The Paul Dainty Corporation Pty Ltd v The National Tennis Centre Trust

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. V G255 of 1988
FED No. 228
Trade Practices - Crown
22 FCR 495

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward(1), Northrop(1) and Sheppard(1) JJ.

CATCHWORDS

Trade Practices - exclusive dealing - alleged forcing of third party's services - hire of concert venues to promoter - management of venues contracting with third party (Bass) for ticketing services - management insisting to promoter that venues take responsibility for ticket sales - whether any services provided by Bass to promoter - whether conduct authorised or approved by Victorian legislation.

Crown - immunity from statute - whether National Tennis Centre Trust, Olympic Park Management and Victorian Arts Centre Trust come under shield of the Crown - whether they are 'related corporations'.

Trade Practices Act 1974 ss 4, 47, 51

Victorian Arts Centre (Amendment) Act 1988 (Vic) s 5

National Tennis Centre Act 1985 (Vic) 1985 ss 6, 8, 17, 18, 19, 20

Crown Land (Reserves) Act 1978 (Vic) ss 13, 14, 14A, 14B, 14C, 15, 17

Victorian Arts Centre Act 1979 (Vic) ss 4, 5, 6, 8, 10, 14, 18

Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 395 followed

HEARING

MELBOURNE

#DATE 28:5:1990

Counsel for the Appellants: Mr R Merkel QC

Mr D Shavin and Mrs K Howard

Solicitor for the Appellants: Mark G Caldwell

Counsel for the 1st and 3rd Mr R C Macaw QC and
Respondents: Mr G C Clarke

Solicitor for the 1st Messrs Freehill,
Respondents: Hollingdale and Page

Solicitor for the 3rd
Respondents: Messrs Stedman, Cameron

Counsel for the 2nd Mr K M Hayne QC and
Respondents: Mr J W K Burnside

Solicitor for the 2nd Messrs Arthur Robinson and
Respondents: Hedderwicks

ORDER

1. The appeal be dismissed.

2. The appellants pay the respondents' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Summary of Appeal

This appeal concerns alleged exclusive dealing, in a form sometimes called 'third line forcing' which might be better described as third party forcing, contrary to s 47 of the Trade Practices Act 1974 ('the Act'), by three Victorian Government instrumentalities - the National Tennis Centre Trust ('NTCT'), Olympic Park Management ('OPM') and the Victorian Arts Centre Trust ('VACT', also referred to as 'Bass'). The allegations of exclusive dealing, which were rejected by the trial judge, arose because NTCT and OPM have entered into agreements with VACT to use its Bass ticketing service exclusively for all activities at the entertainment venues controlled by NTCT and OPM, which for present purposes means the National Tennis Centre and the Melbourne Sports and Entertainment Centre respectively. These two Centres are very popular venues for holding events such as celebrity concerts, having good seating and other facilities for many thousands of spectators.

The appellants are two related companies. The first, The Paul Dainty Corporation Pty Ltd ('PDC') has since 1972 organized tours of international concert artists to Australia. The second appellant, Paul Dainty Productions Pty Ltd ('PDP') has since 1978 owned the Comedy Theatre in Melbourne, including its box office, and has sought to expand its ticket-selling activities for other venues, using the trade name 'Ticket Master'.
PDC wished to hire the Tennis Centre for two series of international celebrity concerts to be given, some months apart in 1988, by Pink Floyd and Mick Jagger respectively. PDC objected when it was informed, late in 1987, that ticketing arrangements would have to be handled by Bass. It wanted to have the ticketing done by PDP. When NTCT stood firm, the Pink Floyd concerts went ahead, in February 1988, on NTCT's terms; but while the Mick Jagger concerts were being arranged, the appellants began these proceedings on 15 July 1988, alleging that PDC was being forced to use the services of Bass rather than PDP, that this amounted to exclusive dealing within the meaning of the Act, and that it ought to be restrained.
The basic response of NTCT was that it was employing Bass's services as part of its scheme to supply all its hirers with a fully ticketed venue. The hirers, including PDC, were not being brought into any contractual relationship with Bass at all, and so were not being required to use Bass's services.
It is interesting that both the appellants and the respondents in the course of their submissions relied upon what might be called 'floodgates' arguments.
The appellants submitted that, if the respondents' arguments are upheld, then the services of a third party can always be forced on a contracting party by an arrangement which makes the other contracting party nominally responsible for the service, which is then subcontracted to the third party.
On the other hand, it was argued for the respondents that, if the appellants are right in what they say, "the world is awash with third line forcing, for it would occur every time a person engages another to fulfil the first person's contractual obligation". Examples given included a solicitor who deposits his client's money in a particular bank's trust account, a builder who engages a sub-contractor, and a vendor who engages a particular estate agent to accept a purchaser's deposit and hold it as a stakeholder.
All that can usefully be said in the face of these arguments is that these are the types of problems which naturally arise when, for understandable reasons, the legislature chooses to forbid commercial conduct which is not criminal or immoral, but may be economically undesirable. The courts, while being alert to detect sham or artificially contrived arrangements, must do their best to apply the provisions of the enactment to the particular facts before them. It is difficult in such cases to argue usefully by analogy or by extrapolation.
Interlocutory injunctions were sought by the present appellants, but that application was eventually compromised, on 27 July 1988, when the relevant parties entered into a supplementary agreement, which applied only to the Mick Jagger concerts.
While basing their case on the terms originally offered by NTCT, and accepted only under protest in the case of Pink Floyd, the appellants also made submissions based on the supplementary Mick Jagger agreement which, they said, underlined the true nature of PDC's relationship with Bass - as a user of its ticketing and financial services.
Another aspect of the claim is that OPM attempted to impose the same terms, with regard to ticketing by Bass, on PDC when it sought to arrange concerts at the Melbourne Sports and Entertainment Centre by a group known as 'Europe'. Eventually the proposal fell through for other reasons; but it is not disputed that both Centres propose to engage the services of Bass for all future concerts and other activities by promoters such as PDC, unless restrained by the Court.
The appellants also seek damages from NTCT and VACT (which is sued as being involved in the contraventions of the other respondents) for lost profits from the ticketing arrangements for the Pink Floyd and Mick Jagger concerts. The amounts involved would be substantial, but the parties are agreed that questions of liability should be determined first.
The trial judge, Sweeney J., found that under the basic agreements and arrangements which VACT and OPM had imposed or sought to impose upon PDC, there was no exclusive dealing, because VACT's only contract or arrangement for the supply of its Bass ticketing service was with NTCT or OPM alone. PDC was not accepting any service from VACT. His Honour went on to find that there were two aspects of the supplementary agreement for the Jagger concerts which did involve services from Bass to PDC, but since these had been insisted on by PDC as part of the settlement of interlocutory proceedings, it could not be said that NTCT was forcing Bass's services on PDC - which is the substance of the relevant exclusive dealing provision.
There were three other lines of defence relied on by the respondents which the learned trial judge rejected, but which have been raised again in this Court by way of notices of contention, and will have to be considered in due course. These relate to whether the respondents are immune from action because they come under the shield of the Crown; whether the respondents are related companies, and so excluded from the effects of s 47 of the Act; and whether their conduct has been specifically authorised by an Act of the Victorian Parliament, thus giving them immunity under s 51 of the Act.
Trade Practices Act 1974 - Exclusive Dealing
Section 47 of the Act, so far as it is relevant, reads as follows;

