term that it may be brought to an end upon the service of a notice by the Commonwealth giving reasonable notice of its intention to terminate the deed. The NSWRA is also entitled to a declaration that the licence has not been terminated. It is entitled to a declaration that whilst the deed of licence is on foot, the Commonwealth is not entitled to transfer the land in folio identifier 101/1162245 or Lot 2 of DP 809094 without securing to the NSWRA the right to enforce against a transferee the rights it enjoys under the licence. It is entitled to an injunction to restrain the Commonwealth from transferring Lot 2 without securing those rights.

For these reasons I make the following declarations and orders.

In proceedings 41950 of 2012:

1. Declare that the defendant is not entitled to terminate the deed of licence between the plaintiff and defendant dated 15 March 2000 ("the Licence") by reason of the plaintiff's failure to comply with:

(a) the notice issued by the defendant to the plaintiff dated 25 January 2012 (the First Remedy Notice); or

(b) the notice issued by the defendant to the plaintiff dated 29 March 2012 (the Second Remedy Notice); or

2. Order that the defendant be restrained from purporting to terminate the Licence and to exclude the plaintiff or its members from using the ANZAC Rifle Range at Malabar, New South Wales in accordance with the provisions of the Licence by reason of non-compliance by the plaintiff with the First Remedy Notice, the Second Remedy Notice or the Third Remedy Notice.

3. Order that the plaintiff's claims for relief in the Second Further Amended Statement of Claim be otherwise dismissed.

4. Order that the defendant's claims for relief in the Further Amended Cross-Claim be dismissed.

In proceedings 393228 of 2011:

1. Declare that the defendant has not validly terminated the plaintiff's right to occupy the Buildings and Licensed Area or to use the Licensed Range in accordance with the deed of licence between the plaintiff and the defendant dated 15 March 2000 ("the Licence").

2. Declare that the defendant is not entitled to terminate the Licence at will or on reasonable notice, otherwise than in accordance with clause 10.2(b) of the Licence.

3. Declare that the defendant is not entitled to transfer the land at Malabar in folio identifier 101/1162245 or folio identifier 2/809094 for so long as the plaintiff is entitled to occupy the Buildings and the Licensed Area and to use the Licensed Range in accordance with the Licence, unless the defendant ensures that the plaintiff is entitled to enforce against a transferee the same rights in respect of that land as it enjoys under the Licence.

4. Order that the defendant be restrained from transferring the land at Malabar being the land in folio identifier 2/809094 for so long as the plaintiff is entitled to occupy the Buildings and Licensed Area and to use the Licensed Range in accordance with the Licence unless the transfer is on terms that entitle the plaintiff to enforce against a transferee the same rights as it enjoys under the Licence.

5. Reserve proceedings for further consideration, and grant liberty to apply or to restore the proceedings, if questions arise as to whether a proposed dealing is consistent with declaration 3, or is prohibited by order 4.

6. Order that the claims for relief in the Amended Statement of Claim be otherwise dismissed.

I will hear the parties on costs. Prima facie the NSWRA is entitled to its costs of both proceedings.

Amendments

21 August 2012 - Folio Identifier 101/162445 is incorrect and replaced with 101/1162245.

Amended paragraphs: 49, 251, 254, 267 (including sub-heading above 267), 275 and 278

