NSW Rifle Association Inc v The Commonwealth of Australia

Judgment 1HIS HONOUR: The ANZAC Rifle Range is situated on the Malabar Headland. The Malabar Headland is Commonwealth land. The plaintiff ("the NSWRA" or "the Rifle Association") occupies parts of the ANZAC Rifle Range under a contractual licence given on 15 March 2000. The Commonwealth Government proposes to transfer the Malabar Headland to the State of New South Wales for a national park. 2The first question in these proceedings is whether the Commonwealth is entitled to evict the Rifle Association from the rifle range and associated buildings. If not, the second question is whether the Commonwealth can in any event transfer part of the Malabar Headland, known as lot 2, to the State of New South Wales for use as a national park. Most of lot 2 is a safety template for the rifle range. The NSWRA says that if lot 2 is transferred, it will be unable to use the rifle range contrary to what it says are the rights granted by the licence.

Background 3The NSWRA is incorporated under the Associations Incorporation Act 1984 (NSW). A predecessor organisation was established in 1860. The members of NSWRA are the members of shooting clubs who are affiliated with the NSWRA. 4For many decades rifle clubs were associated with the Defence Force. They were regulated by regulations made under the Defence Act 1903 (Cth). Until 1949 rifle clubs were part of the Military Reserve Force. Military ranges were maintained by the Army and available for rifle club use. 5For many years the NSWRA conducted its activities at the Holsworthy Rifle Range, Liverpool. The predecessor to the NSWRA, an unincorporated association, had carried on its activities at Holsworthy from 1926 until the end of 1967. In a judgment given on 26 April 1990 (NSW Rifle Association Inc v The Commonwealth of Australia (26 April 1990, Waddell CJ in Eq, unreported; BC9002511)) Waddell CJ in Eq recorded that the Association had established a number of buildings at Holsworthy. All the member clubs had built their own huts which contained their club facilities and there were about 50 of these buildings. The Association had no documentary title to use the land or the Holsworthy range. His Honour recorded that in 1962 the Association was informed by the Department of the Army that the ANZAC Rifle Range at Holsworthy would be closed in not less than five years time, that at least two years' clear notice would be given before the range was finally closed, and that it was proposed that the Long Bay range at Malabar could be developed as an alternative range to be a worthwhile home for the Association in Sydney. 6The Commonwealth provided financial assistance to the NSWRA for the construction of buildings at Malabar. In January 1968, the NSWRA's predecessor and its affiliated clubs moved to Malabar, which was then renamed the ANZAC Rifle Range. The Association occupied the rifle range under a permissive occupancy. 7In July 1986 the Commonwealth Government resolved to sell the ANZAC Rifle Range. On 16 March 1988 the Commonwealth gave the Association a notice of termination which stated that as from 1 June 1988 the land would no longer be used as a rifle range and that the Association's right to occupy the land on which its buildings were situated was terminated as at midnight on 31 May 1988. 8On 26 April 1990 Waddell CJ in Eq held that the notice of termination was invalid. His Honour held that the permissive occupancy could only be terminated when the Association's licence to use the land as a rifle range was validly terminated, and that the licence could only be terminated on reasonable notice. The notice given was not reasonable. His Honour expressed the view that a period of "perhaps three years' notice" should have been given. 9On 20 August 1990 the Commonwealth issued a new notice of termination purporting to terminate NSWRA's right of occupancy on 25 August 1993. That notice was valid. On 22 July 1994 Bryson J gave judgment for the Commonwealth for possession of the land known as ANZAC Rifle Range (NSW Small-Bore and Air Rifle Association Inc v Commonwealth of Australia; NSW Rifle Association Inc v Commonwealth of Australia (Supreme Court of New South Wales, Bryson J, 22 July 1994, unreported; BC9405172). An appeal to the Court of Appeal was dismissed on 15 August 1997 (NSW Rifle Association Inc v Commonwealth of Australia (Court of Appeal, 15 August 1997, unreported; BC9703604). 10In the meantime there had been a change of Government. The Liberal National Party coalition was elected in March 1996. Notwithstanding that the Commonwealth had been found to be entitled to possession of the rifle range, it did not seek to enforce that remedy. The new Government took a different view as to how the interests of rifle shooters should be accommodated with the preferred uses for the headland. On 21 September 1998 the Commonwealth Government issued a joint media release by the Minister for Finance and Administration and the Minister for Sport and Tourism. Under the heading "Sydney Sporting Shooters to get New Range" the Ministers announced: "SYDNEY SPORTING SHOOTERS TO GET NEW RANGE We are pleased to announce that after years of uncertainty the sporting shooters of NSW will be able to establish new headquarters at Holsworthy, under a Federation Grant of $9 million from the Commonwealth Government. The Government has allocated the $9 million from the Federation Fund, as established by the Prime Minister in the 1997/98 Budget, for the construction of the new firing range facilities at Holsworthy and the provision of public open space at Malabar. Since 1986 the NSW Rifle Association and the 36 metropolitan gun clubs that regularly use the ANZAC Rifle Range at Malabar have been facing closure. Encroaching residential housing and increasing competing land uses mean that shooting is no longer an appropriate activity for the site. Target shooting is a recognised sport, as legitimate as football or cycling, and, as such, competitive and sporting shooters have a right to facilities where they can enjoy their sport and compete at a national and international level. The ANZAC Rifle Range is currently home to the premier national shooting event, the NSW Queens Prize. ANZAC Rifle Range [is] used by 160 NSW gun clubs for competitions and is used by many schools with cadet corps, and by the NSW and Australian Federal Police, Defence Services, Australian Protective Services and the NSW Department of Corrective Services for weapon training and target practice. Given the lack of alternative facilities within the Sydney basin the inevitable eviction from Malabar would have been a significant blow to a sport which is enjoyed by thousands of enthusiasts within NSW. The previous Labor Government was unwilling to provide any alternate accommodation after eviction from Malabar. Labor was prepared to consign rifle sports shooting by Sydney residents to oblivion. The Coalition Government, with the Federation Funding, will purchase the land and fund the construction of the facilities at Holsworthy. Subject to a formal License Agreement being negotiated satisfactorily the shooters will be permitted to remain on the Malabar site until 2001. Future ownership of the Holsworthy range and the Malabar site will be subject to negotiations with the State Government. The NSW Rifle Association has its origins in the local volunteer defence forces which were formed in various of the Australian Colonies in the years preceding 1860. Upon Federation, the voluntary unpaid rifle companies became Australian Rifle Clubs which, under the provisions of the Defence Act 1903, were made part of the Military Reserve Forces of the Commonwealth. These provisions were repealed in 1949 but it was not until 1997 that the whole of the statutory rules governing firearms exemptions and other privileges enjoyed by the clubs, were repealed. Target rifle shooting was amongst the first sports to send an official Australian national team overseas. Currently Australia's sporting shooters are successfully competing at the Commonwealth Games in Kuala Lumpur. The Coalition is pleased to have been able to assist in ensuring the future of one of the country's oldest sports which is enjoyed by thousands of Australians." 11For this proposal to be implemented it was necessary for the Commonwealth to purchase land and construct a new firing range at Holsworthy. It was then anticipated that this would be done by 2001. The NSWRA and the Commonwealth negotiated a deed of licence for the NSWRA's continued occupation of the ANZAC Rifle Range at Malabar until an alternative site became available. 12This was the background to the parties' entering into the licence deed dated 15 March 2000.

Rifle Range Licence of 15 March 2000 13The deed is made between the Commonwealth of Australia (described as the "Owner") and the NSWRA (described as "User"). The deed recites that the Owner owns the Range. The "Range" is defined to mean "the land in folio identifier 1/809094 known as ANZAC Rifle Range off Franklin Street, Malabar." 14Clauses 2.1 and 2.2 provide: "2.1 Licence The Owner grants to the User during the Term: (a) an exclusive licence to use the Licensed Area in accordance with this document; (b) a non-exclusive licence for the User and the User's Agents to use the Licensed Range; (c) a non-exclusive licence for the User and the User's Agents to use the Caravan Park; and (d) an exclusive licence to use the Buildings, for the uses described in clause 5. 2.2 Nature of licence (a) The licence granted under this document is personal to the User. (b) Nothing in this document: (i) confers on the User any rights as a tenant of the Licensed Area, the Licensed Range or the Caravan Park; or (ii) creates the relationship of landlord and tenant between the Owner and the User." 15The "Licensed Area" means part of the Range which is identified on an attached plan. These are areas immediately surrounding the "Buildings". 16The "Licensed Range" is defined as "the ranges listed in Item 6". Item 6 provides: "Licensed Range Fullbore Classification Range Service Classification Range 100 metre zero/Pistol Range 25 metre - zero Range" 17The "Buildings" in respect of which an exclusive licence is granted to NSWRA are known as the NSW Rifle Association Building, Barrack Buildings identified by letters A, B, C and D and a storage shed. These are identified on the plan attached to the licence. 18The "Term" for which the licence is given is defined as follows: "Term (a) The period commencing on the Commencing Date and ending on the Termination Date (b) Commencing Date: 1 June 1999 (c) Terminating Date: The later of: (i) 30 June 2001; or (ii) the date being 14 days after the Owner gives to the User a Relocation Notice." 19A "Relocation Notice" is defined as follows: "Relocation Notice means a notice by the Owner to the User to the effect that the Holsworthy Range (or a comparable range nominated by the Owner) is available for the User's use." 20Clause 3.1 provides: "Term of licence The term begins on the Commencing Date and ends on the Terminating Date." 21The NSWRA is required to pay an annual licence fee of $24,363 per annum which is to be adjusted for changes to the Consumer Price Index. 22This licence effected a significant change to the legal relationship between the NSWRA and the Commonwealth. Subject to one, and possibly two, qualifications, the NSWRA was entitled to continue to occupy the buildings and to use the designated firing ranges until at least 2001 and in any event, until the Commonwealth gave a notice to the effect that the Holsworthy range, or a comparable range nominated by it, was available for the Rifle Association's use. One qualification to that right is if the Commonwealth is entitled to terminate the licence because the NSWRA is in default (as defined). The Commonwealth submits that there is a second qualification, namely, that the Commonwealth is entitled to terminate the licence in the public interest. 23The Commonwealth has not given a Relocation Notice. Apparently it was decided that it was not appropriate that the Holsworthy Army Base be made available to provide a range for private shooting clubs. Although other potential rifle ranges have been identified, so far as appears, no steps have been taken, other than the carrying out of studies, to relocate the ANZAC Rifle Range. 24The Malabar Headland is in the Commonwealth electorate of Kingsford Smith. The local member is the Honourable Mr Peter Garrett MP. He has consistently campaigned for the Malabar Headland to be transferred to the State of New South Wales for use as a national park and for public open space. 25Prior to October 2011 there was no indication from the Commonwealth that transfer of the Malabar Headland would proceed otherwise than by first relocating the NSWRA to a comparable range. As late as 28 September 2011, Mr Rick Scott-Murphy, First Secretary, of the Property and Construction Division of the Department of Finance and Deregulation advised the treasurer of the NSWRA and others that the NSWRA would remain on Malabar until a suitable alternative site was available for its relocation. 26On 7 October 2011 Mr Scott-Murphy wrote to the chairman of the NSWRA to "clarify" (more accurately to correct) the discussion that took place on 28 September 2011. In his letter of 7 October 2011 Mr Scott-Murphy stated: "I wish to advise that my comments at the meeting were specifically intended to confirm that the Commonwealth will abide by, and rely upon, the terms of the relevant Licence, both express and implied. I advise that at no time did I intend to create any impression on the part of the Rifle Association that it can stay on the site until a comparable site can be found. As you are aware, the Commonwealth has expressed its concerns on a number of occasions about a diverse range of health and safety risks at the Malabar Headland including site contamination arising from previous and current usage of the site; safety concerns in relation to shooting activities; and general safety concerns, including trip and fall hazards. The safety of all users of the site is the Commonwealth's priority." 27On 21 October 2011 the Department of Finance and Deregulation sent a fax to the NSWRA as follows: "The Commonwealth of Australia has determined to terminate the licence in favour of the New South Wales Rifle Association Inc in respect of the Malabar Rifle Range. We attach a copy of the Termination Notice. Clause 3.1 and Item 3 of the Reference Schedule to the licence are of no effect. There is no legal obligation on the part of the Commonwealth of Australia to provide a Relocation Notice (as defined in clause 1.1 of the Licence). The Commonwealth of Australia relies on an implied term allowing the termination of the Licence on reasonable notice." 28The termination notice stated that the Licence would terminate on 31 January 2012, being three months after the date of the notice. The termination notice demanded that the NSWRA remove all its fixtures, fittings, equipment, furnishings, vehicles and other items brought onto the Range by the NSWRA or its agents by 5pm on 31 January 2012. 29On 5 December 2011 the NSWRA commenced the first proceeding (2011/393228) claiming a declaration that the termination notice was void and of no effect. The licence is for a term that does not end until 14 days after the Commonwealth gives to the NSWRA a Relocation Notice to the effect that the Holsworthy Range, or a comparable range nominated by it, is available for the NSWRA's use. The suggested implication that the licence could be terminated on reasonable notice is inconsistent with the express terms of the licence deed. (The notice also ignored the decision of Waddell CJ in Eq referred to at para [8] above that three years would be reasonable notice of termination.) 30On 7 December 2011 the Commonwealth gave an undertaking that it would not take steps to enforce the termination notice up to and including 3 February 2012. That undertaking was subsequently extended. On 25 May 2012 the Commonwealth withdrew its termination notice of 21 October 2011. 31On 25 January 2012, that is, six days before the Commonwealth had purportedly required the NSWRA to vacate the site, the Commonwealth changed tack. Clause 6.2 of the licence deed provides: "6.2 Condition of improvements The User must at all times at its own expense: (a) keep in a good and safe state of repair: (i) the Buildings; and (ii) the target platforms, the target mechanisms and the target butts on the Fullbore Classification Range and the Service Classification range; and (b) comply with the Environmental Management Plan and Fire Safety Management Plan." 32The "Environmental Management Plan" and "Fire Safety Management Plan" are defined as follows: "Environmental Management Plan means the Environmental Management Plan of DASCEM Holdings Pty Ltd dated September 1999 in the Licence Exhibit. Fire Safety Management Plan means the Fire Safety and Adequacy Survey by DASCEM Holdings Pty Limited dated September and October 1999 in the Licence Exhibit." 33Clause 1.2(g) provides: "1.2 Interpretation In this document, headings and underlining are for convenience only and do not affect interpretation, and unless the context otherwise requires: ... (g) a reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time." 34Clauses 10.1 and 10.2 of the Licence Deed provide: "10. DEFAULT AND TERMINATION 10.1 Default The User is in default if: (a) (non-payment) it does not pay the Licence Fee or any other money payable under this document within fourteen days of the due date, after written demand by the Owner; (b) (breach) the Owner gives the User a notice asking the User to remedy any breach of this document and the User does not remedy the breach within fourteen days or such longer time as is specified in the notice; (c) (Range Safety Rules) the Owner gives the User a notice asking the User to comply with the Range Safety Rules and the User does not comply with the notice immediately or within such longer time as is specified in the notice; (d) (Management Plan) the Owner gives the user a notice asking the User to comply with its obligations under the Management Plan and the User does not comply with the notice immediately or within such longer time as is specified in the notice; (e) (repudiation) it repudiates its obligations under this document; or (f) (company) the User is a company and: (i) an application or order is made for its winding-up or dissolution, or a resolution is passed or any steps are taken to pass a resolution for its winding-up or dissolution, or to place it under administration; (ii) it enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; (iii) a receiver, receiver and manager, provisional liquidator, trustee, administrator or similar official is appointed, or steps are taken for such an appointment, over any assets or undertaking. 10.2 Owner's rights on default If the User is in default the Owner may: (a) rectify the default, and the User must immediately reimburse the Owner for the cost of the rectification; or (b) terminate this document by written notice and also exercise any other legal right." 35The Commonwealth prepared a document entitled "Remedy Notice" dated 25 January 2012 which asserted that the NSWRA was in breach of its obligations under clause 6.2(a)(i) of the Licence in that it had failed to keep in a good and safe state of repair the NSWRA building, the four buildings known as the Barrack Buildings and a Storage Shed. These were the "Buildings" as defined in the Licence Deed. Attached to the Remedy Notice were four reports running to 260 pages: namely, a report prepared by Parsons Brinckerhoff for UGL Limited dated 24 January 2012 entitled "Hazardous Materials Assessment - Malabar Headlands, NSW Rifle Association Buildings", a report entitled "Building Condition Report" dated January 2012 prepared by AssetFuture Pty Limited, and two reports dated December 2007. One of these was from a company called "Robson" for United Group Limited Services entitled "Hazardous Material Survey and Management Plan ANZAC Rifle Range". The other was prepared by "Strategic Facility Services", also dated December 2007 and prepared for UGL, entitled "Condition Report on the Buildings at ANZAC Rifle Range Malabar - New South Wales". The Remedy Notice stated that the breaches requiring "remediation" were those identified in certain parts of the Parsons Brinckerhoff report and the AssetFuture report. The notice stated that the breaches had to be remedied within 14 days of the date of the notice. 36Notwithstanding this last statement, the Remedy Notice was not served until 31 January 2012. It was served under cover of a letter from Blake Dawson Waldron, solicitors for the Commonwealth, to Hunt & Hunt, solicitors for the NSWRA, dated 27 January 2012 and was received by Hunt & Hunt on 31 January 2012. 37The NSWRA does not admit the alleged breaches of the covenant in clause 6.2(a)(i) that it failed to keep the Buildings in a good and safe state of repair. However, its principal submission is that even if a breach of that covenant were established, the notice dated 25 January 2012 was ineffectual. 38On 8 February 2012 the NSWRA filed a summons seeking a declaration that the notice issued by the Commonwealth dated 25 January 2012 is void and of no effect. (These are proceedings 41950 of 2012.) 39On about 2 April 2012 the Commonwealth served a Second Remedy Notice dated 29 March 2012. That notice alleged that the NSWRA was in breach of its obligations under clause 6.2(b) of the Licence in that it had failed to comply with the Environmental Management Plan, defined in subclause 1.1 of the Licence as the Environmental Management Plan of DASCEM Holdings Pty Ltd ("DASCEM Holdings") dated September 1999. Specifically it was alleged that the NSWRA had failed to repair damaged asbestos materials and either seal them with an acrylic paint or have them removed by a licensed contractor in accordance with the Worksafe Australia Asbestos Code of Practice; had failed to label all asbestos containing materials in accordance with the Worksafe Australia Asbestos Code of Practice and to maintain them in a condition that prevented the generation of airborne asbestos fibres or, if this were not possible, to remove them; and had failed to paint the exposed edges of damaged sheeting with an acrylic paint to seal the fibres into the matrix. The work required to be done to remedy the alleged breaches was described by reference to a further report of Parsons Brinckerhoff dated 5 March 2012. The alleged breaches were required to be remedied by 19 April 2012. 40On or about 9 May 2012 the Commonwealth served a Third Remedy Notice dated 7 May 2012. The Third Remedy Notice alleged that the NSWRA was in breach of clause 6.2(b) of the Licence in that it had failed to comply with the Fire Safety Management Plan as defined in subclause 1.1 of the Licence. Sixteen breaches of the Fire Safety Management Plan were alleged. The work required to be done was identified in a report of Elk-Seagren Consulting Pty Ltd dated 3 April 2012. The notice gave the NSWRA 14 days within which to remedy the alleged breaches. 41The NSWRA filed a statement of claim in the 2012 proceedings. The statement of claim was amended and re-amended to challenge the validity of the Second and Third Remedy Notices. 42The Commonwealth admitted that it would not have been possible for the NSWRA to carry out all the work required by each remedy notice within the times specified. 43Prior to the service of the remedy notices the Commonwealth had made no complaint about NSWRA's compliance with clause 6.2 of the Licence. 44Clause 12.4(a) of the Licence provides: "12.4 Waiver (a) The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver." 45The NSWRA did not admit that it was in breach of its obligation to keep the Buildings in good and safe repair. It submitted that that obligation was to be measured having regard to the state of repair of the buildings at the commencement of the licence or the date of the Licence Deed, and there was no evidence that the buildings are in a materially worse condition than they were at those times. The NSWRA submitted that the obligations to deal with asbestos-containing material as set out in the Environmental Management Plan of DASCEM Holdings dated September 1999 had been replaced by a new environmental management plan for dealing with asbestos on the site under which it did not have those obligations. It did not contend that the requirements of the Fire Safety Management Plan had all been complied with. It pointed to the long delay of the Commonwealth in raising a complaint about fire safety measures. 46The NSWRA's principal contention was that the Commonwealth was under a duty to act reasonably and in good faith in the exercise of its power under clause 10.1(b) to specify a time for the remedying of the alleged breaches. It submitted that in requiring the alleged breaches to be remedied in 14 or 16 days the Commonwealth did not act reasonably and in good faith. It also submitted that the remedy notices were issued as part of a political campaign to evict the Rifle Association from the range, in order to satisfy a political promise made by Mr Garrett, in circumstances where the Commonwealth was unwilling to fund the Rifle Association's relocation to a suitable alternative location. It submitted that the Commonwealth was not in truth concerned about the state of the Buildings, as evidenced by the fact that the two reports concerning the state of the Buildings dated December 2007 which accompanied the First Remedy Notice of 25 January 2012 had not been provided to the Rifle Association prior to the service of that notice. It submitted that specification of a period of 14, 16 or 17 days to comply with the notices was unreasonable. It relied on the Commonwealth's admission that the notices could not have been complied with within the times specified. 47The NSWRA also sought relief against forfeiture if it were found that the termination of the licence was effective. It submitted that the Commonwealth was estopped or ought to be restrained from asserting the validity of any of the remedy notices. A claim that the Commonwealth was in breach of the Australian Consumer Law was not pressed. Nor did the NSWRA press a claim of estoppel in final submissions. 48On 18 May 2012 the Rifle Association became aware that, on 9 May 2012, the Commonwealth had introduced the Malabar Headland Protection Bill 2012 to Parliament together with a proposal that Lot 2 be transferred by the Commonwealth to the State of New South Wales once remediation works had been completed, and that such transfer might occur on or after 31 July 2012. 49As noted above at para [13] the licence deed defined "the Range" as being land in folio identifier 1/809094. Lot 2 of DP 809094 is the perimeter of the headland. (Lots 1 and 4 of DP 809094 were later subdivided. Lot 4 lay to the west and inland of lots 1 and 2. Lot 1 is now folio identifier 101/1162245.) 50The NSWRA submits that the transfer of Lot 2 to the State of New South Wales would have the effect that the Commonwealth could no longer fulfil its contractual duty to make the Licensed Range available for use by its members as a rifle range. The Commonwealth admits that the transfer of that part of Lot 2 that constitutes the danger zone or safety template would have the consequence that the NSWRA and its members would no longer be permitted to undertake rifle and pistol shooting on the Range unless the conditions of the Shooting Range Approval were varied or the NSWRA constructed further barriers to prevent projectiles leaving the Range. 51The NSWRA seeks an injunction to restrain the Commonwealth from transferring Lot 2 while it is in possession of the Range. 52The Commonwealth proposes to transfer Lot 2 (and ultimately Lot 1) to the State of New South Wales in the exercise of its power as owner of the land. The Malabar Headland Protection Bill 2012 was introduced into the House of Representatives and read a second time. The Bill does not itself provide for the transfer of land from the Commonwealth to New South Wales. Nor does it authorise such a transfer. Rather it provides a framework for the regulation of the use of such land once it is transferred. The Bill provides that the land must be used as a national park. 53The Commonwealth advances what is sometimes known as a doctrine of executive necessity. The Commonwealth pleads that no term will be implied in the Licence which would have the effect of precluding the Commonwealth "from exercising its Executive discretion or common law right to determine the appropriate use of [Lot 2]". It pleads that the Licence "contains an implied term that the Commonwealth may determine the Licence or decline to perform its obligations thereunder either as a matter of convenience or in the exercise of Commonwealth Executive discretion". The Commonwealth pleads that no term will be implied that would restrict the right of the Commonwealth to deal with Lot 2. The Commonwealth pleads: "Insofar as, and to the extent that it may be found that, the Licence contains a provision that is terminable otherwise than at will or on reasonable notice, the said term is void, or alternatively, unenforceable, because it would fetter the exercise of the discretion of the Executive of the Commonwealth to determine the use of the land identified in folio identifiers 101/1162245 and 2/809094 in the public interest." 54It pleads that even if there is an implied term that the licence is terminable otherwise than at will or on reasonable notice, such term is qualified "so as not to impinge upon the future exercise by the Commonwealth of its Executive discretion and common law right to determine the appropriate use" of that land. It alleges that the Commonwealth is entitled to terminate the Licence at will, or alternatively, upon reasonable notice. 55The Commonwealth also relies upon the doctrine of executive necessity as displacing any term, if it could otherwise be implied, that it exercise its rights under the Licence reasonably and in good faith in circumstances where it has determined that the land should be used otherwise than as a rifle range. It also relies upon the doctrine of executive necessity as precluding the grant of any relief against forfeiture. 56It is convenient to deal first with this defence.