"47 (1) Subject to this section, a

corporation shall not, in Trade or commerce, engage in the practice of exclusive dealing .......

(8) A corporation also engages in the practice of exclusive dealing if the

corporation grants ...... a licence in respect of, land or a building or part of a building on the condition that another party to the ... licence ... -

(a) ....

(b) ....

(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.

(9) A corporation also engages in the practice of exclusive dealing if the

corporation refuses to grant ...... a licence in respect of, land or a building or part of a building for the reason that another party to the ... licence -

(a) ...

(b) ...

(c) ...

(d) ... 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.

.......

(13) In this section -

(a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to a condition the existence or nature of which is ascertainable only by inference from the conduct of persons or from other relevant circumstances....."

Section 4(1) of the Act contains three definitions which are relevant for present purposes:

"acquire" includes, in relation to services, "accept";

"services" includes any rights, benefits, privileges or facilities that are or are to be provided, granted or conferred in trade or commerce; and

"supply" when used as a verb in relation to services, includes "provide, grant or confer".

Section 51 of the Act provides,

"51. (1) In determining whether a contravention of a provision of this Part has been committed, regard shall not be had -

(a) ...

(b) in the case of acts or things done in a State - except as provided by the regulations, to any act or thing that is, or is of a kind, specifically authorized or approved by, or by regulations under, an Act passed by the Parliament of that State; or

(c) ...."

Relevant Authority

The leading authority in cases of exclusive dealing similar to the present is Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 359. Although it was concerned with sub-s (6) of s 47 - the supply of goods or services on a condition that other goods or services will be acquired from a third person - the principles involved are the same. Sweeney J., in the judgment now appealed from, held, and the respondents maintain, that this decision is directly in point and governs the outcome of the present case. The appellants seek to distinguish the case.
In it a Brisbane brewer offered liquor retailers in North Queensland the choice of collecting beer from one of its regional depots in the area, or having it delivered from the brewery. Most retailers chose to have their beer delivered. The brewer insisted that the beer should be carried by its preferred carrier, 'QRX', an unrelated company. This practice was challenged by another carrier which was ready and able to do the work.
The High Court held that, although the freight and insurance costs were passed on to the retailer in addition to the price of the beer, the only contract of carriage was between the brewer and the carrier and the carrier provided no services, in any relevant sense, to the retailer. The retailer was invoiced for a total price, though freight was shown as a distinct item. The property in the beer did not pass until delivery, and the insurance of it while in transit was, of course, for the benefit of the brewer only.
Gibbs C.J. said, at 400-401,

"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 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. There can be no doubt that if the condition is that the services should be provided to the corporation which is alleged to be engaged in the practice of exclusive dealing there in no contravention of s 47(6). The decision of the Federal Court in Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd. (1978) 36 FLR 134; 22 ALR 621; is distinguishable from the present case. In that case a building society made the practice of imposing, in respect of loans made to its members, a requirement that a property mortgaged to secure repayment of the loan be insured with a particular nominated insurer. It was held by a majority that there was a contravention of s 47(6). There the contract of insurance conferred rights on the borrower, and not merely on the building society, and those rights came within the definition of "services" in the Act. However Deane J. said, 36 FLR at 168; 22 ALR at 650: "It was not contended on behalf of the commission that any contravention of s 47 would be involved if the condition as to insurance was restricted to coverage of the interest of the relevant applicant, as mortgagee, in the mortgaged property. It would seem a condition which was so limited would not be within s 47(6) for the reason that it would relate to acquisition of the relevant services by the applicant itself through the member as its agent. The issue between the parties is whether the consideration or requirement is within s 47(6) to the extent that it requires insurance in respect of the interest of the member."

The statement supports the conclusion in the present case that if the services of Q.R.X. were acquired by the appellant itself there was no breach of s 47(6) and in my opinion that was the position".

See also Brennan J. at 405-6, where his Honour said;

"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."

Principal Arguments of the Parties

Paraphrasing these statements of the High Court, the respondents assert that there is no contract or arrangement, whether direct or indirect, between PDC and VACT (Bass for present purposes) for PDC to acquire ticketing services or financial services from Bass. From start to finish PDC's contract or arrangement is with the Centres alone. In so far as PDC derives a benefit from having tickets sold for its shows, or having the proceeds of such sales held and invested safely, it acquires that benefit from the Centres. PDC (sometimes called 'the Hirer') accepts the ticketed venue supplied to it by VTCT or OPM (sometimes called 'the Venue' or 'the Venues', 'the Centre' or 'the Centres'). If it be legitimate to distinguish between the hire of the venue and the ticketing (as it would seem to be in the present case - more so than in the case of the beer and its delivery, because the ticketing is not over and done with when PDC takes occupation of the part of the venue covered by its licence), nevertheless PDC accepts both the venue and the ticketing arrangements from the relevant Centre under the contract for hire of the venue. The Centre does not seek to force PDC to accept the services of Bass. It simply asserts its right to supply a ticketed venue to all promoters such as PDC, and to choose the company which will carry out the ticketing. The position is not different from what it would be if the Centre's own employees sold the tickets and accepted responsibility for the proper investment and distribution of the proceeds. So runs the argument for the respondents.
The appellants concede that there is no comfort for them in the terms of the agreements which VTCT and OPM were requiring PDC to accept if it wished to hire either of the venues. They argued, however, that this was not the end of the matter. Section 47 can operate on indirect conditions, conditions not necessarily having legal force, and conditions which are ascertainable only by inference from conduct or other circumstances (see sub-s 47(13) above).

