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

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

Trade Practices Act 1974 ss 4, 47, 51

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

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

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

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

Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395 followed

Mr D Shavin and Mrs K Howard

Solicitor for the Appellants: Mark G Caldwell

Counsel for the 1st and 3rd Mr R C Macaw QC and

Respondents: Mr G C Clarke

Solicitor for the 1st Messrs Freehill,

Respondents: Hollingdale and Page

Solicitor for the 3rd

Respondents: Messrs Stedman, Cameron

Counsel for the 2nd Mr K M Hayne QC and

Respondents: Mr J W K Burnside

Solicitor for the 2nd Messrs Arthur Robinson and

Respondents: Hedderwicks

1. The appeal be dismissed.

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

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

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

2. The appellants are two related companies. The first, The Paul Dainty Corporation Pty Ltd ('PDC') has since 1972 organized tours of international concert artists to Australia. The second appellant, Paul Dainty Productions Pty Ltd ('PDP') has since 1978 owned the Comedy Theatre in Melbourne, including its box office, and has sought to expand its ticket-selling activities for other venues, using the trade name 'Ticket Master'.

3. PDC wished to hire the Tennis Centre for two series of international celebrity concerts to be given, some months apart in 1988, by Pink Floyd and Mick Jagger respectively. PDC objected when it was informed, late in 1987, that ticketing arrangements would have to be handled by Bass. It wanted to have the ticketing done by PDP. When NTCT stood firm, the Pink Floyd concerts went ahead, in February 1988, on NTCT's terms; but while the Mick Jagger concerts were being arranged, the appellants began these proceedings on 15 July 1988, alleging that PDC was being forced to use the services of Bass rather than PDP, that this amounted to exclusive dealing within the meaning of the Act, and that it ought to be restrained.

4. The basic response of NTCT was that it was employing Bass's services as part of its scheme to supply all its hirers with a fully ticketed venue. The hirers, including PDC, were not being brought into any contractual relationship with Bass at all, and so were not being required to use Bass's services.

5. It is interesting that both the appellants and the respondents in the course of their submissions relied upon what might be called 'floodgates' arguments.

6. The appellants submitted that, if the respondents' arguments are upheld, then the services of a third party can always be forced on a contracting party by an arrangement which makes the other contracting party nominally responsible for the service, which is then subcontracted to the third party.

7. On the other hand, it was argued for the respondents that, if the appellants are right in what they say, "the world is awash with third line forcing, for it would occur every time a person engages another to fulfil the first person's contractual obligation". Examples given included a solicitor who deposits his client's money in a particular bank's trust account, a builder who engages a sub-contractor, and a vendor who engages a particular estate agent to accept a purchaser's deposit and hold it as a stakeholder.

8. All that can usefully be said in the face of these arguments is that these are the types of problems which naturally arise when, for understandable reasons, the legislature chooses to forbid commercial conduct which is not criminal or immoral, but may be economically undesirable. The courts, while being alert to detect sham or artificially contrived arrangements, must do their best to apply the provisions of the enactment to the particular facts before them. It is difficult in such cases to argue usefully by analogy or by extrapolation.

9. Interlocutory injunctions were sought by the present appellants, but that application was eventually compromised, on 27 July 1988, when the relevant parties entered into a supplementary agreement, which applied only to the Mick Jagger concerts.

10. While basing their case on the terms originally offered by NTCT, and accepted only under protest in the case of Pink Floyd, the appellants also made submissions based on the supplementary Mick Jagger agreement which, they said, underlined the true nature of PDC's relationship with Bass - as a user of its ticketing and financial services.

11. Another aspect of the claim is that OPM attempted to impose the same terms, with regard to ticketing by Bass, on PDC when it sought to arrange concerts at the Melbourne Sports and Entertainment Centre by a group known as 'Europe'. Eventually the proposal fell through for other reasons; but it is not disputed that both Centres propose to engage the services of Bass for all future concerts and other activities by promoters such as PDC, unless restrained by the Court.

12. The appellants also seek damages from NTCT and VACT (which is sued as being involved in the contraventions of the other respondents) for lost profits from the ticketing arrangements for the Pink Floyd and Mick Jagger concerts. The amounts involved would be substantial, but the parties are agreed that questions of liability should be determined first.

13. The trial judge, Sweeney J., found that under the basic agreements and arrangements which VACT and OPM had imposed or sought to impose upon PDC, there was no exclusive dealing, because VACT's only contract or arrangement for the supply of its Bass ticketing service was with NTCT or OPM alone. PDC was not accepting any service from VACT. His Honour went on to find that there were two aspects of the supplementary agreement for the Jagger concerts which did involve services from Bass to PDC, but since these had been insisted on by PDC as part of the settlement of interlocutory proceedings, it could not be said that NTCT was forcing Bass's services on PDC - which is the substance of the relevant exclusive dealing provision.

14. There were three other lines of defence relied on by the respondents which the learned trial judge rejected, but which have been raised again in this Court by way of notices of contention, and will have to be considered in due course. These relate to whether the respondents are immune from action because they come under the shield of the Crown; whether the respondents are related companies, and so excluded from the effects of s 47 of the Act; and whether their conduct has been specifically authorised by an Act of the Victorian Parliament, thus giving them immunity under s 51 of the Act.

Trade Practices Act 1974 - Exclusive Dealing

15. Section 47 of the Act, so far as it is relevant, reads as follows;

"47 (1) Subject to this section, a

corporation shall not, in Trade or commerce,

engage in the practice of exclusive dealing

.......

(8) A corporation also engages in the

practice of exclusive dealing if the

corporation grants ...... a licence in respect

of, land or a building or part of a building

on the condition that another party to the ...

licence ... -

(a) ....

(b) ....

(c) will acquire goods or services

of a particular kind or

description directly or

indirectly from another person

not being a body corporate

related to the corporation.

(9) A corporation also engages in the

practice of exclusive dealing if the

corporation refuses to grant ...... a licence

in respect of, land or a building or part of a

building for the reason that another party to

the ... licence -

(a) ...

(b) ...

(c) ...

(d) ... has not agreed to acquire,

goods or services of a

particular kind or description

directly or indirectly from

another person not being a body

corporate related to the

corporation.

.......

(13) In this section -

(a) a reference to a condition shall

be read as a reference to any

condition, whether direct or

indirect and whether having

legal or equitable force or not,

and includes a reference to a

condition the existence or

nature of which is ascertainable

only by inference from the

conduct of persons or from other

relevant circumstances....."

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

"acquire" includes, in relation to services,

"accept";

"services" includes any rights, benefits,

privileges or facilities that are or are to be

provided, granted or conferred in trade or

commerce; and

"supply" when used as a verb in relation to

services, includes "provide, grant or confer".

Section 51 of the Act provides,

"51. (1) In determining whether a

contravention of a provision of this Part has

been committed, regard shall not be had -

(a) ...

(b) in the case of acts or things

done in a State - except as

provided by the regulations, to

any act or thing that is, or is

of a kind, specifically

authorized or approved by, or by

regulations under, an Act passed

by the Parliament of that State;

or

(c) ...."

17. The leading authority in cases of exclusive dealing similar to the present is Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 359. Although it was concerned with sub-s (6) of s 47 - the supply of goods or services on a condition that other goods or services will be acquired from a third person - the principles involved are the same. Sweeney J., in the judgment now appealed from, held, and the respondents maintain, that this decision is directly in point and governs the outcome of the present case. The appellants seek to distinguish the case.

18. In it a Brisbane brewer offered liquor retailers in North Queensland the choice of collecting beer from one of its regional depots in the area, or having it delivered from the brewery. Most retailers chose to have their beer delivered. The brewer insisted that the beer should be carried by its preferred carrier, 'QRX', an unrelated company. This practice was challenged by another carrier which was ready and able to do the work.

19. The High Court held that, although the freight and insurance costs were passed on to the retailer in addition to the price of the beer, the only contract of carriage was between the brewer and the carrier and the carrier provided no services, in any relevant sense, to the retailer. The retailer was invoiced for a total price, though freight was shown as a distinct item. The property in the beer did not pass until delivery, and the insurance of it while in transit was, of course, for the benefit of the brewer only.

"It was submitted on behalf of the

respondent that a retailer who bought beer

which was delivered to the retailer's premises

by Q.R.X. acquired, in the sense of accepted,

the services of Q.R.X. because the retailer

received the benefit of those services even

though there was no contractual arrangement

between the retailer and Q.R.X. It was

further contended that the services of Q.R.X.

were forced on the retailer, since as a matter

of commercial reality the retailer had to

accept the terms offered by the appellant. It

was said that in these circumstances the

appellant supplied the beer on condition that

the retailer acquired the services of Q.R.X.