Doctrine of Executive Necessity 57The Crown cannot contract so as to fetter the future exercise of a statutory power or discretion required to be exercised in accordance with the public interest or by the criteria specified in the statute. Most of the cases relied on by the Commonwealth are authority for this proposition (Ayr Harbour Trustees v Oswald (1883) 8 HL 623 at 634, 638, 640; (1882-83) LR 8 App Cas 623; Watson's Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268 at 277; William Cory & Son Ltd v London Corporation [1951] 2 KB 476 at 484; Commissioners of Crown Lands v Page [1960] 2 QB 274 at 286, 289 and cf at 291-293; Cugden Rutile (No. 2) Pty Ltd v Chalk [1975] AC 520; L'Huillier v State of Victoria [1996] 2 VR 465; City of Subiaco v Heytesbury Properties Pty Ltd [2001] WASCA 140; (2001) 24 WAR 146). That is not the present case. The issue raised in this case is whether a contract entered into by the Commonwealth as land owner can be terminated at will or on reasonable notice (even if this is contrary to the express terms of the contract), or whether terms that might otherwise be implied cannot be implied because the Commonwealth has changed its policy in relation to the licence granted in 2000 to the NSWRA. No decision cited has gone so far. 58The Commonwealth relied upon the following passage from the judgment of Mason CJ in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 17-18. His Honour said: "The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power: see Watson's Bay and South Shore Ferry Co. Ltd v Whitfeld (1919) 27 CLR 268, at 277; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54, at 74-76; Malvaso v The Queen (1989) 68 CLR 227 at 232-234; Birkdale District Electric Supply Co v Southport Corporation [1926] AC 355, at 364; Cudgen Rutile (No. 2) Ltd v Chalk [1975] AC 520, at 533-534; Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416, at 423-425; Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. Accordingly, it has been said that 'a public authority ... cannot be estopped from doing its public duty', to use the words of Lord Denning M.R. in Lever Finance v Westminster London Borough Council [1971] 1 QB 222, at 230. See also Rootkin v Kent County Council [1981] 1 WLR 1186; [1981] 2 All ER 227. As Gummow J observed in Minister for Immigration v Kurtovic (1990) 92 ALR 93, at 111, the principle has been explained on the footing that: 'in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding'. cf. Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, at 638. No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest." (Emphasis added.) 59It was submitted for the Commonwealth that it follows from the last quoted sentence that where the Crown exercises its common law powers as an owner of land by entering into a contract in respect of the future use of that land, it cannot disable itself from deciding in the future that in the public interest the land should be used in a different way, namely, in the present case, as a national park. 60Hence, the Commonwealth submitted that whether or not it was entitled to terminate the licence for breach, it was not bound to continue the licence for the defined Term, because it now considers it to be in the public interest that the land should be used as a national park and not as a rifle range. Counsel for the Commonwealth accepted that on the Commonwealth's contentions, its assessment of what is in the public interest and whether there has been a change of public policy is unexaminable. 61The case most often cited for the proposition that a contract is not enforceable against the Crown if it would fetter future executive action in the public interest is Rederiaktiebolaget Amphitrite v R [1921] 3 KB 500 ("The Amphitrite"). That case concerned an assurance given by the British Government to the Swedish owners of a ship during the First World War. It appears from the report that the British Government had a policy of detaining neutral ships unless they were replaced by other ships of the same tonnage. Whether that power was exercised pursuant to statute, such as a Defence Regulation, or in the exercise of a prerogative power does not appear from the report. In L'Huillier v State of Victoria Callaway JA (at 483) described the power as a prerogative power relating to defence, and I assume that is so. 62In The Amphitrite the ship owners sought and obtained an assurance from the British Legation at Stockholm that the ship would be allowed to leave the British port after it had discharged its cargo. Whilst waiting to reload, the owners received notice from the Government that loading facilities were withdrawn and that clearance would not be granted, except on terms with which the owners could not comply. The result was that the ship was detained and eventually sold to avoid further loss. The ship owners presented a petition of right claiming damages for breach of the Government's undertaking contained in the correspondence by which the owners were assured that the ship would not be detained. There is no suggestion that the Crown was a party to any commercial contract for the hire or use of the ship. The contract sued on was the Government's undertaking through the Legation at Stockholm that the ship would not be detained. 63In an extempore judgment Rowlatt J said that there was no enforceable contract because the assurance given by the Government was merely an expression of intention to act in a particular way in a certain event (at 503). In Robertson v Minister of Pensions [1949] 1 KB 227 Denning J (at 231) considered this to be the ratio of the case, so that it was not an authority where the Crown undoubtedly had made a contract. However, the reason Rowlatt J considered there was no contract was that: "My main reason for so thinking is that it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State." 64This was the ratio. No authority was cited for the proposition and none was referred to in argument. The only reasoning in support of the proposition was (at 503-504): "Thus in the case of the employment of public servants, which is a less strong case than the present, it has been laid down that, except under an Act of Parliament, no one acting on behalf of the Crown has authority to employ any person except upon the terms that he is dismissible at the Crown's pleasure; the reason being that it is in the interests of the community that the ministers for the time being advising the Crown should be able to dispense with the services of its employees if they think it desirable. Again suppose that a man accepts an office which he is perfectly at liberty to refuse, and does so on the express terms that he is to have certain leave of absence, and that when the time arrives the leave is refused in circumstances of the greatest hardship to his family or business, as the case may be. Can it be conceived that a petition of right would lie for damages? I should think not." 65As Denning J observed in Robertson v Minister of Pensions, that reasoning cannot stand in the light of the Privy Council's decision in Reilly v R [1934] AC 176 where Lord Atkin, delivering the advice of the Privy Council, said (at 179) that any implication that the Crown could dismiss its employee at pleasure would be excluded by an express term to the contrary. This and other decisions to like effect were followed by the Court of Appeal in Suttling v Director-General of Education [1985] 3 NSWLR 427. There the Court of Appeal held by majority that it should not follow the decision of the English Court of Appeal in Dunn v R [1896] 1 QB 116 that a servant of the Crown can be dismissed at pleasure, notwithstanding that he has entered into a contract for a fixed term. That decision was upheld in the High Court (Director-General of Education (NSW) v Suttling [1987] HCA 3; (1987) 162 CLR 427), but on a narrower ground. In Jarratt v Commissioner of Police for NSW and State of New South Wales [2005] HCA 50; (2005) 224 CLR 44) the plurality (McHugh, Gummow and Hayne JJ) described the criticisms of the principle that the Crown can dismiss its servants at pleasure made by McHugh J in Suttling v Director-General of Education as being well based and gave reasons as to why the common law principles were not readily adapted to a modern system of public administration (at [64]-[72]). 66Thus the reasoning of Rowlatt J in The Amphitrite does not now support the proposition quoted at para [64], if it ever did. Moreover, Rowlatt J said that the principle did not apply to a "commercial contract". If the Government made a commercial contract "it must perform it like anybody else or pay damages for the breach" (at 503). 67The decision in The Amphitrite has been criticised. Writing in the Law Quarterly Review in 1929 Sir William Holdsworth said that the proposition that the Crown "cannot by contract hamper its freedom of action in matters which concern the welfare of the State" was laid down for the first time in that case, that it was a sweeping proposition for which no authority was cited, and that the analogy with what was then an undoubted rule that the Crown has no authority, except under statutory powers, to employ any person except on terms that he is dismissible at the pleasure of the Crown was "a slender foundation for such a great superstructure". Sir William Holdsworth concluded that the principle as so expressed was opposed to the common law principles which underlay English constitutional law (Holdsworth, reviewing "A Case Book on Constitutional Law" (1929) 45 LQR 162 at 166-167). He repeated these views in Volume 10 of A History of English Law published in 1938 (at pp 657-658). It appears from Volume 10 of A History of English Law that the common law principles underlying constitutional law which Sir William Holdsworth thought were opposed to the doctrine espoused in The Amphitrite were those that defined the rights and liberties of the subject as against the Crown (at 658). These included the freedom from arrest by warrant of a secretary of State, the invalidity of general warrants, the right to liberty of discussion, the right to petition and the right of public meeting. Although these principles have no direct application to the extent to which the Crown is bound by contract, Sir William Holdsworth saw an inconsistency between the proposition asserted in The Amphitrite and the liberties of the subject that limit the freedom of action of the Crown in matters which it asserts concern the welfare of the State. 68In Hogg & Monahan, Liability of the Crown, 3rd ed (2000) the learned authors noted that The Amphitrite seemed to have been followed rarely and had been severely criticised (at 9.6(a), p 227 and fn 77). However, in L'Huillier v State of Victoria Callaway JA with whom Charles JA agreed, "unhesitatingly rejected" a submission that "the Amphitrite doctrine" was wholly unsound as a matter of principle or could be reduced to a rule of construction (at 479). But that case concerned a possible fetter on the exercise of a statutory power. 69In Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 Mason J (as his Honour then was) noted the criticism that the statement of principle in The Amphitrite was expressed too generally and added (at 74-75): "Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future." 70Aickin J also expressed reservations about the principle (at 113-114). 71In A v Hayden [1984] HCA 67; (1984) 156 CLR 532 Gibbs CJ also said that Rowlatt J spoke too widely. I consider that case below (at [85]-[87]). 72Mitchell, "The Contracts of Public Authorities", London School of Economics and Political Science, 1954, argues that Rowlatt J's attempted distinction between the agreement before him and cases of "commercial contracts" is to be explained on the basis that The Amphitrite was concerned with defence requirements based on military need, and is limited to that which is necessary for public safety (at pp 53-54). He said: "Even so, the emphasis on public safety is a considerable limitation of a principle which was on its face widely expressed, but which must it is thought be narrowly confined, both on grounds of principle and convenience, if government contractors are to have any confidence in their dealings. It was precisely this point which was emphasized by Richards C.B. in Attorney-General v Lindegren (1819) 6 Price 287 ..." 73Attorney-General v Lindegren concerned a contract for the purchase of stores on behalf of the Navy during the Napoleonic wars. Richards CB said (at 304, 146 ER 811 at 817): "Public confidence in the dealings of the Government with persons in the character of this defendant, is of the first importance, and should be regarded above all other considerations; and that confidence ought not to be shaken in consequence of the result of any subsequent calculation and inquiry by the Commissioners of a public board, showing that their contract has been injurious to the public merely on the grounds of too great liberality in remunerating the service required and performed." 74Thus even in the time of war, the Court did not adopt so wide a principle as that the Crown cannot by contract hamper its freedom of action in matters which concern the welfare of the State. It was a commercial contract. But the distinction between contracts that are commercial and those that are not is imprecise. Nor is there an obvious logical distinction. If the Crown is always to act in the public interest as it perceives it from time to time so that it cannot fetter its future actions by contract, there is no obvious reason why it should not be free to do so whether the contract is commercial or non-commercial, whatever that distinction is. Either type of contract could seriously affect the public welfare. 75A better explanation of the principle, and the limitation on it, is found in Board of Trade v Temperley Steam Shipping Co Ltd (1926) 26 Ll L Rep 76, and Commissioners of Crown Lands v Page. 76In Board of Trade v Temperley Steam Shipping Co Ltd the Board of Trade had compulsorily requisitioned a ship. It became subject to a charter to the Board of Trade under which the obligation to pay hire was suspended if the vessel ceased to be in working order. The vessel needed repair. Under the Munitions of War Act 1916 a surveyor with the Board of Trade was required to assess the extent of repair that would be allowed. Unless the use of materials for repairs were sanctioned, the repairs could not be done. Materials for repair were rationed. The surveyor did not treat the vessel differently from other vessels. By an error of judgment he permitted only limited repairs to be carried out. The result was that the vessel was out of operation for longer than it would otherwise have been. The ship owner contended that it was an implied term of the charter that the clause providing for the suspension of the obligation to pay hire did not apply where the ship was out of service due to the act of the Board of Trade's surveyor in refusing to allow sufficient repairs. Roche J said (at [78]): "I think and I hold that in this charter-party it is to be implied that the Crown should do nothing in connection with and in relation to and in the carrying out of the contract contained in the charter-party to prevent the shipowners from keeping the vessel seaworthy and to prevent them earning their hire. But I am utterly unable to imply in the charter-party a term or condition that the Crown should do nothing by virtue of some general legislation or by virtue of some executive action entirely remote from the charter-party and done by persons not connected with the performance of the contract directly or indirectly to bring about the results in question." 77This judgment was upheld in the Court of Appeal (Board of Trade v Temperley Steam Shipping Co. Ltd (1927) 27 Lloyds L Rep 230). It is the distinction drawn by Roche J that was subsequently endorsed by Devlin LJ in Commissioners of Crown Lands v Page (at 293). 78In Commissioners of Crown Lands v Page, Devlin LJ said (at 291, 292 and 293): "When the Crown, or any other person, is entrusted, whether by virtue of the prerogative or by statute, with discretionary powers to be exercised for the public good, it does not, when making a private contract in general terms, undertake (and it may be that it could not even with the use of specific language validly undertake) to fetter itself in the use of those powers, and in the exercise of its discretion. ... When the Crown, in dealing with one of its subjects, is dealing as if it too were a private person, and is granting leases or buying and selling as ordinary persons do, it is absurd to suppose that it is making any promise about the way in which it will conduct the affairs of the nation. No one can imagine, for example, that when the Crown makes a contract which could not be fulfilled in time of war, it is pledging itself not to declare war for so long as the contract lasts. ... in making a lease or other contract with its subjects, the Crown does not (at least in the absence of specific words) promise to refrain from exercising its general powers under a statute or under the prerogative, or to exercise them in any particular way." His Lordship then approved the distinction drawn by Roche J in Board of Trade v Temperley Steam Shipping Co. Ltd quoted above. 79The point made is that the Crown, when contracting in one capacity, cannot fetter a power it has in another capacity, whether under statute or the prerogative, that is to be exercised in the public interest. 80William Cory & Son Limited v London Corporation [1951] 2 KB 476 is an illustration. There it was held that a public authority with a duty to make bylaws in relation to the disposal of refuse could not make a contract that fettered the future exercise of that power. The London Corporation had a dual character. As sanitary authority it entered into a contract with the plaintiff for the plaintiff to remove refuse using lighters and barges. As health authority the London Corporation made bylaws regulating the fittings required for any vessel used for removing refuse from the Port of London. The bylaws made the contract commercially impossible of performance. No term could be implied, and no express term would have been valid, that would have precluded the Corporation from making such bylaws as it thought proper in the public interest. 81This same principle was applied in City of Subiaco v Heytesbury Properties Pty Ltd. Ipp J, who gave the leading judgment, described the case as one of "executive necessity". His Honour appears to have endorsed the rule as stated by Rowlatt J in The Amphitrite (at 157, [43]). There an assignee of a lease contended that it was an implied term of the lease that the right of the lessee to enjoy the demised premises was a right to enjoy them for the purpose of conducting a manufacturing business. The City of Subiaco was the lessor. It exercised its statutory power under a town planning scheme to rezone the land as residential. Clearly the lease could not fetter the future exercise of its statutory power of rezoning. Ipp J said (at [55]): "In my opinion, any contractual fetter or limitation of any kind upon executive discretion would have to be clearly and expressly stated before a court would construe a contract as qualifying freedom of executive action. That is not the case with the leases presently under consideration." 82This was relied upon by the Commonwealth in the present case. However, what Ipp J said has to be read in context. The context in which his Honour referred to freedom of executive action was the future exercise by the executive of a statutory power to be exercised in a different capacity from the capacity in which it entered into the lease. 83L'Huillier v State of Victoria was also concerned with the exercise of a statutory power. Callaway JA, with whom Charles JA agreed, held that a term of a contract that purportedly prevents the due exercise of a future "public law discretion" will be void. His Honour held that unless the contract prevents the due exercise of discretion when it is required to be exercised, the provision will not be void, but will be construed "subject to the repository's right not to perform the contract in the future if performance would be inconsistent with the proper exercise of the discretion." (at 481). This was approved by Nettle JA in Port of Portland Pty Ltd v State of Victoria [2009] VSC 282; (2009) 27 VR 366 at [88]. The Commonwealth submitted that on this principle the licence should be read as impliedly conferring on the Commonwealth the right to terminate the licence if it considered it necessary in the public interest to do so and that the clause providing for the licence to continue until 14 days after a Relocation Notice was given should be construed as impliedly subject to such a term. 84Callaway JA did not define what he meant by a "public law discretion". It undoubtedly included the kind of statutory discretion involved in that case, namely, a discretion as to who should be appointed to a high public service office and on what terms. Callaway JA made it clear that the principle which he outlined did not apply to a case in which a discretion was properly exercised when the contract was made (at 481). 85In A v Hayden officers of the Australian Secret Intelligence Service, a creature of the executive, sought to enforce terms of a contract with the Commonwealth that the Commonwealth would keep their identities confidential. They sought an injunction to restrain the Commonwealth from disclosing their identities to the Victorian Police Commissioner who was investigating whether they had committed criminal offences. Whilst Mason J (at 556-561), Murphy J (at 563), Brennan J (at 585-588), and Deane J (at 592, 595-596) held that the term was not enforceable, that was on the grounds that the term infringed public policy by interfering with the investigation of crime and hence the administration of justice. 86Brennan J said (at 587): "The Crown cannot bargain away its ability to act in the public interest." That is to be understood in light of his Honour's fuller exposition (at 588) that: "The Crown has no capacity to bind itself by a term which is contrary to public policy, and no servant or agent of the Crown has or can be given authority to bind the Crown by such a term. The powers of the Crown cannot be exercised contrary to what the law recognizes as public policy. It follows that the Crown's ability to assist in the investigation of crimes reasonably suspected to have been committed cannot be fettered by an unqualified contractual obligation not to disclose the identity of a person: circumstances may arise which justify disclosure in the public interest." 87The contracts between the plaintiffs in that case and the Commonwealth had no statutory basis. They were entered into in the exercise of the Crown's prerogative. It is noteworthy that the case was not decided on the broad ground advanced in this case that the Crown cannot by contract fetter the future exercise of executive power in the public interest. Gibbs CJ said (at 543): "The suggestion made by Rowlatt J in [the Amphitrite], that the Government cannot by contract fetter its executive action in matters which concern the welfare of the State is too wide. It is true that speaking generally the Government cannot by contract disable itself or its officers from performing a duty cast on it by statute or from freely exercising a statutory power or discretion ... The same principle may apply when the Crown is entrusted with powers under the prerogative. ... However this principle has no application to the present case, where there exists no relevant power or duty granted or imposed by statute or available under the prerogative ..." 88In Northern Territory of Australia v Skywest Airlines Pty Ltd (1987) 48 NTR 20; 90 FLR 270, the Northern Territory did not raise a defence of executive necessity to seek to justify its refusal to be bound by a contract that had been entered into following a competitive tender. The contract was made in the exercise of executive authority for the supply of aerial medical flight services in the Territory. Nonetheless, Kearney J observed (at 47, 294): "In general, and for good reasons, a government rightly regards itself as bound to carry out a contract it has lawfully and properly entered into, when the other party is not in breach. The reasons are rooted in commonsense and good government - in general, in a proper concern to protect the public revenue against unnecessary and unwarranted loss, to preserve the government's reputation for integrity and to retain its credibility, particularly with the business community. Because of its responsibilities to the people, a government may nevertheless sometimes have to break its contract because of some overriding public interest, such as the exigencies of war; there is however no suggestion that any public interest requires that the Government break this contract ..." 89I do not think it correct to say that Kearney J intended to confine the circumstances in which the doctrine of executive necessity might qualify the executive's contractual obligations to cases of war or public safety (compare M Allars, Administrative Law, Government Contracts and the Level Playing Field, (1989) 12 UNSWLJ 114 at 123). Nonetheless, this judgment also gives no encouragement to a wider doctrine of executive necessity as qualifying a government's contractual obligations otherwise than where the contract attempts to fetter the future exercise of a statutory power or discretion in the public interest, or where the contract would fetter the future exercise of a prerogative power which the Crown enjoys separately and distinctly from the capacities of its subjects, such as the prerogative to declare war. 90In Commonwealth of Australia v Hooper [1992] NSWCA 44; (1992) Aust Contract R 90-010, a contract to which the Commonwealth was found to be a party gave to the Australian Gaslight Company ("AGL") a right of first refusal to acquire a pipeline on terms no less favourable than those offered to any third party. The pipeline was owned by the Pipeline Authority established under the Pipeline Authority Act 1973 (Cth). The Commonwealth contended that the Authority did not have the power to dispose of the pipeline as a going concern. Gleeson CJ, and on appeal, the Court of Appeal, held that even if that were so, the Commonwealth was still required to ensure that AGL had the first right of refusal to acquire the pipeline. In the Court of Appeal the Commonwealth argued that if the contract were interpreted in this way: "... it imposed a fetter on the Commonwealth, discouraging it from considering legislation of a certain kind (that is, which would enable the contractual obligation be avoided) at pain of being liable in damages or possibly having to comply with s 51(xxxi) of the Constitution if it did not. It was said that there is an established principle that the Crown cannot make such fettering contracts. For this proposition counsel relied upon 'The Amphitrite' (1921) 3 KB 500; Commissioners of Crown Lands v Page (1960) 2 QB 274; and West Lakes Limited v South Australia (1980) 25 SASR 389. 91Priestley JA, with whom Samuels and Handley JJA agreed, said of this submission: "Neither of the first two decisions has attracted much approval: see the discussion in M Aronson & H Whitmore; Public Torts and Contracts, at 194-7; and Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74-78 (Mason J) at 113 (Aickin J). The criticism is that the proposition for which the two English cases stand is much too widely expressed. In the Westlakes case, the second paragraph in the reasons of King CJ would seem to negate the possibility of a doctrine, if it has any effect in Australia, being of any help to the Commonwealth in the present case." 92Commonwealth v Hooper also provides no encouragement to an expansive doctrine of executive necessity. 93In support of its submission that where the Commonwealth enters into contract whose substance or operation involves questions of public policy, the Commonwealth may treat the contract as not binding if public policy changes, the Commonwealth cited pp 233, 236-239 and 249 of Seddon, Government Contracts, 5th ed, Federation Press. 94Dr Seddon described a "special form of government privilege" that "a contract cannot, despite its binding nature, fetter the government's ability to carry out its programmes and policies." (at p 233). Dr Seddon opined that the doctrine of executive necessity permits the Government to break a contract with impunity if it needs to do so for reasons of policy (at [5.2] and [5.3]). He said (at pp 237, 238-239): "If it turns out that at sometime in the future the government needs to take a different path from that contemplated at the time of making the contract in question, then the doctrine of executive necessity allows the government to do so with impunity even though this brings about a breach of the original obligations. ... It is suggested that the justification for a government to break a contract on the basis of executive necessity should be confined to those circumstances where a policy decision is behind the need to break the contract." 95I do not consider this to be a correct statement of the law. Dr Seddon cites no authority for these propositions. He notes that in The Amphitrite the contract was broken by the necessities of war. The propositions go beyond any authority cited to me, or of which I am aware. 96The high point of the authority relied upon by the Commonwealth is the dictum of Mason J in Attorney-General v Quin quoted at para [57] above. It is not clear what Mason CJ intended to encompass by his reference to the non-fettering of "common law powers and functions of the Crown or the Executive" that involve making decisions in the public interest. In Ansett Transport Industries his Honour had described the principle as stated by Rowlatt J in The Amphitrite as having been expressed too generally. I do not infer that his Honour intended to resile from that statement. I consider his Honour was referring to the Crown's exercise of a prerogative that it enjoys alone and in contradistinction to the capacities of its subjects. In other words, the kind of common law power which Devlin LJ described Commissioners of Crown Lands v Page at 291, viz. a discretionary power by virtue of the prerogative to be exercised for the public good. At the widest, his Honour was referring to common law powers and functions involving the future exercise of a duty or discretion required to be exercised in the public interest, as that was the principle in relation to the exercise of a statutory discretion his Honour addressed. 97In my view, the doctrine of executive necessity has no role to play in the present case. The deed of licence did not fetter the exercise of a future duty or discretion by the Crown. It was a contract by which the Crown acted in what was then perceived to be the public interest in reconciling the competing demands for use of the Malabar Headland. It was a present exercise of the Commonwealth's power as owner of the land, not the fettering of a future exercise of a duty or discretion. 98I accept that this entry into the deed of licence can be characterised as an exercise of the prerogative in some sense (Johnson v Kent [1975] HCA 4; (1975) 132 CLR 164). However, the "prerogative" is an ambiguous term. Blackstone said (Blackstone, Commentaries on the Laws of England, 1765, Book 1, p 232): "By the word prerogative we usually understand that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his royal dignity. ... And hence it follows, that it must be in its nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects:". 99It is to the prerogative in this sense that Devlin J referred in Commissioners of Crown Lands v Page when he said (at 293) that: "... the Crown does not (at least in the absence of specific words) promise to refrain from exercising its general powers under a statute or under the prerogative, or to exercise them in any particular way." 100The power (not discretion) the Commonwealth exercised in entering into the deed of licence was not an exercise of the prerogative in this sense. It was the exercise of the Crown's power as owner of the land. In that respect, the Crown had the same capacity and stood in the same position as any other person. It was not an exercise of a "public law discretion" (to use the words of Callaway JA in L'Huillier v State of Victoria). 101By asserting the alleged right to terminate the licence at will or on reasonable notice, or by asserting that the licence is not binding on it, or that terms should not be implied that would otherwise be implied, the Commonwealth is not seeking to exercise a power or discretion in a different capacity from that in which it contracted (Board of Trade v Temperley Steam Shipping Co Ltd per Roche J at 78; and Commissioners of Crown Lands v Page at 293). 102No argument was addressed as to the effect of s 64 of the Judiciary Act 1903 (Cth) which provides: "64 Rights of parties In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." 103The section affects substantive rights and is not merely procedural (Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362). It has been said that the words "as nearly as possible" must be an acknowledgment of the existence of the doctrine of executive necessity (Seddon, p 328). Whilst this may be so, those words indicate that the doctrine should be narrowly confined, so as to assimilate the position of the Crown as completely as possible to that of a subject (Commonwealth v Evans Deakin Industries Ltd [1986] HCA 51; (1986) 161 CLR 254 at 264-265). 104None of the authorities cited and no other that I have considered has applied the doctrine in circumstances analogous to the present case that involves no fettering of a future discretion, no fettering of a statutory discretion, and no action by the Crown in a different capacity from that in which it contracted. All there is is a change of policy. In State of New South Wales v Bardolph [1934] HCA 74; (1934) 52 CLR 455, Evatt J observed that "the repudiation of subsisting agreements by a new administration can seldom be ventured upon with success" (at 463). That is this case. 105The Commonwealth is not entitled to terminate the licence either at will or on reasonable notice. The licence is for a defined term, that is, until 14 days after the giving of a Relocation Notice. It would be contrary to that express term for the licence to be terminated by the Commonwealth either at will or on reasonable notice. There was no dispute that even though at law a mere licence to occupy the land would be terminable at will, even in breach of contract (Wood v Leadbitter (1845) 13 M & W 838; 153 ER 351; Cowell v Rosehill Racecourse Co. Ltd (1937) 56 CLR 605), in an appropriate case equity would restrain the licensor from revoking the licence in breach of contract (Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93; R P Meagher, J D Heydon & M J Leeming, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th ed LexisNexis Butterworths at [21-240]-[21-275]). 106By its cross-claim in the 2012 proceeding the Commonwealth purported to terminate the licence. Counsel for the Commonwealth said that that was not done by way of termination for breach, but pursuant to the asserted power to bring the licence to an end because there had been a change of public policy. That purported termination should be restrained unless the Commonwealth is entitled to terminate the licence because the NSWRA is in default.

