ST GEORGE FOOTBALL CLUB INC & ANOR v SOCCER NSW LTD

Court of Appeal (NSW)|2005-12-20|Before: Spigelman CJ, Mason P, Handley JA, Barrett J

CITATION: ST GEORGE FOOTBALL CLUB INC & ANOR v SOCCER NSW LTD [2005] NSWCA 481

JUDGMENT OF: Spigelman CJ at 1, 85; Mason P at 21; Handley JA at 82

CATCHWORDS: CONTRACTS - "process" contracts - entrance criteria for divisional competition set by football governing body - whether "process" contract formed - EQUITY - estoppel - detrimental reliance - whether applicant clubs placed in position of detriment by assuming football governing body would adhere to set selection criteria - CORPORATIONS - oppression - application of s 232 Corporations Act - where football governing body departed from prescribed selection criteria not set by constitution - whether departure made in good faith - TRADE PRACTICES - misleading and deceptive conduct - representations respecting future matters misleading if made without reasonable grounds - mere non-fulfilment of statement as to future matter does not establish that statement was misleading or deceptive - (ND)

Trade Practices Act ss51A, 52 LEGISLATION CITED: Fair Trading Act s42 Corporations Act. ss232, 233, 140

Attorney General v Quin (1990) 170 CLR 1 Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242 Foster v Minister for Customs (2000) 200 CLR 442 Hughes Aircraft v Air Services Australia (1997) 76 FCR 151 CASES CITED: Nagle v Fielden [1966] 2 QB 633 Pioneer Electronics Australia v Edge Technology Pty Limited [1999] FCA 142 Pratt Contractors Limited v Palmerston North City Council [1995] 1 NZLR 469 Pratt Contractors v Transit New Zealand [2005] 2 NZLR 433 St George Soccer Football Association Inc v The Soccer New South Wales Limited [2005] NSWSC 1288

PARTIES: ST GEORGE FOOTBALL CLUB INC & ANOR v SOCCER NSW LTD

Appellant: P Biscoe QC/ S Philips COUNSEL: Respondent: M Walton SC/ M S White/ M Gerace

Appellant: Levitt Robinson SOLICITORS: Respondent: Minter Ellison

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40960/05

SPIGELMAN CJ MASON P HANDLEY JA

ST GEORGE FOOTBALL CLUB INCORPORATED & ANOR v SOCCER NEW SOUTH WALES LIMITED JUDGMENT

1 SPIGELMAN CJ: I agree with the reasons of Mason P and add some observations concerning one other aspect of the notice of contention filed on behalf of the respondent, to which his Honour did not refer. 2 The notice of contention also states that Barrett J's judgment should be affirmed on the ground that the alleged failure by the respondent to assess applications in accordance with the documents issued by the respondent in relation to competitions were not breach of any contract. Irrespective of how one identifies the contract in the present case, in my opinion this contention should be upheld. 3 The basic contractual document is the document which is referred to in these proceedings as the Business Plan. The critical page for relevant purposes in that Plan is the page, to which Mason P has already referred, which contains a series of points for the method of selecting clubs for the new competition. Included in that list, relevantly for the purposes of the issues that have arisen on this appeal, is the reference to the method of determining the successful applicants, including the following step, which I will quote again. It says: "The capacity of each applicant to meet the competition criteria will be assessed." 4 It is of significance that what is identified here is a "capacity" to meet competition criteria. There is no reference here that anything identified as a 'competition criterion' was in fact to be met at the time of the lodgement of an application for admission to the competition. 5 I can see no purpose of any contract relating to the new competition that would be served by identifying a capacity to meet criteria as at the date of the application. The relevant time is, and must always have been understood to be, the date at which the competition commences and, of course, thereafter. There is nothing of any express character identifying the date of the application as of particular relevance. In my view it was not of any relevance, save in so far as capacity at that date may indicate something about the ability to meet any relevant criterion at the time that the competition commences. Indeed, the argument in this Court proceeded on the basis that the latter was the relevant date. 6 My conclusion in this respect is reinforced by the terms of the section setting out the Competition Criteria, of which one subsection is concerned with ground criteria. 7 The section commences with the following statement: "Clubs will be required to ensure that they maintain strict compliance with criteria and will not be granted exemptions or concessions."