Here it was alleged by the appellants that ticketing is always carried out by, or for the benefit of, the person presenting the performance - whatever form that performance might take. The ticket constitutes a contract between the promoter and the members of the public who come to watch its show. Therefore, whatever the formal contracts might say, the Centres, in providing ticketing, were acting as agents of the promoter, PDC. The Centre could only be said to be providing the ticketing for its own purposes if it were also the entrepreneur, taking financial responsibility for the performance and merely hiring PDC to stage it - which was clearly not the case in the instances before the Court.
If the Centre , as agent for PDC, chose to sub-contract its ticketing responsibilities, then in accordance with well-accepted principles of agency the sub-agent (Bass) became accountable to the principal, PDC, for the proper and faithful conduct of those responsibilities (see, for example, De Bussche v Alt (1878) 8 Ch D 286).
Given the correctness of the basic premise, that ticketing is always for the benefit of the promoter and brings into existence contracts between it and the spectators, it would be difficult to resist the balance of the appellants' argument that services are being provided to it by Bass. All parties are agreed that this is the crucial question. If Bass is providing services indirectly to PDC, under the standard contracts in question, then those services are indeed being forced on PDC by the Centres. This would be so even if the services were being provided to the Centre and PDC jointly; see Ku-ring-gai, above.
However, as counsel for the respondents pointed out, the licence agreements are not cast in terms of agency, or of any authority conferred by PDC on the Centres for them to act for it in entering into contracts with the public. The tickets basically confer a licence to persons to enter the venue at a particular time, and sit in a particular seat, with a view to watching an advertised concert. This is a licence which NTCT and OPM respectively have the right to issue and PDC does not. If for any reason the expected performance does not proceed, the members of the public have recourse to the management of the Centre which sold them their tickets. It controls, through its agent Bass, the funds represented by the sales of those tickets.
Similarly, if a member of the public is injured while attending a performance, any action in contract that person might have could be directed only against the Centre, which might have a consequential action against the promoter, depending on the circumstances of the injury and the terms of any contract between Centre and promoter. The injured person might have an action in trespass or negligence against the promoter and his employees, but that is a different question.
There seems, on analysis, to be no good reason to assume a tacit contract between the promoter and the members of the public who purchase tickets for that particular show.
The standard form of ticket produced by Bass at the relevant times gave on the front all necessary directions to the seat reserved and said, in the case of the Pink Floyd concerts,

"NAT'L TENNIS CNTR

PAUL DAINTY and 3XY PRESENT

PINK FLOYD"

The back of the ticket read,

"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

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."

These contents of the ticket do not, in our opinion, advance the issues to be decided. The words on the front are descriptive of the event and, on careful analysis, devoid of contractual significance. "Paul Dainty" does indeed "present" Pink Floyd, and apparently has some sponsorship arrangement with 3XY entitling it to some of the credit.
The references to 'the Seller' on the back of the ticket are couched in the widest possible terms to cover all the types of performance and the venues for which Bass might sell tickets. Its only clear determination is to limit its own liability. So far as the ticket purchaser reading the conditions is concerned, 'the Seller' could be 'National Tennis Centre', 'Paul Dainty and 3XY', both of those groupings or some other person not shown on the ticket (though that would apparently not be 'normal'). The true identity of the seller must in fact depend on the terms of Bass's engagement, and of any other relevant contract entered into by the person engaging Bass.
The Basic Contracts
The most relevant terms of the basic agreement covering the Mick Jagger concert (which terms had, it is agreed, also governed the Pink Floyd concerts, although never executed for that purpose) were as follows:

"INTRODUCTION

A. The trust is a body corporate constituted under Section 5 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.

IT IS AGREED

Part 1. Definitions

1.1 Unless the subject matter or context requires otherwise, in this Agreement including the introduction, schedules and appendices (if any) the following words and expressions whether commencing with capital letters or not have the meanings respectively assigned to them below: ......

(2) "the Additional Facilities" means the staff, facilities, equipment and services other than the Centre Facilities which the Trust agrees to provide to the Hirer, and are described in Item 8 of the Schedule; ......

(4) "the Booking fee" means the fee specified in Item 14 of the Schedule to be paid by the Hirer to the Trust in respect of each sale or deemed sale of a ticket for the Events; ......

(7) "the Centre Facilities" means that part of the Centre, and the items, facilities and services (if any) described in Item 4 of the Schedule; ......

(10) "the Events" means the concert, show, play, exhibition, conference, meeting, tournament, trade show, entertainment or event of a musical, dramatic, sporting, commercial or other nature to be publicly performed, staged or presented at various times during the hiring period which are described in Item 2 of the Schedule;

(11) "the Gross Receipts" means the total amount of money received from the sale of tickets to the Events;

......

(13) "the Hiring Fee" means the amount specified in Item 5 of the Schedule; ......

(22) "the House Seats" means those seats specified in Item 12 of the Schedule. Part 2. Hiring of the Centre

2.1 Subject to the provisions of this Agreement the Trust grants to the Hirer licence and authority to use the Centre and the Centre Facilities on the Performance Dates, at the Performance Times and at the Other Possession Times exclusively for the purpose of staging the Events. ......

2.3 In respect of its use of the Centre, the Hirer acknowledges and agrees that at all times:-

(1) the Trust retains possession of the Centre;

(2) all keys to the Centre and the Centre Facilities (where applicable) shall be kept by the Centre Manager;

(3) all entrances and exits to the Centre shall be in charge of persons appointed by the Centre Manager;

(4) the Hirer's use of the Centre is non-exclusive. It may be necessary for the Hirer to share use of the Centre or the Centre Facilities, and for the Centre Manager to allocate times for the use of the Centre and the Centre Facilities. 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 Additional Fees and all other charges payable by the Hirer to the Trust pursuant to this Agreement,

in accordance with the provisions of this Agreement. Agreement.