Implication of a term that the Commonwealth must exercise its power under clause 10.2(b) reasonably and in good faith 107The Commonwealth submitted that if a term of reasonableness and good faith might otherwise be implied in the exercise of the Commonwealth's power to fix a period of time for the remedying of the alleged breaches, there could be no such implication where the Government was acting in what it considered to be the public interest to bring the licence to an end. It is sometimes said that The Amphitrite doctrine can be relied upon to negative the implication of a term whether or not it would be effective to displace an express term (Commissioners of Crown Lands v Page at 287; Manock v State of South Australia (1979) 83 LSJS 64 at 73; City of Subiaco v Heytesbury Properties Pty Ltd at [55], quoted at [81] above). However, for the reasons above, that doctrine does not apply in the present case. The mere fact that the Government has changed its policy and now considers that the Malabar Headland should be made available as a national park, irrespective of whether or not the Rifle Association can be relocated to another rifle range, is not a reason for qualifying any term that would otherwise be implied. 108The fact that the contract is with the Government does not displace an obligation of good faith and reasonableness. If anything, that is a factor in favour of the implication of the term. In Northern Territory v Skywest Airlines Pty Ltd Kearney J said (at 294): "... It is in the public interest that when a government contracts with an ordinary person, it deals fairly with that person, and is seen to do so." 109In Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 Finn J found that the fact that one of the contracting parties was an organ of the Government was a reason for implying a term requiring fair dealing. His Honour observed (at 196): "That the law entertains expectations of fair dealing of government and of public bodies is manifest in some number of spheres. ... Secondly, there is what Griffith CJ referred to in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 as: 'the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary ...' ..." 110NSWRA did not clearly identify whether it contended that a term should be implied that the Commonwealth must act reasonably and in good faith in the exercise of its powers under clause 10.1 on the basis that this was a term implied by law, or whether it was to be implied as a matter of fact in the particular circumstances in which the contract was made. Terms may be implied by law in particular classes of contracts where the implication has become "so much a part of common practice that the courts begin to import it into all transactions of that type as a matter of course" (Byrne & Frew v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 450; Breen v Williams [1996] HCA 57; (1996) 186 CLR 71 at 103). 111In Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94; (2002) 26 WAR 33, Steytler J, with whom Malcolm CJ and Wallwork J agreed, said (at [51]-[52]): "[51] More recently, in Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187, the Court of Appeal in New South Wales (Sheller, Beazley and Stein JJA) referred, with apparent approval, to Renard Constructions and Alcatel before saying (para159) that a review of the cases since Alcatel indicates that courts in various Australian jurisdictions have, for the most part, proceeded upon an assumption that there may be implied, as a legal incident of a commercial contract, terms of good faith and reasonableness. Their Honours referred, in that respect, to Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310, para120; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41 - 703; [1999] FCA 903 at 43,014; Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 433; and Asia Television Ltd v Yau's Entertainment Pty Ltd (2000) 48 IPR 283. They said (para164) that there also appeared to be increasing acceptance (Saxby Bridge aside) of the proposition (which they thought to be correct) that, if terms of good faith and reasonableness are to be implied, they are to be implied as a matter of law. [52] The preference for implication as a matter of law is, no doubt, due to the difficulty of complying with the criteria for an implication in fact enunciated in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 or, where the contract is informal or incomplete, in Byrne v Australian Airlines Ltd (1995) 185 CLR 410. However, if a term of the kind discussed is implied by law, it must be borne in mind that, as has been pointed out by McHugh and Gummow JJ in Byrne, at 450, many of the terms now said to be implied by law in various categories of case reflect the concern of the Courts that, in the absence of a term of that kind, the enjoyment of the rights conferred by contract 'would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined'. Hence, they said, the reference in the decisions to 'necessity'." 112Subsequently, in Vodafone Pacific Limited & Ors v Mobile Innovations Limited [2004] NSWCA 15 Giles JA (with whom Sheller and Ipp JJA agreed) said that the law has not yet gone so far as to say that commercial contracts are a class of contracts carrying the implied term as a legal incident (at [191]). A term of good faith and fair dealing was implied in a lease of commercial premises in Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349, apparently as a term implied by law (at 369; Vodafone Pacific Limited v Mobile Innovations Limited at [125]). (The Court of Appeal, in Alcatel Australia Limited v Scarcella, did not, at least explicitly, address the question whether the criteria in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283 for the ad hoc implication of the term were satisfied.) 113It has been suggested (see Vodafone Pacific Limited & Ors v Mobile Innovations Limited at [216]-[217]) that an implied term of good faith and fair dealing provides the principled basis for cases in which a vendor is precluded from exercising a contractual right of rescission if a purchaser refuses to withdraw a requisition, where insistence on the prima facie contractual right would be unconscionable (Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36; (1972) 128 CLR 529 at 538; Pierce Bell Sales Pty Ltd v Frazer [1972] HCA 13; (1972) 130 CLR 575 at 587; or arbitrary, capricious or unreasonable (Pierce Bell Sales Pty Ltd v Frazer at 591; Godfrey Construction Pty Ltd v Kanangra Park Pty Ltd at 543, 547), or contrary to the purpose for which the right was conferred (Godfrey Construction Pty Ltd v Kanangra Park Pty Ltd at 549; Gardiner v Orchard [1910] HCA 18; (1910) 10 CLR 722 at 739-740). 114In this case the NSWRA has alleged that the Commonwealth has given notice under clause 10.1(b) for an extraneous purpose and unreasonably. 115An implication can arise from the construction of the express terms of the contract (Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at [28]-[30]). An implication that a contractual power must be exercised for the purpose for which it was conferred may well arise in this way, and that in turn might require the power to be exercised reasonably. 116The implication may arise as a matter of fact in the circumstances of the particular contract if the criteria in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council are satisfied, namely (at 283): "... for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract." 117The criteria that are contentious in this case are (2), (3) and (5). The distinction between what is necessary and what is reasonable is not always a sharp line. The question is what is necessary to give business efficacy to the contract and business efficacy imports notions of reasonableness. As was said in Greig & Davis, The Law of Contract, Law Book Co 1987 at 552: "It is the reasonable and businesslike assessment of the situation that provides the basis for deciding on the necessity of the implication of the term in question". 118In my view the term that the contractual power in clause 10.1(b) be exercised reasonably and in good faith can be implied on any of the above bases.