Note the reference to a requirement of 'maintaining' compliance as something clubs " will be required to ensure". This does not suggest in any way that compliance had to be established as at the date of the application. 8 With respect to the subsection concerned with ground criteria, the same kind of terminology is employed. Relevantly, as Mason P has indicated, there is a statement, "for the information of clubs" to the following effect: "Clubs will be required to meet all aspects of the ground criteria without exception, and will be informed prior to application whether their current playing venue remains eligible for use in the new competition." 9 This passage has two aspects. First, it repeats the formulation of what clubs "will be required to meet". Secondly, it draws particular attention to the period prior to the application. The passage, however, does not impose any requirement with respect to that period. It simply indicates that there will be a particular form of information provided during that period. The fact that this is not intended to be a binding requirement of the character for which the appellant contends, namely a requirement that the criterion has to be satisfied as at the date of the application, is reinforced by two succeeding subparagraphs of this section. 10 First is the following subparagraph: "Soccer New South Wales will identify suitable alternative playing venues for clubs whose existing venues do not meet the updated ground criteria and will assist clubs in ground leasing negotiations."

Once again this does not indicate that anything has to be determined as at the date of the application. It is much more consistent with an intention to ensure that the criterion is satisfied as at the date of the competition commencing. 11 The next aspect of this particular subparagraph is: "Where a club is unable to secure an approved playing venue within its district region it will subject to the approval of Soccer New South Wales be entitled to play at an approved venue in another district region."

