The Paul Dainty Corporation P/L v The National Tennis Centre Trust
[1989] FCA 212
•17 MAY 1989
Re: THE PAUL DAINTY CORPORATION PTY. LTD. and PAUL DAINTY PRODUCTIONS
PTY. LTD.
And: THE NATIONAL TENNIS CENTRE TRUST; THE VICTORIAN ARTS CENTRE TRUST
and OLYMPIC PARK MANAGEMENT
No. VG 255 of 1988
FED No. 212
Trade Practices
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney J.(1)
CATCHWORDS
Trade Practices - exclusive Dealing - whether there was - Application of Trade Practices Act to National Tennis Centre Trust Victorian Arts Centre Trust and Olympic Park Manangement.
Victorian Arts Centre (Amendment) Act 1988 - construction of.
Crown - Immunity from Statute - whether the National Tennis Centre Trust, Victorian Arts Centre Trust and Olympic Park Management are instrumentalities of the Crown", whether they are related corporations.
Trade Practices Act 1979 ss.4, 47, 51.
Victoria Arts Centre (Amendment) Act 1988
Re Ku-ring-gai Co-operative Building Society (No.12) Ltd. (1978) 36 FLR 134
Castlemaine Tooheys Limited v. Williams and Hodgson Transport
Proprietory Limited (1986) 162 CLR 395
Bradken Consolidated Limited v. The Broken Hill Proprietory Company Limited (1979) 145 CLR 107
Inglis v. Commonwealth Trading Bank of Australia (1969) 119 CLR 334
The Victorian Railways Commissioners v. Herbert (1949) VLR 211
Wynyard Investments Pty. Ltd. v. Commissioner of Railways NSW (1955) 93 CLR 376
State Superannuation Fund Investment Trust v. Commissioner of Stamps SA 1978-1979 145 CLR 330
Townsville Hospitals Board v. Townsville City Council 42 ALR 319
Burgundy Royale Investments Pty. Ltd. v. Westpac Banking Corporation 76 ALR 173
HEARING
MELBOURNE
#DATE 17:5:1989
Counsel for the Applicants: Mr. R. Merkel Q.C. with
Mr. D. Shavin and Mrs K.J. Howard
Solicitor for the Applicants: M.G. Caldwell
Counsel for the First and Third
Respondent: Dr. P. Buchanan Q.C. with
Mr. R. Macaw Q.C.
Solicitors for the First Respondent: Freehill, Hollingdale and Page
Solicitor for the Third Respondent: Stedman Cameron
Counsel for the Second Respondent: Mr. K.M. Hayne Q.C. with
Mr. J.W.K. Burnside
Solicitors for the Second Respondent: Arthur Robinson and Hedderwicks
ORDER
The application be dismissed with costs including reserved costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicants' claims in this case are made pursuant to Sections 47(1), 47(8)(c) and 47(9)(d) of the Trade Practices Act 1974 (Cth.) ("the Act").
The firstnamed applicant, Paul Dainty Corporation Pty. Ltd. (PDC), was established by Paul Dainty in November 1972. Since that time, it has organized tours of international concert artists throughout Australia. In May 1978, the secondnamed applicant, Paul Dainty Productions Pty. Ltd. (PDP), a company also controlled by Paul Dainty, acquired the Comedy Theatre in Melbourne, together with its box office.
Since this acquisition, PDP has continued to operate the Comedy Theatre and to conduct its box office operations, which had previously been carried on by J.C. Williamson Ltd. For a number of years PDP has carried on the business of a ticket booking and selling agency for concerts within the Melbourne Metropolitan area under the business name "Ticket Master".
The firstnamed respondent, The National Tennis Centre Trust ("NTCT"), was established pursuant to the provisions of the National Tennis Centre Act, 1985 (Vic). The secondnamed respondent, The Victorian Arts Centre Trust ("VACT"), was established pursuant to the provisions of the Victorian Arts Centre Act, 1979 (Vic). Part of its business is carried on under the business name B.A.S.S. (Best Available Seating Services Victoria) ("BASS"). The thirdnamed respondent, Olympic Park Management ("OPM"), was established pursuant to the provisions of the Crown Land (Reserves) Act 1978 (Vic).
Sections 47(1), (8), (8)(c), 47(9), and (9)(d) of the Act read as follows:
"47(1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing.
...
47(8) A corporation also engages in the practice of exclusive dealing if the corporation grants or renews, or makes it known that it will not exercise a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building on the condition that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate-
...
(c) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation. 47(9) A corporation also engages in the practice of exclusive dealing if the corporation refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a licence in respect of, land or a building or part of a building for the reason that another party to the lease or licence or, if that other party is a body corporate, a body corporate related to that body corporate- ...
(d) has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to the corporation.".
Section 4(1) of the Act defines "acquire" as including in relation to services "accept". Section 4(1) also defines services as including any rights, benefits, privileges or facilities that are or are to be provided, granted or conferred in trade or commerce.
Section 4(1) defines supply, when used as a verb in relation to services, as including "provide, grant or confer".
NTCT's venue is known as the National Tennis Centre. OPM's venues are the Melbourne Sports and Entertainment Centre and the Olympic Park Sports Ground. All three venues are situated in Melbourne.
The applicants seek certain declarations that they are entitled to damages in respect of what they claim to be past breaches of the Act, and injunctions to restrain the respondents from engaging in conduct in breach of the Act. It has been agreed between the parties that the court should not, at this stage of the case, deal with any question of the amount of any such damages. The application relates to performances by Pink Floyd and Mick Jagger and proposed performances by the Europe Group.