The questions raised by these submissions

are not without difficulty. It is clear

enough that it was not a condition of the

supply of beer to retailers generally in North

Queensland that it be delivered by Q.R.X.

Retailers might, if they wished, purchase from

the regional depots in North Queensland and

some retailers did. There were commercial

advantages in buying the beer from Brisbane,

but it was not right to say that in reality a

retailer was forced to accept delivery by

Q.R.X. However, when a retailer wished to

have the beer delivered from the brewery, the

appellant required, as a prerequisite to

granting supply, that the appellant itself

should arrange delivery. The appellant

supplied the beer on that condition.

However, the condition was not that the

retailer should accept the services of Q.R.X.

The condition was that the appellant should

arrange the carriage of the beer and should

deliver it to the retailer, not the brewery,

but at the retailer's premises or some other

place in North Queensland. In other words the

condition was that the appellant would deliver

the beer which it sold to its destination in

North Queensland. It was of course clear that

if the appellant had itself carried the beer

there would have been no exclusive dealing

within s 47. The position was not altered

when the appellant arranged for a third person

to carry on its behalf. In those

circumstances the services were acquired by

the appellant and not by the retailer. No

doubt in a loose sense the retailer received a

benefit from the services, but in truth what

the retailer acquired was the beer and not the

services of the carrier. Certainly there was

no condition that it should acquire (even in

the sense of accept) those services.

There can be no doubt that if the

condition is that the services should be

provided to the corporation which is alleged

to be engaged in the practice of exclusive

dealing there in no contravention of s 47(6).

The decision of the Federal Court in Re

Ku-ring-gai Co-operative Building Society (No.

12. Ltd. [1978] FCA 50; (1978) 36 FLR 134; 22 ALR 621; is

distinguishable from the present case. In

that case a building society made the practice

of imposing, in respect of loans made to its

members, a requirement that a property

mortgaged to secure repayment of the loan be

insured with a particular nominated insurer.

It was held by a majority that there was a

contravention of s 47(6). There the contract

of insurance conferred rights on the borrower,

and not merely on the building society, and

those rights came within the definition of

"services" in the Act. However Deane J. said,

36 FLR at 168; 22 ALR at 650:

"It was not contended on behalf of

the commission that any contravention of

s 47 would be involved if the condition

as to insurance was restricted to

coverage of the interest of the relevant

applicant, as mortgagee, in the mortgaged

property. It would seem a condition

which was so limited would not be within

s 47(6) for the reason that it would

relate to acquisition of the relevant

services by the applicant itself through

the member as its agent. The issue

between the parties is whether the

consideration or requirement is within s

47(6) to the extent that it requires

insurance in respect of the interest of

the member."

The statement supports the conclusion in the

present case that if the services of Q.R.X.

were acquired by the appellant itself there

was no breach of s 47(6) and in my opinion

that was the position".

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

"Here there is no contract or

arrangement, whether direct or indirect,

between a licensee who acquires delivered beer

from the brewer and Q.R.X. pursuant to which

the licensee acquires delivery services from

Q.R.X. From start to finish Q.R.X.'s contract

or arrangement is with the brewer alone. In

so far as the licensee derives a benefit from

the delivery of beer to his premises, he

acquires that benefit from the brewer and not

from Q.R.X. It is submitted that a person may

acquire services simply by accepting them, and

that a licensee accepts delivery services by

Q.R.X. But a licensee does not accept any

services from Q.R.X.; the licensee accepts the

delivered beer supplied to him by the brewer.

If it were legitimate (and it is not) to

distinguish between the beer supplied and the

delivery services, nevertheless the licensee

would accept both the beer and the delivery

services from the brewer under the contract of

sale of the beer. The brewer does not seek to

force licensees to accept the services of a

carrier nominated by the brewer. The brewer

simply asserts its right to choose the carrier

to deliver its beer to the point of sale at

the licensee's premises in discharge of its

obligation to the licensee to deliver the beer

there. The position is no different from what

it would be if the brewer's own employees

delivered the beer."

21. Paraphrasing these statements of the High Court, the respondents assert that there is no contract or arrangement, whether direct or indirect, between PDC and VACT (Bass for present purposes) for PDC to acquire ticketing services or financial services from Bass. From start to finish PDC's contract or arrangement is with the Centres alone. In so far as PDC derives a benefit from having tickets sold for its shows, or having the proceeds of such sales held and invested safely, it acquires that benefit from the Centres. PDC (sometimes called 'the Hirer') accepts the ticketed venue supplied to it by VTCT or OPM (sometimes called 'the Venue' or 'the Venues', 'the Centre' or 'the Centres'). If it be legitimate to distinguish between the hire of the venue and the ticketing (as it would seem to be in the present case - more so than in the case of the beer and its delivery, because the ticketing is not over and done with when PDC takes occupation of the part of the venue covered by its licence), nevertheless PDC accepts both the venue and the ticketing arrangements from the relevant Centre under the contract for hire of the venue. The Centre does not seek to force PDC to accept the services of Bass. It simply asserts its right to supply a ticketed venue to all promoters such as PDC, and to choose the company which will carry out the ticketing. The position is not different from what it would be if the Centre's own employees sold the tickets and accepted responsibility for the proper investment and distribution of the proceeds. So runs the argument for the respondents.

22. The appellants concede that there is no comfort for them in the terms of the agreements which VTCT and OPM were requiring PDC to accept if it wished to hire either of the venues. They argued, however, that this was not the end of the matter. Section 47 can operate on indirect conditions, conditions not necessarily having legal force, and conditions which are ascertainable only by inference from conduct or other circumstances (see sub-s 47(13) above).

23. Here it was alleged by the appellants that ticketing is always carried out by, or for the benefit of, the person presenting the performance - whatever form that performance might take. The ticket constitutes a contract between the promoter and the members of the public who come to watch its show. Therefore, whatever the formal contracts might say, the Centres, in providing ticketing, were acting as agents of the promoter, PDC. The Centre could only be said to be providing the ticketing for its own purposes if it were also the entrepreneur, taking financial responsibility for the performance and merely hiring PDC to stage it - which was clearly not the case in the instances before the Court.

24. If the Centre , as agent for PDC, chose to sub-contract its ticketing responsibilities, then in accordance with well-accepted principles of agency the sub-agent (Bass) became accountable to the principal, PDC, for the proper and faithful conduct of those responsibilities (see, for example, De Bussche v Alt (1878) 8 Ch D 286).

25. Given the correctness of the basic premise, that ticketing is always for the benefit of the promoter and brings into existence contracts between it and the spectators, it would be difficult to resist the balance of the appellants' argument that services are being provided to it by Bass. All parties are agreed that this is the crucial question. If Bass is providing services indirectly to PDC, under the standard contracts in question, then those services are indeed being forced on PDC by the Centres. This would be so even if the services were being provided to the Centre and PDC jointly; see Ku-ring-gai, above.

26. However, as counsel for the respondents pointed out, the licence agreements are not cast in terms of agency, or of any authority conferred by PDC on the Centres for them to act for it in entering into contracts with the public. The tickets basically confer a licence to persons to enter the venue at a particular time, and sit in a particular seat, with a view to watching an advertised concert. This is a licence which NTCT and OPM respectively have the right to issue and PDC does not. If for any reason the expected performance does not proceed, the members of the public have recourse to the management of the Centre which sold them their tickets. It controls, through its agent Bass, the funds represented by the sales of those tickets.

27. Similarly, if a member of the public is injured while attending a performance, any action in contract that person might have could be directed only against the Centre, which might have a consequential action against the promoter, depending on the circumstances of the injury and the terms of any contract between Centre and promoter. The injured person might have an action in trespass or negligence against the promoter and his employees, but that is a different question.

28. There seems, on analysis, to be no good reason to assume a tacit contract between the promoter and the members of the public who purchase tickets for that particular show.

29. The standard form of ticket produced by Bass at the relevant times gave on the front all necessary directions to the seat reserved and said, in the case of the Pink Floyd concerts,

"NAT'L TENNIS CNTR

PAUL DAINTY and 3XY

PRESENT

PINK FLOYD"

"CONDITIONS OF SALE

This ticket is sold by Bass Victoria as

agent for and on behalf of the

organisation, venue, management and/or

promoter ('the Seller') responsible for

the service, event or performance for

which it is sold. The name of the Seller

is normally shown on the front of the

ticket and all complaints or claims are

the responsibility of the Seller and not

Bass.