Again, in my view, this passage is not consistent with a requirement that the criterion with respect to the state of the grounds had to be met as at the date of the application. It suggests that further action could be taken, subsequent to the application, with a view to ensuring that an appropriate ground was available at the relevant time. That, in my opinion, was the time at which the competition commences. 12 In the course of submissions on this matter, the appellant referred to submissions made to his Honour on a question of fact which, on the view that his Honour took of the case, did not need to resolved. This concerned the inability of the Wollongong Club, that was accepted as one of the ten members of the competition, to meet the ground criteria by the end of the year. This arises because of the nature of the decisions that were made, to which Mason P has referred. 13 The decision by the relevant Football Committee and by the Board of the respondent were triggered by the realisation, in a document that was placed before the Board, that strict application of ground criteria, as at the date of the decision making process, would lead to the result that only five or six teams were qualified to be admitted to the competition. I agree with what Mason P has said, that any contractual requirement that would inexorably lead to such a result cannot have been within the contemplation of the parties. 14 The minutes of the Football Committee meeting held on 10 October 2005 state that the CEO advised that there would be a five to six team competition if the strict criteria of grounds ready by 30 September 2005 was applied. As a result of that the Football Committee resolved "those clubs who commit in writing that their ground will be ready by December 2005 will be assessed." That assessment proceeded and the Wollongong Club was one of the ten recommended by that Committee to the Board. 15 When the matter arose at the Board level, the Board noted the position of the Wollongong Club and that the club had nominated Lysaght Oval as its venue. The Board minutes note that concern was raised in relation to Lysaght Oval. Clarification was sought on the works being undertaken to complete the stadium in time for the competition. It was advised that confirmation has been received in writing from Wollongong Wolves that the bulk of the major works will be completed by 31 December 2005. However, the Club had also nominated WIN stadium. 16 According to the evidence below, which was summarised for this Court in the form of the appellant's submissions, a letter was faxed on 12 October in which the Wollongong Chairman informed Soccer New South Wales that the works would not be completed until the end of February. However, he re-affirmed that Wollongong would be able to use WIN stadium from mid January if required. 17 This is the only factual matter, to which this Court's attention was directed, that could in any way constitute an indication that one of the clubs accepted would not be able to comply with the ground criteria at the time of the commencement of the competition. Although this was not the subject of findings of fact by his Honour, the material presented to this Court indicates to me that there was no breach of any representation by the Board of the respondent that the ground criteria must be satisfied at the relevant time, namely at the time that the competition was to be conducted. 18 It is on this basis that I would uphold the other matter raised in the notice of contention filed on behalf of the respondents. 19 I should note that my analysis of the nature of the representation, contained in what has been referred to in the pleadings and throughout these proceedings as the "criteria representation", is such that it would probably also have determinative implications for the appellant's case under the oppression suit and its misrepresentation case, whether operating by means of an estoppel or by means of the application of the Trade Practices Act. I do not find it necessary to decide this matter, as it has not been raised by notice of contention, and I say no more about it. 20 I agree with the orders proposed by Mason P. 21 MASON P: The appellants are member clubs of the respondent, Soccer New South Wales Limited, the umbrella body that manages the sport in this State. One of the respondent's key functions is to organise competitions. Article 65(h) of the constitution of Soccer New South Wales, confers the power: To determine which members shall be entitled to enter teams in the football competitions conducted by the company and the terms and conditions upon which, and the manner in which members shall make and renew such applications. 22 The respondent is a company limited by guarantee registered under the Corporations Act 2001. Section 140(1)(a) of that Act provides that the constitution has effect as a contract between the company and each member. The company's business is managed by a board of directors (see article 44). Detailed planning in relation to competitions is the responsibility of the Football Committee, a body made up of board members and staff members. However, ultimate control and responsibility vests in the board. 23 For some years the first division competition in the State was known as the Premier League. Sixteen clubs participated, including the appellants. On 29 June 2005 the Board of Soccer New South Wales resolved that the existing Premier League competition be discontinued forthwith, ie that it would not take place in 2006. This decision is not in dispute. It was also decided at that time that clubs would be notified that a new first division competition would be offered commencing in late January or early February 2006; that criteria for entry into the new competition would be available by 29 July 2005 and that the successful applicants would be notified by 15 October 2005. Entry would not be restricted to members of the disbanded Premier League. 24 It would have been obvious to all contenders that the decision-making process would involve the board balancing several parameters including achieving certain minimum standards, maintaining an appropriate mix of regions and getting an appropriate number of competitors, with twelve being the likely number in the early stages. The ultimate decision would rest with the board but much of the leg work would be done by the Football Committee. 25 It was equally obvious from the outset that settling upon a new competition would to a degree be the outcome of negotiations, posturing and legitimate politicking. A body called the Premier League Clubs Forum met on several occasions in August and September, sometimes with representatives of Soccer New South Wales, sometimes privately, to discuss Soccer New South Wales' proposal and advance their own suggestions. For example, on 22 August 2005 the Premier League Club Forum decided to reject the new competition proposed by Soccer New South Wales board as it then stood. 26 Clubs that expressed interest by 24 August 2005 were provided with two documents entitled The New Competition Business Plan 2005-2008 (hereafter the Business Plan) and the New Competition Application Form 2006. By 30 September, the closing date for applications, there were 20 applications, including those from the two appellants. 27 On 12 October 2005 the board decided upon a ten club competition commencing in February 2006. The chosen participants were Bankstown City Lions, Parramatta Eagles, Sydney Olympic, APIA Leichhardt, Sutherland Sharks, Wollongong Wolves, Blacktown City Demons, Manly United, Marconi Stallions and Sydney United. The appellants are not among the clubs chosen to participate. They are eligible to seek entry into the second division competition but contend that their legal rights were not met in the decision-making process touching the first division competition for 2006. 28 The appellants commenced proceedings in the Equity Division against Soccer New South Wales upon various causes of action said to arise out of the decision of 12 October 2005. Claims were based on contract, estoppel, the Trade Practices Act, the Fair Trading Act, and ss232 and 233 of the Corporations Act. 29 The proceedings were heard as a matter of urgency over several days in late November and early December. Barrett J dismissed the proceedings with costs on 13 December 2005 (see St George Soccer Football Association Inc v The Soccer New South Wales Limited [2005] NSWSC 1288). This is an expedited appeal from that decision. 30 The appellants confined their challenge in this Court to the conclusions referable to what is described in the judgment below as "the criteria representation". This representation is said to have been made in writing in the Business Plan that was handed out to interested applicants, including the appellants, in early August. The appellants no longer press their first instance claim that there were binding representations to the effect that twelve teams and no less would play in the new competition. The appeal was expedited after the appellants had clarified the relief they were seeking and that they did not challenge the findings of primary fact made by Barrett J. 31 The nub of the appellants' complaint is summed up in the first paragraph of their written submissions: As SNSW's written invitation to apply for membership of the new competition prescribed that applicants had to comply strictly and without exceptions with specified criteria, why should the appellants be told that legally they ought to be satisfied with the selection of applicants who did not comply with the criteria to the exclusion of the appellants who did comply? 32 Of course, this rhetorical question contains hidden assumptions that need to be exposed and resolved before the matter could be answered favourably to the appellants by a court of law. The appellants need to be able to show that the decision made on 12 October involved breach of the legal rights of the appellants at that time. It must also be shown that the appellants have invoked a suitable remedy in properly constituted proceedings. The Criteria Representation 33 Member clubs that signed the necessary expression of interest form were given the Business Plan and Application Form. The appellants received these documents between 8 and 11 August 2005. Extracts from the Business Plan are set out at paras 93-101 of the judgment below. The first paragraph of the Plan reads: This Business Plan provides the framework by which Soccer NSW will establish a New Competition to commence in January, 2006 to replace the now defunct Premier League. It is both an internal document and a tool which clubs seeking to join the New Competition can use as a basis for their own planning and in the preparation of their applications for membership. 34 The Plan contains a lot of information about the proposed new competition, including its structure ("up to 12 teams with district/regional representation"), selection methodology, "competition criteria" and "ground criteria". As to ground criteria, the appellants place particular reliance on the statement in the Plan that:

Clubs will be required to meet all aspects of the ground criteria without exception and will be informed prior to application whether their current playing venue remains eligible for use in the new competition. 35 The ground criteria appear in appendix C to the Business Plan. 36 On 9 September 2005 Soccer New South Wales sent letters to nine of the Premier League clubs stating that the grounds they proposed as their home grounds for the new competition failed to meet the required criteria in specified respects.

Soccer NSW's Decision 37 Soccer New South Wales moved towards its decision in the following steps which I take from pars [19]-[22] and [140] of his Honour's judgment. 38 Following 30 September when applications closed an assessment programme began. This was undertaken by an assessment panel within Soccer New South Wales. The panel was made up of members of staff. As part of the process question forms were emailed or faxed to each applicant by Soccer New South Wales on 4 October. On 10 October Mr Quamby [the CEO] sent an email to members of the football committee attaching copies of various documents relevant to the assessment of applications. The football committee met on 10 October. That body proceeded to award points or marks to each applicant in respect of several criteria on the basis of rankings of "poor" one point, "fair" three points and "good" five points. 39 The football committee had before it two documents prepared by the assessment panel, namely the new competition application assessment and the new competition ground criteria check list. It was the first of these that recorded gradings or rankings under various headings according to the point system. It was decided that the approach should be changed by deleting some of the headings and combining others so that the headings would reflect the criteria set out in the application form. 40 The meeting of the football committee on 10 October was a lengthy one lasting between 7pm and 11pm. The minutes of the meeting state as follows: PRESENT: Ross Kelly (Chairman), Tom Doumanis, Frank Wilson, Michael Quarmby (CEO), Branko Culina, Graham Crawhall, Michelle Hanley, Peter Wilson