The parties have agreed upon a chronology, which reads as follows:
"DATE SUBSTANCE EVIDENCE Dec 1978 Victorian Arts Centre Building Committee ("the Committee") (the predecessor of the VACT) commences operating the BASS ticketing system GF para 25 1979 The Committee begins selling tickets on BASS for events held at various theatre restaurants, theatres and cinemas in Melbourne, and also commences selling tickets for VFL home and away games GF para 26 20/12/79 Victorian Arts Centre Act assented to VACT established and takes over functions of the Committee GF para 28 Late 1979 Committee presents annual report to Parliament for year ended 30 June, 1979, disclosing revenue from tickets sold through the BASS system GF 27 Exhibit GJF5 13/03/80 Victorian Arts Centre Act comes into operation GF para 28 1982 Melbourne Concert Hall starts operation GF para 28 1984 Theatres in Victorian Arts Centre complex commence operation GF para 36 Late 1987 NTC and OPM enter into agreement in principle with VACT to grant an Nicholson exclusive ticketing agency to the VACT T,348 James T,317-8 Nicholson tells Dainty that PDC would be 1st Affidavit required to sell its tickets at the NTC PND-44 through BASS Victoria
18/11/1987 Letter from NTC to PDC enclosing a blank copy of the Hiring Agreement for the Pink Floyd concerts at the National Tennis Centre PND-11 25/11/1987 Letter from PDC to NTC confirming that tickets for the first Pink Floyd Concert were to go on sale on Monday November 30th and advising that at that stage the hiring Agreement had not been signed PND-12 5/1/1988 Letter OPM to PDC confirming that Olympic Park Management had entered into a contract with Bass Victoria whereby tickets for all performances at Olympic Park and the Melbourne Sports and Entertainment Centre must be sold through Bass and that tickets for George Michael concerts could be sold through the Comedy Theatre and MSEC PND-18 14/1/1988 Agreement entered into between OPM and PDC for the Fleetwood Mac Concerts to be held on the 18th and 19th April, 1988 (the pre-July 1988 OPM Agreement) at the MSEC PND-16 13/17 Pink Floyd Concerts held in accordance Feb. 1988 with the terms of a form of Agreement PND-10 which was never executed 1 PND Aff 49 18/3/1988 Letter from Ministry of Consumer Affairs to Bass re complaint by Mr. Bonoguare relating to the last Pink Floyd Concerts PND-14 18/19 Fleetwood Mac concerts held at MSEC April, 1988
21/4/1988 OPM and VACT enter into exclusive ticketing agreement GF-14 22/4/1988 Letter from Bass to Mr. Bonoguare advising inter alia that a copy of his letter had been forwarded to the Promoters, PDC PND-15 18/5/1988 NTCT and VACT enter into exclusive ticketing arrangement GF-15 15/6/1988 Letter NTCT to PDC enclosing Hiring Agreements for Jagger Concerts PND-20 23/6/1988 Letter from PDC Solicitors to NTCT PND-21 Solicitor seeking changes to the Hiring Agreement
24/6/1988 Letter NTCT to PDC confirming that NTC not prepared to consider any of the amendments to the Tennis Centre Hiring Agreement proposed in letter of the 23/6/1988 PND-22 5/7/1988 Letter PDC Solicitors to NTCT Solicitors accepting Licence of the NTC on behalf of PDC under protest and enclosing a deposit of $5,000.00 PND-23 15/7/1988 Application issued in Victoria District Registry of Federal Court NTC Solicitor returned deposit cheque confirming that 'the proposal to have the venues finalized only be by execution of the agreement by both parties payment of the deposit of $5,000.00 on receipt by the Centre of your executed copy' 19/7/1988 First directions hearing and application by Applicants for Interlocutory relief. Directions made and Interlocutory application adjoined (sic) to 23/9/1988 27/7/1988 NTCT and PDC agree upon supplementary terms and conditions to Hiring Document 2 Agreement for the Mick Jagger concerts MGC-1 1/8/1988 Tickets for Mick Jagger Concerts went 1st Aff on sale DJL-30 Aug, 1988 OPM submits and subsequently withdraws a form of contract to be used for the 2nd Aff Europe Concerts PDN(sic)-55 8/9/1988 Letter Solicitors for OPM to Solicitor for PDC advising that OPM would not grant a licence to use the MSEC on terms which would allow PDC to sell his own tickets and that the Hiring Agreement was to be redrafted in view of the allegations of contravention of the Trade Practices Act PND-33 13/9/1988 OPM forwards a revised form of contract for the Europe Concerts to PDC GJ-3 28/9/1988 Letter Solicitors PDC to Solicitors OPM seeking amendments to proposed Agreement PND-30 for the Europe Concerts 29/9/1988 Letter Solicitors OPM to Solicitor for PDC denying the Licence Agreement was unlawful PND-31 3/10/1988 Letter PDC to OPM agreeing to execute Europe Concert Agreement under protest PND-29 18/10/1988 Last Jagger Concert held in Melbourne".
Under the late 1987 agreement in principle by NTCT and OPM with VACT to grant to it an exclusive ticketing agency "the standard form of contract that was prepared for hirings at the Tennis Centre was prepared with a view to ensuring that" NTCT was "in a position to grant an exclusivity to BASS under the standard form of contract" (Nicholson, Transcript 348).
Under the 21 April 1988 agreement, OPM appointed VACT "as its exclusive Agent to sell on behalf of OPM tickets to all events held at Olympic Park in accordance with the terms herein contained and the Terms and Conditions annexed hereto which are hereby incorporated herein as if they had been repeated herein in full". This agreement became Exhibit GF14. Under it OPM granted VACT the sole right and privilege to use the Box Office and any temporary ticket box located at the Entertainment Centre or Olympic Park for its business of ticketing at the times specified in the agreement. It was provided that the agreement "shall commence on the commencement date and shall continue for a period of three years". The commencement date was defined as 1 January 1988.
By clause 12 of the agreement it was provided that VACT should "hold the gross takings from ticket sales for each performance on behalf of OPM in a trust account in accordance with the Terms and Conditions annexed hereto". Under clause 3 of the Terms and Conditions VACT was entitled to charge the venue a booking fee for each ticket sold, and under clause 13.1 of the agreement VACT was to refund a percentage of those booking fees determined in accordance with the sliding scale set out in clause 13.2.
Under clause 5 of the Terms and Conditions VACT was entitled to "deduct its charges from the gross takings from ticket sales, on the day following a performance prior to paying the resulting net takings to the Venue".
Clause 6 provided for the handling of takings as follows:
"(a) Bass (i.e. VACT) shall pay the net takings to the Venue by 12 noon on the working day following each event or on such other date as is agreed. A statement setting out the gross receipts for an event and all charges deducted by Bass in calculating net takings, shall accompany each payment.
(b) In the event of a cancelled performance Bass will retain 100% of the takings for the purpose of effecting refunds. Monies unclaimed after 12 months will be remitted to the Venue.
(c) In the event of a postponed performance, Bass will withhold such takings as are agreed by the Venue and Bass as being sufficient to meet anticipated refunds.
(d) Bass may invest the gross takings from ticket sales for an event in Trustee Authorised Investments when such takings exceed $30,000 on the Monday of the second week following the week in which gross takings exceed $30,000. Bass shall pay the Venue the interest which accrues from such investments within 14 days of final settlement. Bass will deduct from the accrued interest an administrative charge of $50 for each week or part thereof the takings are invested. The Venue will pay the interest to the Promoter of the performance in respect of which the interest is earned within seven days of receipt of the interest from Bass.
(e) Bass may from time to time by notice in writing to the Venue change the level of gross takings at which it will invest or the amount of the administrative charge. However, Bass will not invest the gross takings if the administrative charge is likely to exceed the interest which should accrue.".
On 18 May 1988 NTCT and VACT entered into an agreement to the same effect as that between OPM and VACT, which became Exhibit GF15. Its commencement date was also defined as 1 January 1988.
In its original form, filed on 15 July 1988, the Statement of Claim included allegations -
1. that the venues of the respondents constituted the best four venues for the conduct of concerts of international concert artists within the Melbourne metropolitan area,
2. that VACT and OPM each had and at all material times exercised a substantial degree of power in each of the markets for the supply of ticketing services to be performed at the venues, and
3. the respondents had taken advantage of that power to eliminate or substantially damage PDP and any other competitor of VACT, trading as BASS and deterring or preventing PDP or any other competitor from engaging in competitive conduct in each of these markets.
At an early stage of the proceedings, the applicants deleted these allegations from their Statement of Claim.
The Floyd ConcertsIn the Second Further Amended Statement of Claim it is alleged (in paragraph 10) that:
"(b) The firstnamed Applicant (PDC) desired, in November, 1987 to obtain a licence at the National Tennis Centre for the conduct of concerts by Pink Floyd on 13th, 14th, 15th, 16th and 17th days of February, 1988 and to engage the services of the secondnamed Applicant (PDP) for the provision of a ticket booking and selling agency with respect to each of the said concerts.".
As the agreed chronology states, the "Pink Floyd concerts were held in accordance with the terms of a form of Agreement which was never executed". This document became Exhibit PND10.