This ticket is sold subject to the

Seller's Conditions of Sale, copy of

which is available for inspection at the

time of purchase of the ticket and also

(to the extent that they are not

inconsistent with the Seller's Conditions

of Sale) subject to the following

1. The ticket cannot be exchanged or

returned after purchase.

2. The right is reserved to add,

withdraw or substitute artists

and/or to vary advertised

programmes, seating arrangements and

audience capacity.

3. The right of admission is reserved

Cameras and tape recorders may not

be permitted.

4. If an outdoor performance/event is

cancelled due to adverse weather or

for any other cause reasonably

beyond the Seller's control there is

no right to refund or exchange and

no obligation is assumed by the

Seller for the arranging of a

substitute service event or

performance."

31. These contents of the ticket do not, in our opinion, advance the issues to be decided. The words on the front are descriptive of the event and, on careful analysis, devoid of contractual significance. "Paul Dainty" does indeed "present" Pink Floyd, and apparently has some sponsorship arrangement with 3XY entitling it to some of the credit.

32. The references to 'the Seller' on the back of the ticket are couched in the widest possible terms to cover all the types of performance and the venues for which Bass might sell tickets. Its only clear determination is to limit its own liability. So far as the ticket purchaser reading the conditions is concerned, 'the Seller' could be 'National Tennis Centre', 'Paul Dainty and 3XY', both of those groupings or some other person not shown on the ticket (though that would apparently not be 'normal'). The true identity of the seller must in fact depend on the terms of Bass's engagement, and of any other relevant contract entered into by the person engaging Bass.

33. The most relevant terms of the basic agreement covering the Mick Jagger concert (which terms had, it is agreed, also governed the Pink Floyd concerts, although never executed for that purpose) were as follows:

"INTRODUCTION

A. The trust is a body corporate constituted under

Section 5 of the Act and is responsible for the

care, improvement, use, promotion and financial

management of the Centre including making the

Centre available for the staging and performance of

events.

B. The Hirer wishes to stage the Events at the Centre

at the performance times.

C. The Trust has agreed to make the Centre available

to the Hirer for the Events at the performance

times on the terms and conditions contained in this

agreement.

IT IS AGREED

Part 1. Definitions

1.1 Unless the subject matter or context requires

otherwise, in this Agreement including the

introduction, schedules and appendices (if any) the

following words and expressions whether commencing

with capital letters or not have the meanings

respectively assigned to them below:

......

(2) "the Additional Facilities" means the staff,

facilities, equipment and services other than

the Centre Facilities which the Trust agrees

to provide to the Hirer, and are described in

Item 8 of the Schedule;

......

(4) "the Booking fee" means the fee specified in

Item 14 of the Schedule to be paid by the

Hirer to the Trust in respect of each sale or

deemed sale of a ticket for the Events;

......

(7) "the Centre Facilities" means that part of the

Centre, and the items, facilities and services

(if any) described in Item 4 of the Schedule;

......

(10) "the Events" means the concert, show, play,

exhibition, conference, meeting, tournament,

trade show, entertainment or event of a

musical, dramatic, sporting, commercial or

other nature to be publicly performed, staged

or presented at various times during the

hiring period which are described in Item 2 of

the Schedule;

(11) "the Gross Receipts" means the total amount of

money received from the sale of tickets to the

Events;

......

(13) "the Hiring Fee" means the amount specified in

Item 5 of the Schedule;

......

(22) "the House Seats" means those seats specified

in Item 12 of the Schedule.

Part 2. Hiring of the Centre

2.1 Subject to the provisions of this Agreement the

Trust grants to the Hirer licence and authority to

use the Centre and the Centre Facilities on the

Performance Dates, at the Performance Times and at

the Other Possession Times exclusively for the

purpose of staging the Events.

......

2.3 In respect of its use of the Centre, the Hirer

acknowledges and agrees that at all times:-

(1) the Trust retains possession of the Centre;

(2) all keys to the Centre and the Centre

Facilities (where applicable) shall be kept by

the Centre Manager;

(3) all entrances and exits to the Centre shall be

in charge of persons appointed by the Centre

Manager;

(4) the Hirer's use of the Centre is

non-exclusive. It may be necessary for the

Hirer to share use of the Centre or the Centre

Facilities, and for the Centre Manager to

allocate times for the use of the Centre and

the Centre Facilities.

Part 3. Fees

3.1 In consideration of the Trust agreeing to grant to

the Hirer licence and authority to use the Centre,

the Hirer agrees to pay to the Trust:-

(1) the Hiring Fee and the Booking Fee; and

(2) the Additional Fees and all other charges

payable by the Hirer to the Trust pursuant to

this Agreement,

in accordance with the provisions of this Agreement.

Agreement.

4.1 If the Hirer is unable to present a performance at

the relevant Performance Time, the Hirer shall:-

(1) immediately notify the Trust in writing of

that fact; and

(2) pay that part of the Hiring Fee attributable

to the performance not presented, unless the

Hirer is notified in writing by the Trust that

the Trust has re-hired the Centre for that

Performance Time;

(3) meet all costs of any nature incurred by the

Trust in providing the use of the Centre for a

cancelled performance, including the cost of

staff, the Additional Facilities, ticketing

services and equipment engaged in providing

that use, together with all costs of any

nature incurred as a result of the failure to

present a performance.

......

Part 7. Hirer's Obligations

7.1 The Hirer convenants and agrees with the Trust that

the Hirer will:-

(1) present the Events on the Performance Dates

and at the Performance Times;

......

(4) ensure proper supervision of its agents,

Employees, invitees, guests and patrons;

......

(7) report to the Centre Manager any damage to the

Centre or the Centre Facilities sustained in

its use by the Hirer, its employees, agents,

invitees, guests and patrons immediately upon

becoming aware of the damage.

......

8.4 The Hirer agrees not to do or permit its employees,

agents, invitees, patrons and guests to do anything

whereby:-

(1) any permit or licence issued or in force in

respect of the management or operation of the

Centre, or presentation of the Events, may be

forfeited, suspended or not renewed;

(2) any member of the police force, emergency

services or any other person engaged by the

Trust is hindered or obstructed in the

exercise and discharge of his duties in the

Centre.

Part 9. Ticket sales

9.1 The Hirer acknowledges that the Trust is

responsible for all ticketing arrangements for all

Events held at the Centre.

9.2 The Hirer agrees that:-

(1) it will not issue any tickets;

(2) the Trust will print supply and sell or

arrange for the printing supply and sale of

all tickets; and

(3) the Trust will determine the terms, conditions

and exclusions (if any) to be printed on the

tickets.

9.3 The Hirer acknowledges and agrees that in respect

of all ticket sales:

(1) the Gross Receipts will be retained by the

Trust until the conclusion of the Events and

then applied by it in satisfaction of all

amounts payable by the Hirer to the Trust

pursuant to this Agreement which have not

previously been paid to the Trust;

(2) within 24 hours after the conclusion of the

last performance the Trust shall furnish to

the Hirer a Box Office Statement detailing the

amount of the Gross Receipts;

(3) unless otherwise agreed, within 10 days after

the conclusion of the last performance, the

Trust shall:

(a) furnish to the Hirer a Final Statement

detailing the manner in which the Gross

Receipts have been applied by the Trust

towards satisfaction of the amounts

payable by the Hirer in accordance with

clause 9.3(1); and

(b) subject to clause 9.3(1) being satisfied

pay to the Hirer the balance of the

Gross Receipts remaining;

......

(6) if the Gross Receipts prove insufficient to

cover all amounts payable to the Trust

pursuant to this Agreement, the Hirer will pay

within 7 days of receipt of the Final

Statement the balance shown therein to be due

to the Trust.

9.4 The Hirer may distribute the specified number of

complimentary tickets in respect of each performance.

9.5 If the Hirer distributes Complimentary Tickets for

a performance in excess of the specified number,

the Hirer shall pay to the Trust within 24 hours of

the staging of the performance in respect of which

the excess Complimentary Tickets were issued, an

amount equal to the amount by which the Hiring Fee

would be increased if the excess Complimentary

Tickets were deemed to represent ticket sales at

the full adult price and the receipts for those

sales were added to the gross receipts.

9.6 The Trust retains the right to use at its own

discretion the House Seats and the Hirer

acknowledges that those seats do not form part of

the Centre or the Centre Facilities which the Hirer

has licence and authority to use.