IN ATTENDANCE: Lisa Severin Chairman opened the meeting at 7.00pm. APOLOGIES: Ray Tweedie Chairman thanked all for their attendance. NEW COMPETITION: CEO reported that 19 applications had been received by close of business 30 September 2005. It was noted however that an email application had been forwarded by Central Coast United FC at 4.04pm however it was not received until 9.00pm. It was decided to accept this application based on legal advice given. CEO stated that the Assessment Team of seven (7) had spent 60 hours assessing applications. Based on the information provided, if any questions were raised relating to qualification of answers, clubs were given 24 hours to reply by email. CEO advised that Canberra Deakin would not be accepted based on FFA not granting approval any new interstate teams for this new competition. CEO advised that there would be a 5-6 team competition if the strict criteria of grounds ready by 20 September 2005 was applied. RESOLVED Those Clubs who commit in writing that their ground will be ready by December 2005 will be assessed. (Wilson/Kelly) CEO outlined application reviews, criteria checklist and summary. It was clarified that marking consisted of poor (1 point), fair (3 points) and good (5 points). Assessments of individual applications were explained, CEO stating that all aspects were taken into consideration. Once each applicant was assessed, the applicants were marked against applicants from within their own district if required.

The Football Committee began the process to question and debate the assessment marks for each club. No consideration was given to unsigned applications. Chairman called for further meeting on Tuesday, 11 October 2005 to commence at 7.00pm. MEETING CLOSED at 11.00pm. 41 The next day, 11 October 2005, the assessment panel worked on reassessing the applicant clubs under the revised headings. The assessment panel's revised new competition application assessment was presented to the Football Committee at its meeting on the evening of 11 October. It was amended slightly and the final version as amended was presented to the meeting of the Board of Soccer New South Wales then took place the following evening, 12 October. 42 At its meeting on 11 October the Football Committee decided to recommend to the board that ten of the applicants be admitted to the new competition. The board ultimately accepted that recommendation at its 12 October meeting and the ten clubs were in due course informed that their applications had been successful. Notifications to applicant clubs were made on 14 October. On the same day there was a media release. Contractual Issues. 43 The appellants aver that upon lodgement of an application form there was a "process contract" between Soccer New South Wales and each of them which contained binding promises by Soccer New South Wales as to the method whereby it would select those clubs to be invited to join the new competition. They assert express terms to the effect that criteria, especially ground criteria, would be strictly enforced in the sense that any club failing to meet them by the September 30 closing date would be ruled ineligible for consideration regardless of other qualities or the impact of excluding that club upon the size and structure of the new competition. Alternatively, the appellants assert implied terms of good faith and fair dealing in the selection process. They cite in particular Hughes Aircraft v Air Services Australia (1997) 76 FCR 151, a decision of Finn J and Pratt Contractors v Transit New Zealand [2005] 2 NZLR 433, a decision of the Privy Council. 44 Barrett J did not find it necessary to go into the details of the alleged breaches because he held that the only relevant contract between the parties to this appeal was that existing between Soccer New South Wales and its members, the terms of which are found in the constitution of Soccer New South Wales. That express contract is given effect by s 140 of the Corporations Act and has the superadded structure of the corpus of company law with its body of statutory and non-statutory remedies. His Honour's reasons are set out at pars [36]-[51] of the judgment. I agree with them. 45 The appellants challenged these conclusions. Firstly they point to the fact that Soccer New South Wales' invitation to apply in its Business Plan was not limited to existing members of Soccer New South Wales. In fact, at least two non-members applied, no doubt on the basis that if selected to play they would become members of the corporation. The Business Plan made this requirement clear. 46 In my view this does not answer the force of Barrett J's reasoning, nor point to error in it. It is for the appellants to demonstrate the existence of the contract that they aver. To do so they must point to communications and circumstances evincing an intention to enter into binding legal relations that contain the promises relied upon. A major difficulty for the appellants is that they are already in a legal relationship with contractual and statutory force that provides for the very transaction in question, namely a process for arranging competitions and selecting participants. The body with power to do this is the Board of Soccer New South Wales and its conduct is subject to the democratic processes involving a company of this nature and the extensive regulation of corporate and fiduciary activity involved in the vast field of company law. 47 Now it is certainly possible for a company to enter into a contract ad hoc with one or more of its members, as Barrett J recognised. But the open ended nature and terms of the Business Plan do not suggest a formal relationship of that nature. It was a document prepared internally by Soccer New South Wales. It was not negotiated with the appellants nor adhered to by the appellants in any formal manner. Many of the matters addressed were necessarily of a policy nature involving subjective decision-making. Many of the goals were potentially incompatible in attainment, especially since Soccer New South Wales had no means of knowing in advance how many clubs would show any interest in the new competition. The plan was promulgated in a context where everyone must have known that it could be subject to negotiation if its key terms were rejected in block by groups such as the Premier League Forum or if regional factors meant that "the best teams" did not have an appropriate regional spread. 48 The Business Plan is a lengthy document covering many topics. It proposes a new competition for the period 2005-2008. Many of its statements are aspirational and/or provisional. There are many express references to matters having yet to be addressed or that are subject to further consideration. Nothing suggests a foothold for the conclusion that any discreet part of the Business Plan may be singled out as contractual in intent in the sense that any applicant that received it and submitted an application for entry thereupon became bound in any way in advance of acceptance for entry into the competition itself. Nothing states that Soccer New South Wales is bound in advance. Indeed, much of the plan states or implies the very opposite. 49 Indicative of a non contractual import I would include the following: • The aspirational tone commencing at the very outset with the overarching mission statement: To create an exciting vibrant football competition with commercial appeal comprised of viable professionally administered clubs working closely with their district communities, the football family and Soccer New South Wales, to build the image of the competition. • The references to "framework", "internal document" and "tool" in the opening part of the executive summary that has already been set out.