Its terms included the following:
"INTRODUCTION
A. The trust is a body corporate constituted under Section-(sic) of the Act and is responsible for the care, improvement use, promotion and financial management of the Centre including making the Centre available for the staging and performance of events. B. The Hirer wishes to stage the Events at the Centre at the performance times. C. The Trust has agreed to make the Centre available to the Hirer for the Events at the performance times on the terms and conditions contained in this Agreement. ...
Part 2. Hiring of the Centre ...
2.3 In respect of its use of the Centre, the Hirer acknowledges and agrees that at all times:- ...
(5) the Trust has reserved for itself the rights referred to in part 16 of this Agreement.
2.4 This Agreement does not create a tenancy or any other relationship between the Hirer and the Trust other than that of licensee and licensor.
Part 3. Fees
3.1 In consideration of the Trust agreeing to grant to the Hirer licence and authority to use the Centre, the hirer agrees to pay to the Trust:-
(1) the Hiring Fee and the booking fee; and
(2) the other fees (if any) and all other charges payable by the Hirer to the Trust pursuant to this Agreement, in accordance with the provisions of this Agreement.
...
Part 9. Ticket sales
9.1 The Hirer acknowledges that the Trust is responsible for all ticketing arrangements for all Events held at the Centre. 9.2 The Hirer agrees that:-
(1) it will not issue any tickets;
(2) the Trust will print supply and sell or arrange for the printing supply and sale of all tickets and
(3) the Trust will determine the terms, conditions and exclusions (if any) to be printed on the tickets. 9.3 The Hirer acknowledges and agrees that in respect of all ticket sales:
(1) the gross receipts will be retained by the Trust until the conclusion of the events and then applied by it in satisfaction of all amounts payable by the Hirer to the Trust pursuant to this Agreement which have not previously been paid to the Trust;
(2) within 24 hours after the conclusion of the last performance the Trust shall furnish to the Hirer a Box Office Statement detailing the amount of the gross receipts;
(3) unless otherwise agreed, within 10 days after the conclusion of the last performance, the Trust shall:
(a) furnish to the Hirer a Final Statement detailing the manner in which the gross receipts have been applied by the Trust towards satisfaction of the amounts payable by the Hirer in accordance with clause 9.3(1); and
(b) subject to clause 9.3(1) being satisfied pay to the Hirer the balance of the gross receipts remaining;
(4) that it will examine the Box Office and Final Statements promptly and in each case will notify the Trust in writing of any error or objection within two days of receipt;
(5) that unless the Trust receives notification in accordance with sub-clause 9.3(4) the Box Office and Final Statements will be deemed true and correct; and
(6) if the gross receipts prove insufficient to cover all amounts payable to the Trust pursuant to this Agreement, the hirer will pay within 7 days of receipt of the Final Statement the balance shown therein to be due to the Trust. ...
9.7 The Hirer will deliver to the Trust as soon as practicable after the signing of this Agreement full particulars of:
(1) the information which the Hirer requests should appear on the face of the tickets;
(2) the prices excluding any booking fee for which the tickets are to be sold and the price barriers (if any, as approved by the Trust) in respect of which the same are to be sold; and
(3) the persons or classes of persons who are to receive complimentary tickets or tickets at concessional prices, for approval and use by the Trust. ...
Part 16. Rights of the Trust 16.1 The Trust reserves the right to grant to any other person, retain for itself, or divide between itself and any other person on any terms whatsoever the Trust's right to:-
(1) print, supply and sell tickets of admission to the Centre for the purpose of enabling members of the public to attend the Events; ...
16.2 The Trust reserves for itself the right:- ...
(8) to refund the full purchase price or part of the purchase price of any ticket or provide a replacement ticket in lieu of a refund.
...
Part 24. Waiver
24.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
24.2 The exercise of a power or right does not preclude:-
(1) its future exercise; or
(2) the exercise of any other power or right. Part 25. Variation
25.1 The variation or waiver of a provision of this Agreement or a party's consent to a departure from a provision by another party, shall be ineffective unless in writing, executed by the parties.
Part 26. Entire Agreement
26.1 This Agreement contains the entire understanding of the parties relating to the subject matter of this Agreement but may be amended by Agreement in writing of the parties.".
Since late 1987 by virtue of the agreement in principle, and later by virtue of the written agreements of 1988, NTCT and OPM had each granted to VACT an exclusive ticketing agency in respect of its venues.
At all relevant times NTCT was prepared to offer a licence of its venue to PDC only on terms including the following:
(a) NTCT "is responsible for all ticketing arrangements for all Events held at the Centre (para 9.1),
(b) (1) PDC will not issue any tickets,
(2) NTCT will print supply and sell or arrange for the printing supply and sale of all tickets, and
(3) NTCT will determine the terms conditions and exclusions (if any) to be printed on the tickets". (para 9.2)
(c) PDC acknowledges and agrees to in respect of all ticket sales the terms set out in para 9.2,
(d) PDC will deliver to NTCT full particulars of the matters set out in para 9.7 "for approval and use by" NTCT and
(e) NTCT reserves the rights "to print, supply and sell tickets of admission to the Centre for the purpose of enabling members of the public to attend the Events" (Para 16.1).
(f) the receipts from ticket sales shall be retained by NTCT and be dealt with in accordance with the terms of Para 9.3.
Paul Dainty, in para 44 of his affidavit of 19 July 1988, deposed that in or about October 1987 he received the form of contract in to which NTCT desired PDC to enter with respect to the Floyd concerts. This is the document which became Exhibit PND10. Prior to receiving it he had been told by Nicholson, the manager of the National Tennis Centre, that NTCT would require that tickets for those concerts be sold through Bass.
On 18 November 1987 NTCT sent PDC a blank copy of the hiring agreement for the Floyd concerts and seven days later PDC replied that tickets for the first Floyd concert were to go on sale on 30 November 1987 and advised that at that stage the hiring agreement had not been signed.
On 13/17 February 1988 the Floyd concerts were held.
The parties agree that NTCT granted PDC a licence in respect of the National Tennis Centre for the presentation of concerts by the Floyd group: PDC made it clear to NTCT that it wished to obtain a licence from it for the Floyd concerts under which financial and ticketing services would not be acquired by it from anyone but PDP. NTCT refused to grant a licence on those terms.
The applicant in the Further Amended Application (in its final form) sought declarations:
"1. A declaration that NTCT by granting the licence contained in Exhibit PND10 to the firstnamed Applicant ('PDC') in respect of the National Tennis Centre ('NTC') for the presentation of concerts by the group Pink Floyd. has engaged in conduct in contravention of s.47(8)(c) of the Trade Practices Act 1974 ('the Act').
2. A declaration that NTCT, by refusing to grant a licence to PDC in respect of the NTC for the presentation of concerts by the group Pink Floyd for the reason that PDC would not agree to accept the licence contained in Exhibit PND10, has engaged in conduct in contravention of s.47(9)(d) of the Act".
The Jagger Concerts
In the second Further Amended Statement of Claim, it is alleged that:
"10.(a) The firstnamed Applicant desires to:
(i) hold concerts featuring Mick Jagger in Concert at the National Tennis Centre on the 6th, 7th, 14th, 15th, 17th, 18th, 19th, 26th and 27th of October, 1988;
(ii) engage the services of the secondnamed Applicant for the provision of a ticket booking and selling agency with respect to each of the said concerts;".
On 15 June 1988 Nicholson on behalf of NTCT wrote a letter to PDC enclosing Hiring Agreements for the Jagger concerts proposed to be held on 6, 7, 14, 15, 17, 18, 19, 26 and 27 October. Nicholson in the letter drew attention, to these provisions:
"(d) The proceeds from box office sales are remitted in whole to the Centre which will pay out the promoter's entitlement after deduction of venue hire and costs incurred.