Term implied by law 119First, the licence is analogous to a commercial lease in which such a term is implied as a matter of law. The differences between such a case and the present provide additional reasons for the implication of the term. 120The premises in the present case are not commercial premises. For the reasons below (at [221]-[228]) the NSWRA is a licensee, not a lessee, of the Buildings and Licensed Areas it occupies, as well as being a licensee of the Licensed Range. The contract falls outside the class in which such a term has been implied as a matter of course. However, the differences between the present licence and commercial leases as a class suggests that this would be a stronger case for the implication of such a term. 121The first difference is that the rights granted are not an estate in land. But that is not a material difference. As the right of occupation can be secured by injunction, it provides the same practical advantage to the NSWRA as would a lease for a defined term. The difference in tenure is not a reason for not implying a term in the licence that would otherwise be implied as a matter of law in a lease. 122The second difference is as to the parties. The parties were not commercially at arm's length. The Rifle Association or its predecessor has had a long association with the Defence Force. Up until 2000 the Rifle Association was dependent on the Commonwealth's permission for the land it occupied. The Commonwealth provided financial assistance to it for the construction of buildings at Malabar. 123Thirdly, the consequences of non-compliance with a notice requiring the remedy of a breach would be more serious for the Rifle Association than for a typical lessee of commercial premises. The Rifle Association would be unable to continue to carry on its activities without a suitable range. If there were an alternative suitable range available, no doubt the Commonwealth would give a Relocation Notice. Termination of the licence for breach would not merely be disruptive of the Association's activities, as would often be the case of termination of a commercial lease, it would probably spell the end of the Association. 124Fourthly, the Range and the buildings on it are not commercial premises that can be adapted for the use of other commercial lessees. Many of the buildings are old Army buildings. The buildings are adapted only for the use of the Rifle Association or its affiliate clubs. 125If a term of good faith and fair dealing is implied as a matter of law in a commercial lease, these differences from a commercial lease are additional reasons as to why a term should be implied that the Commonwealth must exercise its power under clause 10.1(b) reasonably and in good faith. The differences suggest that for the purposes of an implication of a term by law the licence should be treated as if it fell within the category of commercial leases in which such a term has previously been implied as a term implied by law.

Term implied by construction 126As a matter of construction, the parties provided that the Commonwealth could only terminate the licence if the NSWRA were in default (as defined), and in the case of a breach not falling under clause 10.1(a), (c) or (d), only after giving notice asking the breach to be remedied. The purpose of clause 10.1(b) is to give the NSWRA the opportunity to remedy the breach. The time for remedying the breach can be either 14 days or such longer period as may be specified. The power to fix a longer time to remedy a breach is conferred for the purpose of allowing the breach to be remedied. As a matter of construction, the notice must be given for the purpose of allowing the NSWRA to remedy a breach and the power to fix a longer time than 14 days for the breach to be remedied must be exercised having regard to the same purpose. That implies (as a matter of construction) that the power under clause 10.1(b) be exercised reasonably. In the present circumstances, if the power to give the notice or to fix a time were exercised unreasonably, it would indicate that the power was not being exercised for a proper purpose. 127This would not necessarily mean in all cases that a reasonable time for remedying the breach be given in the notice, although in the present circumstances that is required. If, for example the Commonwealth had been urging the NSWRA for some time to fix a particular defect and there had already been unreasonable delay, the Commonwealth, acting reasonably, might give a notice fixing a time for the breach to be remedied that would be unreasonable had there been no prior request.

Analogy to equitable restraint on exercise of power for improper purpose 128The same result follows from the principles under which equity will restrain an exercise of power or set aside the results of the exercise of power if not exercised for a proper purpose (Vodafone Pacific Limited & Ors v Mobile Innovations Limited at [216]).

Ad hoc implication of term 129Such a term satisfies the criteria for the implication of a term ad hoc. 130A term that the contractual power be exercised reasonably and in good faith is clearly reasonable and equitable. It is capable of clear expression and does not contradict an express term of the contract. I do not accept the Commonwealth's submission that such a term is inconsistent with the express terms of clause 10.1(b). Consistently with that clause the Commonwealth can be required to act reasonably and in good faith in deciding whether to give notice requiring a breach to be remedied and in deciding whether to fix a period longer than 14 days for that to be done. 131I also think the term is so obvious as to go without saying. Given the close relationship between the parties and the Commonwealth's intention at the time of the licence to accommodate the interests of rifle shooters until an alternative range was available, had the hypothetical bystander asked in 2000 whether the Commonwealth was bound to exercise its contractual powers reasonably and in good faith, it is clear the answer would have been "of course". 132More difficult is whether such a term is necessary to give business efficacy to the contract. The contract was not a "business" contract. This criterion has to be modified to suit the circumstances, namely, whether the implication is necessary to give efficacy to the intended relationship between the parties. The NSWRA was to continue to occupy buildings built from the 1950s to the 1970s that it had occupied for decades. Its members would use the rifle ranges in accordance with a detailed management plan and the Range Safety Rules. The relationship involved giving rifle shooters a range to use until another became available in recognition that rifle shooting was a sport whose continued viability depended on the Commonwealth's providing necessary facilities. Given the age of the buildings, the acknowledged issues concerning the management of asbestos-containing materials and the need for fire safety measures, the serious consequences to the NSWRA and its members if the licence were terminated, the then recent assurance that their interests would be accommodated, the uncertainty as to the length of tenure of occupation of the Malabar Headland and hence the uncertainty as to what levels of expenditure would be sensible, I think such a term would be necessary to give "business efficacy" (in the relevant sense) to the licence. 133Thus, I reject the Commonwealth's submission that the fact that there has been a delay in the issuing of a remedy notice is of no consequence. The Commonwealth relies on clause 12.4(a) which provides that a delay in exercising a power or a right of a party does not preclude any other or further exercise of the power or right, and does not operate as a waiver. But that does not mean that the delay is of no consequence. Many of the alleged breaches on the basis of which the Commonwealth contends it is entitled to terminate the licence have existed since a reasonable time expired after 15 March 2000 for the Buildings to be put into good and safe repair, or for the Environmental Management Plan, and the Fire Safety Management Plan to be complied with. On any view, the time for doing many of the things the Commonwealth says should have been done was in 2000 or 2001, or 2002 at the latest. Many of the alleged defects are identified in reports received by the Commonwealth in December 2007, but not provided to the NSWRA until service of the first Remedy Notice in January 2012. 134The Commonwealth says that these are irrelevant considerations because under clause 10.1(b) it was entitled to require a breach to be remedied within 14 days. It says it was not under any obligation to act reasonably and in good faith in requiring a breach to be remedied within 14 days, even if it were under such an obligation if it specified a longer time for the remedying of the breach. But that is not so. The Commonwealth is required to act reasonably and in good faith in deciding whether or not to require the breach to be remedied within 14 days or whether it should give a longer time for the breach to be remedied, and it is required to act reasonably and in good faith in fixing such a longer time. 135The Commonwealth submitted that under clause 10.1(b) its discretion to issue a remedy notice was "absolute". There is nothing in the licence deed that so provides (compare Vodafone Pacific Limited v Mobile Innovations Limited at [195] and [197]). 136The fact that clause 10 provides detailed terms as to the circumstances in which the licensee will be taken to be in default does not exclude the implication that the Commonwealth act in good faith and reasonably in giving notice under clause 10.1(b) requesting a breach to be remedied. In Central Exchange Ltd v Anaconda Nickel Ltd, Steytler J said (at [64]) that: "[64] One thing that is clear, however, is that principles of good faith 'do not block use of terms that actually appear in the contract' (Kham & Nate's Shoes No 2 Inc v First Bank of Whiting (1990) 908 F 2d 1351, at 1357, referred to in Burger King, above, para173). In Burger King, the Court (ibid) also referred with apparent approval to the following extract from the judgment of the Court in Metropolitan Life Insurance Co v RJR Nabisco Inc (1989) 716 F Supp 1504 at 1507: 'In other words, the implied covenant will only aid and further the explicit terms of the agreement and will never impose an obligation "which would be inconsistent with other terms of the contractual relationship". ... Viewed another way, the implied covenant of good faith is breached only when one party seeks to prevent the contract's performance or to withhold its benefits. ... As a result, it thus ensures that parties to a contract perform the substantive, bargained for terms of their agreement.'" 137As Perram J observed in Oliver v Commonwealth Bank of Australia [2011] FCA 1440 (at [29]-[32]) it is not the law that a duty of good faith and reasonableness cannot be breached by the exercise of an express and detailed contractual power. In the present case there is nothing inconsistent with the express provisions of clause 10.1 if the Commonwealth is required to exercise its powers under that clause in good faith and reasonably. The implication merely helps elucidate how the express contractual power is to be exercised, in the same way as it did in Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 588 when applied to detailed contractual provisions concerning termination for breach. 138In Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Hodgson JA said (at [147]): "... a contractual obligation of good faith does not require a party to act in the interests of the other party or to subordinate its own legitimate interest to the interests of the other party; although it does require it to have due regard to the legitimate interests of both parties." 139To imply a term that the Commonwealth act in good faith and reasonably in exercising its power under clause 10.1(b) is not to subordinate its legitimate interest to that of the NSWRA. As the purpose of the clause is to provide an opportunity for the NSWRA to remedy a breach, the Commonwealth does not have a legitimate interest in using the contractual power unreasonably by requiring the remedying of breaches that are of no genuine concern, within a timeframe it knows could not be met. 140For these reasons the Commonwealth was required to act reasonably and in good faith in exercising its powers under clause 10.1(b) if the NSWRA were in breach of the licence.

Breach of clause 6.2 141The first Remedy Notice alleged a breach of the NSWRA's obligation to keep the Buildings in a good and safe state of repair. There are six Buildings, the NSW Rifle Association Building, four Barrack Buildings and a Storage Shed. They are all substantial structures. 142The initial position taken by the NSWRA was that the evidence sought to be relied on by the Commonwealth to establish a breach of clause 6.2(a)(i) was not admissible. I did not accept this submission. The reports that accompanied the first Remedy Notice were admitted into evidence together with affidavits of the authors of the reports by Parsons Brinckerhoff and AssetFuture as to the truth of the facts stated and that the authors held the opinions expressed. In final submissions, the NSWRA relied on the fact that there was no evidence as to the state of the Buildings at the commencement of the licence. Clause 6.2(a)(i) requires the NSWRA to "keep" the Buildings in a good and safe state of repair. The NSWRA submitted that the content of that obligation was to be assessed having regard to the state of the Buildings at the commencement of the licence and in the absence of evidence that the state of repair had substantially deteriorated from 2000, there was no evidence that it had breached its obligation to "keep" the Buildings in a good and safe state of repair. 143As the NSWRA submitted, there is no evidence as to the state of repair of the Buildings at the commencement of the licence. The Buildings were constructed between the 1950s and the 1970s. The report of Strategic Facility Services dated December 2007 on the condition of buildings at the ANZAC Rifle Range noted that the NSW Rifle Association building (Building 37), and Blocks A, B, C and D (Gun Club Rooms) were in reasonable condition, but all required ongoing maintenance. Building 37 was noted as at December 2007 to suffer serious problems with extremely corroded steel window lintels which were said to require urgent remedial works to the masonry walls. The vinyl tile floor coverings were said to be in a poor condition and replacement was recommended. These and other defects identified in the report of Strategic Facility Services were also identified in the Building Condition Report of AssetFuture of January 2012. NSWRA submitted that the same defects may well have existed at the commencement of the licence. The NSWRA submitted that its obligation to "keep" the Buildings in a good and safe state of repair was to be assessed by reference to the condition of the Buildings at the commencement of the lease so that it would not be in breach if there had been no material deterioration to the state of repair. 144The licence does not provide that the NSWRA is to keep the Buildings in a good and safe state of repair having regard to their condition at the commencement of the licence (compare the implied covenant for repair in s 84 of the Conveyancing Act 1919 (NSW). As Professor Butt observes (P Butt, Land Law, 6th ed, Thomson Reuters at [1599]): "Absent such a qualification, a tenant's covenant to 'keep' premises in repair requires the tenant to put the premises into repair if they are in disrepair at the start of the lease, for premises cannot be kept in repair until they are first put into repair." 145This principle is well established. In addition to the cases cited by Professor Butt, see Proudfoot v Hart (1890) 25 QBD 42 and cases there cited. 146Counsel for the NSWRA submitted that this construction was displaced by the fact that when the licence was entered into it was expected to be of short duration. Counsel submitted that it was unlikely that the parties intended the NSWRA to put the premises into good repair when both parties expected that the NSWRA would vacate the property on moving to the Holsworthy range or a comparable range. It was then anticipated that the NSWRA would leave the site in 2001. But this consideration does not require a different construction. The parties also provided for the NSWRA to remain in occupation even if an alternative site were not found in the near future. 147It is unnecessary to determine whether the Buildings were not kept in good and safe repair in all of the respects for which the Commonwealth contends. The Commonwealth has established a breach of clause 6.2(a)(i) in at least some respects. 148In its report on Building 37 (the Main Building), AssetFuture said that the Building was generally in poor condition. Under the heading "Architectural Element" they stated "all window frames require replacement". The NSWRA through their solicitors retained a building consultant, a Mr Craig Nisbett, to inspect the property and provide a report as to whether in his opinion the Buildings had been maintained in a good and safe state of repair. It was Mr Nisbett's opinion that the windows were generally in a reasonably good and safe condition, but he said that the windows on the ground floor northern stairwell and the first floor storeroom steel window frames required repair. In his later report following a further inspection on 6 June 2012, Mr Nisbett stated that: "The window which has been identified in my 22 February 2012 report as a window which needed to be replaced due to safety hazard has been replaced adequately." 149In cross-examination Mr Nisbett conceded that prior to its replacement the window in the northern stairwell was unsafe. Someone could have been hurt if they knocked the window and there was the possibility of its falling out and hurting someone. In this respect Building 37 was not in good and safe repair as at 25 January 2012. The repair was not completed within 14 days of service of the First Remedy Notice. 150The report of AssetFuture also stated that: "External brickwork requires major repair. Lineal cracking is evident around all windows and doorframes. This is due to the corrosion of steel lintels." 151In his report of 22 February 2012 Mr Nisbett said that brickwork and cladding was generally in a good and safe condition, but the brick mortar joints adjacent to the steel window lintels on the western and southern-western elevations had cracked which had been caused by the rusting of the steel window lintels which were in need of repair. He recommended that the mortar joints be sealed and the steel lintels painted with a rust converter and paint. 152A window on the southern wall was removed and the space bricked up. There is an issue as to the adequacy of the repair to this wall. Mr Nisbett said that for the repair work to be done in a workmanlike manner, there would have to be some form of binding of the new bricks to the adjacent ones, either by toothing or by the use of metal ties. There had been no toothing. He saw no evidence of the use of metal ties, but said that it would not be observable. 153It is unnecessary to form any view as to the adequacy of the repair work. That has not been the subject of a notice. Of more significance is the failure to repair the windows on the western wall. The steel lintels are badly corroded. This has caused the adjacent bricks, which should be supported by the lintel, to move. I accept the opinion of Mr Mihatov of AssetFuture that the lintels require replacement. In their present condition the wall is not in good and safe repair. Whilst Mr Nisbett did not accept that there was a risk that the wall and areas above the windows would collapse, I think that there is such a risk. The movement in the wall to date is testimony to that. 154It is unnecessary to decide in how many other respects the Buildings were not in safe and good repair. To a large extent these were matters upon which Mr Nisbett on the one hand, and authors of the reports provided to the Commonwealth on the other, were in disagreement. There was abbreviated cross-examination of Mr Nisbett and no cross-examination of the other experts. The hearing was not conducted as a building case because both parties recognised that the validity of the remedy notices does not depend upon a finding of the extent of breaches of clause 6.2(a)(i) or 6.2(b).