• The reiteration of the controlling role of Soccer New South Wales and its Board.

• The presence of potentially conflicting aims given that the Plan spans commercial, community and sporting objectives.

• The many statements of aims, goals, objectives and other aspirational factors that tend to indicate absence of intention to enter immediately binding contractual relations.

The Business Plan however does provide extensive information on Soccer NSW'S existing philosophy on these important areas which will enable clubs to understand which commercial properties have been retained and which properties can be exploited by clubs. • The statement: This Business Plan is a living document and provides for regular evaluation by management and the football committee. As a framework it will require constant review as the competition strives to achieve its objectives and break new boundaries. There are policies and procedures which need to be the subject of review by management, the football committee and the board but which because of the fast tracking of the implementation of the new competition, have not been able to be addressed. These matters will most certainly be the subject of discussion during both the short and long terms to ensure that the new competition continues to set benchmarks which place it above all other state based competitions. • The presence of many criteria that obviously engage only when a club joins the competition (see for example the reference to club sponsors in s 6.2.5).

• Section 13 entitled Ongoing Evaluation which commences: This three year Business Plan is a living document. As has previously been explained, the branding, marketing, commercial and media strategies are to be finalised once the executive manager commercial services and the media and communications manager commence their duties. Additionally there is a requirement for ongoing evaluation of this document. As part of the ongoing business planning process this document will be evaluated and updated in its entirety on an annual basis reflecting any major changes affecting the competition. • The presence of matters of detail that may obviously require adjustment, such as the proposed dates for each match in the new competition in 2006. These are matters that suggest other than the intent and language of an immediate contract.

• Many of the matters stated require the co-operation of persons other than Soccer New South Wales and an individual applicant to join the new competition. 50 Appendix C, Ground Criteria, upon which so much weight is placed by the appellants contains a detailed list of criteria ranging from the blindingly obvious through to matters of intense detail. Even if it could be isolated, it is hard to conceive that these matters were intended as non-negotiable from the instant that an applicant sought to be considered for entry. 51 I do not overlook the statement upon which the applicants place great reliance that "clubs will be required to meet all aspects of the ground criteria without exception and will be informed prior to application whether their current playing venue remains eligible for use in the competition". However, I note the following which significantly detract from the contractual force (if any) of that statement:

• The statement I have just quoted is provided "for the information of clubs" .