(e) The Centre's ticket agency will place tickets on sale only on the written instruction of the Centre - it is essential, therefore, for us to agree your proposed seating layout and to receive, in writing, your gross ticket sales price so that we can instruct BASS within the time frame you desire.".
This letter and the enclosed draft agreements contained Clauses 9.1 to 9.8 dealing with Ticket sales which were in the same terms as earlier quoted from PND10 except for a difference relating to complimentary tickets.
On 23 June 1988 PDC's solicitor wrote to Nicholson, saying amongst other things:
"Clause 9
My client insists that clauses 9.1, 9.2, 9.3, 9.7 and 9.8 (except 9.8(1)) of the agreement be deleted in their entirety so as to enable my client to have full responsibility for all ticketing arrangements and selling of tickets.".
Clause 9.8(1) referred to the refusal of admission to any performance of any person without a ticket or a valid pass.
The letter concluded as follows:
"It is apparent from the draft hiring agreement enclosed with your letter of the 15th of June, 1988 and from that letter itself that the National Tennis Centre Trust intends to engage BASS to undertake all the ticketing arrangements for my clients proposed concert. My client wishes itself to undertake the ticketing through its own agency at the Comedy Theatre, Exhibition Street, Melbourne.
An attempt to force my client, indirectly, to engage the services of BASS constitutes a breach of Section 47(9) of the Trade Practices Act 1974. My client is an experienced entrepreneur and has, in the majority of cases by a related company, professionally and successfully undertaken the task of ticketing its own concerts. Accordingly it stands in an entirely different position from that in which most, if not all, of the centres other prospective hirers stand.
My client desires for the advertising and ticketing for the show to commence shortly. I advise that my client will be happy to meet with you within the next 72 hours hours for the purpose of discussing the terms and conditions of the hiring agreement with you.
Accordingly I look forward to hearing from you within the next 72 hours as to an appropriate time and location for such a conference to occur.".
By letter dated 24 June 1988, the solicitors for NTCT replied:
"We refer to our telephone conversation of earlier today.
We confirm that our client, the National Tennis Centre Trust is not prepared to consider any of the amendments to the Tennis Centre Hiring Agreement proposed in your letter to Mr. Peter Nicholson of the 23rd June, 1988.
With respect to the alleged breach of Section 47(9) of the Trade Practices Act 1974 referred to in your letter, we confirm that in our view there would be no breach of that section. The Trust regards Ticketing Services as an integral part of providing the use of the Tennis Centre and therefore intends to retain complete control over ticket sales for performances held at the Tennis Centre by accepting responsibility for ticketing. Bass is merely an agent of the Trust providing the ticketing services on its behalf.".
The response from the applicants' solicitor was dated and hand delivered on 5 July 1988. It read as follows:
"I acknowledge receipt of your letter of the 24th of June, 1988.
I advise that my client has now received advice from Senior Counsel that the refusal of your client to grant a licence to use the National Tennis Centre to my client save on terms that required BASS to be used directly or indirectly is a breach of Section 47(9)(d) and involves a matter of importance and basic principle. I am instructed to have the matter brought before the Court, in the face of your client's attitude, as a matter of urgency and would seek the co-operation of your client in having that issue brought on before the Federal Court. I advise that my client has no alternative but to take the venue as there is no other reasonable alternative venue open to it. In the circumstances my client is prepared to sign the Licence Agreement on all terms save and except those relating to the ticketing arrangement. Accordingly I enclose herein my client's cheque in the amount of $5,000.00 by way of deposit. I should be pleased if you could confirm that the venue will be available to my client and that the question of whether BASS will be utilized or whether my client may utilize its own ticketing facilities will be left to be determined by the Court as a matter of urgency. It is noted that your client is a body with public responsibility and it is hoped that it will accept that it is appropriate that this matter be determined as set out above. I look forward to receiving your urgent immediate response as to whether your client is prepared to proceed upon the basis set out above.".
By letter dated 7 July 1988 NTCT's solicitors replied as follows:
"We acknowledge receipt of your letter of 5th July, 1988.
We have provided our client with a copy of your letter and are awaiting our client's instructions. We understand that the issue raised in your letter is to be discussed at a meeting of the Trust in two weeks time and we do not anticipate receiving instructions before then. In the interim we have not banked your client's cheque for the amount of the deposit on hiring of the National Tennis Centre. If you wish we can return that cheque to you.".
On 15 July 1988 the application in the present case was issued. By letter dated the same day, the new solicitors for NTCT wrote to the solicitor for PDC as follows:
"We refer to todays discussions, and confirm that we act for the National Tennis Centre Trust. We are instructed that the Trust has not as yet been able to meet to consider your client's proposal, and is not able to accede to your request that it confirm the availability of the venue, leaving the question of ticketing facilities to be determined by a Court.
As Peter Nicholson stated in his letter of 15th June 1988 to your client, 'the proposal to have the venue is finalised only by execution of the Agreement by both parties, payment of the deposit of $5,000.00 and receipt, by the Centre, of your executed copy'.
The present form of Hiring Agreement presupposes that the Trust will be responsible for ticketing and it is simply not possible to excise those provisions from the Agreement, without seriously affecting the Trust's ability to manage the Centre effectively and discharge its responsibilities towards patrons of the Centre. In the circumstances we are returning your client's cheque. Please acknowledge receipt. Our client is concerned that advance publicity for the Mick Jagger tour has mentioned the Tennis Centre as the venue.
However, unless a firm commitment for the venue has been made by your client, commercial prudence will prevent the Trust from refusing alternative offers should they arise.
The advance publicity has already caused a degree of confusion by mentioning that concerts are to be held at a venue that has not been confirmed, and the Trust is concerned that a situation could arise where the public could be misled.".
On 19 July 1988, the application came before the court for first directions together with an application for interlocutory relief. Directions were given and the interlocutory application was adjourned to 23 September 1988.
On 27 July 1988 NTCT and PDC agreed upon supplementary terms and conditions to the Hiring Agreement for the Jagger concerts. By letter of that date, the solicitor for the applicants wrote to the solicitors for NTCT as follows:
"I refer to our discussions concerning the above matter and set out below the terms of the agreement reached relating to the selling of tickets for the Jagger Tour in Melbourne.
I confirm the understanding of the parties that this agreement is entered into by my client under protest by reason inter alia of the matters raised in the application of my client to the Federal Court. I further confirm the understanding of my client that this agreement is entered into having regard to the commercial reality that an interlocutory hearing of my client's application could not be achieved in the Federal Court prior to the date when tickets have to go on sale for the Jagger Melbourne concert and that all parties have co-operated in having a final hearing of the Section 47 issues on 28th November, 1988. This agreement is without prejudice and is not to be a waiver of any right or entitlement of my client to recover damages including but not limited to the fees and charges set out in paragraph 2 below. Set out below is the understanding that has been reached, such understanding to be read in conjunction with the Hiring Agreement:
1. Tickets for the Melbourne Jagger concerts will be sold through Bass as agents for the National Tennis Centre. No tickets shall be released for sale for any show without the prior consent of the Paul Dainty Corporation. BASS shall comply with the Paul Dainty Corporation's directions given to and agreed by the National Tennis Centre as to the time in which tickets are released for the various shows.
2. (a) The booking fee for all tickets sold by BASS shall be $1.30 per ticket and BASS shall deduct that fee from the settlement remittance to the National Tennis Centre in respect of the ticket.