9.7 The Hirer will deliver to the Trust as soon as

practicable after the signing of this Agreement

full particulars of:

(1) the information which the Hirer requests

should appear on the face of the tickets;

(2) the prices excluding any booking fee for which

the tickets are to be sold and the price

barriers (if any, as approved by the Trust) in

respect of which the same are to be sold; and

(3) the persons or classes of persons who are to

receive complimentary tickets or tickets at

concessional prices,

for approval and use by the Trust.

9.8 The Hirer acknowledges and agrees that:-

(1) no person will be admitted to any performance

without a ticket, a complimentary ticket, or a

valid pass authorised by the Trust and the

Trust has the right to refuse admission to any

person not having a ticket or valid pass;

(2) the Trust shall not be responsible for any

breakdown or failure in the ticketing system

or for any act, omission or default on the

part of any person whatsoever including the

Trust, its members, employees and agents, the

Centre Manager and any person engaged by the

Trust in respect of the printing supply and

sale of the tickets nor for any fraud on the

part of any person engaged by the Trust in

respect of the printing supply and sale of the

tickets; and

......

Part 10. Additional Facilities to the Hirer

10.1 The Trust will provide to the Hirer the Additional

Facilities in order to enable the Hirer to more

effectively stage the Events, for the payment of

the Additional Fees.

10.2 The Hirer will pay to the Trust as well as the

Additional Fees referred to in Clause 10.1 all

amounts paid or payable by the Trust in providing

the Additional Facilities, including without

limitation:-

(1) the salaries or wages for any staff which the

Trust engages to assist with the staging of

the Events including without limitation

ushers, ticket sellers, security staff,

electricians and stage crew;

(2) the costs of cleaning the Centre thereafter

including the disposal of rubbish;

......

(5) the cost of providing air-conditioning and

illumination to the Centre with the permanent

equipment with which the Centre is equipped;

and

(6) the cost of replacement and repair of all

facilities and equipment damaged as a result

of use by the Hirer, its employees, agents,

invitees, guests or patrons.

......

Part 11. Maintenance of the Centre and facilities.

11.1 The Hirer covenants and agrees with the Trust that

the Hirer shall and will ensure that its employees

agents invitees guests and patrons shall:-

(1) use the Centre, facilities and equipment in a

safe, proper and efficient manner so as not to

involve any risk of injury or damage to person

or property;

(2) comply with all reasonable directions of the

Centre Manager in connection with the safe and

proper use of the Centre, its facilities and

equipment;

......

11.2 The Hirer agrees that it will at its own expense

make good any damage to the Centre, its facilities

or equipment resulting from the use of the Centre

by the Hirer, its employees, agents, invitees,

guests and patrons.

Part 12. Presentation of the Events

12.1 The Hirer shall conduct and manage the Events in a

proper and orderly manner and shall not permit or

suffer:-

(1) any riotous, disorderly, drunken or improper

conduct;

(2) any act, matter or thing which may injure or

tend to injure the reputation of the Centre,

the Trust or the Centre Manager

and the Hirer acknowledges that the Trust, its

employees, members, and agents are entitled to

refuse admission to or remove any person from the

Centre.

12.2 Unless otherwise agreed the Hirer will not commence

or conclude any Performance or schedule any

Intervals at any times other than the Performance

Times and Interval Times.

12.3 The Hirer shall:-

(1) supply and pay for all performances required

for the proper presentation of the Events;

(2) at its own expense transport all personnel,

property, facilities and equipment necessary

to present the Events to and from the Centre;

(3) present the Events in the most advantageous

manner and styles practicable; and

(4) pay all Governmental taxes and levies payable

in relation to the staging of the Events.

......

12.5 The Trust shall have the right to withhold from

sale or discount the sale price of tickets to any

seats which in the opinion of the Centre Manager

would have a restricted view of any performance due

to positioning by the Hirer, its employees or

agents of the stage or any equipment brought into

the Centre for use in connection with the

performance. For the purpose of determining which

seats have restricted views the Hirer undertakes to

provide the Trust with a marked up Box Plan and

Stage Layout at the time of providing the Trust

with the ticket information required under clause

9.7 of this Agreement.

Part 13. Possession and vacating the Centre

13.1 The Trust will make the Centre available to the

Hirer on the Performance Dates, at the Performance

Times and at the Other Possession Times.

......

Part 15. Indemnities

15.1 The Hirer hereby indemnifies and agrees to keep

indemnified, and save harmless the Trust against

all claims, demands, actions, damages, costs,

losses and expenses of any nature whatsoever which

may be incurred by the Trust by reason of or in

relation to the use of the Centre by the Hirer or

the Hirer's servants, agents, invitees, guests or

partons pursuant to this Agreement including

without limitation claims arising out of:-

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

the Centre;

(2) any loss of property from the Centre;

(3) any accident, damage, or injury suffered by

any person or to the property of any person in

or about the Centre, the entrances, lobbies

and exits;

(4) the sale of tickets:

......

Part 16. Rights of the Trust

16.1 The Trust reserves the right to grant to any other

person, retain for itself, or divide between itself

and any other person on any terms whatsoever the

Trust's right to:-

(1) print, supply and sell tickets of admission to

the Centre for the purpose of enabling members

of the public to attend the Events;

(2) provide catering services at the Centre;

(3) sell programs and items peculiar to or

provided especially in connection with the

staging of particular Events, and to derive in

respect of the programs or items sold, a fee

from any person to whom that right may be

granted in whole or in part;

(4) sell or supply to persons attending the Centre

wines spirits drinks (whether alcholic or

non-alcoholic) refreshments food confectionary

tobacco cigars cigarettes or other items

articles or services whatsoever not the

subject of any agreement or arrangement

regarding catering services or the sale of

programs or items connected with the staging

of a particular event.

16.2 The Trust reserves for itself the right:-

(1) for its members, employees, agents and the

Centre Manager to have access to the Centre

and all of the Centre Facilities at all times

for the purpose of carrying out their normal

duties;

(2) to determine acceptable sound limits in

respect of any performance;

(3) to insist on the removal from the Centre of

any employee, sub-contractor or agent of the

Hirer;

(4) to direct crowd control measures and control

security systems and procedures;

(5) to refuse admission to or remove any person

from the Centre;

(6) to suspend or control any performance if in

the reasonable judgment of the Trust the

performance is not in accordance with the

Agreement;

(7) to take all actions and make all directions

relating to the use of the Centre and the

Centre Facilities by the Hirer as it deems

necessary; and

(8) to refund the full purchase price or part of

the purchase price of any ticket or provide a

replacement ticket in lieu of a refund.

17. Default

......

17.2 If the Trust determines this Agreement pursuant to

sub-clause 17.1, the Trust without prejudice to but

in addition to any other remedy available may

retain all or any part of the monies which have

been paid to it whether by way of Security Deposit,

or Gross Receipts or otherwise for the purpose of

receiving and retaining sufficient monies to make

good any deficiency in payment by the Hirer to the

Trust and shall refund the excess (if any) to the

Hirer.

.........."

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

"ITEM 4: (Description of Centre Facilities)

Centre Court Stadium (excluding Grand Slam Suite level)

Floor

Seating

Stage

Dressing rooms as allocated by Centre Manager

Grid (hanging system)

ITEM 5: (The Hiring Fees)

12.5% of the gross receipts, excluding booking fees, or

$5,000 per day - whichever is the greater.

ITEM 8: (Additional Facilities)

Items, facilities and services to be

provided by the Licensor at expense of

Licensee, including but not limited to:

Front of House Staff

Electricity and Gas Consumed

Cleaning

St. John Ambulance Personnel

Security: Front of house, backstage, building and artists

Production Staff

Utility Staff

Set-up and Get-out Costs

Ticketing Costs

Crush Barriers

Follow Spots

Police Attendance

Fire Brigade Attendance"

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

"INTRODUCTION

A. OPM is an incorporated committee of

management under the Crown Lands

(Reserves) Act 1978 and is responsible

for the care, improvement, use,

promotion, and financial management of

the Centre.

B. OPM is empowered pursuant to Section 17

of the Act to grant licences to enter and

use the Centre subject to such terms and

conditions as OPM thinks fit.

C. The Licensee has requested access to the

Centre for the purposes and upon the

dates set out in item 2 of the First

Schedule.

D. OPM has agreed to grant the Licensee the

limited licence created by the terms and

conditions contained in this Agreement

for the purposes and on the dates set out

in item 2 of the First Schedule.

AND IT IS AGREED THAT:

1. DEFINITIONS

......