4.1 If the Hirer is unable to present a performance at the relevant Performance Time, the Hirer shall:-

(1) immediately notify the Trust in writing of that fact; and

(2) pay that part of the Hiring Fee attributable to the performance not presented, unless the Hirer is notified in writing by the Trust that the Trust has re-hired the Centre for that Performance Time;

(3) meet all costs of any nature incurred by the Trust in providing the use of the Centre for a cancelled performance, including the cost of staff, the Additional Facilities, ticketing services and equipment engaged in providing that use, together with all costs of any nature incurred as a result of the failure to present a performance. ......

Part 7. Hirer's Obligations

7.1 The Hirer convenants and agrees with the Trust that the Hirer will:-

(1) present the Events on the Performance Dates and at the Performance Times; ......

(4) ensure proper supervision of its agents, Employees, invitees, guests and patrons; ......

(7) report to the Centre Manager any damage to the Centre or the Centre Facilities sustained in its use by the Hirer, its employees, agents, invitees, guests and patrons immediately upon becoming aware of the damage. ......

8.4 The Hirer agrees not to do or permit its employees, agents, invitees, patrons and guests to do anything whereby:-

(1) any permit or licence issued or in force in respect of the management or operation of the Centre, or presentation of the Events, may be forfeited, suspended or not renewed;

(2) any member of the police force, emergency services or any other person engaged by the Trust is hindered or obstructed in the exercise and discharge of his duties in the Centre.

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; ......

(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.

9.4 The Hirer may distribute the specified number of complimentary tickets in respect of each performance. 9.5 If the Hirer distributes Complimentary Tickets for a performance in excess of the specified number, the Hirer shall pay to the Trust within 24 hours of the staging of the performance in respect of which the excess Complimentary Tickets were issued, an amount equal to the amount by which the Hiring Fee would be increased if the excess Complimentary Tickets were deemed to represent ticket sales at the full adult price and the receipts for those sales were added to the gross receipts. 9.6 The Trust retains the right to use at its own discretion the House Seats and the Hirer acknowledges that those seats do not form part of the Centre or the Centre Facilities which the Hirer has licence and authority to use. 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. 9.8 The Hirer acknowledges and agrees that:-

(1) no person will be admitted to any performance without a ticket, a complimentary ticket, or a valid pass authorised by the Trust and the Trust has the right to refuse admission to any person not having a ticket or valid pass;

(2) the Trust shall not be responsible for any breakdown or failure in the ticketing system or for any act, omission or default on the part of any person whatsoever including the Trust, its members, employees and agents, the Centre Manager and any person engaged by the Trust in respect of the printing supply and sale of the tickets nor for any fraud on the part of any person engaged by the Trust in respect of the printing supply and sale of the tickets; and

......

Part 10. Additional Facilities to the Hirer 10.1 The Trust will provide to the Hirer the Additional Facilities in order to enable the Hirer to more effectively stage the Events, for the payment of the Additional Fees.

10.2 The Hirer will pay to the Trust as well as the Additional Fees referred to in Clause 10.1 all amounts paid or payable by the Trust in providing the Additional Facilities, including without limitation:-

(1) the salaries or wages for any staff which the Trust engages to assist with the staging of the Events including without limitation ushers, ticket sellers, security staff, electricians and stage crew;

(2) the costs of cleaning the Centre thereafter including the disposal of rubbish; ......

(5) the cost of providing air-conditioning and illumination to the Centre with the permanent equipment with which the Centre is equipped; and

(6) the cost of replacement and repair of all facilities and equipment damaged as a result of use by the Hirer, its employees, agents, invitees, guests or patrons. ......

Part 11. Maintenance of the Centre and facilities. 11.1 The Hirer covenants and agrees with the Trust that the Hirer shall and will ensure that its employees agents invitees guests and patrons shall:-

(1) use the Centre, facilities and equipment in a safe, proper and efficient manner so as not to involve any risk of injury or damage to person or property;

(2) comply with all reasonable directions of the Centre Manager in connection with the safe and proper use of the Centre, its facilities and equipment;

......

11.2 The Hirer agrees that it will at its own expense make good any damage to the Centre, its facilities or equipment resulting from the use of the Centre by the Hirer, its employees, agents, invitees, guests and patrons.

Part 12. Presentation of the Events 12.1 The Hirer shall conduct and manage the Events in a proper and orderly manner and shall not permit or suffer:-

(1) any riotous, disorderly, drunken or improper conduct;

(2) any act, matter or thing which may injure or tend to injure the reputation of the Centre, the Trust or the Centre Manager and the Hirer acknowledges that the Trust, its employees, members, and agents are entitled to refuse admission to or remove any person from the Centre.

12.2 Unless otherwise agreed the Hirer will not commence or conclude any Performance or schedule any Intervals at any times other than the Performance Times and Interval Times.

12.3 The Hirer shall:-

(1) supply and pay for all performances required for the proper presentation of the Events;

(2) at its own expense transport all personnel, property, facilities and equipment necessary to present the Events to and from the Centre;

(3) present the Events in the most advantageous manner and styles practicable; and

(4) pay all Governmental taxes and levies payable in relation to the staging of the Events. ......

12.5 The Trust shall have the right to withhold from sale or discount the sale price of tickets to any seats which in the opinion of the Centre Manager would have a restricted view of any performance due to positioning by the Hirer, its employees or agents of the stage or any equipment brought into the Centre for use in connection with the performance. For the purpose of determining which seats have restricted views the Hirer undertakes to provide the Trust with a marked up Box Plan and Stage Layout at the time of providing the Trust with the ticket information required under clause 9.7 of this Agreement.

Part 13. Possession and vacating the Centre 13.1 The Trust will make the Centre available to the Hirer on the Performance Dates, at the Performance Times and at the Other Possession Times. ......

Part 15. Indemnities

15.1 The Hirer hereby indemnifies and agrees to keep indemnified, and save harmless the Trust against all claims, demands, actions, damages, costs, losses and expenses of any nature whatsoever which may be incurred by the Trust by reason of or in relation to the use of the Centre by the Hirer or the Hirer's servants, agents, invitees, guests or partons pursuant to this Agreement including without limitation claims arising out of:-

(1) any accident, damage or injury to property in the Centre;

(2) any loss of property from the Centre;

(3) any accident, damage, or injury suffered by any person or to the property of any person in or about the Centre, the entrances, lobbies and exits;

(4) the sale of tickets:

......