(b) Where a ticket is sold by BASS and payment is by use of credit charge facility, BASS will charge a fee of 2.7% on the face value of the ticket (ie. $38.30) and deduct that fee from the settlement remittance to the National Tennis Centre in respect of the ticket.
(c) Where a ticket or tickets are sold by BASS as a result of a telephone booking, BASS will make a transaction charge to the customer of $4.00 if the telephone call is a local call and $5.00 if the telephone call is a toll free call. The transaction charge fee will be charged by BASS to the account of the customer and not to the Paul Dainty Corporation. The credit charges in respect of the transaction charge fee are to the account of BASS and not to the Paul Dainty Corporation.
3. BASS will sell all tickets to the public and no tickets will be pulled off the system for the staff of BASS, friends of staff or relatives of staff. Further should any staff of BASS or their friends or relatives desire to acquire tickets the Paul Dainty Corporation will set aside an area at each concert where such tickets will be available for puchase by staff relatives and friends.
4. The National Tennis Centre shall set the sight lines but only after close consultation with the Paul Dainty Corporation.
5. All funds received from the sale of tickets by BASS less the booking fees and transaction fees due to BASS and referred to in paragraph 2 shall be held under a joint Paul Dainty Corporation/BASS/National Tennis Centre Trust account style 'Bass Victoria Trust Account No. 6' and all interest derived thereon shall be paid to the Paul Dainty Corporation and such funds will be released in accordance with the licence agreement. It is acknowledged that BASS in selling tickets will not receive funds until up to 15 days from the date of sale and that the funds may not be invested in that time. BASS shall use its best endeavours to ensure all funds received from the sale of tickets are deposited in the trust account as soon as possible after receipt by BASS. Further BASS will not invest until such time as $30,000.00 in ticket sales has been received. All funds will be invested in an authorized trustee investment. It is further acknowledged that BASS shall charge $50.00 per week being a fee to implement the investment on behalf of the Paul Dainty Corporation.
6. BASS have advised that they are unable to change the terms and conditions appearing on the back of the ticket due to the time constraints arising out of printing lead times. It is agreed that the terms and conditions appearing on the reverse of the ticket shall remain.
7. The National Tennis Centre shall and at its expense install a BASS computer terminal and printer at the Comedy Theatre Melbourne within 7 days of the finalization of these terms so that the Paul Dainty Corporation shall be able to obtain up-to-date information on the sale of tickets for the Jagger concerts and be able to obtain a hard copy thereof. The National Tennis Centre shall and at its expense within 7 days after the final performance of Jagger's Melbourne concerts remove the computer terminal and printer from the Comedy Theatre and make good any damage thereby caused.
8. No complimentary tickets in addition for (sic) those which provision is made in the licensing agreement shall be issued by the National Tennis Centre unless the Paul Dainty Corporation first consents and approves. This clause shall not abrogate the provisions of clause 4 of the Schedule of the Hiring Agreement.
9. Ticket sales for the selling of the first show shall commence on the 1st of August, 1988. All information from the Paul Dainty Corporation shall be forwarded to the National Tennis Centre on the 26th of July, 1988 and the National Tennis Centre shall pass such information onto BASS so as to ensure tickets will be available to be sold on the 1st of August, 1988.
10. The price per ticket is $37.00 net to Paul Dainty Corporation Pty. Ltd. The Paul Dainty Corporation and the National Tennis Centre shall discuss price reductions for seats with restricted viewing. Nothing in the paragraph shall abrogate the rights of BASS under paragraph 2.
11. The National Tennis Centre and BASS shall fully inform the Paul Dainty Corporation of all matters relating to the sale of tickets and no decision shall be made concerning the sale of tickets unless the consent and approval is first had and obtained from the Paul Dainty Corporation however the National Tennis Centre shall have final control of seating arrangements.
12. The National Tennis Centre shall assume full liability to the Paul Dainty Corporation Pty. Ltd. and to the public in respect of all tickets sold subject to the Paul Dainty Corporation complying with the Hiring Agreement and in particular regarding the requirement as to public liability insurance.
13. The National Tennis Centre Trust agrees that despite the provisions of Clause 9.8(2) of the Hiring Agreement, it shall indemnify the Paul Dainty Corporation in respect of any loss or damage it shall suffer arising out of a failure by the Trust's agent BASS in performing or completing the performance of the ticketing arrangements due to a claim or allegation or finding that BASS is acting ultra vires in acting as a general ticketing agency, provided however that such indemnity shall not apply if such claim, allegation or finding is a result, directly or indirectly, of the actions of Paul Dainty Corporation or its servants or agents.
14. The National Centre Trust shall account to and pay the Paul Dainty Corporation in respect of all cleared funds in the trust account for each performance within 24 hours after the completion of each performance or the next business day if such date falls on a non-business day. The National Tennis Centre shall be entitled to retain out of the moneys it is holding an estimate of its costs and shall account to the Paul Dainty Corporation within ten days after the final performance in relation to all amounts held.
15. The National Tennis Centre shall decide which tickets are to be withheld from sale however it will not withhold any tickets from sale unless it has first closely consulted the Paul Dainty Corporation.
16. The Paul Dainty Corporation shall in providing information about ticketing to the National Tennis Centre also forward a copy by fax to BASS simultaneously marked to the attention of Anne Stoddart.
Due to the shortness of time this agreement shall be signed by the parties respective legal advisers and shall be binding upon their respective clients in each and every aspect as contained herein. This letter has been prepared after earlier negotiations and discussions between the parties and in belief that it fairly accommodates all points raised by your clients. If the matters are rejected I propose to use this letter in any resumed hearing of the interlocutory proceedings.".
At the foot of the letter there appeared in due course the signatures of the solicitors for PDC, NTCT and VACT on behalf of their respective clients.
The applicants sought declarations:
"3. A declaration that NTCT by granting the licence to PDC contained in Exhibit PND20 in respect of the NTC for the presentation of concerts by Mick Jagger has engaged in conduct in contravention of s.47(8)(c) of the Act
4. A declaration that NTCT, by refusing to grant a licence to PDC in respect of the NTC for the presentation of concerts by Mick Jagger for the reason that PDC would not agree to accept the licence contained in Exhibit PND20 has engaged in conduct in contravention of s.47(9)(d) of the Act".
The Europe Concerts
In the Second Further Amended Statement of Claim it was alleged that:
"10.(a) The firstnamed Applicant desires to ...
(iii) hold concerts at the Sports and Entertainment Centre featuring the group 'Europe' in November, 1988;
(iv) engage the services of the secondnamed Applicant for the provision of a ticket booking and selling agency with respect to such concerts;".
In August 1988 OPM forwarded a form of contract to PDC to be used for the Europe concerts but subsequently withdrew it.
On 8 September 1988 OPM's solicitors wrote to PDC's solicitor advising that OPM would not grant a licence to use the MSEC on terms which would allow PDC to sell its own tickets and that the hiring agreement was to be redrafted in view of the allegations by PDC of contravention of the Act.
On 13 September 1988 OPM forwarded a revised form of contract for the Europe Concerts to PDC. This became Exhibit GJ3. It contained provisions to the like effect of those of PND10 which have been set out above.
On 28 September 1988 PDC's solicitor wrote a letter to OPM's solicitors in which he said, amongst other things:
"The Licence Agreement submitted by you is in our opinion unlawful. Having regard to the litigation I would suggest that your client grant to my client the Licence Agreement in the previous usual form so that the status quo may prevail between our clients pending the outcome of the present proceedings".