(iv) "Patron" means any person granted a

patron's licence;

(vii)"Patron's licence" means a licence

granted or issued to a member of the

public in accordance with Clause 3;

......

2. GRANT OF LICENCE

2.1 Subject to the provisions of this

Agreement OPM HEREBY GRANTS a limited

licence ("the Licence") to the Licensee

to enter upon those parts of the Centre

which are shaded on the plan of the

Centre comprising the Second Schedule for

the purposes and ..... on the dates set

out in item 2 of the First Schedule. ....

2.2 The Licence is limited by the following

conditions:-

(i) The Licence is non-exclusive and OPM

shall remain in possession of the

whole of the Centre throughout the

term of the Licence and nothing in

this Agreement shall restrict or

prevent OPM from granting any

further or other licence to any

person to enter and use any part of

the Centre including any shaded area

on the plan comprising the Second

Schedule.

......

(iii) Subject to this Agreement the

Licence shall extend to invitees of

the Licensee who are necessary for

or incidental to the purposes set

out in Item 2 of the First Schedule

PROVIDED ALWAYS THAT:-

(a) OPM may in its absolute

discretion at any time

determine such extension of the

Licence in relation to any

particular invitee or invitees

or class of invitees of the

Licensee;

(b) The Licence shall not extend to

the general public or any

particular class or member of

the general public or to any

person or class of persons

being part of the audience for

a performance in the Centre and

the general public and the

audience shall be deemed not to

be persons necessary for or

indidental to any purpose set

out in item 2 of the First

Schedule;

......

3. ADMISSION OF THE PUBLIC

3.1 Upon the execution of this Agreement OPM

shall at the request of the Licensee

grant revocable limited licences for the

admission of the public ("patrons'

licenses") to the Centre at such times

within the term of the Licence as the

Licensee may request for the purposes set

out at item 2 of the First Schedule.

3.2 The procedure and manner for granting

patrons' licences shall be as set out

below:

(i) OPM shall grant patrons' licences to

the public for any monetary or other

consideration or without such

cosideration as specified by the

Licensee PROVIDED ALWAYS THAT:-

(a) OPM may in its absolute

discretion decline to grant any

patrons' licences for any

consideration other than money.

(b) OPM or any booking agent

engaged by OPM to collect any

monetary or other consideration

or to issue patrons' licences

may charge the public a booking

fee for the collection of such

consideration or the issue of

such licence in addition to any

monetary or other consideration

specified by the Licensee and

OPM or any booking agent of OPM

may decline to grant or issue

any patron's licence until such

booking fee is paid.

(c) OPM may divide the general

class of patrons' licences into

particular blocks, types or

classes and grant a licence of

a particular, block, type or

class for a different or other

consideration from licences in

any other block, type or class

as specified from time to time

by the Licensee.

.......

(iii) The Licensee may specify a date on which

OPM or any booking agent of OPM shall

commence to grant or issue patrons'

licences. The Licensee may specify

different dates or times for different

blocks, classes or types of tickets and

different dates or times for different

performances or other events set out in

item 2 of the First Schedule.

(iv) At each performance or other event held

at the Centre eighty (80) patrons'

licences, tickets and seats (as the

circumstances determine) shall be reserved

from grant or issue for the use of OPM

and its invitees. OPM may in its

absolute discretion determine the

position and siting of any such reserved

seats.

......

(vii) In the event that any performance or

other event for which patrons' licences

have been granted, issued or sold by OPM

or any booking agent of OPM should be

cancelled or fail or otherwise not take

place then OPM or any booking agent of

OPM shall refund any monies paid for such

patrons' licences to patrons and the

Licensee shall pay to OPM any refund fee

of OPM or any booking agent of OPM and

any further or other administrative cost

of OPM or any booking agent of OPM

relating to such refund."

36. Agreements between VACT, on the one hand, and OPM and NTCT on the other, for the exclusive provision of Bass's services, were entered into on 21 April 1988 and 12 May 1988 respectively. However, they were expressed to have effect from 1 January 1988, the parties having reached agreement in principle late in 1987. They were in very similar terms, so it is only necessary to consider the OPM agreement in detail. Under it, OPM appointed VACT, which was to be referred to in the agreement as 'Bass', "as its exclusive Agent to sell on behalf of OPM tickets to all events held at Olympic Park in accordance with the terms herein contained and the Terms and Conditions annexed hereto...".

37. OPM also granted Bass the sole right and privilege to use the Box Office and any temporary ticket box located at the Entertainment Centre or Olympic Park for its business of ticketing at the times specified in the agreement. It was provided that the agreement "shall commence on the commencement date (1 January 1988) and shall continue for a period of three years".

38. By clause 12 of the agreement it was provided that Bass should "hold the gross takings from ticket sales for each performance on behalf of OPM in a trust account in accordance with the Terms and Conditions annexed hereto". Under clause 3 of those Terms and Conditions Bass was entitled to charge the venue a booking fee for each ticket sold; and under clause 13 of the agreement Bass was to refund to OPM a percentage of those booking fees determined in accordance with the sliding scale (between 13% and 16.5%) of all booking fees received by Bass in connection with events held at any of the venues controlled by OPM and NTCT.

39. Under clause 5 of the Terms and Conditions Bass was entitled to "deduct its charges from the gross takings from ticket sales, on the day following a performance prior to paying the resulting net takings to the Venue".

40. Clause 6 provided for the handling of takings as follows:

"(a) Bass shall pay the net takings to

the Venue by 12 noon on the working

day following each event or on such

other date as is agreed. A

statement setting out the gross

receipts for an event and all

charges deducted by Bass in

calculating net takings, shall

accompany each payment.

(b) In the event of a cancelled

performance Bass will retain 100% of

the takings for the purpose of

effecting refunds. Monies unclaimed

after 12 months will be remitted to

the Venue.

(c) In the event of a postponed

performance, Bass will withhold such

takings as are agreed by the Venue

and Bass as being sufficient to meet

anticipated refunds.

(d) Bass may invest the gross takings

from ticket sales for an event in

Trustee Authorised Investments when

such takings exceed $30,000 on the

Monday of the second week following

the week in which gross takings

exceed $30,000. Bass shall pay the

Venue the interest which accrues

from such investments within 14 days

of final settlement. Bass will

deduct from the accrued interest an

administrative charge of $50 for

each week or part thereof the

takings are invested. The Venue

will pay the interest to the

Promoter of the performance in

respect of which the interest is

earned within seven days of receipt

of the interest from Bass.

(e) Bass may from time to time by notice

in writing to the Venue change the

level of gross takings at which it

will invest or the amount of the

administrative charge. However,

Bass will not invest the gross

takings if the administrative charge

is likely to exceed the interest

which should accrue."

41. There is, in our opinion, nothing in these agreements between the venue and the promoter, or the venue and the ticket-seller, to support the appellants' arguments that tickets for a performance, of their very nature, must be sold on behalf of the promoter or entrepreneur who arranges the performance. There is nothing unlikely or contrived about the arrangements set out. The respective interests of spectators, promoter, venue and ticket-seller are all catered for in a perfectly reasonable way, which does no violence to principles of law or common sense.

42. There is, in our view, no reason to assume that a relationship of principal and agent arises between promoter and venue for purposes of ticket sales. The contract for the hire of the venue is, on its face, a contract between principals for the hire of a ticketed venue - one which provides all its own ticketing facilities. It is a 'package deal' which, in addition to ticketing, covers such matters as catering, program selling and security services.

43. Counsel for the appellants drew attention to a number of clauses in the NTCT agreement (e.g. 7.1(4) and (7), 8.4, 10.2(6) and 11.1) which refer to the hirer's "employees, agents, invitees and (or) patrons". See also clauses 1 and 3 of the OPM document. They argued that the word "patrons" implied the existence of a contract between the people attending the performance and the promoter or hirer. But in our view the expression is not a term of art and has no necessary contractual connotation; it means no more than 'spectators'. The clauses cited merely acknowledge the fact that the public will come to see the performance staged by the hirer, and they provide that the hirer must accept certain responsibilites for the behaviour of those members of the public, just as it must for its servants, agents and invitees or guests. There is no reason why such persons cannot have their sole contractual relationship, as licensees, with the venue, while at the same time being properly described as 'patrons' of the hirer's concert.

44. The other way in which the appellants' case was put was to rely upon the financial arrangements outlined above, under which Bass had control of large sums of money, much of it being destined for PDC eventually. It was said that Bass's obligation to account for it, and invest it in the short term, gave rise to a fiduciary relationship irrespective of contractual obligations, and the carrying out of those fiduciary responsibilities amounted to the performance of services by Bass for PDC.