Decision last updated: 21 August 2012

Medium Neutral Citation:	NSW Rifle Association Inc v The Commonwealth of Australia [2012] NSWSC 818
Hearing dates:	12-15 June 2012
Decision date:	20 July 2012
Jurisdiction:	Equity Division
Before:	White J
Decision:	Refer to paras [276]-[278] of judgment.
Catchwords:	CONTRACT - termination - contractual licence to occupy Commonwealth land - doctrine of executive necessity - whether the Commonwealth can terminate licence contrary to express contractual terms because of a change of policy concerning use of the land - contract entered into as present exercise of power as owner of land - not a fetter on future exercise of duty or discretion under statute or prerogative - held termination not justified on ground of executive necessity CONTRACT - implied terms - whether the Commonwealth required to act reasonably and in good faith in exercising contractual power to require licensee to remedy default and to fix time for default to be remedied CONTRACT - performance - obligation to keep buildings in good and safe repair - obligation to keep in good and safe repair includes requirement to first put into good and safe repair - whether obligation displaced by expectation of parties when entering into licence for anticipated short duration REAL PROPERTY - whether agreement for use and occupation of land was lease or licence CONTRACT - whether jurisdiction to grant relief against forfeiture of contractual licence to occupy land - if Commonwealth entitled to terminate licence for licensee's failure to remedy defaults within specified time limited, whether licensee entitled to relief against forfeiture
Legislation Cited:	Associations Incorporation Act 1984 (NSW) Defence Act 1903 (Cth) Pipeline Authority Act 1973 (Cth) Judiciary Act 1903 (Cth) Conveyancing Act 1919 (NSW) Firearms Act 1996 (NSW) National Parks and Wildlife Act 1974 (NSW)
Cases Cited:	NSW Rifle Association Inc v The Commonwealth of Australia (26 April 1990, Waddell CJ in Eq, unreported; BC9002511) NSW Small-Bore and Air Rifle Association Inc v Commonwealth of Australia; NSW Rifle Association Inc v Commonwealth of Australia (Supreme Court of New South Wales, Bryson J, 22 July 1994, unreported; BC9405172) NSW Rifle Association Inc v Commonwealth of Australia (Court of Appeal, 15 August 1997, unreported; BC9703604) Ayr Harbour Trustees v Oswald (1883) 8 HL 623; (1882-83) LR 8 App Cas 623 Watson's Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268 William Cory & Son Ltd v London Corporation [1951] 2 KB 476 Commissioners of Crown Lands v Page [1960] 2 QB 274 Cugden Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520 L'Huillier v State of Victoria [1996] 2 VR 465 City of Subiaco v Heytesbury Properties Pty Ltd [2001] WASCA 140; (2001) 24 WAR 146 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 ("The Amphitrite") Robertson v Minister of Pensions [1949] 1 KB 227 Reilly v R [1934] AC 176 Suttling v Director-General of Education [1985] 3 NSWLR 427 Dunn v R [1896] 1 QB 116 Director-General of Education (NSW) v Suttling [1987] HCA 3; (1987) 162 CLR 427 Jarratt v Commissioner of Police for NSW and State of New South Wales [2005] HCA 50; (2005) 224 CLR 44 Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 A v Hayden [1984] HCA 67; (1984) 156 CLR 532 Board of Trade v Temperley Steam Shipping Co Ltd (1926) 26 Ll L Rep 76 Board of Trade v Temperley Steam Shipping Co. Ltd (1927) 27 Lloyds L Rep 230 William Cory & Son Limited v London Corporation [1951] 2 KB 476 Portland Pty Ltd v State of Victoria [2009] VSC 282; (2009) 27 VR 366 Northern Territory of Australia v Skywest Airlines Pty Ltd (1987) 48 NTR 20; 90 FLR 270 Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164 Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362 Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455 Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351 Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605 Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 Manock v State of South Australia (1979) 83 LSJS 64 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 Byrne & Frew v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33 Vodafone Pacific Limited & Ors v Mobile Innovations Limited [2004] NSWCA 15 Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; (1972) 128 CLR 529 Pierce Bell Sales Pty Ltd v Frazer [1972] HCA 13; (1972) 130 CLR 575 Gardiner v Orchard [1910] HCA 18; (1910) 10 CLR 722 Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Oliver v Commonwealth Bank of Australia [2011] FCA 1440 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 588 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Proudfoot v Hart (1890) 25 QBD 42 Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703 Mannai Investment Co Limited v Eagle Star Life Assurance Co Ltd [1997] AC 749 Delta Vale Properties Ltd v Mills [1990] 1 WLR 445 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Fletcher v Nokes [1897] 1 Ch 271 Radaich v Smith (1959) 101 CLR 209 Addiscombe Garden Estates Limited v Crabbe [1958] 1 QB 513 Chaka Holdings Pty Limited v Sunsim Pty Ltd (1987) NSW ConvR 55-367 Lewis v Bell (1985) 1 NSWLR 731 Lace v Chantler [1944] KB 368 Proctor v Milton (1987) NSW ConvR 55-321 Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana [1983] 2 AC 694 Legione v Hateley [1983] HCA 11; (1983) 152 CLR 456 Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 Hewitt v Debus [2004] NSWCA 54; (2004) 59 NSWLR 617 Australis Media Holdings Pty Ltd v Telstra Corp Limited (1998) 43 NSWLR 104 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (Thomson's Case) [1948] HCA 24; (1948) 77 CLR 1
Texts Cited:	"A Case Book on Constitutional Law" (1929) 45 LQR 162 A History of English Law, 1938 Vol 10 Hogg & Monahan, Liability of the Crown, 3rd ed (2000) Mitchell, "The Contracts of Public Authorities", London School of Economics and Political Science, 1954 M Allars, Administrative Law, Government Contracts and the Level Playing Field, (1989) 12 UNSWLJ 114 Commonwealth of Australia v Hooper [1992] NSWCA 44; (1992) Aust Contract R 90-010 Seddon, Government Contracts, 5th ed, Federation Press Blackstone, Commentaries on the Laws of England, 1765, Book 1 R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th ed LexisNexis Butterworths Greig & Davis, The Law of Contract, Law Book Co 1987 P Butt, Land Law, 6th ed, Thomson Reuters
Category:	Principal judgment
Parties:	NSW Rifle Association (Plaintiff)
Representation:	Counsel: R J Ellicott QC with N Kabilafkas (Plaintiff) B R McClintock SC with B D Kaplan (Defendant) Solicitors: Hunt & Hunt (Plaintiff) Ashurst (Defendant)
File Number(s):	2011/393228 2012/41950