The letter went on to request various amendments to the Licence Agreement submitted, including one to permit PDC to sell tickets to the performances.
In their reply of 29 September 1988 the solicitors for OPM denied that the agreement was unlawful and rejected the amendment proposed by PDC to enable it to sell tickets.
On 3 October 1988 PDC wrote to Olympic Park Management saying that it would sign the contract submitted to it under protest and enclosed it with a cheque for the deposit. The letter included the following paragraph:
"The forwarding of the contract to you is without prejudice and is not a waiver of any right or entitlement to recover damages including but not limited to the booking fees and charges incurred in the selling of the tickets.".
In his affidavit of 3 November 1988 Mr. Dainty deposed that subsequent to these events the Europe concerts were cancelled for reasons not associated with this proceeding.
The applicants sought declarations:
"5. A declaration that OPM having proposed to grant the licence to PDC contained in Exhibit GJ2 in respect of the Melbourne Sports and Entertainment Centre ('MSEC') for the presentation of concerts by the group Europe threatened to engage in conduct in contravention of s.47(8)(c) of the Act
6. A declaration that OPM by granting the licence to PDC contained in Exhibit GJ3 in respect of the MSEC for the presentation of concerts by the group Europe has engaged in conduct in contravention of s.47(8)(c) of the Act
7. A declaration that OPM by refusing to grant the licence to PDC in respect of the MSEC for the presentation of concerts by the group Europe for the reason that PDC would not agree to accept the licence contained in Exhibit GJ3 has engaged in conduct in contravention of s.47(9)(d) of the Act"
The aspects of the case which are most important to the parties are those relating to their future operations, of which the most important is whether any, and if so what, injunctions should be granted.
The issue as to the intended future conduct of NTC and OPM has been squarely joined. Their senior counsel in his closing address stated that NTC would offer a licence to PDC, or any other promoter, in respect of the National Tennis Centre on the terms and conditions of Exhibit PND10 and on no other terms. He also stated that OPM would offer a licence in respect of either of its venues only on the terms and conditions of Exhibit GJ3. The course of the proceedings has been such as to satisfy me that their intentions have been accurately stated.
The debate on the question whether injunctions should be granted has proceeded on the basis that NTCT and OPM have each made it plain to PDC that licences of their respective venues will be granted only on terms that each of them, and not PDC, will retain responsibility for ticketing and financial services (see, for example, PND10 Part 9, and GFC Clause 3), despite the wish of PDC that it desires to obtain licences on the basis that it be responsible for the provision of those services.
It is for the applicants to show, in the first place, that such proposed conduct would amount to exclusive dealing within the meaning of s.47.
Counsel for the applicants relied upon Re Ku-ring-gai Co-operative Building Society (1978) 36 FLR 134 in which it was held that the lending of money by the applicants to their members upon the condition that the borrowing member insure the mortgaged property "in the joint name of the member and the Society as owner and mortgagee respectively and for their respective rights and interests" with a particular nominated insurer constituted, for the purposes of s.47, the supply of services on the condition that the person to whom they were supplied would acquire services directly or indirectly from a third person.
In that case (at pp 170-1) Deane J. said:
"I have given consideration to the question whether the position would be any different if the practice in which the applicants engaged were the supply upon the condition as to insurance contained in their respective rules, namely, that the relevant applicant would itself effect the insurance in the joint names of the applicant and the borrowing member on the basis that the member would reimburse the society for the premium within fourteen days of its payment by the society. In my view, supply upon that condition would likewise constitute exclusive dealing for the purposes of s.47 of the Act. The fact that the policy of insurance was to be effected by the relevant applicant in the joint names of itself and the borrowing member would, in my view, not alter the fact that the member was himself acquiring services, through the applicant as his agent, for the purposes of s.47(6) of the Act. The position may well be different if the obligation as to insurance was restricted to insurance of the society's interest and provision were made to enable, as distinct from compel, the member to join in that insurance.".
In Castlemaine Tooheys Limited v. Williams and Hodgson Transport Proprietary Limited (1986) 162 CLR 395, Brennan J., who in Ku-ring-gai reached the same conclusions as Deane J., and concurred generally in his reasons, said (at p 406):
"The facts of this case are quite different from those which fell for consideration in Re Ku-ring-gai Co-operative Building Society (No.12) Ltd. (12). In that case, co-operative building societies required their members to whom moneys were advanced on mortgage to effect policies of insurance with nominated companies to cover the respective interests of the mortgagor and the mortgagee in the mortgaged property. The mortgagor took out a policy with a nominated insurer. The practice was held to contravene s.47. If the insurance had been effected by the mortgagee rather than the mortgagor to cover only the mortgagee's interest in the mortgaged property rather than the interests of mortgagor and mortgagee - a situation which would have been analogous to the present case - the decision may well have been different: see per Deane J. (13).".
The facts in the present case differ sharply from those in the Ku-ring-gai case, which in my opinion, provides no support for the applicants.
As the pre-trial correspondence and the course of argument clearly showed, the primary question debated by the parties is whether in the light of the High Court judgments in the Castlemaine Toohey case the applicants have shown that the clearly foreshadowed future conduct of the respondents will amount to exclusive dealing within the meaning of the Act.
The headnote in that case reads:
"C. brewed beer in Brisbane. It offered liquor retailers in North Queensland the choice of collecting beer from one of its regional depots in that area or having the beer delivered from the brewery. In the latter case (subject to certain minor exceptions in respect of retailers in some smaller towns), C. insisted that it arranged delivery of the beer by its 'preferred carrier', Q.R.X., an unrelated firm. C. contracted with Q.R.X. for the cartage and was responsible for the payment of its charges. Property in the beer did not pass until delivery at the retailer's premises. On C.'s invoices, insurance and freight (which were included in the price) were shown separately. A cartage contractor that wished to compete with Q.R.X. sought to have C. restrained from supplying beer on condition that the recipient would accept transport services from Q.R.X., on the basis that such conduct contravened s.47(1) when read with s.47(6) of the Trade Practices Act 1974 (Cth).".
It was held that C.'s conduct did not constitute exclusive dealing within s.47(6) because C. itself, and not the retailer, acquired the cartage services from Q.R.X.
Gibbs CJ. at p 400 said:
"It was submitted on behalf of the respondent that a retailer who bought beer which was delivered to the retailer's premises by Q.R.X. acquired, in the sense of accepted, the services of Q.R.X. because the retailer received the benefit of those services even though there was no contractual arrangement between the retailer and Q.R.X. It was further contended that the services of Q.R.X. were forced on the retailer, since as a matter of commercial reality the retailer had to accept the terms offered by the appellant. It was said that in these circumstances the appellant supplied the beer on condition that the retailer acquired the services of Q.R.X.
The questions raised by these submissions are not without difficulty. It is clear enough that it was not a condition of the supply of beer to retailers generally in North Queensland that it be delivered by Q.R.X. Retailers might, if they wished, purchase from the regional depots in North Queensland and some retailers did. There were commercial advantages in buying the beer from Brisbane, but it was not right to say that in reality a retailer was forced to accept delivery by Q.R.X. However, when a retailer wished to have the beer delivered from the brewery, the appellant required, as a prerequisite to granting supply, that the appellant itself should arrange delivery. The appellant supplied the beer on that condition. However, the condition was not that the retailer should accept the services of Q.R.X. The condition was that the appellant should arrange the carriage of the beer and should deliver it to the retailer, not at the brewery, but at the retailer's premises or some other place in North Queensland. In other words the condition was that the appellant would deliver the beer which it sold to its destination in North Queensland. It was of course clear that if the appellant had itself carried the beer there would have been no exclusive dealing within s.47. The position was not altered when the appellant arranged for a third person to carry on its behalf. In those circumstances the services were acquired by the appellant and not by the retailer. No doubt in a loose sense the retailer received a benefit from the services, but in truth what the retailer acquired was the beer and not the services of the carrier. Certainly there was no condition that it should acquire (even in the sense of accept) those services.".