45. However, the authorities make it clear that equity will not impose fiduciary obligations on parties who have entered into ordinary and arm's length commercial relationships, which fully prescribe the respective powers and duties of the parties. This is particularly so when the parties involved are substantial corporations, having equal bargaining power. There is simply no need for the intervention of equity, to imply fiduciary responsibilities, in such circumstances. As Gibbs C.J. said, in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 70,

"... the fact that the arrangement

between parties was of a purely commercial

kind and that they had dealt at arm's length

and on an equal footing has consistently been

regarded by this Court as important, if not

decisive, in indicating that no fiduciary duty

arose ...".

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

"That contractual and fiduciary

relationships may co-exist between the same

parties has never been doubted".

"True it is that a promise or a

contractual term may be so precise in its

regulation of what a party can do that there

is no relevant area of discretion remaining

and therefore no scope for the creation of a

fiduciary duty."

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

"There is, however, the notion underlying

all the cases of fiduciary obligation that

inherent in the nature of the relationship

itself is a position of disadvantage or

vulnerability on the part of one of the

parties which causes him to place reliance

upon the other and requires the protection of

equity acting upon the conscience of that other...."

47. There is no such position of disadvantage or vulnerability, requiring the protection of equity, in the present case. It was not suggested by counsel for the appellants that there was any reason to imply a fiduciary relationship apart from the simple fact that Bass had, under its contracts with the Centres, control of moneys most of which would be payable to the Centres, which would in turn pay all but 12.5%, after deducting certain fees and charges, to PDC - provided only that the concerts went ahead. We do not accept the argument for the appellants that there is no distinction between such commercial obligations to account and the creation of fiduciary relationships.

48. There is a further point to be made. Assuming, contrary to the conclusion we have reached, that the basis for a fiduciary relationship has in all the circumstances been established, that would not, in our opinion, mean that a service was being provided so as to attract the relevant provisions of the Act. Whether or not such a service is being provided by one party to another is a matter to be determined by reference to the arrangements, whether legally enforceable or not, into which the parties have entered and to the overall facts and circumstances of the matter. Whether or not those arrangements or facts and circumstances may involve the parties in a particular case being in a fiduciary relationship with one another is not, however, relevant to the question whether one party is providing the other with a service. A fiduciary relationship is a relationship found by equity in circumstances where equity considers that it is right to protect the interests of a disadvantaged party which are, or seem to be, under threat. We note, in passing, that there was never any suggestion of such a threat to PDC's interests in the present case.

49. As stated early in these reasons, an application for interlocutory injunctions covering the Mick Jagger concerts was compromised by an agreement between the parties. The agreement was in the following terms, written by PDC's solicitors and counter-signed by the respective solicitors for VACT and NTCT:

"I refer to our discussions concerning

the above matter and set out below the terms

of the agreement reached relating to the

selling of tickets for the Jagger Tour in

Melbourne.

I confirm the understanding of the

parties that this agreement is entered into by

my client under protest by reason inter alia

of the matters raised in the application of my

client to the Federal Court. I further

confirm the understanding of my client that

this agreement is entered into having regard

to the commercial reality that an

interlocutory hearing of my client's

application could not be achieved in the

Federal Court prior to the date when tickets

have to go on sale for the Jagger Melbourne

concert and that all parties have co-operated

in having a final hearing of the Section 47

issues on 28th November, 1988. This agreement

is without prejudice and is not to be a waiver

of any right or entitlement of my client to

recover damages including but not limited to

the fees and charges set out in paragraph 2

below.

Set out below is the understanding that

has been reached, such understanding to be

read in conjunction with the Hiring Agreement:

1. Tickets for the Melbourne Jagger concerts

will be sold through Bass as agents for

the National Tennis Centre. No tickets

shall be released for sale for any show

without the prior consent of the Paul

Dainty Corporation. BASS shall comply

with the Paul Dainty Corporation's

directions given to and agreed by the

National Tennis Centre as to the time in

which tickets are released for the

various shows.

2. (a) The booking fee for all tickets sold

by BASS shall be $1.30 per ticket and

BASS shall deduct that fee from the

settlement remittance to the National

Tennis Centre in respect of the ticket.

(b) Where a ticket is sold by BASS and

payment is by use of credit charge

facility, BASS will charge a fee of 2.7%

on the face value of the ticket (ie.

$38.30) and deduct that fee from the

settlement remittance to the National

Tennis Centre in respect of the ticket.

(c) Where a ticket or tickets are sold

by BASS as a result of a telephone

booking, BASS will make a transaction

charge to the customer of $4.00 if the

telephone call is a local call and $5.00

if the telephone call is a toll free

call. The transaction charge fee will be

charged by BASS to the account of the

customer and not to the Paul Dainty

Corporation. The credit charges in

respect of the transaction charge fee are

to the account of BASS and not to the

Paul Dainty Corporation.

3. BASS will sell all tickets to the public

and no tickets will be pulled off the

system for the staff of BASS, friends of

staff or relatives of staff. Further

should any staff of BASS or their friends

or relatives desire to acquire tickets

the Paul Dainty Corporation will set

aside an area at each concert where such

tickets will be available for purchase by

staff relatives and friends.

4. The National Tennis Centre shall set the

sight lines but only after close

consultation with the Paul Dainty

Corporation.

5. All funds received from the sale of

tickets by BASS less the booking fees and

transaction fees due to BASS and referred

to in paragraph 2 shall be held under a

joint Paul Dainty Corporation/BASS/

National Tennis Centre Trust account

style 'Bass Victoria Trust Account No. 6'

and all interest derived thereon shall be

paid to the Paul Dainty Corporation and

such funds will be released in accordance

with the licence agreement. It is

acknowledged that BASS in selling tickets

will not receive funds until up to 15

days from the date of sale and that the

funds may not be invested in that time.

BASS shall use its best endeavours to

ensure all funds received from the sale

of tickets are deposited in the trust

account as soon as possible after receipt

by BASS. Further BASS will not invest

until such time as $30,000.00 in ticket

sales has been received. All funds will

be invested in an authorized trustee

investment. It is further acknowledged

that BASS shall charge $50.00 per week

being a fee to implement the investment

on behalf of the Paul Dainty Corporation.

6. BASS have advised that they are unable to

change the terms and conditions appearing

on the back of the ticket due to the time

constraints arising out of printing lead

times. It is agreed that the terms and

conditions appearing on the reverse of

the ticket shall remain.

7. The National Tennis Centre shall and at

its expense install a BASS computer

terminal and printer at the Comedy

Theatre Melbourne within 7 days of the

finalization of these terms so that the

Paul Dainty Corporation shall be able to

obtain up-to-date information on the sale

of tickets for the Jagger concerts and be

able to obtain a hard copy thereof. The

National Tennis Centre shall at its

expense within 7 days after the final

performance of Jagger's Melbourne

concerts remove the computer terminal and

printer from the Comedy Theatre and make

good any damage thereby caused.

8. No complimentary tickets in addition for

(sic) those which provision is made in

the licensing agreement shall be issued

by the National Tennis Centre unless the

Paul Dainty Corporation first consents

and approves. This clause shall not

abrogate the provisions of clause 4 of

the Schedule of the Hiring Agreement.

9. Ticket sales for the selling of the first

show shall commence on the 1st of August,

1988. All information from the Paul

Dainty Corporation shall be forwarded to

the National Tennis Centre on the 26th of

July, 1988 and the National Tennis Centre

shall pass such information onto BASS so

as to ensure tickets will be available to

be sold on the 1st of August, 1988.

10. The price per ticket is $37.00 net to

Paul Dainty Corporation Pty. Ltd. The

Paul Dainty Corporation and the National

Tennis Centre shall discuss price

reductions for seats with restricted

viewing. Nothing in the paragraph shall

abrogate the rights of BASS under

paragraph 2.

11. The National Tennis Centre and BASS shall

fully inform the Paul Dainty Corporation

of all matters relating to the sale of

tickets and no decision shall be made

conerning the sale of tickets unless the

consent and approval is first had and

obtained from the Paul Dainty Corporation

however the National Tennis Centre shall

have final control of seating

arrangements.

12. The National Tennis Centre shall assume

full liability to the Paul Dainty

Corporation Pty. Ltd. and to the public

in respect of all tickets sold subject to

the Paul Dainty Corporation complying

with the Hiring Agreement and in

particular regarding the requirement as

to public liability insurance.