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;

(2) provide catering services at the Centre;

(3) sell programs and items peculiar to or provided especially in connection with the staging of particular Events, and to derive in respect of the programs or items sold, a fee from any person to whom that right may be granted in whole or in part;

(4) sell or supply to persons attending the Centre wines spirits drinks (whether alcholic or non-alcoholic) refreshments food confectionary tobacco cigars cigarettes or other items articles or services whatsoever not the subject of any agreement or arrangement regarding catering services or the sale of programs or items connected with the staging of a particular event. 16.2 The Trust reserves for itself the right:-

(1) for its members, employees, agents and the Centre Manager to have access to the Centre and all of the Centre Facilities at all times for the purpose of carrying out their normal duties;

(2) to determine acceptable sound limits in respect of any performance;

(3) to insist on the removal from the Centre of any employee, sub-contractor or agent of the Hirer;

(4) to direct crowd control measures and control security systems and procedures;

(5) to refuse admission to or remove any person from the Centre;

(6) to suspend or control any performance if in the reasonable judgment of the Trust the performance is not in accordance with the Agreement;

(7) to take all actions and make all directions relating to the use of the Centre and the Centre Facilities by the Hirer as it deems necessary; and

(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.

17. Default

......

17.2 If the Trust determines this Agreement pursuant to sub-clause 17.1, the Trust without prejudice to but in addition to any other remedy available may retain all or any part of the monies which have been paid to it whether by way of Security Deposit, or Gross Receipts or otherwise for the purpose of receiving and retaining sufficient monies to make good any deficiency in payment by the Hirer to the Trust and shall refund the excess (if any) to the Hirer.

........ .."

The Schedule Items to the agreement, so far as they are relevant for present purposes, were as follows:

"ITEM 4: (Description of Centre Facilities) Centre Court Stadium (excluding Grand Slam Suite level) Floor

Seating

Stage

Dressing rooms as allocated by Centre Manager Grid (hanging system)

ITEM 5: (The Hiring Fees) 12.5% of the gross receipts, excluding booking fees, or $5,000 per day - whichever is the greater. ITEM 8: (Additional Facilities) Items, facilities and services to be provided by the Licensor at expense of Licensee, including but not limited to: Front of House Staff

Electricity and Gas Consumed

Cleaning

St. John Ambulance Personnel

Security: Front of house, backstage, building and artists Production Staff

Utility Staff

Set-up and Get-out Costs

Ticketing Costs

Crush Barriers

Follow Spots

Police Attendance

Fire Brigade Attendance"

Although the agreement which OPM sought to impose upon PDC for its 'Europe' concerts (which did not proceed) had a number of variations from the NTCT document, the parties are agreed that these are not sufficiently significant to affect the outcome of the case. Sweeney J. did not elaborate on the differences and we refer only to a few of them. The passages from that document, of November 1988, which are worth noting are as follows:

"INTRODUCTION

A. OPM is an incorporated committee of management under the Crown Lands

(Reserves) Act 1978 and is responsible for the care, improvement, use, promotion, and financial management of the Centre.

B. OPM is empowered pursuant to Section 17 of the Act to grant licences to enter and use the Centre subject to such terms and conditions as OPM thinks fit. C. The Licensee has requested access to the Centre for the purposes and upon the dates set out in item 2 of the First Schedule.

D. OPM has agreed to grant the Licensee the limited licence created by the terms and conditions contained in this Agreement for the purposes and on the dates set out in item 2 of the First Schedule. AND IT IS AGREED THAT:

1. DEFINITIONS

......

(iv) "Patron" means any person granted a patron's licence;

(vii)"Patron's licence" means a licence granted or issued to a member of the public in accordance with Clause 3; ......

2. GRANT OF LICENCE

2.1 Subject to the provisions of this Agreement OPM HEREBY GRANTS a limited licence ("the Licence") to the Licensee to enter upon those parts of the Centre which are shaded on the plan of the Centre comprising the Second Schedule for the purposes and ..... on the dates set out in item 2 of the First Schedule. .... 2.2 The Licence is limited by the following conditions:-

(i) The Licence is non-exclusive and OPM shall remain in possession of the whole of the Centre throughout the term of the Licence and nothing in this Agreement shall restrict or prevent OPM from granting any further or other licence to any person to enter and use any part of the Centre including any shaded area on the plan comprising the Second Schedule.

......

(iii) Subject to this Agreement the Licence shall extend to invitees of the Licensee who are necessary for or incidental to the purposes set out in Item 2 of the First Schedule PROVIDED ALWAYS THAT:-

(a) OPM may in its absolute discretion at any time determine such extension of the Licence in relation to any particular invitee or invitees or class of invitees of the Licensee;

(b) The Licence shall not extend to the general public or any particular class or member of the general public or to any person or class of persons being part of the audience for a performance in the Centre and the general public and the audience shall be deemed not to be persons necessary for or indidental to any purpose set out in item 2 of the First Schedule;

......

3. ADMISSION OF THE PUBLIC 3.1 Upon the execution of this Agreement OPM shall at the request of the Licensee grant revocable limited licences for the admission of the public ("patrons' licenses") to the Centre at such times within the term of the Licence as the Licensee may request for the purposes set out at item 2 of the First Schedule. 3.2 The procedure and manner for granting patrons' licences shall be as set out below:

(i) OPM shall grant patrons' licences to the public for any monetary or other consideration or without such cosideration as specified by the Licensee PROVIDED ALWAYS THAT:-

(a) OPM may in its absolute discretion decline to grant any patrons' licences for any consideration other than money.

(b) OPM or any booking agent engaged by OPM to collect any monetary or other consideration or to issue patrons' licences may charge the public a booking fee for the collection of such consideration or the issue of such licence in addition to any monetary or other consideration specified by the Licensee and OPM or any booking agent of OPM may decline to grant or issue any patron's licence until such booking fee is paid.

(c) OPM may divide the general class of patrons' licences into particular blocks, types or classes and grant a licence of a particular, block, type or class for a different or other consideration from licences in any other block, type or class as specified from time to time by the Licensee. .......

(iii) The Licensee may specify a date on which OPM or any booking agent of OPM shall commence to grant or issue patrons' licences. The Licensee may specify different dates or times for different blocks, classes or types of tickets and different dates or times for different performances or other events set out in item 2 of the First Schedule.