Brennan J. (at p 405-6) said:
"Section 47(6) applies only when there are two contracts or arrangements: the first, between the corporation which supplies and the person who acquires goods or services; the second, which may be made directly or indirectly, between the person who acquires those goods or services and a third person. Here there is no contract or arrangement, whether direct or indirect, between a licensee who acquires delivered beer from the brewer and Q.R.X. pursuant to which the licensee acquires delivery services from Q.R.X. From start to finish Q.R.X.'s contract or arrangement is with the brewer alone. In so far as the licensee derives a benefit from the delivery of beer to his premises, he acquires that benefit from the brewer and not from Q.R.X. It is submitted that a person may acquire services simply by accepting them, and that a licensee accepts delivery services by Q.R.X. But a licensee does not accept any services from Q.R.X.; the licensee accepts the delivered beer supplied to him by the brewer. If it were legitimate (and it is not) to distinguish between the beer supplied and the delivery services, nevertheless the licensee would accept both the beer and the delivery services from the brewer under the contract of sale of the beer. The brewer does not seek to force licensees to accept the services of a carrier nominated by the brewer. The brewer simply asserts its right to choose the carrier to deliver its beer to the point of sale at the licensee's premises in discharge of its obligation to the licensee to deliver the beer there. The position is no different from what it would be if the brewer's own employees delivered the beer.".
Applying this reasoning to the facts of the present case, there will be, in my opinion, no contract or arrangement, whether direct or indirect, between PDC and either NTCT or OPM pursuant to which PDC acquires ticketing and financial services from VACT. VACT's contract or arrangement will be with NTCT or OPM alone. PDC will not be accepting any service from VACT.
The owner of a venue suitable for concert performances may choose to offer to a promoter a licence of the venue upon terms which would entitle the promoter to provide all ancillary services, such as ticketing and financial services and the provision of staff to be responsible for front of house, the booking office, stage door security, and for the operation of technical facilities. It may, on the other hand, offer a licence of the venue upon terms that it will retain the right to provide to the public some or all of those ancillary services by itself or by its chosen agent. In my opinion, this is what NTCT and OPM have made clear that they propose to do.
It will then become a question for a promoter to decide whether it wishes to accept a licence upon the terms of the offer, or not.
In my opinion neither NTCT nor OPM has been shown to intend in future to grant a licence on the condition that the licensee will acquire services directly or indirectly from another person.
It is common ground that the outcome of the case turns upon the construction of the agreements which have been put in evidence.
They will reserve to the licensor the provision of ticketing and financial services and the right to grant to any other person the right to provide those services to it. If it chooses to follow the latter course, those services will, in my opinion, be acquired by the licensor, not by the licensee, from the person chosen by the former to provide them. There will be no contract or arrangement, whether direct or indirect, between the licensee and the person so chosen by the licensor.
It was conceded on behalf of the applicants that the agreements were not to be regarded as shams, but it was submitted that on the true construction of the agreements, by reference to the matrix of facts surrounding the creation of each of the agreements and the nature of the relationship intended by the parties to be created the licensor should be held to be the agent and VACT the sub-agent of the licensee. Reliance was placed as part of the matrix of facts upon the terms of the ticket used.
In the case of the Floyd concert the front of the ticket read as follows:
"(178)
SEC ROW
LWR D 225 DOOR 9 - 10 14-FEB-88
DOOR $0.00 NAT'L TENNIS CNTR PAUL DAINTY & 3XY PRESENT
PINK FLOYD SUN 14TH FEB 8 PM DOOR 9 - 10 LWR D 225 SEC ROW
DOOR $0.00 BASS 14-FEB-88 DOOR 9 - 10 LWR D 225"
The back of the ticket read as follows:
"'CONDITIONS OF SALE' This ticket is sold by BASS Victoria as agent for and on behalf of the organisation, venue, management and/or promoter ('the Seller') responsible for the service, event or performance for which it is sold. The name of the Seller is normally shown on the front of the ticket and all complaints or claims are the responsibility of the Seller and not BASS.
This ticket is sold subject to the Seller's Conditions of Sale, copy of which is available for inspection at the time of purchase of the ticket and also (to the extent that they are not inconsistent with the Seller's Conditions of Sale) subject to the following conditions
1. The ticket cannot be exchanged or returned after purchase.
2. The right is reserved to add, withdraw or substitute artists and/or to vary advertised programmes, seating arrangements and audience capacity.
3. The right of admission is reserved Cameras and tape recorders may not be permitted.
4. If an outdoor performance/event is cancelled due to adverse weather or for any other cause reasonably beyond the Seller's control there is no right to refund or exchange and no obligation is assumed by the Seller for the arranging of a substitute service event or performance".
The Jagger tickets were in similar form.
So far as the grant or refusal of injunctions is concerned, the form of the ticket used in those earlier concerts cannot be taken as the form to be used in respect of any future concerts - see, for example, Clause 9.2(2) and (3) of PND10, set out above.
When one is considering the declarations sought in respect of the claims for damages relating to the Floyd and Jagger concerts, the form of the tickets used by VACT do not, in my opinion, alter the construction of the contract between either NTCT or OPM and PDC. In any event, there is some ambiguity, in the language of the "Conditions of Sale" endorsed on the back of the tickets which refers to the ticket as being "sold by BASS Victoria as agent for and on behalf of the organisation venue management and/or promoter ('the Seller') responsible for the service, event or performance for which it is sold". The words "venue management" may be taken to be a reference to NTCT or OPM whereas "promoter" may be regarded as a reference to the licensee.
The endorsement throws more light on the desire of VACT to distance itself from any liability to the purchaser of a ticket than it does on the construction of the agreements between NTCT or OPM and PDC. So far as the Jagger concerts were concerned, Clause 12 of the supplementary terms and conditions of 27 July 1988, set out above, provided that NTCT assumed full liability to the public in respect of all tickets sold, subject to the conditions set out in the clause.
There is, in my opinion, nothing in the matrix of facts which should lead one to the conclusions for which the applicants contended. The future relationships contemplated by the agreements which form the basis on which NTCT and OPM are prepared to offer licences of their venues will be those plainly set out in them. They will not include any relationship of agency between either NTCT or OPM and PDC.
The declarations sought in the Further Amended Application in respect of the Floyd concerts were based upon the proposition that the terms of Exhibit PND10 would give rise to a breach of s.47 of the Act. In my opinion, the reasons given for refusing the injunctions lead to the conclusion that no declarations should be made.
The applicants submitted that, under the supplementary terms in respect of the Jagger concerts, VACT provided services directly to PDC. In my opinion, clauses 5 and 11 justify a finding to that effect. However, NTCT did not grant a licence on the condition that PDC would acquire services from VACT. On the contrary, the course of negotiations between the parties showed that it was NTCT's wish that VACT should render those services to it and not to PDC. It was the requirement of the latter which led to the relationship between it and VACT.