13. The National Tennis Centre Trust agrees

that despite the provisions of Clause

9.8(2) of the Hiring Agreement, it shall

indemnify the Paul Dainty Corporation in

respect of any loss or damage it shall

suffer arising out of a failure by the

Trust's agent BASS in performing or

completing the performance of the

ticketing arrangements due to a claim or

allegation or finding that BASS is acting

utlra vires in acting as a general

ticketing agency, provided however that

such indemnity shall not apply if such

claim, allegation or finding is a result,

directly or indirectly, of the actions of

Paul Dainty Corporation or its servants

or agents.

14. The National Centre Trust shall account

to and pay the Paul Dainty Corporation in

respect of all cleared funds in the trust

account for each performance within 24

hours after the completion of each

performance or the next business day if

such date falls on a non-business day.

The National Tennis Centre shall be

entitled to retain out of the moneys it

is holding an estimate of its costs and

shall account to the Paul Dainty

Corporation within ten days after the

final performance in relation to all

amounts held.

15. The National Tennis Centre shall decide

which tickets are to be withheld from

sale however it will not withhold any

tickets from sale unless it has first

closely consulted the Paul Dainty

Corporation.

16. The Paul Dainty Corporation shall in

providing information about ticketing to

the National Tennis Centre also forward a

copy by fax to BASS simultaneously marked

to the attention of Anne Stoddart.

Due to the shortness of time this agreement

shall be signed by the parties respective

legal advisers and shall be binding upon their

respective clients in each and every aspect as

contained herein.

This letter has been prepared after earlier

negotiations and discussions between the

parties and in belief that it fairly

accommodates all points raised by your

clients.

If the matters are rejected I propose to use

this letter in any resumed hearing of the

interlocutory proceedings."

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

"The applicants submitted that, under the

supplementary terms in respect of the Jagger

concerts, VACT provided services directly to

PDC. In my opinion, clauses 5 and 11 justify

a finding to that effect. However, NTCT did

not grant a licence on the condition that PDC

would acquire services from VACT. On the

contrary, the course of negotiations between

the parties showed that it was NTCT's wish

that VACT should render those services to it

and not to PDC. It was the requirement of the

latter which led to the relationship between

it and VACT.

NTCT did not refuse to grant a licence to

PDC for the reason that PDC had not acquired,

or had not agreed to acquire services from

VACT. Rather, it granted a licence to PDC

which, at the insistence of PDC and against

the original wish of NTCT, included terms

whereby PDC agreed to acquire services from

VACT, as part of what was, in essence, a

settlement of the claim for an interlocutory

injunction.

In these circumstances, it would not be

appropriate to make any of the declarations

sought by PDC in respect of the Jagger concerts."

51. Counsel for the appellants argued that the agreement was designed to solve mechanical problems that needed to be worked out, or to clarify areas of doubt in the basic document produced by NTCT as its hiring agreement, and it did not change the relationships created by the basic document. Clause 5, in particular, merely recorded the consequences of the legal relationships already established and created no new obligations. Clause 11 was also said to arise logically from "the denial of any responsibility under the head agreement to anyone for anything".

52. Counsel for the respondents, on the other hand, submitted that the evidence was clear (as the trial judge found) that the supplementary terms were insisted upon by PDC; so, to the extent that those terms changed any agreement or arrangement between the parties, the respondents cannot be held responsible - they imposed no relevant obligation on PDC.

53. It is true that Deane J. in the Ku-Ring-Gai case (above) at 167-8 said,

"The practice of exclusive dealing does

not necessarily involve the imposition of any

condition. It involves supply upon a

condition. The condition may well have been

suggested by the recipient of supply. It may

have been imposed by some third party. It may

arise, by implication, from all the

circumstances in which the goods and services

were supplied."

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

54. There is no imposition by NTCT of any condition that PDC acquire services from Bass. PDC insisted upon Bass supplying those services directly to it. The provisions of clauses 5 and 11 were not, in our opinion, a mere working out or clarification of existing provisions. They represented a distinct change in legal relationships by imposing obligations on Bass, for the benefit of PDC, which were capable of direct enforcement by PDC against Bass. Under the basic agreement PDC would have had to look to NCTC for any such services.

55. In any event it is difficult to see that the appellants could be entitled to any remedy arising out of the terms of clauses 5 and 11 of the supplementary agreement. There is no suggestion that such an agreement is likely to be repeated, so injunctive relief would not be appropriate. The carrying out of these terms can hardly be thought to have resulted in any damage to the appellants. And, in those circumstances, there would appear to be no purpose served by the making of a declaration.

56. It is significant that, in their arguments, counsel for the appellants did not urge findings in their favour based solely on the supplementary agreement above. They relied upon it as illuminating what they submitted to be the true nature of the basic agreement.

57. It is not disputed that the Trade Practices Act does not apply to a state government body which is, for the relevant purpose, under the shield of the Crown; see Bradken Consolidated Ltd v The Broken Hill Pty Co Ltd [1979] HCA 15; (1979) 145 CLR 107.

58. In Townsville Hospitals Board v Council of the City of Townsville [1982] HCA 48; (1982) 149 CLR 282 at 288-9, Gibbs C.J. said,

"... many functions formerly regarded as

matters of private concern are now carried out

by instrumentalities of government and the

question whether the functions in question are

traditionally or peculiarly governmental is

likely to be increasingly unhelpful in

deciding whether the body formed to carry out

those functions enjoys the privileges and

immunities of the Crown...... The answer to

the question must in the end depend upon the

intention to be derived from the statute under

which the body in question is constituted".

"It has more than once been said in this

Court that "there is evidence of a strong

tendency to regard a statutory corporation

formed to carry on public functions as

distinct from the Crown unless parliament has

by express provision given it the character of

a servant of the Crown": Launceston

Corporation v Hydro-Electric Commission (1959)

[1959] HCA 12; 100 CLR 654, 622; State Electricity Commission

(Vict) v City of South Melbourne (1968) 118

CLR 504, 510. All persons should prima facie

be regarded as equal before the law, and no

statutory body should be accorded special

privileges and immunities unless it clearly

appears that it was the intention of the

legislature to confer them. It is not

difficult for the legislature to provide the

immunities of the Crown, and where it does not

do so it should not readily be concluded that

it had that intention."

60. See also, on the importance of the statutory ability of the executive to control the instrumentality, whether in practice it does so or not, Superannuation Fund Investment Trust v Commissioner of Stamps (South Australia) [1979] HCA 34; (1979) 145 CLR 330, per Stephen J. at 348.

61. In the present case the VACT has perhaps the strongest claim to the shield of the Crown because sub-s 4(2) of the Victorian Arts Centre Act 1979 provides,

"Subject to the general direction and

control of the Minister the Trust shall be

responsible for the management of the Centre".

62. It is true that the phrase 'general direction and control' in this context is somewhat ambiguous. It may mean the unfettered or unrestricted direction and control, or it may mean direction and control on policy questions as distinct from detailed matters. The 'management of the Centre' is another expression which could be interpreted narrowly, in a geographic sense, or broadly, in a functional sense.

63. Other relevant sections of the Victorian Arts Centre Act provide that the functions of the Trust, which is established as a body corporate with the usual powers of such a body, include "the care improvement and maintenance of the Centre", "the control and management" of the Centre other than the National Gallery, and the presentation of the performing arts within the Centre and, with the approval of the Minister, outside the Centre (s 5).

64. The Trust is given all necessary powers, including incidental powers, to carry out its functions and objects (sub-ss 6(1) and 6(2)) and may, with the consent of the Minister, enter into a contract for the provision of services (sub-s 6(3)). These powers would, it seems, entitle the Trust to establish a ticket agency and provide the services of that agency to bodies such as NTCT and OPM. The contract to provide such services would probably require Ministerial consent. The power of the Trust to provide such a ticketing service was made explicit by the Victorian Arts Centre (Amendment) Act 1988, which came into force on 15 December 1988.

65. The nine members of the Trust are all appointed by the Governor in Council, though three of them are nominated by other bodies. The Governor in Council appoints the Chairman of the Trust (sub-ss 8(1) and 10(1)).

66. The Trust requires the approval of the Minister for the employment, from time to time, of a general manager and deputy general manager (sub-s 14(1)).

67. Finally, the Trust makes an annual report to the Minister, which is tabled in the Parliament (s 18).

68. The question is not an easy one to decide but, in our view, having regard to Gibbs C.J.'s reminder as to how easily the shield of the Crown can be provided for if that is the intention of the legislature, the better view is that the VACT, in its provision of a commercial service in the form of the Bass ticketing service, is not operating under that shield.