(iv) At each performance or other event held at the Centre eighty (80) patrons' licences, tickets and seats (as the circumstances determine) shall be reserved from grant or issue for the use of OPM and its invitees. OPM may in its absolute discretion determine the position and siting of any such reserved seats.

......

(vii) In the event that any performance or other event for which patrons' licences have been granted, issued or sold by OPM or any booking agent of OPM should be cancelled or fail or otherwise not take place then OPM or any booking agent of OPM shall refund any monies paid for such patrons' licences to patrons and the Licensee shall pay to OPM any refund fee of OPM or any booking agent of OPM and any further or other administrative cost of OPM or any booking agent of OPM relating to such refund."

Agreements between VACT, on the one hand, and OPM and NTCT on the other, for the exclusive provision of Bass's services, were entered into on 21 April 1988 and 12 May 1988 respectively. However, they were expressed to have effect from 1 January 1988, the parties having reached agreement in principle late in 1987. They were in very similar terms, so it is only necessary to consider the OPM agreement in detail. Under it, OPM appointed VACT, which was to be referred to in the agreement as 'Bass', "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...".
OPM also granted Bass 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 (1 January 1988) and shall continue for a period of three years".
By clause 12 of the agreement it was provided that Bass 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 those Terms and Conditions Bass was entitled to charge the venue a booking fee for each ticket sold; and under clause 13 of the agreement Bass was to refund to OPM a percentage of those booking fees determined in accordance with the sliding scale (between 13% and 16.5%) of all booking fees received by Bass in connection with events held at any of the venues controlled by OPM and NTCT.
Under clause 5 of the Terms and Conditions Bass 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 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."

There is, in our opinion, nothing in these agreements between the venue and the promoter, or the venue and the ticket-seller, to support the appellants' arguments that tickets for a performance, of their very nature, must be sold on behalf of the promoter or entrepreneur who arranges the performance. There is nothing unlikely or contrived about the arrangements set out. The respective interests of spectators, promoter, venue and ticket-seller are all catered for in a perfectly reasonable way, which does no violence to principles of law or common sense.
There is, in our view, no reason to assume that a relationship of principal and agent arises between promoter and venue for purposes of ticket sales. The contract for the hire of the venue is, on its face, a contract between principals for the hire of a ticketed venue - one which provides all its own ticketing facilities. It is a 'package deal' which, in addition to ticketing, covers such matters as catering, program selling and security services.
Counsel for the appellants drew attention to a number of clauses in the NTCT agreement (e.g. 7.1(4) and (7), 8.4, 10.2(6) and 11.1) which refer to the hirer's "employees, agents, invitees and (or) patrons". See also clauses 1 and 3 of the OPM document. They argued that the word "patrons" implied the existence of a contract between the people attending the performance and the promoter or hirer. But in our view the expression is not a term of art and has no necessary contractual connotation; it means no more than 'spectators'. The clauses cited merely acknowledge the fact that the public will come to see the performance staged by the hirer, and they provide that the hirer must accept certain responsibilites for the behaviour of those members of the public, just as it must for its servants, agents and invitees or guests. There is no reason why such persons cannot have their sole contractual relationship, as licensees, with the venue, while at the same time being properly described as 'patrons' of the hirer's concert.
Fiduciary Relationships
The other way in which the appellants' case was put was to rely upon the financial arrangements outlined above, under which Bass had control of large sums of money, much of it being destined for PDC eventually. It was said that Bass's obligation to account for it, and invest it in the short term, gave rise to a fiduciary relationship irrespective of contractual obligations, and the carrying out of those fiduciary responsibilities amounted to the performance of services by Bass for PDC.
However, the authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. There is simply no need for the intervention of equity, to imply fiduciary responsibilities, in such circumstances. As Gibbs C.J. said, in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 70,

"... the fact that the arrangement between parties was of a purely commercial kind and that they had dealt at arm's length and on an equal footing has consistently been regarded by this Court as important, if not decisive, in indicating that no fiduciary duty arose ...".

See also Wilson J. at 119. In the same case Mason J., who dissented on this issue said, at 97,

"That contractual and fiduciary relationships may co-exist between the same parties has never been doubted".

But later, at 98, his Honour also said,

"True it is that a promise or a contractual term may be so precise in its regulation of what a party can do that there is no relevant area of discretion remaining and therefore no scope for the creation of a fiduciary duty."

In our view that is the position in the present case. The rights and responsibilities of both Bass and the Centres, in dealing with the proceeds of the ticket sales, are set out in detail in the relevant agreements.

Finally, Dawson J. said, at 142,

"There is, however, the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other...."

There is no such position of disadvantage or vulnerability, requiring the protection of equity, in the present case. It was not suggested by counsel for the appellants that there was any reason to imply a fiduciary relationship apart from the simple fact that Bass had, under its contracts with the Centres, control of moneys most of which would be payable to the Centres, which would in turn pay all but 12.5%, after deducting certain fees and charges, to PDC - provided only that the concerts went ahead. We do not accept the argument for the appellants that there is no distinction between such commercial obligations to account and the creation of fiduciary relationships.
There is a further point to be made. Assuming, contrary to the conclusion we have reached, that the basis for a fiduciary relationship has in all the circumstances been established, that would not, in our opinion, mean that a service was being provided so as to attract the relevant provisions of the Act. Whether or not such a service is being provided by one party to another is a matter to be determined by reference to the arrangements, whether legally enforceable or not, into which the parties have entered and to the overall facts and circumstances of the matter. Whether or not those arrangements or facts and circumstances may involve the parties in a particular case being in a fiduciary relationship with one another is not, however, relevant to the question whether one party is providing the other with a service. A fiduciary relationship is a relationship found by equity in circumstances where equity considers that it is right to protect the interests of a disadvantaged party which are, or seem to be, under threat. We note, in passing, that there was never any suggestion of such a threat to PDC's interests in the present case.
The Supplementary Mick Jagger Agreement
As stated early in these reasons, an application for interlocutory injunctions covering the Mick Jagger concerts was compromised by an agreement between the parties. The agreement was in the following terms, written by PDC's solicitors and counter-signed by the respective solicitors for VACT and NTCT:

"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 purchase 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 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 conerning 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 utlra 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."

In dealing with the issues raised by this agreement, the learned trial judge said,

"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."