Obligation to keep asbestos-containing materials in repair 155However, one further question of principle arises that does need to be decided. The First Remedy Notice alleged that the Buildings had not been kept in a good and safe state of repair because of the condition of asbestos-containing materials. This was also the subject of the Second Remedy Notice. In the Second Remedy Notice the Commonwealth alleged that the NSWRA was in breach of clause 6.2(b) in that it failed to comply with the Environmental Management Plan. This was defined in subclause 1.1 of the Licence as the Environmental Management Plan of DASCEM Holdings dated September 1999. 156The Environmental Management Plan of DASCEM Holdings of September 1999 dealt specifically with the repair and management of asbestos-containing materials. The licence provided that a reference to a document was to a document as amended, novated, supplemented or replaced from time to time (clause 1.2(g)). The NSWRA contends that the Environmental Management Plan of DASCEM Holdings has been replaced by an Asbestos Management Plan prepared by Parsons Brinckerhoff in 2011. The plaintiff submits that it is to this plan to which reference should be made in determining whether there was a breach of clause 6.2(b). Similarly, the NSWRA contends that it was not in breach of clause 6.2(a)(i) for allegedly failing to keep asbestos-containing materials in a good and safe state of repair where, under the May 2011 Asbestos Management Plan, the obligation to deal with such materials was imposed on others. 157The DASCEM Holdings' Environmental Management Plan of September 1999 stated that its aims were to develop: "* procedures to ensure that the hazardous materials are managed in a way as to minimise the Occupational Health and Safety risk to personnel and Contractors at the site;

• procedures to ensure that the hazardous materials are managed in a way as to minimise the risk of adverse effect to the environment; and,
• Registers to record the results of inspections and/or remedial actions." 158The plan dealt with the management of asbestos-containing materials, lead-based paints and polychlorinated biphenyls (PCB) capacitors in light fittings. The report stated: "1.1 Asbestos Asbestos is present in the majority of the buildings and is generally in good to fair condition. The NSW Rifle Association main office and gun clubrooms contain asbestos in the form of roof cladding, external wall cladding, internal ceilings and wall lining. Most of the asbestos is unpainted and weathered, and therefore has a moderate to low potential to generate airborne asbestos fibres. 1.1.1 Recommendations

1. The asbestos should be repaired where damaged, and either sealed with an acrylic paint or removed by a licensed contractor in accordance with the Worksafe Australia Asbestos Code of Practice.
2. All asbestos materials should be labelled and maintained in good condition.
3. The details of any asbestos removal, air monitoring results and visual observations should be recorded in the Environmental Management Plan." 159Clause 4.3 of the Plan stated: "4.3 Accountability The Rifle Association Property Officer shall be responsible for monitoring, implementing and recording actions under the requirements of the EMP. The Officer will ensure all parties including employees, contractors and others comply with the requirements of this Plan." 160Clause 5.2 required that asbestos-containing materials be labelled in accordance with the WorkSafe Australia Asbestos Code of Practice. Clause 5.3 stated that asbestos-containing materials should be maintained in a good condition and that exposed edges of damaged sheeting should be painted with an acrylic paint to seal the fibres into the matrix. Large areas of damaged sheeting should be removed by qualified asbestos removalists in accordance with the WorkSafe Australia Asbestos Code of Practice. 161In 2003 a further Environmental Management Plan was prepared by DASCEM Holdings. The report was commissioned by the Commonwealth and followed a site audit in October and November 2003. A copy of the report was provided to the NSWRA on 16 January 2004. The further report made the same recommendations in relation to the management of asbestos as the 1999 report. It contained the same term as to the responsibility of the NSWRA through its property officer to monitor, implement and record actions required under the Plan. 162United Process Solutions Pty Ltd or an associated company ("United") is the manager of the Malabar Headland for the Commonwealth. On 16 January 2004 United provided a copy of the 2003 Plan to the NSWRA "as it relates to those specific areas of the site occupied by your Club/Association". A Mr Robert Ireland for United advised that: "I have asked DASCEM to obtain quotes to attend to the priority 1 works identified in the asbestos survey, to repair deteriorating surfaces where lead-based paint is present, to remove loose or flaking lead-based paint, and to remove/replace PCB capacitors. Furthermore all asbestos materials identified in the report will be labelled." 163In 2004 all PCB capacitors were removed and replaced in the NSWRA Buildings. This work was arranged by United. I infer that it was paid for by the Commonwealth as the quotes for the doing of the work referred to in Mr Ireland's letter of 16 January 2004 were to be provided to United. Ms Bell, an executive director of the NSWRA, deposed that the works were completed by the Commonwealth. 164On 19 May 2011 the Department of Finance and Deregulation wrote to Mr John Fitzgerald, the Chairman of the NSWRA, as follows: "In 2011, the Department of Finance and Deregulation (Finance) has undertaken a review of the Asbestos Management Plan that was currently in place at the Malabar Headland site in NSW. As part of that review each licensed user of the site was invited to a meeting in February 2011 to discuss their current Asbestos Management Plans and Asbestos Registers. As a result of this meeting and investigations undertaken by consultants, Parsons Brinckerhoff Aust Pty Ltd, a revised Asbestos Management Plan has been developed. Please find attached a copy of this plan for implementation by your organisation." 165The 2011 Asbestos Management Plan was prepared by Parsons Brinckerhoff for UGL Process Solutions ("UGPS"), another name for United. The executive summary of the Plan stated that Parsons Brinckerhoff had been engaged by United on behalf of the Department of Finance and Deregulation to provide a plan for the management of potential buried asbestos on the ANZAC Rifle Range, Malabar. However, the Plan goes beyond the management of buried asbestos. Clause 1.3 states that: "This AMP details the approach to be taken by Finance [the Department of Finance and Deregulation] in managing the asbestos hazard within the Malabar Headland Site, by documenting procedures designed to minimise the risk of exposure to asbestos of all personnel on the Malabar Headland site including all Finance and Malabar Headland Facility Manager personnel, staff, maintenance staff, maintenance contractors and other visitors. This AMP is to be used in conjunction with the Hazardous materials (asbestos) register for the facility and/or any other records of asbestos materials". 166The Plan noted that under clause 44 of the Occupational Health and Safety Regulation 2001 the Department of Finance and Deregulation, as a controller of premises, was required to ensure that a register was kept of the type, condition and location of all asbestos and asbestos-containing material, and the details of any action to control such material was to be entered in the register. The author stated that the Plan had been developed to address this obligation as it specifically related to the presence of asbestos on the site. The Plan also stated that each section of the Plan was to be read in conjunction with the whole of the report. That is to say, the Plan is not confined to compliance by the Department of Finance and Deregulation of its obligations under the Regulation. 167The Plan deals with the management of asbestos-containing materials on the Malabar Headland generally, and not only in respect of the particular buildings occupied by the NSWRA. There are many other buildings on the headland which are not occupied by the NSWRA and in respect of which it has no licence. 168Clause 1.6 of the Plan states: "1.6 Users of the Asbestos Management Plan This AMP is designed for those responsible for the management of Malabar Headland site, stakeholders and contractors involved where asbestos and asbestos-containing materials may be present. Where events or situations arise that cannot be managed under this plan by Malabar Headland staff and/or contractors, this AMP sets out the actions to be followed and the responsibilities of the Malabar Headland Facility Manager on behalf of Finance who will manage all asbestos issues. In this instance, the users of this AMP are likely to be: Finance The Malabar Headland Facility Manager. Licensees (Sporting Shooters Association of Australia, NSW Rifle Association, Sydney Model Aero Club, Drummoyne RSL Pistol Club, NSW Small Bore and Air Rifle Association, Malabar Riding School). Consultants (engaged for and on behalf of Finance). Contractors (including voluntary staff and workers)." 169The Plan includes a chart describing how the management of an existing asbestos area, or the management of an asbestos find or incident should be conducted. It states that if there is a deterioration of materials such that work is required, then an occupant of the Headland is to advise UGPS which in turn will inform the Department of Finance and Deregulation. The chart then states that UGPS will be engaged to manage the issue, and that it will engage an environmental hygienist or scientist if required, and it will engage an asbestos-removal contractor if required. 170Section 2 of the Plan described organisational responsibilities. This part of the plan was amended in July 2011. On 19 July 2011 the Department of Finance and Deregulation wrote to Mr Fitzgerald of the NSWRA enclosing a revised version of the Asbestos Management Plan. The letter of 19 July 2011 stated: "Please find attached a copy of this revised plan for implementation by your organisation." 171The revised July 2011 plan also stated that it would be the obligation of the "Malabar Headland Facility Manager" to engage the asbestos removal contractor and an occupational hygienist if required to deal with the deterioration of asbestos-containing material, or the carrying out of required works. Section 2 stated that the Department of Finance and Deregulation's responsibility included the management of systems to ensure suitable contractors and consultants were engaged, ensuring appropriate work methods and control measures of any staff member of a contractor working on areas of known asbestos contamination met conditions and standards approved for the site and ensuring that asbestos situations were safely controlled. The responsibilities of the Malabar Headland Facility Manager were similar. They also included the management of systems to ensure that suitable contractors and consultants were engaged to carry out asbestos related works, and the ensuring that asbestos situations were safely controlled, and the engaging of removal contractors when required in response either to emergency situations or other situations when required. Section 2.3 was headed "Responsibilities of all Staff from Tenants". The responsibilities of "Malabar Headland Staff" was said to include informing the Malabar Headland Facility Manager of the presence of any previously unknown asbestos hazard, or suspected asbestos hazard on site and complying with the Plan to ensure staff or visitors were not at risk of exposure to airborne asbestos fibres. There was no provision requiring a "tenant" to implement actions for the repair, encapsulation, or removal of asbestos-containing materials. 172Clause 3.14 dealt with asbestos in buildings and clause 3.15 dealt with asbestos removal. Again, the responsibilities for dealing with such situations was given to the Malabar Headland Facility Manager on behalf of Finance. Clause 3.15.2 said: "All work carried out that involves disturbance of asbestos materials (including removal) must be supervised by a suitably qualified contractor engaged by the Malabar Headland Facility Manager on behalf of Finance". 173Similarly, specified procedures for dealing with asbestos-containing materials in the Malabar Headland grounds stated that if a suspected single fragment or small number of suspected asbestos materials were observed at a single location, then the Malabar Headland Facility Manager should be contacted as soon as practicable and that it and Finance would arrange for inspections and testing if necessary by a consultant and that the Malabar Headland Facility Manager and Finance would arrange for the removal of the asbestos-containing materials. 174Clause 1.4 of the 2011 Asbestos Management Plan states that it is to be read in conjunction with the Hazardous Materials Survey and Management Plan of Robson Environmental of December 2007 and Asbestos Survey and Assessment by Parsons Brinckerhoff of May 2010. The Parsons Brinckerhoff Asbestos Survey and Assessment of May 2010 was not in evidence. 175The December 2007 Hazardous Materials Survey and Management Plan of Robson Environmental identified the presence of materials containing asbestos in buildings that included the buildings the subject of the licence to NSWRA and made recommendations for the sealing, removal or replacement of asbestos sheeting if it showed considerable weathering or damage. Both it and the 2011 Asbestos Management Plan covered all the buildings on the site. 176Senior counsel for the Commonwealth, Mr McClintock SC, submitted that the 2011 Asbestos Management Plan did not amend, novate, supplement or replace the Environmental Management Plan of DASCEM Holdings of September 1999. He correctly submitted that the Environmental Management Plan referred to in the licence was specific to the Rifle Association's and its obligations. The 2011 Asbestos Management Plan applies not merely to the Buildings and land in respect of which a licence was given to the NSWRA, but to the whole of the headland. The Commonwealth submitted that the 2011 Asbestos Management Plan was not intended to vary the Rifle Association's obligations in the Environmental Management Plan. 177The fact that the 2011 Asbestos Management Plan was not specifically focused on the buildings occupied by the NSWRA, and did not refer to the 1999 DASCEM Holdings Environmental Plan, does not mean that it did not amend or supplement the DASCEM Holdings Environmental Management Plan. In my view, it did. It dealt with the same subject matter differently, as well as other matters. It required the Facility Manager to bear responsibility for engaging contractors to repair or remove asbestos. The NSWRA could not consistently with the 2011 Plan have itself engaged contractors to do any work required by the DASCEM Holdings Plan. That obligation lay with the Facility Manager who was required to decide whether to engage an occupational hygienist where asbestos materials might be disturbed or "impacted upon". The Facility Manager was obliged to ensure that contractors engaged were suitable and that necessary safety standards were maintained. Pursuant to clause 3.15 of the 2011 Asbestos Management Plan the Department of Finance and Deregulation was to develop a detailed and site-specific work scope and technical specification before asbestos-containing materials were removed from any Malabar facility buildings or grounds. The procedures for removal of asbestos were specified in detail in the Asbestos Management Plan. The 2011 Asbestos Management Plan reflected what had become the reality on the site, namely, that the Commonwealth assumed responsibility for dealing with hazardous material.

Validity of the First Remedy Notice 178The First Remedy Notice stated: "The Commonwealth hereby gives notice to the NSW Rifle Association under clause 10.1(b) of the Licence that the NSW Rifle Association must remedy the breaches of clause 6.2(a)(i) within 14 days of the date of this Remedy Notice. In accordance with the attachments to this Remedy Notice, the breaches requiring remediation are:

1. Those identified in the four bullet points to the first paragraph of the 'Conclusion' of the Parsons Brinckerhoff report (attachment (b) above).
2. All items, elements and services identified in the AssetFuture Pty Limited report (attachment (c) above) as requiring maintenance, repair, servicing, or replacement.
3. All items, elements and services identified in the AssetFuture Pty Limited report (attachment (c) above) as being in poor condition, suffering rust damage or other damage, requiring painting, or posing a hazard to patrons.
4. All previous repairs to items, elements and services identified in the AssetFuture Pty Limited report (attachment (c) above) as repairs not undertaken to a professional standard." 179The four bullet points in the first paragraph of the "Conclusion" of the Parsons Brinckerhoff report were: "5. Conclusion Parsons Brinckerhoff recommends the following remedial action be undertaken to areas that were found to be damaged/deteriorated: The weathered and deteriorated ACM material including down pipes, gutters, capping, fascias and the underside of the awning should be encapsulated to prevent the liberation of asbestos fibres. This includes blocks A, B & D along with [storage] sheds 35 & 36. The damaged asbestos cement sheeting and unsealed down pipe located within the store room adjacent to the bar should be encapsulated and any visible debris removed and the area decontaminated. Any area of asbestos vinyl tiles which are seen to [be] damaged and/or worn and are considered to be trip hazard should be removed or enclosed. The gutters and other ACM debris identified on the ground surface west of storage shed 35 should be removed and the surrounding area decontaminated." 180This work required compliance with the Asbestos Management Plan. Where there was a conflict between clause 6.2(a)(i) whereby the Association was required to keep the Buildings in a good and safe state of repair, and clause 6.2(b) whereby it was required to comply with the Environmental Management Plan as amended, novated, supplemented or replaced from time to time, and where the Asbestos Management Plan, being the Environmental Management Plan as so amended or replaced, dealt specifically with work to be done in connection with asbestos-containing material, the more specific obligation requiring compliance with the Asbestos Management Plan prevailed. Under the Asbestos Management Plan it was not the Rifle Association's obligation to deal with such material. 181The First Remedy Notice purportedly required the removal of weathered and deteriorated asbestos-containing material in Storage Shed 36. This is adjacent to Storage Shed 35. The "Buildings" in respect of which a licence was given to the NSWRA included a "Storage Shed" (not "Sheds"). Although the map attached to the licence deed is not entirely clear in this respect, it appears to refer only to Building 35 (although Building 36 appears to have been coloured along with Building 35 on the map.) The NSWRA contended that Building 36 was not subject of the licence and I did not understand the Commonwealth to dispute this. In its summary of alleged breaches advanced in submissions, it did not include failure to carry out work in respect of Shed 36. However, the First Remedy Notice (and the second) required work to be carried out on that shed. 182Paragraphs 2-4 of the Remedy Notice required the "remediation" of all items, elements and services: (a) identified in the AssetFuture report as requiring maintenance, repair, servicing or replacement; or (b) identified in the AssetFuture report as being in poor condition, suffering rust damage, or other damage, or requiring painting or posing a hazard to patrons. 183It also required the "remediation" of all previous repairs to items elements and services identified in the AssetFuture report as repairs not undertaken to a professional standard. 184The AssetFuture report dealt with structures 37, 35, 36 and gun club rooms in Buildings A, B, C and D. The AssetFuture report also identified various aspects of structure 36 as being in very poor condition and described the asbestos roof as having previously being repaired poorly. The walls and roof were said to need to be replaced and that window frames needed to be repaired and painted, and that gutters and downpipes were in very poor condition. Thus the remedy notice required this work to be carried out on Building 36, even though it was not the subject of the licence. 185Building 37 is the main building occupied by the NSWRA as its clubhouse, reception lounge and administration block. The AssetFuture report stated: "The building is generally in poor condition. The foundation appears to be sound, however the external façade has extensive cracking and movement in some areas. Due to the building's location and harsh external environment, there is severe rust damage and corrosion to all steel elements throughout. There is no provision for DDA (Disability Discrimination Act) i.e. access ramps, lifts, acceptable amenities etc." 186When this paragraph is read with the Remedy Notice, it can be seen that the Commonwealth purportedly required the remediation of the items and elements identified in this paragraph as being in poor condition or suffering rust damage. The items and elements said to be in poor condition include that the building lacks access ramps, lifts and acceptable amenities for disabled persons. That could only be remedied by the installation of access ramps, lifts and acceptable amenities. That would go well beyond the concept of repair. In the course of the Commonwealth's opening, counsel disclaimed any requirement that the NSWRA install lifts in the building (T59), but that was something purportedly required by the notice. 187The AssetFuture report also identified the following items, elements and services as requiring maintenance, repair, servicing or replacement, or as being in poor condition etc.: "2.3 Architectural Element External brickwork requires major repair. Lineal cracking is evident around all window and door frames. This is due to the corrosion of steel lintels. All window frames require replacement. Some doors are difficult to open and close. External door frames require replacement. All floor coverings are in poor condition and require replacement. All bathroom fixtures and fitting[s] are old and in poor condition. Bathroom amenities have water damage to finishes. Timber cubicle dividers are damaged and require replacement. All kitchen benches are in poor condition. Ceiling appears to be asbestos and is sagging, cracking and showing signs of damage. This represents a hazard to patrons. Carport steel roof sheeting is in poor condition and requires total replacement. 2.4 Structural Element The building's footing and foundation appear to be sound. External steel support beams and uprights are severely corroded. Both internal stairwells are in poor condition but appear to be structurally sound. The carport timber roof frame appears to be structurally sound. Veranda safety railing was corroded and has been repainted recently. Does not meet BCA standard height. 2.5 Civil Works All roads to the building are sealed and in fair condition. Car park surfaces are in fair condition. Landscaped areas are untidy and in need of maintenance. 2.6 Hydraulic Services Guttering is missing in parts and leaking at joints. Downpipes are missing or not connected to storm water. Repairs are evident however they appear completely reactive and not to a professional standard. Sewerage plumbing is in sound working order. ZIP hot water system on the ground floor kitchen is in poor condition and needs to be replaced. The hot water system located under rear deck amenities block was installed in 1992 and appears in working condition. 2.7 Electrical Services Most internal General Power Outlets (GPOs) are in fair condition. Internal fluorescent fittings are corroded and require replacement. All external light fittings have rust damage and corrosion. Main distribution board is very old but appears to be in working condition. External sub-distribution board located under the rear deck is in fair working condition. Security access keypad has been installed to armoury and main building. 2.8 Mechanical Services Toilet and bathroom exhaust fans are not operating and in poor condition. Need replacing. Level 1 - Kitchen equipment has been decommissioned and is not in use. Ground Floor - Staff Kitchen is in poor condition and is still being used. Cold room is in fair working condition. Door seals need replacement. There is no air conditioning plant or equipment in this building. 2.9 Fire Protection Three additional fire extinguishers have been installed since 2007. These have been inspected yearly. All smoke exhaust vents are not operating. There is only one fire exit sign. This is in poor condition and unreadable. Fire door is not tagged and or being maintained. Hardware is not compliant. This door is locked and represents an obvious fire safety risk. There is no emergency lighting, manual call points, visible evacuation plan, fire hoses or hydrants. The building has poor fire protection services and is potentially an extreme risk to patrons." These defects were all said to be contained in or were in relation to the main building no. 37. 188It is not possible to say how many of these items were not in good and safe repair. In many cases there was mere assertion and counter-assertion that a thing was or was not in a good state of repair. It was said that all kitchen benches were in poor condition. The Commonwealth required this to be remedied. However, on an inspection it was clear that the kitchen benches were in a state of "tenantable repair" having regard to the age and character of the building and were reasonably fit for the use and occupation of the Association. There was a small chip in, and a slight lifting of, the laminated top that did not affect the utility of the bench. "Good repair" is much the same thing as "tenantable repair" and good tenantable repair is "such repair as, having regard to the age, character, and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of a class who would be likely to take it". The age and character of the building must be taken into account (Proudfoot v Hart at 51, 52). 189The notice gave fewer than 14 days to remedy the alleged breaches of clause 6.2(a)(i). The notice purportedly required the breaches to be remedied by 8 February 2012 (14 days after the date of the notice). But the notice was not served until 31 January 2012. On 7 February 2012 Blake Dawson advised Hunt & Hunt that the remedy notice should be taken as reading that the breaches were required to be remedied within 14 days of receipt of the Remedy Notice. 190The fact that the notice purportedly required the alleged breaches to be remedied within fewer than 14 days does not mean that the notice was not a "notice asking the User to remedy any breach of this document" within the meaning of clause 10.1(b). It clearly was. The NSWRA then had 14 days, or such longer time as was specified in the notice, to remedy the breach. As no longer time was specified in the notice the NSWRA had 14 days in which to remedy the alleged breaches, notwithstanding that the notice specified a shorter time. The NSWRA was not misled. The Commonwealth belatedly admitted that it had that period. 191However, the Commonwealth was obliged to act reasonably and in good faith in exercising its powers under clause 10.1(b). It had two powers under that clause, namely, to determine whether to fix a period other than 14 days as the time by which breaches were to be remedied, and to fix the period if it decided to appoint a longer time. In deciding not to allow more than 14 days for the breaches to be remedied, the Commonwealth acted unreasonably. At no time prior to 31 January 2012 had the Commonwealth expressed any complaint to the NSWRA about the condition of the Buildings. It had received the reports of Strategic Facility Services of December 2007 on the condition of all of the Buildings on the site, including those licensed to the NSWRA. That report had identified substantially the same defects as were the subject of the report of AssetFuture of January 2012. For example, in relation to Building No. 37 (being the main building), Strategic Facility Services had identified that: "The building has serious problems with the extremely corroded steel window lintels requiring urgent remedial works to the masonry walls. The powder coated steel window frames are corroding to such an extent that many will require their complete replacement." 192The report of AssetFuture of January 2012 said: "* External brickwork requires major repair. Lineal cracking is evident around all window and doorframes. This is due to the corrosion of steel lintels.

• All window frames require replacement." 193Similarly, Strategic Facility Services said: "The vinyl tile floor coverings are in poor condition and are recommended for replacement." 194AssetFuture said: "All floor coverings are in poor condition and require replacement." 195It is unnecessary to multiply further examples. 196Notwithstanding that the Commonwealth had had the report of Strategic Facility Services since December 2007, it did not provide it to the Rifle Association, nor ask the Association to carry out any of the repairs that had been identified in that report. 197As late as 28 September 2011 the Commonwealth stated that the NSWRA could remain on the site until a suitable alternative site was found. No prior complaint had been made about the condition of the Buildings. No-one from the Commonwealth gave evidence as to why it served the First Remedy Notice when it had purportedly required the NSWRA to vacate the site by the end of January 2012. The inference is overwhelming that the Commonwealth was not genuinely concerned about the state of the Buildings (that had been occupied for decades without significant repairs), but that it served the notice merely to provide a plausible basis for exercising the contractual power of termination under clause 10.2(b). 198It was impossible for the NSWRA to do all of the work purportedly required by the First Remedy Notice, as the Commonwealth admits. The Commonwealth admits that the following works could not have been remedied within 14 days: "NSW Rifle Association Building (a) Repair of the external brickwork (b) Replacement of window frames (c) Replacement of external door frames (d) Replacement of floor coverings (e) Repair or replacement of suspected asbestos ceiling (f) Repair or replacement of external steel support beams and uprights (g) Replacement of the ZIP hot water system in the ground floor kitchen (h) Repair of the Ground Floor - Staff Kitchen Barrack Buildings (i) Repair or replacement of suspended ceilings (j) Repair or replacement of timber and asbestos partitions in toilet and shower areas (k) Repair of building end walls due to lintel rusting and damage (l) Repair of termite damage in Barrack Building D (m) Repair of male and female toilets and showers in Barrack Building B Storage Shed (Building 35) (n) Repair or replacement of the switchboard." 199Had the Commonwealth acted reasonably in exercising its power under clause 10.1(b) it would not have been in breach of its obligation to act in good faith. In Burger King Corporation v Hungry Jacks Pty Ltd at [106] the Court of Appeal referred with approval to the observation of Finkelstein J in Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703 at 43,014 that if the party exercising the contractual power acts reasonably in all the circumstances, the duty to act fairly and in good faith will ordinarily be satisfied. So it is in this case. 200The NSWRA contended that the remedy notices were not given in good faith because the Commonwealth did not want the Buildings to be repaired, but gave the notices simply to trigger a default that would enable it to terminate the licence so that it could honour a political promise made by the member for Kingsford Smith. I accept that that was the Commonwealth's motivation. That does not mean that the Commonwealth would not have acted in good faith if it had acted reasonably in giving the Remedy Notice. The fact that the Commonwealth wished to terminate the licence so that it could implement a different policy does not mean that it would be in breach of its obligation of good faith had it acted reasonably. But in determining what period should be allowed to remedy the alleged breaches, it was required to act reasonably, having regard to the purpose for which a notice under clause 10.1(b) was required. The purpose of such a notice was to enable the Rifle Association to remedy the alleged breaches. 201The reasonableness of the period for remedying a breach must also take account of the nature of the organisation of the Rifle Association. This was a matter known to the parties when the licence was entered into. The Chairman of the Association, Mr Fitzgerald, spends most of his days at the Range. His is a voluntary position. He is 70. The Association employs two staff members. Ms Barbara Bell is employed full-time, partly in a clerical role, partly in a purchasing role, and partly in an administrative role. A Ms Wendy McGuigan is employed three days per week as an administrative assistant. There are no other employees. Hence, the Association needs to engage suitable contractors to carry out the required works. 202The First Remedy Notice both purportedly required the carrying out of extensive works that the NSWRA was not required to carry out, and did not allow a reasonable time for the doing of the work required. 203The Commonwealth argued that even if parts of the notice were invalid because a reasonable time for carrying out some work was not given, that did not invalidate the whole notice. The Commonwealth submitted that the notice should be read distributively and in so far as specified work could have been carried out within the period of 14 days, then, to that extent, the notice was valid, even if (which the Commonwealth denied) it would be invalid in respect of a requirement to do work that could not be done within that period. 204I do not agree. Assume a case, which may well be this case, where 30 separate breaches were alleged that could each have been remedied within 14 days if it were the only breach alleged, but where it would take more than 14 days to remedy all of the breaches, having regard to the resources reasonably available to the licensee. The Commonwealth would not act reasonably by requiring all 30 items to be attended to within the 14-day period. The reasonableness of the period allowed for the doing of each item needs to take account of what other items are also required. 205The NSWRA was not required to make its own assessment as to which parts of the notice were valid, and which invalid, at least if that could be a matter of potential dispute. In Mannai Investment Co Limited v Eagle Star Life Assurance Co Ltd [1997] AC 749 Lord Steyne said (at 768) that unilateral notices served under contractual rights may be valid if they are "sufficiently clear and unambiguous to leave a reasonable recipient in no reasonable doubt as to how and when they are intended to operate" citing Delta Vale Properties Ltd v Mills [1990] 1 WLR 445 at 454. Conversely, if the Rifle Association as recipient of the notice would be in reasonable doubt as to how the notice was intended to operate, that is to say, as to which parts of it would later be asserted by the Commonwealth to be operative, and which not, it would not be in a position properly to respond. No doubt the notice is to be approached "non-technically" and is to be interpreted in accordance with "business common sense" (Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303). It would not be in accordance with business common sense to construe the notice distributively so as to be effective in respect of those alleged breaches which the NSWRA was required to remedy and which could have been remedied within 14 days, even though invalid in respect of a purported requirement to do work that could not be completed within that time, or to do work that the Commonwealth was not entitled to require the NSWRA to do. 206Hometeam Constructions Pty Ltd v McCauley concerned a building contract. It was there held that a notice was valid that stated that a builder was in breach by failing to proceed with building works regularly with due diligence and without delay, although the notice did not give further particulars nor specify with particularity the work the builder was required to perform within the period specified in order to remedy the breach. By contrast, Fletcher v Nokes [1897] 1 Ch 271 concerned a statutory requirement that a notice served by a lessor on a lessee specify the particular breach of covenant complained of. Such a notice had to enable the tenant to understand with reasonable certainty what it is he was required to do. This case is closer to Fletcher v Nokes than to Hometeam Constructions Pty Ltd v McCauley. 207What is required of a contractual notice is to be determined by the terms of the contract, including what is to be discerned as the purpose of the notice. In the present case the purpose of a notice under clause 10.1(b) is to enable the Rifle Association to remedy an asserted breach. That requires particularity of the alleged breach, but not necessarily specification of what needs to be done to remedy the breach. That is so because a breach of an obligation to repair might be capable of being remedied in a number of different ways. I would not uphold the Rifle Association's objection to the notice on the ground that the alleged breaches were not identified with sufficient particularity. The defects of the notice are different. Things were required to be done which the Commonwealth was not entitled to require. A reasonable time was not given to do even that which could have been required, let alone to do all that was purportedly required. The notice was not given reasonably. 208For these reasons I conclude that the First Remedy Notice was invalid. The Commonwealth is not entitled to terminate the licence on the basis of non-compliance with that notice.

Second Remedy Notice 209The Second Remedy Notice was given on 29 March 2012. The notice stated: "The NSW Rifle Association is in breach of its obligations under sub-clause 6.2(b) of the Licence in that it has failed, at all times at its own expense, to comply with the Environmental Management Plan (defined in sub-clause 1.1 of the Licence as 'the Environmental Management Plan of DASCEM Holdings Pty Ltd dated September 1999 in the Licence Exhibit'). Specifically, the NSW Rifle Association has failed: (a) to repair damaged asbestos materials and either seal them with an acrylic paint or have them removed by a licensed contractor in accordance with the Worksafe Australia Asbestos Code of Practice (paragraphs 1.1.1(1) and 5.3); (b) to label all asbestos containing materials in accordance with the Worksafe Australia Asbestos Code of Practice and to maintain them in a condition that prevents the generation of airborne asbestos fibres, or, if this is not possible, to remove them (paragraphs 1.1.1(2), 5.1 and 5.2); and (c) to paint the exposed edges of damaged sheeting with an acrylic paint to seal the fibres into the matrix (paragraph 5.3). The NSW Rifle Association's breaches of sub-clause 6.2(b) of the Licence, which the Commonwealth, by this Remedy Notice, requests be remedied, are those identified in the Parsons Brinckerhoff report entitled 'Hazardous Materials Management Assessment - Malabar Headlands, NSW Rifle Association Buildings' dated 5 March 2012 (Parsons Brinckerhoff report) and, in particular, the following paragraphs thereof: (a) the final two paragraphs of paragraph 4.1; (b) the final two paragraphs of paragraph 4.2; (c) the final two paragraphs of paragraph 4.3; and (d) sub-paragraphs (1)(a) to ((l) and (2)(a) to (c) of that part of the Parsons Brinckerhoff report headed '6. Conclusion'." 210This notice was also invalid. It was invalid for two reasons. First, the NSWRA was not in breach for failing to comply with the Environmental Management Plan of DASCEM Holdings because that plan had been amended and replaced by the 2011 Asbestos Management Plan. The latter Plan provided that it was the obligation of the Commonwealth through its Facility Manager to undertake such works. 211If this is incorrect, the notice was in any event invalid because the Commonwealth did not act reasonably in fixing the time for compliance with the notice. The period given was 16 days. But the Commonwealth admits that items that could not have been remedied within the period specified in the notice were: "(a) The sealing with acrylic paint and labelling of damaged suspected asbestos floor coverings in all of the Mosman and neutral Bay Rifle Clubrooms in Barrack Building A, the Railway and Tramway Clubroom in Barrack Building B and the southernmost Clubroom in Barrack Building C. (b) Removal of damaged asbestos floor covering in the NSW Rifle Association Building (c) Repair and/or sealing with acrylic paint of the damaged asbestos cement sheeting in the NSW Rifle Association Building. (d) Removal of pipework associated with old hot water heater units in male toilets in Barrack Building B". 212Accordingly the Commonwealth is not entitled to terminate the licence by reason of non-compliance with this notice.