69. Similar considerations apply to NTCT and OPM. NTCT consists of 13 members appointed by the Governor in Council, of whom 5 are nominated by the Minister without restriction, and 4 more are nominated by the Minister from the membership of other bodies. The Governor in Council may at any time remove a member from office. See the National Tennis Centre Act 1985 s 8.

70. The continuing functions of NTCT are to be responsible for the care, improvement, use and promotion of the National Tennis Centre, to be responsible for its financial management and to accept appointment as a Committee of Management of Crown Lands (see s 6). It is this responsiblity for Crown lands which gives NTCT its strongest claim to the shield of the Crown. In addition, the Treasurer is given some powers of oversight of the financial affairs of NTCT (see ss 17, 18 and 19) and an annual report is required, as in the case of VACT (see s 20).

71. However, there is in our view no sufficient evidence in the Act of that type or degree of control by the executive which would attract the shield of the Crown for the Trust's commercial activities.

72. The same is true of OPM, which is constituted pursuant to the Crown Land (Reserves) Act 1978 as amended by the Crown Land (Reserves) (Amendment) Act 1984. OPM is a committee of management declared in 1981 by the Governor in Council to be a corporation pursuant to s 14A(1) of that Act. It is required to manage, improve, maintain and control the Crown lands entrusted to its care.

73. The main arguments relied on by counsel for the respondents as showing that OPM is, for relevant purposes, the Crown, are as follows:

(a) OPM has been brought into existence by the

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

(c) The members of OPM are appointed and removable

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

(e) The Treasurer can exercise a degree of control

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

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

74. None of these enabling or reserve powers of the Governor in Council or the Minister compensate, in our view, for the absence of any expression of legislative intent that a body in the position of OPM, under the relevant legislation, should be subject to the control of the executive in carrying out those of its functions which are relevant for present purposes.

75. In our opinion the respondents arguments for immunity under the shield of the Crown must fail.

76. In our view there in no substance in the respondents' submission that they are all 'related corporations' within the meaning of sub-ss 47 (8) and (9) of the Trade Practices Act. They are said to be so because they are all "subsidiaries of the Crown, which is a body corporate". But s 4A(5) of the Act limits the meaning of 'related corporations' in such a way that the three instrumentalities could only satisfy the description if the Crown were held to be a holding company for the purposes of the Act. This would be a very strange conclusion, which could only be even remotely arguable if the three entities were held to be true emanations of the Crown, which we believe they are not.

Trade Practices Act 1974 s 51

77. The respondents, in our view, have a much stronger argument under this heading than they have under the previous headings of 'Shield of the Crown' and 'Related Corporations'. The question to be determined is whether the 'acts or things' done by the respondents and alleged to constitute exclusive dealing, have been "specifically authorised or approved by ..... an Act passed by the Parliament" of Victoria.

78. The relevant Act is the Victorian Arts Centre (Amendment) Act 1988 which, in s 5, provides,

"The Agreements referred to in the

Schedule and any subsequent agreements to the

like effect between Olympic Park Management

and Victorian Arts Centre Trust or between

National Tennis Centre Trust and Victorian

Arts Centre Trust, are specifically authorised

and approved".

"Agreements relating to the sale of tickets

1. Agreement dated 28 April 1988

between Olympic Park Management and Victorian

Arts Centre Trust.

2. Agreement dated 18 May 1988 between

National Tennis Centre Trust and Victorian

Arts Centre Trust."

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

"Approval of agreements.

5. (1) Olympic Park Management, an

incorporated committee of management under the

Crown Land (Reserves) Act 1978, and the

Victorian Arts Centre Trust shall each be

deemed to have and always to have had all

necessary powers to enable it to enter into

and carry into effect the Agreement referred

to in item 1 of the Schedule and any other

agreement of a like nature.

(2) The National Tennis Centre Trust and

the Victorian Arts Centre Trust shall each be

deemed to have and always to have had all

necessary powers to enable it to enter into

and carry into effect the Agreement referred

to in item 2 of the Schedule and any other

agreement of a like nature.

(3) The Agreements referred to in the

Schedule are, and shall be deemed always to

have been, specifically authorised and

approved."

"The Bill plainly recognized the

distinction between the entry into contracts,

agreements or arrangements and the carrying of

them into effect and sought to authorize and

approve both the entry and the carrying into

effect. That distinction is a logical one.

When Parliament deleted the clauses which

provided that each body "shall be deemed to

have and always to have had all necessary

powers to enable it to enter into and carry

into effect" the agreements referred to in the

Schedule, it substituted the new clause 4AA

which contained no deeming provision referring

either to powers to enable any of the bodies

to carry the agreements into effect, or to any

of them always having had the powers to enter

into agreements and carry them into effect.

Construing the words of the amending Act

in their ordinary meaning, they specifically

authorize and approve the agreements referred

to in the Schedule and operate to do so from

15 December 1988, the date on which it

received assent. They do not, in my opinion,

have any effect before that date and they do

not specifically authorize and approve the

carrying into effect of any of the agreements."

80. While seeing the force of his Honour's reasoning, we have nevertheless arrived at a different conclusion. The fact that a deeming provision has been omitted from the Act does not necessarily mean a change of legislative intent. It may merely mean either that further consideration led to the view that it was unnecessary, or that the legislature was reluctant to enact provisions having an appearance of retrospective effect and preferred to leave such questions to the decision of the Court which was then dealing with them.

81. In our view, the Court should construe the provision as enacted by the Parliament without allowing itself to be influenced by speculation as to the legislative intention based upon the history of amendments to the Bill, which may well have been agreed upon for a variety of reasons, expressed or unexpressed.

82. Each of the agreements "specifically authorised and approved" had appointed Bass as the relevant Centre's exclusive agent to sell, on the Centre's behalf, the tickets to all events at the Centre. To allow PDC, through PDP, to sell tickets to any future event at either centre would, in our view, be a breach of the relevant agreement with Bass to give it the exclusive right to sell tickets. Since the named agreements are specifically authorised and approved, so must the exclusive agency be specifically authorised and approved. In reaching this conclusion we reject the appellants' argument that, properly construed, the agreements gave the Centres a choice in relation to each hiring whether or not to employ BASS's services. In our view that was not the intention or effect of the agreements.

83. The appellants have argued that the exclusive dealing of the respondent Centres consists in requiring PDC to use Bass' services, and that this is not conduct specifically authorised or approved by the Victorian Act. As we have already said, we think this is an inaccurate way of describing the situation, because Bass's services are provided to the Centres, not to PDC. But even if this were not so, we believe the Victorian Act specifically authorised the agreements which gave Bass exclusive rights to all ticketing for the Centres.

84. It is also, in our respectful opinion, wrong to say that the Victorian Act authorised the making of the agreements but not their execution. This would have been a pointless exercise on the part of the Victorian Parliament, which should not be attributed to it.

85. In our view it is clear that the Parliament, by using the language of s 51 of the Trade Practices Act, was intending to invoke the protection of that section for conduct in pursuance of the named agreements.

86. Section 51 relevantly provides,

"In determining whether a contravention of a

provision of this part has been committed, regard shall not

be had .... to any act or thing that is .... specifically

authorised or approved by .... an Act passed by the

Parliament of that State..."

87. The direction is to the court, which is instructed, by way of comity in a Federal system, to respect the expressed wishes of a State Parliament. The direction speaks as at the time when the matter is before the court and, in our view, should be construed generously in favour of the State.

88. The word "approved", by contrast with "authorised", suggests the possibility of ratification of an act or thing after it has occurred. We can see no sufficient reason why an exculpatory provision such as this should not have, in one sense, a retrospective effect, so that a possible contravention of Part IV of the Act, which has since been specifically approved by the State Act, is to be disregarded by the court. If the agreements are "approved", the clear inference is that they are approved as at the time of their making and that their implementation is also "approved".

89. Even if we are wrong in this approach, and the Victorian Act speaks only as at 15 December 1988, leaving unaffected any contravention dependent upon an act or thing which occurred before that date, it would still be a complete answer to any claim for injunctive relief.

90. In the result, for the reasons we have given, we agree with the learned trial judge that the appellants have, on any view, failed to show a contravention by the respondents of s 47 of the Trade Practices Act 1974. For this reason, and for the additional reason just given relating to authorisation and approval by an Act of the Victorian Parliament, we would dismiss the appeal with costs.