Counsel for the appellants argued that the agreement was designed to solve mechanical problems that needed to be worked out, or to clarify areas of doubt in the basic document produced by NTCT as its hiring agreement, and it did not change the relationships created by the basic document. Clause 5, in particular, merely recorded the consequences of the legal relationships already established and created no new obligations. Clause 11 was also said to arise logically from "the denial of any responsibility under the head agreement to anyone for anything".
Counsel for the respondents, on the other hand, submitted that the evidence was clear (as the trial judge found) that the supplementary terms were insisted upon by PDC; so, to the extent that those terms changed any agreement or arrangement between the parties, the respondents cannot be held responsible - they imposed no relevant obligation on PDC.
It is true that Deane J. in the Ku-Ring-Gai case (above) at 167-8 said,

"The practice of exclusive dealing does not necessarily involve the imposition of any condition. It involves supply upon a condition. The condition may well have been suggested by the recipient of supply. It may have been imposed by some third party. It may arise, by implication, from all the circumstances in which the goods and services were supplied."

But his Honour did suggest that a party can be guilty of forcing another party to accept services from a third party in circumstances where it is the second party which has insisted that it receive the particular services. And, in our view, that is the case here.

There is no imposition by NTCT of any condition that PDC acquire services from Bass. PDC insisted upon Bass supplying those services directly to it. The provisions of clauses 5 and 11 were not, in our opinion, a mere working out or clarification of existing provisions. They represented a distinct change in legal relationships by imposing obligations on Bass, for the benefit of PDC, which were capable of direct enforcement by PDC against Bass. Under the basic agreement PDC would have had to look to NCTC for any such services.
In any event it is difficult to see that the appellants could be entitled to any remedy arising out of the terms of clauses 5 and 11 of the supplementary agreement. There is no suggestion that such an agreement is likely to be repeated, so injunctive relief would not be appropriate. The carrying out of these terms can hardly be thought to have resulted in any damage to the appellants. And, in those circumstances, there would appear to be no purpose served by the making of a declaration.
It is significant that, in their arguments, counsel for the appellants did not urge findings in their favour based solely on the supplementary agreement above. They relied upon it as illuminating what they submitted to be the true nature of the basic agreement.
The Shield of the Crown
It is not disputed that the Trade Practices Act does not apply to a state government body which is, for the relevant purpose, under the shield of the Crown; see Bradken Consolidated Ltd v The Broken Hill Pty Co Ltd (1979) 145 CLR 107.
In Townsville Hospitals Board v Council of the City of Townsville (1982) 149 CLR 282 at 288-9, Gibbs C.J. said,

"... many functions formerly regarded as matters of private concern are now carried out by instrumentalities of government and the question whether the functions in question are traditionally or peculiarly governmental is likely to be increasingly unhelpful in deciding whether the body formed to carry out those functions enjoys the privileges and immunities of the Crown...... The answer to the question must in the end depend upon the intention to be derived from the statute under which the body in question is constituted".

Later, at 291, his Honour said,

"It has more than once been said in this Court that "there is evidence of a strong tendency to regard a statutory corporation formed to carry on public functions as distinct from the Crown unless parliament has by express provision given it the character of a servant of the Crown": Launceston Corporation v Hydro-Electric Commission (1959) 100 CLR 654, 622; State Electricity Commission

(Vict) v City of South Melbourne (1968) 118 CLR 504, 510. All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide the immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention."

See also, on the importance of the statutory ability of the executive to control the instrumentality, whether in practice it does so or not, Superannuation Fund Investment Trust v Commissioner of Stamps (South Australia) (1979) 145 CLR 330, per Stephen J. at 348.
In the present case the VACT has perhaps the strongest claim to the shield of the Crown because sub-s 4(2) of the Victorian Arts Centre Act 1979 provides,

"Subject to the general direction and control of the Minister the Trust shall be responsible for the management of the Centre".

It is true that the phrase 'general direction and control' in this context is somewhat ambiguous. It may mean the unfettered or unrestricted direction and control, or it may mean direction and control on policy questions as distinct from detailed matters. The 'management of the Centre' is another expression which could be interpreted narrowly, in a geographic sense, or broadly, in a functional sense.
Other relevant sections of the Victorian Arts Centre Act provide that the functions of the Trust, which is established as a body corporate with the usual powers of such a body, include "the care improvement and maintenance of the Centre", "the control and management" of the Centre other than the National Gallery, and the presentation of the performing arts within the Centre and, with the approval of the Minister, outside the Centre (s 5).
The Trust is given all necessary powers, including incidental powers, to carry out its functions and objects (sub-ss 6(1) and 6(2)) and may, with the consent of the Minister, enter into a contract for the provision of services (sub-s 6(3)). These powers would, it seems, entitle the Trust to establish a ticket agency and provide the services of that agency to bodies such as NTCT and OPM. The contract to provide such services would probably require Ministerial consent. The power of the Trust to provide such a ticketing service was made explicit by the Victorian Arts Centre (Amendment) Act 1988, which came into force on 15 December 1988.
The nine members of the Trust are all appointed by the Governor in Council, though three of them are nominated by other bodies. The Governor in Council appoints the Chairman of the Trust (sub-ss 8(1) and 10(1)).
The Trust requires the approval of the Minister for the employment, from time to time, of a general manager and deputy general manager (sub-s 14(1)).
Finally, the Trust makes an annual report to the Minister, which is tabled in the Parliament (s 18).
The question is not an easy one to decide but, in our view, having regard to Gibbs C.J.'s reminder as to how easily the shield of the Crown can be provided for if that is the intention of the legislature, the better view is that the VACT, in its provision of a commercial service in the form of the Bass ticketing service, is not operating under that shield.
Similar considerations apply to NTCT and OPM. NTCT consists of 13 members appointed by the Governor in Council, of whom 5 are nominated by the Minister without restriction, and 4 more are nominated by the Minister from the membership of other bodies. The Governor in Council may at any time remove a member from office. See the National Tennis Centre Act 1985 s 8.
The continuing functions of NTCT are to be responsible for the care, improvement, use and promotion of the National Tennis Centre, to be responsible for its financial management and to accept appointment as a Committee of Management of Crown Lands (see s 6). It is this responsiblity for Crown lands which gives NTCT its strongest claim to the shield of the Crown. In addition, the Treasurer is given some powers of oversight of the financial affairs of NTCT (see ss 17, 18 and 19) and an annual report is required, as in the case of VACT (see s 20).
However, there is in our view no sufficient evidence in the Act of that type or degree of control by the executive which would attract the shield of the Crown for the Trust's commercial activities.
The same is true of OPM, which is constituted pursuant to the Crown Land (Reserves) Act 1978 as amended by the Crown Land (Reserves) (Amendment) Act 1984. OPM is a committee of management declared in 1981 by the Governor in Council to be a corporation pursuant to s 14A(1) of that Act. It is required to manage, improve, maintain and control the Crown lands entrusted to its care.
The main arguments relied on by counsel for the respondents as showing that OPM is, for relevant purposes, the Crown, are as follows:

(a) OPM has been brought into existence by the

Governor in Council on the recommendation of a Minister (s 14A(1)).