Third Remedy Notice 213The Third Remedy Notice is dated 7 May 2012. It alleged 16 breaches of obligations under clause 6.2(b) in that the NSWRA had failed to comply with the Fire Safety Management Plan. This Plan consisted of a number of surveys made by DASCEM Holdings dated September and October 1999. There were separate surveys for Building 35 and 36, Building 37, and Buildings 39-42. The latter were the Barrack Buildings A-D. The Remedy Notice stated: "... Specifically, the NSW Rifle Assoc has failed to: (a) remove portable electric heaters from some clubrooms in Barrack Buildings A, B, C and D; (b) remove overgrown vegetation at the rear of Barrack Building D; (c) establish a policy for handling dangerous goods and ensure that all occupants of the NSW Rifle Association Building, the Barrack Buildings A, B, C and D and the Storage Shed comply with the requirements of that policy, including the storage of combustible materials safely removed from potential sources of fire; (d) check light fittings in the NSW Rifle Association Building, the Barrack Buildings A, B, C and D and the Storage Shed for faults and corrosion and, if necessary, replacement; (e) install hard-wired smoke alarms to AS 3786 in sleeping bed based accommodation areas and adjacent enclosures in the NSW Rifle Association Building and the Barrack Buildings A, B, C and D; (f) prepare laminated emergency instructions for general display in the NSW Rifle Association Building, the Barrack Buildings A, B, C and D and the Storage Shed; (g) install exit lighting on all external doors in the NSW Rifle Association Building and Barrack Buildings A, B, C and D; (h) install an exit and emergency lighting system in the Storage Shed; (i) ensure that all doors to the outside of the NSW Rifle Association Building and the Barrack Buildings A, B, C and D are able to be opened outwards at all times of occupation with a single downward-opening action; (j) develop a housekeeping policy and ensure a clear path to all external doors in the NSW Rifle Association Building, the Barrack Buildings A, B, C and D and the Storage Shed; (k) alter stair and patio balustrades to ensure correct height and gap in verticals in the NSW Rifle Association Building; (l) provide clear access to main switchboard in the NSW Rifle Association Building; (m) install portable fire extinguishers to AS 2444 in all club rooms in Barrack Buildings A, B, C and D; (n) establish and document maintenance procedures to ensure all fire extinguishers in the NSW Rifle Association Building, the Barrack Buildings A, B, C and D and the Storage Shed are regularly maintained on a biannual basis; (o) remove the BCF fire extinguisher from a club room in Barrack Buildings A, B, C or D; (p) provide fire blankets in all club rooms in Barrack Buildings A, B, C, and D." 214The specification of breaches was based on a report prepared by Elk-Seagren Consulting Pty Ltd dated 3 April 2012. This provided a cross-reference (in section 6) to the DASCEM Holdings Fire Safety and Adequacy Surveys and identified the aspects in which the DASCEM Holdings recommendations had not been carried out. The NSWRA did not submit that the matters the Remedy Notice required it to attend to had not been specified in the DASCEM Holdings surveys, nor that it had attended to those matters. These were breaches of clause 6.2(b). 215No complaint had been made about the breaches for 12 years. The report of Strategic Facility Services of December 2007 provided to the Commonwealth, but not by the Commonwealth to the NSWRA, had commented on the absence of fire detection and fire-fighting equipment for the majority of the clubrooms in Barrack Buildings A-D and the absence of smoke detectors. It had made other recommendations in relation to the provision of fire safety measures. The Commonwealth took no steps in relation to those measures, nor required the NSWRA to do so. 216The Commonwealth's inaction did not preclude it from giving a notice requiring the breaches to be remedied (clause 12.4(a) of the licence). But it is material to the reasonableness of the Commonwealth's decision to require all of the specified breaches to be remedied within 14 days. The Commonwealth admits that not all of the breaches could have been remedied within 14 days. It concedes that the following work could not have been done within that time: "(a) Ensuring all doors to the outside of the NSW Rifle Association Building and the Barrack Buildings A, B, C and D are able to be opened outwards at all times of occupation within a single downward-opening action (b) Altering stair and patio balustrades to ensure correct height and gap in verticals in the NSW Rifle Association Building". 217The Commonwealth did not act reasonably in giving the Third Remedy Notice in the terms it did. For the reasons previously given, the notice was not valid in respect of those things that could have been done within 14 days. Because the Commonwealth did not act reasonably in exercising its power under clause 10.1(b) in giving the Third Remedy Notice, it is not entitled to terminate the licence by reason of the breaches in failing to comply with the Fire Safety Management Plan.

Conclusion in relation to Remedy Notices 218For these reasons I conclude that none of the Remedy Notices is valid. The Commonwealth is not entitled to terminate the licence unless it gives a valid notice in respect of a breach or breaches of the licence that is not remedied after the Commonwealth, acting reasonably, gives a notice under clause 10.1(b) and such a notice is not complied with. The purported termination of the licence by the Commonwealth's cross-claim based on the asserted executive discretion is also ineffective. There should be declarations accordingly and an injunction restraining the Commonwealth from purporting to terminate the licence by reason of the Rifle Association's non-compliance with any of the Remedy Notices and from its seeking to give effect to the purported termination of the licence in its cross-claim.

Relief against forfeiture 219In case I am wrong in my conclusion that the Commonwealth is not entitled to terminate the licence on the basis that the three remedy notices have not been complied with, I will deal with the NSWRA's claim for relief against forfeiture. Two questions arise. First, whether there is jurisdiction to grant relief against forfeiture. Secondly, if so, whether relief should be granted. 220There is no dispute that if the NSWRA is a lessee of the site or part of it, that there is jurisdiction to grant such relief in respect of the areas leased. The Commonwealth denies that the NSWRA is a lessee of any part of the Malabar Headland. It denies that the Court has jurisdiction to grant relief against forfeiture of the NSWRA's rights as a contractual licensee to occupy or use the land and buildings over which it has a licence. 221The fact that the deed describes the rights granted to the NSWRA as a licence and not a lease is not conclusive. In Radaich v Smith (1959) 101 CLR 209 the High Court decided that whether an interest entitling a person to occupy land is a lease or a licence depends on whether the occupier is given the right of exclusive possession. 222It is clear that the NSWRA is not entitled to exclusive possession of the Licensed Range. It is entitled to use the Licensed Range along with others. It is not so clear whether its right to possession of the Buildings and the Licensed Area is exclusive of the Commonwealth. Its right is described as an exclusive licence to use the Licensed Area and the Buildings for the uses described in clause 5. 223Whilst the NSWRA has a licence to use those areas which is exclusive of any third party's rights, there is no provision in the licence that provides that its right of possession is exclusive of the Commonwealth. Clause 8, on which the NSWRA relies, provides that the Commonwealth may enter the Licensed Area at all reasonable times and on giving the NSWRA reasonable notice for specified purposes, including to determine the condition of the Licensed Area or whether the NSWRA is complying with the Licence. It is also entitled to enter the Licensed Area to carry out any work to the Range which requires entry onto that area. Counsel for the NSWRA pointed to the fact that there is no similar express right conferred on the Commonwealth to enter the Buildings. The Licensed Area is the curtilage of the Barrack Buildings and the Administration Building. The fact that an express, but limited, right is given to the Commonwealth to enter the Licensed Area might suggest that the NSWRA's right to possess the Licensed Area is otherwise exclusive (Addiscombe Garden Estates Limited v Crabbe [1958] 1 QB 513 at 529). 224However, the licence does not include any similar express term giving the Commonwealth the right to enter the Buildings. Given that the NSWRA undertook to keep the Buildings in a good and safe state of repair and to comply with the Environmental Management Plan and Fire Safety Management Plan which related to the condition of the Buildings, I would infer that the parties intended that the Commonwealth should at least be entitled to inspect the Buildings. The absence of any express right of entry for the purpose of inspection corroborates the implication that would be drawn from the description of the deed as a licence, not a lease, that the NSWRA's right of possession of the Buildings is not exclusive. If there was no lease of the Buildings, it would be fanciful to suggest that there was a lease of the Licensed Area surrounding the Buildings. In my view, the relationship between the parties is as they describe it in the deed, namely, that of licensor and licensee, and not lessor and lessee. 225The fact that the parties described their relationship as that of licensor and licensee, and not lessor and lessee, is itself a material consideration (Chaka Holdings Pty Limited v Sunsim Pty Ltd (1987) NSW ConvR 55-367 at 57,300). 226Two other matters also point to the rights granted being a licence and not a lease. The Commonwealth submitted that the prohibition on assignment meant that no leasehold interest could have been conferred, citing Lewis v Bell (1985) 1 NSWLR 731 at 735, 736. Mahoney JA said: ""If the right granted is, of its nature, not transferable or is otherwise personal to the grantee it will, as such, not be a leasehold interest." (My emphasis.) 227In that case the right to use and occupy stables and ancillary accommodation by a racehorse trainer was "of its nature" personal and not transferable, not just because of a covenant against assignment, but because of the nature of the premises and the relationship of the parties. Similar considerations apply in the present case. The nature of the Range and the Buildings associated with it, as well as the covenant against assignment indicate that the Licence is personal to the NSWRA and not transferable. That also suggests that the right of possession is not exclusive of the Commonwealth. 228Another reason the parties did not intend that the Commonwealth give the NSWRA a right of exclusive possession that created a leasehold interest, is that a lease would not have been valid. The duration of a lease must be certain from its commencement. Thus a lease "for the duration of the War" is not valid because the term is not certain (Lace v Chantler [1944] KB 368). There could be no valid lease of the Buildings and the Licensed Area until 14 days after the Commonwealth gave a Relocation Notice. That does not mean that there is no enforceable contractual licence protectable by injunction in the event of breach (Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd). Damages would clearly not be an adequate remedy. This was not disputed. 229It has been held in a number of cases that the Court has jurisdiction to relieve against the forfeiture of contractual licences entitling the licensee to occupy land. In Proctor v Milton (1987) NSW ConvR 55-321 the defendant had a licence to occupy a property. Hodgson J (as his Honour then was) said that the defendant also had an equity in the land by reason of a proprietary estoppel that went beyond a mere contractual licence (at 56,965). His Honour said that there was jurisdiction to grant relief against forfeiture, but the case was not one that was appropriate for the grant of such relief. The matter was taken further by Young J (as his Honour then was) in Chaka Holdings Pty Ltd v Sunsim Pty Ltd. His Honour said that it made no difference to the jurisdiction to grant relief against forfeiture whether the plaintiff held a lease or a licence (at 57,299, 57,301). His Honour said (at 57,305): "I turn now to the question as to whether relief against forfeiture can be given in respect of a contractual licence. It would seem to me that as a result of decisions such as Legione v Hateley (1983) 152 CLR 406 I can do this though it would only be in exceptional cases that I would in fact do it, those cases involving situations where there was a trivial breach but great prejudice to the person seeking relief (see eg per Mason and Deane JJ at p 449. See also Shiloh Spinners Ltd v Harding [1973] AC 691.) Not only does the making of such an order seem open as a matter of principle, but, in this Court, Hodgson J has already held in Proctor v Milton (1987) NSW Conv R 56,959, 56,965 that this Court can give such relief against forfeiture. His Honour said at that page that 'relief will generally be granted only where the conduct of the party effecting the forfeiture can be described as unconscionable.'" 230In Federal Airports Corporation v Makucha Developments Pty Ltd (1993) 115 ALR 679 Davies J also held that there was jurisdiction to grant relief against forfeiture of a contractual licence (although in that case his Honour found that the plaintiff was in occupation under a lease). 231In Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana [1983] 2 AC 694 Lord Diplock, with whom the other members of the House of Lords agreed, held that there was no jurisdiction to relieve against forfeiture of a time charterparty which had been terminated for the charterer's failure to pay a hire instalment on time. There however, as Lord Diplock pointed out, the charterer had neither property in, nor a right to possession, of the vessel (at 700). 232In concluding that there was jurisdiction to grant relief against forfeiture of a contractual licence to occupy land, Young J in Chaka Holdings Pty Ltd v Sunsim Pty Ltd and Davies J in Federal Airports Corporation v Makucha Developments Pty Ltd applied the High Court's decisions in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 456 and Stern v McArthur [1988] HCA 51; (1988) 165 CLR 489 where it was held that there was jurisdiction to order specific performance of a contract for the sale of land, notwithstanding that the purchaser was in breach of an essential term. In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57; (2003) 217 CLR 315 the High Court clarified that equity could only decree specific performance of a contract for the sale of land at the suit of a purchaser who was in breach of an essential condition if the vendor sought to take unconscientious advantage of its legal right to terminate the contract. 233As the NSWRA does not have a proprietary interest, but seeks relief from forfeiture of its contractual right of possession, and as I am dealing with the claim for relief against forfeiture on the assumption (contrary to my earlier findings) that the NSWRA's contractual right could be terminated, I think that the NSWRA must establish that it would be unconscientious for the Commonwealth to exercise its contractual right of termination (see also Hewitt v Debus [2004] NSWCA 54; (2004) 59 NSWLR 617 at [75]). 234In my view, the Commonwealth's conduct does make it against conscience for it to rely on the non-compliance with the remedy notices as the basis for terminating the licence. In Tanwar Enterprises Pty Ltd v Cauchi the High Court referred to the special heads of fraud, accident, mistake or surprise as being circumstances that might make it inequitable for the vendors (in that case) to rely upon a termination of the contract as an answer to a claim for specific performance (at [58]). Their Honours noted that conduct by the terminating party that contributed to the breach, such as by lulling the opposite party into a belief that the terms of the contract would not be strictly enforced, could make it unconscientious for the terminating party to exercise its legal rights (at [39], [61]). 235In the present case, the Commonwealth contributed to the breaches that led to the issue of remedy notices. It did so by making no complaint for over 11 years about the state of the Buildings. Where it considered that work needed to be done, the Commonwealth undertook that work itself. It failed to provide the 2007 reports to the NSWRA, notwithstanding that it had commissioned those reports and the breaches subsequently raised in the remedy notices were substantially based on the same matters disclosed in those reports. On 25 June 2007 the Commonwealth, through two of its Ministers, advised the NSWRA that it had not been possible to identify a suitable alternative site that would cater for the existing range of shooting disciplines conducted on the Range. The Commonwealth advised that: "The Australian Government has now agreed to permit shooting groups to continue to use the Range. ... The Government's decision in relation to the Malabar Headland site will permit shooting groups' ongoing access to a centrally located range in the Sydney basin. ..." No reference was made to clause 6.2 of the deed or the condition of the Buildings. 236On 28 April 2011 the Commonwealth advised the NSWRA that whilst the licences of other licensees had been terminated, the NSWRA was at that time unaffected due to the relocation clause included in its licence. Mr Fitzgerald was advised that the Commonwealth was considering the appointment of a consultant to act in co-operation with it to identify a suitable alternative site. Mr Fitzgerald was advised that the licences of other licensees had been terminated due to the continuing contamination of the complex by asbestos and the obligation by the Commonwealth to implement a remediation action plan to manage the contamination. Asbestos contamination was a major consideration for the Commonwealth. For the reasons previously given, the Commonwealth assumed the obligation to deal with that problem. 237As noted earlier in these reasons, on 28 September 2011 the Commonwealth through Mr Scott-Murphy advised Mr Ashton of the NSWRA that it would remain on Malabar until a suitable alternative site was available for its relocation. Although Mr Scott-Murphy resiled from that assurance on 7 October 2011, he did not say anything to indicate that the NSWRA was in breach of any of its obligations under the licence. The relevant paragraphs of his letter are quoted at para [26] above. 238This letter was consistent with the Commonwealth's previous conduct that it addressed safety issues of concern itself, rather than asserting that the NSWRA was obliged to deal with such issues in accordance with clause 6.2 239By its conduct over more than a decade, the Commonwealth lulled the NSWRA into the belief that the Commonwealth would not insist on punctilious performance of the NSWRA's obligations under clause 6.2. Whilst that does not preclude the Commonwealth from changing its stance, it does make it unconscientious for the Commonwealth to seek to terminate the licence on the basis of the NSWRA's failure to comply with the remedy notices. 240For the reasons previously given, it is no answer for the Commonwealth to say that it is in the public interest that it be allowed to exercise its strict legal rights because it wishes to change the use of the land. Whether its reliance on its strict legal rights would be unconscientious is to be assessed, so far as possible, in the same way as if the suit were between subject and subject. Whether the Commonwealth would be acting against conscience in enforcing its strict legal rights (assuming that it were entitled to do so) is to be determined having regard to its contract with the NSWRA and its conduct towards the NSWRA, and not by wider political considerations. 241For these reasons, had the question arisen, I would have found that the NSWRA was entitled to relief against forfeiture of its contractual licence.