NTCT did not refuse to grant a licence to PDC for the reason that PDC had not acquired, or had not agreed to acquire services from VACT. Rather, it granted a licence to PDC which, at the insistence of PDC and against the original wish of NTCT, included terms whereby PDC agreed to acquire services from VACT, as part of what was, in essence, a settlement of the claim for an interlocutory injunction.
In these circumstances, it would not be appropriate to make any of the declarations sought by PDC in respect of the Jagger concerts.
No claim for damages is made against OPM in respect of the Europe concerts, which were cancelled for reasons not associated with this proceeding.
For the Europe concerts OPM proposed a form of contract (Exhibit GJ3) the relevant provisions of which were to the like effect of those of PND10. Accordingly, none of the declarations sought against OPM should be made.
I have reached these conclusions upon a consideration of the operation of the Act, looked at in the light of authority, without relying upon further defences relied upon by the respondents, namely:
1. the contracts impugned by the applicants were "specifically authorized or approved" by an Act of the Parliament of Victoria, within the meaning of s.51 of the Act; or
2. each of the respondents is an instrumentality of the Crown;
3. alternatively to 2, VACT is an instrumentality of the Crown;
4. the respondents were, in any event, related corporations within the meaning of the Act; or to the plea of ultra vires raised in the reply of the applicants.
I propose to refer briefly to these defences and to the plea in the reply in the order set out above, during the course of argument in this case, on 3 November 1988, a Bill "to make further provision in relation to the powers of certain public bodies and for other purposes" was introduced into the Legislative Assembly. It read as follows:
"Victorian Arts Centre (Amendment) Act 1988 The Parliamant of Victoria Enacts as follows: Purpose.
1. The purpose of this Act is to make further provision in relation to powers of certain public bodies.
Commencement.
2. This Act comes into operation on the day on which it receives the Royal Assent. Amendment of Victorian Arts Centre Act 1979
3. After section 6(2)(c) of the Victorian Arts Centre Act 1979 insert-
'(ca)to carry on, whether within or outside Victoria, and whether alone or in association with any other person or persons a business of providing ticketing services (whether on an exclusive basis or otherwise) for performances or events staged or promoted by any person within or outside Australia;'.
(2) The Victorian Arts Centre Trust shall be deemed always to have had the power conferred on it by section 6(2)(ca) of the Victorian Arts Centre Act 1979.
Amendment of National Tennis Centre Act 1985 4.(1) In section 7(2) of the National Tennis Centre Act 1985 for paragragh (b) substitute-
(b) enter into leases; and
(ba) enter into contracts, agreements or arrangements for carrying out its functions including, but not limited to, contracts, agreements or arrangements, whether on an exclusive basis or otherwise, for the provision to the Trust or at the Centre of ticketing, catering, cleaning or security services or merchandise or other goods or services of any kind whatsoever or for the appointment or engagement of agents, contractors or other persons for the provision of any such goods or services;'.
(2) The National Tennis Centre Trust shall be deemed always to have had the power conferred on it by section 7(2)(ba) of the National Tennis Centre Act 1985.
Approval of agreements.
5. (1) Olympic Park Management, an incorporated committee of management under the Crown Land
(Reserves) Act 1978, and the Victorian Arts Centre Trust shall each be deemed to have and always to have had all necessary powers to enable it to enter into and carry into effect the Agreement referred to in item 1 of the Schedule and any other agreement of a like nature.
(2) The National Tennis Centre Trust and the Victorian Arts Centre Trust shall each be deemed to have and always to have had all necessary powers to enable it to enter into and carry into effect the Agreement referred to in item 2 of the Schedule and any other agreement of a like nature.
(3) The Agreements referred to in the Schedule are, and shall be deemed always to have been, specifically authorised and approved. THE SCHEDULE Agreements relating to the sale of tickets
1. Agreement dated 28 April 1988 between Olympic Park Management and Victorian Arts Centre Trust.
2. Agreement dated 18 May 1988 between National Tennis Centre Trust and Victorian Arts Centre Trust.".
From this Bill, the Parliament, in the course of debate, deleted the words underlined and inserted the following new clause 4, which became s.5 of the Act:
"The Agreements referred to in the Schedule and any subsequent agreements to the like effect between Olympic Park Management and Victorian Arts Centre Trust or between National Tennis Centre Trust and Victorian Arts Centre Trust, are specifically authorised and approved.".
The Bill plainly recognized the distinction between the entry into contracts, agreements or arrangements and the carrying of them into effect and sought to authorize and approve both the entry and the carrying into effect. That distinction is a logical one. When the Parliament deleted the clauses which provided that each body "shall be deemed to have and always to have had all necessary powers to enable it to enter into and carry into effect" the agreements referred to in the Schedule, it substituted the new clause 4AA which contained no deeming provision referring either to powers to enable any of the bodies to carry the agreements into effect, or to any of them always having had the powers to enter into the agreements and carry them into effect.
Construing the words of the amending Act in their ordinary meaning, they specifically authorize and approve the agreements referred to in the Schedule and operate to do so from 15 December 1988, the date on which it received assent. They do not, in my opinion, have any effect before that date and they do not specifically authorize and approve the carrying into effect of any of the agreements.
The respondents also pleaded that they were entitled to the statutory immunity of the Crown (see Bradken Consolidated Limited v The Broken Hill Proprietary Company Limited (1979) 145 CLR 107), or alternatively that VACT is.
The matters to be considered in deciding this question have been the subject of much authority (see, for example, Inglis v Commonwealth Trading Bank of Australia (1969) 110 CLR 334, The Victorian Railways Commissioners v Herbert (1949) VLR 211, Wynyard Investments Pty. Ltd. v Commissioner of Railways NSW (1955) 93 CLR 376, State Superannuation Fund Investment Trust v Commissioner of Stamps (SA) 1978-1979 145 CLR 330, Townsville Hospitals Board v Townsville City Council 42 ALR 319 and the Burgundy Royale Case 76 ALR 173). There is no necessity to repeat them in these reasons. In my opinion the respondents have not established this plea. The activities and functions of none of the respondents appear to me to be governmental in character. Furthermore, in a case where the Parliament has plainly followed the course of the litigation and shown an awareness of the issues involved, it has not at any stage taken the step readily open to it of expressly conferring on any of the respondents the character of an instrumentality of the Crown.
The applicants submitted that, in any event, the entry into the agreements complained of was beyond the powers of each of the respondents and so not covered by the immunity of the Crown, if it were otherwise available. In my opinion, they have failed to make good this submission. The retention by a venue of the right to provide ticketing and financial services, by itself or its chosen agent, is in my opinion within power, as being incidental to its main activities. So too is the undertaking by VACT of ticketing and financial services for the other respondents incidental to its main functions. It seems to me to be within power to obtain economies of scale by offering such services to other venues. It is by no means unique for one venue to offer ticketing and financial services in respect of performances at other venues.
Finally I turn to the respondents' ingenious plea that they are related corporations and so outside the reach of s.47 of the Act. It was submitted that both NTCT and OPM are related to VACT because all three are subsidiaries of the Crown, which is in turn a body corporate. In my opinion the language of such sections of the Act as s.4A(5), 4A(a)(i), 4A(2)(a) is not apt to include bodies such as the respondents. The existence of such bodies has always been well known to the Parliament and, if it had intended to exclude them from the operation of the Act, it would have done so in plain words. In my opinion this submission should be rejected.
The Court orders that the application be dismissed with costs, including reserved costs.
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