(b) The Governor in Council may dissolve OPM

(s 14A(7)).

(c) The members of OPM are appointed and removable

by the Minister (ss 14(2), 14B(5)).

(d) The Minister can limit or expand the powers of

OPM through his regulation-making power (s 13).

(e) The Treasurer can exercise a degree of control

over OPM's financial affairs (s 14C).

(f) An annual statement of receipts and

expenditure has to be provided to the Secretary of Lands (s 15(8)).

(g) Licences to use the Melbourne Sports and

Recreation Centre can only be given by OPM because the Governor in Council specifically certified that it could do so (s 17(1) and (2)).

None of these enabling or reserve powers of the Governor in Council or the Minister compensate, in our view, for the absence of any expression of legislative intent that a body in the position of OPM, under the relevant legislation, should be subject to the control of the executive in carrying out those of its functions which are relevant for present purposes.
In our opinion the respondents arguments for immunity under the shield of the Crown must fail.
Related Corporations
In our view there in no substance in the respondents' submission that they are all 'related corporations' within the meaning of sub-ss 47 (8) and (9) of the Trade Practices Act. They are said to be so because they are all "subsidiaries of the Crown, which is a body corporate". But s 4A(5) of the Act limits the meaning of 'related corporations' in such a way that the three instrumentalities could only satisfy the description if the Crown were held to be a holding company for the purposes of the Act. This would be a very strange conclusion, which could only be even remotely arguable if the three entities were held to be true emanations of the Crown, which we believe they are not.
Trade Practices Act 1974 s 51
The respondents, in our view, have a much stronger argument under this heading than they have under the previous headings of 'Shield of the Crown' and 'Related Corporations'. The question to be determined is whether the 'acts or things' done by the respondents and alleged to constitute exclusive dealing, have been "specifically authorised or approved by ..... an Act passed by the Parliament" of Victoria.
The relevant Act is the Victorian Arts Centre (Amendment) Act 1988 which, in s 5, provides,

"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 Schedule reads,

"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."

The Act came into force on 15 December 1988.

Sweeney J. approached the question of the meaning and effect of this enactment by looking at its parliamentary history. His Honour noted, among other things, that the relevant provision had originally been drafted in the following terms,

"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."

His Honour then said,

"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 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 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."

While seeing the force of his Honour's reasoning, we have nevertheless arrived at a different conclusion. The fact that a deeming provision has been omitted from the Act does not necessarily mean a change of legislative intent. It may merely mean either that further consideration led to the view that it was unnecessary, or that the legislature was reluctant to enact provisions having an appearance of retrospective effect and preferred to leave such questions to the decision of the Court which was then dealing with them.
In our view, the Court should construe the provision as enacted by the Parliament without allowing itself to be influenced by speculation as to the legislative intention based upon the history of amendments to the Bill, which may well have been agreed upon for a variety of reasons, expressed or unexpressed.
Each of the agreements "specifically authorised and approved" had appointed Bass as the relevant Centre's exclusive agent to sell, on the Centre's behalf, the tickets to all events at the Centre. To allow PDC, through PDP, to sell tickets to any future event at either centre would, in our view, be a breach of the relevant agreement with Bass to give it the exclusive right to sell tickets. Since the named agreements are specifically authorised and approved, so must the exclusive agency be specifically authorised and approved. In reaching this conclusion we reject the appellants' argument that, properly construed, the agreements gave the Centres a choice in relation to each hiring whether or not to employ BASS's services. In our view that was not the intention or effect of the agreements.
The appellants have argued that the exclusive dealing of the respondent Centres consists in requiring PDC to use Bass' services, and that this is not conduct specifically authorised or approved by the Victorian Act. As we have already said, we think this is an inaccurate way of describing the situation, because Bass's services are provided to the Centres, not to PDC. But even if this were not so, we believe the Victorian Act specifically authorised the agreements which gave Bass exclusive rights to all ticketing for the Centres.
It is also, in our respectful opinion, wrong to say that the Victorian Act authorised the making of the agreements but not their execution. This would have been a pointless exercise on the part of the Victorian Parliament, which should not be attributed to it.
In our view it is clear that the Parliament, by using the language of s 51 of the Trade Practices Act, was intending to invoke the protection of that section for conduct in pursuance of the named agreements.
Section 51 relevantly provides,

"In determining whether a contravention of a provision of this part has been committed, regard shall not be had .... to any act or thing that is .... specifically authorised or approved by .... an Act passed by the Parliament of that State..."

The direction is to the court, which is instructed, by way of comity in a Federal system, to respect the expressed wishes of a State Parliament. The direction speaks as at the time when the matter is before the court and, in our view, should be construed generously in favour of the State.
The word "approved", by contrast with "authorised", suggests the possibility of ratification of an act or thing after it has occurred. We can see no sufficient reason why an exculpatory provision such as this should not have, in one sense, a retrospective effect, so that a possible contravention of Part IV of the Act, which has since been specifically approved by the State Act, is to be disregarded by the court. If the agreements are "approved", the clear inference is that they are approved as at the time of their making and that their implementation is also "approved".
Even if we are wrong in this approach, and the Victorian Act speaks only as at 15 December 1988, leaving unaffected any contravention dependent upon an act or thing which occurred before that date, it would still be a complete answer to any claim for injunctive relief.
Orders
In the result, for the reasons we have given, we agree with the learned trial judge that the appellants have, on any view, failed to show a contravention by the respondents of s 47 of the Trade Practices Act 1974. For this reason, and for the additional reason just given relating to authorisation and approval by an Act of the Victorian Parliament, we would dismiss the appeal with costs.

[1990] FCA 228

28 MAY 1990