Proposed Transfer Lot 2 to New South Wales 242By clause 2.1 of the Licence the Commonwealth granted to the NSWRA during the Term a non-exclusive licence for it and its agents, employees, members, licensees, contractors and invitees to use the "Licensed Range". The grant of an exclusive licence to use the Buildings and the Licensed Area (being an area surrounding the Buildings) was ancillary to the right to use the Licensed Range as defined at [16]. 243The licence recited that the Commonwealth owned "the Range". This was defined to mean "the land in folio identifier 1/809094 known as ANZAC Rifle Range off Franklin Street, Malabar". The Buildings and the Licensed Area are located on that land. The NSWRA submits that the land around the former Lot 1 forming the perimeter of the headland, namely Lot 2, in so far as it forms part of the safety template for the shooting ranges, are part of the Licensed Range which the NSWRA is entitled to use. Mr Ellicott QC for the NSWRA submitted that the safety templates are an integral part of the range, and the range cannot be used without the safety template. 244The fact that the "Range" is defined as being only the land in folio identifier 1/809094 does not mean that the "Licensed Range" which the NSWRA is entitled to use is limited to that lot. The definition of "Licensed Range" encompasses whatever is meant by the expressions "Fullbore Classification Range" and "Service Classification Range" plus the two other smaller ranges. The definition of the word "Range" is not incorporated into the descriptions of the four ranges. Thus the Service Classification Range is not the land in former folio identifier 1/809094 known as the ANZAC Rifle Range. The definition of "Range" applies to that part of the licence which refers to "the Range" (e.g. Recital A and the definition of "Caravan Park" and clauses 2.3 and 2.4). Clause 2.3 contains a warranty by the NSWRA that it was not induced to enter into the licence by any statement, warranty or representation made by or on behalf of the Commonwealth "in respect of the Range, the Licensed Area or the Licensed Range or the Caravan Park or anything relating to, or which could have an effect on the Range, the Licensed Area, the Licensed Range or the Caravan Park ...". 245It is clear from this and other parts of the document that the "Licensed Range" is not the same thing as "the Range" as defined, being merely Lot 1. There is a plan annexed to the deed that forms part of the licence. It depicts amongst other things the Full Bore Classification Range, the Service Classification Range and the 100m Zero/Pistol range. It also depicts the danger zone that extends across substantial parts of Lot 2 and describes that area as the danger zones for particular ranges. 246Clause 5.3 requires the NSWRA to comply with the "Management Plan". The "Management Plan" means the Management Plan described as such in the Licence Exhibit. There is no document in the Licence Exhibit that is described exactly as a Management Plan. There is a document entitled "ANZAC Rifle Range Management Plan" and it is this document to which reference is made. The Management Plan in turn includes the Range Safety Rules. Clause 5.2 also requires the NSWRA to comply with the Range Safety Rules. Attached to the Management Plan is a map which again shows both the rifle ranges and the firing templates (that is, the safety templates) across Lot 2. 247The Rifle Range Safety Rules contain operating instructions in respect of the use of the shooting ranges, prescribe a grid for the line of fire for each range, and define the danger template for each range. Behind the targets there is a stop butt, being an earthen mound. It is rare for any projectile to go beyond the stop butt, but the danger zone or safety template is provided to ensure safety to the public. The principal risk in the danger zone would be from a ricochet. Use of the shooting range requires the approval of the NSW Police Firearms Registry. This is given under the Firearms Act 1996 (NSW). A condition of the approval is that prior to any live firing, the ANZAC Rifle Range User Committee (which includes the NSWRA) is: "To ensure that a full physical check is made of the Range complex and all restricted areas including the headland, to ensure that the areas are devoid of any unauthorised person/s." 248The approval also states that whilst live firing is in progress, picquets are to be positioned at predetermined locations to deny or report any unauthorised access to any restricted areas. 249I infer that such conditions would have been in place from and prior to the commencement of the licence. The Rifle Range Safety Rules (forming part of the Licence Exhibit) provide for the flying of red danger flags when the area is a live firing range. Clause 5.1 of the Rifle Range Safety Rules provides that if a member of the public "enters a live firing range during a practice or event, all shooting must cease immediately ...". I infer that this refers both to a member of the public entering the areas designated as shooting ranges on Lot 1 and entering the danger zone on Lot 2. 250In my opinion the licence given to the NSWRA to use the Licensed Range included a licence to use that part of Lot 2 that was designated as the danger zone. 251The NSWRA pleaded that the licensed ranges of which it had a non-exclusive licence were "on the Range", the Range being the land formerly in folio identifier 1/809094 and now in folio identifier 101/1162245. It pleaded that it was an implied term of the deed of licence that the Commonwealth do all things necessary on its part to enable the NSWRA to have the benefit of the Licence and to refrain from doing anything which would have the effect of rendering the benefit of the Licence to the NSWRA nugatory. It pleaded that: "The transfer of either the Range or that part of Lot 2 which constitutes the Danger Zone from the defendant to a third party during the Term would: (a) have the consequence that the Plaintiff and its members would not longer be permitted to undertake the activities of rifle and pistol shooting on the Range; (b) therefore be a breach of the Licence and/or the Implied Term." 252In the course of final submissions Mr Ellicott QC made it clear that the NSWRA contended that the safety template as shown on the plan annexed to the Licence Deed and the ANZAC Rifle Range Management Plan were so intrinsically and indispensably connected with the range that a licence to use the range carried with it the right to have that part of Lot 2 which represents the safety template available as such when the range is in use. (T148). He described this as the "intrinsically part of the range argument". 253I understand this argument to be that the safety template or danger zone is part of the "Licensed Range" which is the subject of the grant of the licence in clause 2.1. That submission is within the plaintiff's pleading. 254In its amended statement of claim the NSWRA pleads that the transfer of either the land in folio identifier 101/1162245, or that part of Lot 2 which constitutes the danger zone, would be both a breach of the licence and a breach of an implied term. The licence was described as the deed whereby the Commonwealth agreed to grant to the NSWRA, amongst other things, a non-exclusive licence to use the licensed ranges on the Range. 255It is not necessary to resort to the implication of a term that the Commonwealth not derogate from its grant, nor a term of co-operation, or its corollary that the Commonwealth not act so as to prevent the NSWRA from having the benefit of the licence. Such terms are to be implied. Even if the only licence expressly conferred were in respect of the use of Lot 1, it would be implied that the Commonwealth could not do or allow things to be done on Lot 2 that was inconsistent with the purposes for which the Licence to use Lot 1 was granted (Peter Butt, Land Law, 6th ed at [1567]). But the threatened transfer of Lot 2 without securing to the NSWRA the continued right to use the Licensed Range that includes the safety template (or danger zone) on Lot 2 is an anticipatory breach of the express term giving it a licence to use the Licensed Range. 256It was submitted for the Commonwealth that the implied term of co-operation does not require the Commonwealth to bring about something which the licence does not require to happen (citing Australis Media Holdings Pty Ltd v Telstra Corp Limited (1998) 43 NSWLR 104 at 124). The Commonwealth submitted that there is nothing in the terms of the licence which restricts the Commonwealth's power to deal with Lot 2 as it sees fit. It submitted that the Commonwealth had made no promise as to how Lot 2 should be dealt with. I do not agree. In my view, the licence to use the Licensed Range included a promise that the safety template or danger zones, which were an integral part of those ranges, could be used. No doubt if the Licensed Range were modified by the Commonwealth so that no safety template or danger zone on Lot 2 was required for their continued use, then Lot 2 could be transferred, because the danger zone or safety template would cease to be part of the Licensed Range. But whilst it is a part of the Licensed Range, the Commonwealth must permit the NSWRA to use it for so long as the licence remains on foot. 257The Commonwealth submitted that whilst the principle against derogation from a grant might restrain a land owner from using or allowing the use of adjoining land that he owned or controlled in a way that derogated from a grant, that principle could not prevent the owner from selling such adjoining land. 258As a general proposition that is not correct, if it means that the land owner could not be restrained from dealing with adjoining land if the proposed dealing would place the owner in breach of contract. In the present case, the Commonwealth has given the NSWRA the right to use the Licensed Range until the expiry of the Term, that is, until 14 days after it gives a Relocation Notice. The right to use the Licensed Range includes the right to use Lot 2 as a safety template or danger zone. The Commonwealth is not entitled to deal with Lot 2 (or Lot 1) inconsistently with that licence. If the land were transferred on terms that secured to the NSWRA the same rights as it presently enjoys, then the Commonwealth would not be in breach of the licence. For that to be done the contract providing for the transfer of land would have to give the NSWRA the same rights against the transferee, that is, the State of New South Wales, as it presently enjoys against the Commonwealth. The NSWRA would have to be entitled to enforce those rights against New South Wales. The proposal to transfer the land in a way that does not secure such rights is an anticipatory breach by the Commonwealth of the licence. 259By an undated deed said to have been made on 27 February 2011 the Commonwealth made an agreement with the Minister administering the National Parks and Wildlife Act 1974 (NSW) as to the processes to be followed that are anticipated to lead to the transfer of Lot 2 to the Minister for reservation of the land as a national park under Part 4 of the National Parks and Wildlife Act. The agreement recites that pursuant to a deed of transfer dated on or about 27 February 2011, the Commonwealth had transferred by way of gift to the Minister a portion of land at Malabar (Lot 4) to be reserved as a national park under Part 4 of the National Parks and Wildlife Act. Lot 4 is land lying to the west of the Range. The agreement between the Commonwealth and the NSW Minister and the Director-General of the NSW Department of Environment, Climate Change and Water provides for the carrying out of fencing and remediation works and the conduct of a heritage assessment and other matters preparatory to the transfer of Lot 2 to New South Wales for use as a national park. 260The Malabar Headland Protection Bill has not become law, although it might become law in the near future. The Bill defines "Malabar headland property" as any land that, as at the end of 15 March 2011, consisted of Lots 101 and 102 of DP 1162245 or Lot 2 of DP 809094. (Lots 1 and 4 in DP 809094 were subdivided into Lots 101 and 102 of DP 1162245 on 15 March 2011.) The Bill defines "transferred Malabar headland property" as any Malabar headland property that has been transferred by the Commonwealth to New South Wales, including Malabar headland property that was transferred to New South Wales before the Act commences. Lot 102 of DP 1162245 (essentially what was formerly Lot 4 of DP 809094) was transferred on 2 March 2012 pursuant to a deed of transfer of 27 February 2011. Clause 8 of the Bill provides that New South Wales must use "transferred Malabar headland property" for the purpose for which a national park may be reserved under the NSW National Parks and Wildlife Act with the primary purpose being conservation, or a purpose prescribed by regulations. Clause 9 provides that New South Wales must manage transferred Malabar headland property, or cause it to be managed, either in accordance with regulations to be prescribed for the purposes of the section or, in relation to a particular action or omission proposed in the course of the management of the property, with the prior written consent of the Commonwealth Minister to that action or omission. Once the Malabar headland property is transferred to New South Wales, New South Wales must not dispose of a legal or equitable interest in the property or do anything for the purpose of effecting such a disposition without obtaining the prior written consent of the Commonwealth Minister (clause 10). 261As noted earlier in these reasons, the Bill neither effects a transfer of the Malabar headland to New South Wales, nor authorises nor regulates the transfer of the property. The Bill, if it becomes law, would regulate the use to which the property could be put once it has been transferred, that is, only as a national park and in some respects, subject to the control of the relevant Commonwealth Minister. By clause 5 of the Bill, the Act is to operate only to the extent that is reasonably appropriate and adapted for either or both of the purposes of fulfilling Australia's obligations under the Biodiversity Convention (being the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992 as amended and in force for Australia from time to time), or for the protection or promotion of Aboriginal cultural heritage, or ancillary purposes. 262The Commonwealth submitted that if the Bill is passed, it will "sanction" the use of the headland as a national park. The Commonwealth submitted that this would "destroy" the contract with the NSWRA that was inconsistent with that use. The Commonwealth referred to Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (Thomson's Case) [1948] HCA 24; (1948) 77 CLR 1 per Dixon J at 28 where his Honour said, "[a] statute destroys all contracts which stand in the way of its operation." 263No doubt if Lot 2 (or Lot 101 in DP 1162245) were transferred to New South Wales, the land could only be used as a national park. I understood it to be common ground that the use of either lot as a national park would not be consistent with the use of the Licensed Range as a rifle range. Lieutenant Colonel Bell deposed that the NSW Firearms Registry requires a letter of "Permissive Firing Rights" from the land owner for any portion of the danger area that is not under the direct control of the Range User. He deposed that if the area beyond the stop butt on the Malabar Range were handed over to the NSW Government, the NSWRA would require a letter of Permissive Firing Rights signed by the NSW Government for the part of the headland area used during live firing practices. If the NSW Government were to deny Permissive Firing Rights, there could be no shooting activities on the rifle range. Neither the evidence nor the parties' submissions addressed the question whether the NSW Government could provide such a letter consistently with the use of Lot 2 as a national park. The Commonwealth's submission that the Malabar Headland Protection Bill, if it became law, would destroy the contract assumes that that would not be consistent with the use of Lot 2 as a national park. 264If the Bill becomes law, and if Lot 2 is transferred to New South Wales, then Lot 2 must be used as a national park. But the Bill (if it became law) would not have any operation on the anterior question whether the Commonwealth is entitled to transfer Lot 2 to New South Wales if, as a result, the NSWRA could not use the Licensed Range for rifle shooting. The Bill applies only to land once it has been transferred. It is silent as to whether the Commonwealth is entitled to transfer the land to New South Wales consistently with its contractual obligations. If the Bill becomes law it would not destroy the contract between the NSWRA and the Commonwealth. The NSWRA is entitled to an injunction to restrain the Commonwealth from transferring the land because that is an anticipatory breach of contract. 265For the reasons given earlier, the so-called doctrine of executive necessity does not relieve the Commonwealth from its contractual obligations. 266For these reasons the NSWRA is entitled to an injunction to restrain the Commonwealth from transferring Lot 2, unless such a transfer can be effected in a way that continues to secure the NSWRA's right to use the Licensed Range as a rifle range, which includes its use of the danger zone or safety template on Lot 2.

Application to restrain the Commonwealth from dealing with the land in Folio Identifier 101/1162245 267The NSWRA seeks an injunction to restrain the Commonwealth from selling, transferring, encumbering or otherwise dealing with the land in folio identifier 101/1162245 (formerly Lot 1) while the NSWRA is in possession of any part of it. No submissions were addressed to this question. Whilst it is clear that the Commonwealth wishes to transfer the whole of the Malabar headland in due course to New South Wales, it also appears that New South Wales requires remediation of the land containing contamination before a transfer occurs. There is no immediate threat for the transfer of the former Lot 1. The Commonwealth can be expected to abide by a declaration as to the NSWRA's right to use the Licensed Range and the Buildings and the Licensed Area for so long as the licence is on foot, and to abide by declaration that it would be a breach of that licence for the land that was formerly Lot 1 to be transferred to a third party whilst the licence is on foot without securing to the NSWRA a right to enforce against a transferee the rights it enjoys under the licence. 268Such a declaration should be made.

Conclusion and orders 269The NSWRA sought declarations that the remedy notices were void and of no effect. It is not entitled to declarations in those terms. The remedy notices may have some effect. They could be relevant if the Commonwealth gives a future remedy notice under clause 10.1(b). A question may arise whether the Commonwealth was acting reasonably and in good faith in giving a future notice under that clause. If such a question arises, the terms of an earlier notice could well be relevant. The NSWRA is entitled to a declaration that the Commonwealth is not entitled to terminate the deed of licence by reason of the NSWRA's non-compliance with the three remedy notices. 270By its cross-claim in the 2012 proceedings the Commonwealth sought a declaration that the Buildings were not in a good and safe state of repair as at 25 January 2012. Whilst I have made a finding about that, it is not appropriate to make a declaration. No legal right would be determined by the making of such a declaration. 271The Commonwealth also sought a declaration that the NSWRA had failed to repair damaged asbestos materials and either seal them or have them removed by a licensed contractor in accordance with the WorkSafe Australia Asbestos Code of Practice and had failed to label asbestos-containing materials and had failed to paint the exposed edges of damaged sheeting. Whilst the NSWRA has not done that work, it is not appropriate to make such a declaration. Again, such a declaration would not affect any legal right. It would not lead to any substantive order. For the same reason, it is not appropriate to make the declaration sought by the Commonwealth that the NSWRA failed to comply with the Fire Safety Management Plan. 272The NSWRA did not seek a declaration that it was not obliged to carry out work in relation to asbestos-containing materials. 273The Commonwealth sought declarations that each remedy notice was valid. For the reasons I have given, those declarations should be refused. It also sought a declaration that the licence is terminable by the Commonwealth at will or upon giving reasonable notice to the NSWRA. For the reasons I have given, that declaration should be refused. The Commonwealth sought a declaration that the Commonwealth, by service of the cross-claim, had terminated the licence and sought an order for possession. For the reasons I have given, that declaration and order should also be refused. 274As noted earlier in these reasons, the NSWRA did not pursue claims under the Australian Consumer Law. No claim for damages was pressed and no damages were proved. Those claims should be dismissed. The NSWRA sought relief from forfeiture pursuant to s 129(2) of the Conveyancing Act 1919 or in equity. As I have concluded that the NSWRA is not a lessee, it is not entitled to relief under s 129 of the Conveyancing Act. On my findings, it does not need relief against forfeiture. 275Although the Commonwealth has withdrawn its notice purportedly terminating the Licence on three months' notice, the NSWRA is entitled to the declaration sought in the 2011 proceeding that the deed does not contain a term that it may be brought to an end upon the service of a notice by the Commonwealth giving reasonable notice of its intention to terminate the deed. The NSWRA is also entitled to a declaration that the licence has not been terminated. It is entitled to a declaration that whilst the deed of licence is on foot, the Commonwealth is not entitled to transfer the land in folio identifier 101/1162245 or Lot 2 of DP 809094 without securing to the NSWRA the right to enforce against a transferee the rights it enjoys under the licence. It is entitled to an injunction to restrain the Commonwealth from transferring Lot 2 without securing those rights. 276For these reasons I make the following declarations and orders. 277In proceedings 41950 of 2012:

1. Declare that the defendant is not entitled to terminate the deed of licence between the plaintiff and defendant dated 15 March 2000 ("the Licence") by reason of the plaintiff's failure to comply with: (a) the notice issued by the defendant to the plaintiff dated 25 January 2012 (the First Remedy Notice); or (b) the notice issued by the defendant to the plaintiff dated 29 March 2012 (the Second Remedy Notice); or (c) the notice issued by the defendant to the plaintiff dated 7 May 2012 (the Third Remedy Notice).
2. Order that the defendant be restrained from purporting to terminate the Licence and to exclude the plaintiff or its members from using the ANZAC Rifle Range at Malabar, New South Wales in accordance with the provisions of the Licence by reason of non-compliance by the plaintiff with the First Remedy Notice, the Second Remedy Notice or the Third Remedy Notice.
3. Order that the plaintiff's claims for relief in the Second Further Amended Statement of Claim be otherwise dismissed.
4. Order that the defendant's claims for relief in the Further Amended Cross-Claim be dismissed. 278In proceedings 393228 of 2011:
5. Declare that the defendant has not validly terminated the plaintiff's right to occupy the Buildings and Licensed Area or to use the Licensed Range in accordance with the deed of licence between the plaintiff and the defendant dated 15 March 2000 ("the Licence").
6. Declare that the defendant is not entitled to terminate the Licence at will or on reasonable notice, otherwise than in accordance with clause 10.2(b) of the Licence.
7. Declare that the defendant is not entitled to transfer the land at Malabar in folio identifier 101/1162245 or folio identifier 2/809094 for so long as the plaintiff is entitled to occupy the Buildings and the Licensed Area and to use the Licensed Range in accordance with the Licence, unless the defendant ensures that the plaintiff is entitled to enforce against a transferee the same rights in respect of that land as it enjoys under the Licence.
8. Order that the defendant be restrained from transferring the land at Malabar being the land in folio identifier 2/809094 for so long as the plaintiff is entitled to occupy the Buildings and Licensed Area and to use the Licensed Range in accordance with the Licence unless the transfer is on terms that entitle the plaintiff to enforce against a transferee the same rights as it enjoys under the Licence.
9. Reserve proceedings for further consideration, and grant liberty to apply or to restore the proceedings, if questions arise as to whether a proposed dealing is consistent with declaration 3, or is prohibited by order 4.
10. Order that the claims for relief in the Amended Statement of Claim be otherwise dismissed. 279I will hear the parties on costs. Prima facie the NSWRA is entitled to its costs of both proceedings.

Amendments 21 August 2012 - Folio Identifier 101/162445 is incorrect and replaced with 101/1162245. Amended paragraphs: 49, 251, 254, 267 (including sub-heading above 267), 275 and 278 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 August 2012