• Immediately following this statement appears this statement:

Soccer NSW will identify suitable alternative playing venues for clubs whose existing venues do not meet the updated ground criteria and will assist clubs in ground leasing negotiations. • Almost immediately below this statement appears the following: Where a club is unable to secure an approved playing venue within its district region it will, subject to the approval of Soccer New South Wales, be entitled to play at an approved venue in another district region. • These ground criteria are not referred to in s 5.2 of the plan which is the section that sets out the selection methodology. There is merely a general reference to competition criteria, an expression that is dealt with separately from ground criteria in certain parts of the Plan at least.

• Section 5.14 of the Plan dealing with security of tenure and new competition appears itself to contemplate the clubs will be outlaying money during the currency of the competition in meeting amended criteria and standards, including standards referable to "ground infrastructure". 52 The appellants' submission has the corollary that Soccer New South Wales was effectively binding itself to the position that in the event as it happened that too few clubs met the announced ground criteria by a particular date there would simply be no first grade soccer competition in New South Wales in 2006. The unlikelihood of this having been in anyone's contemplation goes a long way to further undermine any contractual case. 53 Finally as to the ground criteria, it is significant that the Business Plan does not stipulate the date when satisfaction of these criteria was to be achieved. The appellants' contention that strict or even substantial compliance as at 30 September 2005 was stipulated has not been made good in my opinion. 54 I do not understand the appellants to contend that any relevant contract came into being until a Club forwarded the completed application form that accompanied the Business Plan. Yet nothing in the application form supports the appellants, and there are parts that undermine their central argument. Thus, the Application Form contains warranties by the Club but none by Soccer New South Wales, and none referable to any criteria, let alone ground criteria. Furthermore section 7 of the application asks a lot of questions about stadium details that bear no relationship to the ground criteria, if viewed as contractual minimal requirements. Furthermore section 13 of the Application Form, dealing with lodgement details, says nothing of present relevance beyond two very general statements, namely: The manner in which applications will be assessed is contained in s5.2 of the accompanying new competition Business Plan. Management, with the assistance of the Football Committee, will assess each application and where deemed appropriate will utilise the services of independent expert financial and/or marketing consultants to assist in this process. 55 The process contract cases are distinguishable. Indeed, on analysis they undermine the appellants' contractual case. Hughes Aircraft involved a commercial tendering process in a two-horse race that was engaged in after an earlier tendering process had culminated in a report, adopted by the Board of the Civil Aviation Authority, that found that the earlier tender process was unfair. A new process was embarked upon in circumstances involving revelation of the report, expression of intent by the Civil Aviation Authority that it would conform to the detailed recommendations of the report as to fair process, and prior concurrence by the two tenderers that they themselves would adhere to the newly promulgated procedures. 56 It is pertinent that Finn J observed (at 180-181): The essence of Hughes' submission is that the conclusion whether or not contractual obligations arise in consequence of arrangements made in connection with an intended procurement is simply a matter of construction. A party calling for tenders may do no more than issue an invitation to treat: for example, Spencer v Harding (1870) LR 5 CP 561. But equally the steps taken by it may result in the making of contractual commitments in relation to the whole or parts of the tendering process: for example, Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195; 3 All ER 25; R v Ron Engineering and Construction (Eastern) Ltd (1981) 119 DLR (3d) 267; Fairclough Building Ltd v Port Talbot Borough Council (1992) 62 BLR 82. The growing body of case law in which pre-award contracts have been alleged merely demonstrates that each case turns on its own facts: see Pratt Contractors Ltd v Palmerston North City Council [1995] 1 NZLR 469 at 478-479. It is Hughes' assertion that it is difficult to conceive of a factual matrix as strong as those here to support contract. The respondent for its part denied that either the 8 March letter or the RFT acquired contractual effect. It is said that, in the circumstances, no contractual intent was manifested by the parties; that the proceedings laid down in the letter and the RFT to govern the tender process were in the nature of administrative arrangements and not contractual terms; and that there was no consideration in any event for the alleged 9 March contract. Emphasis, understandably, was placed upon case law where courts have been unprepared to find any, or any relevant, pre-award contract: for example, Streamline Travel Service Pty Ltd v Sydney City Council (1981) 46 LGRA 168 at 176-177; Gregory v Rangitikei District Council [1995] 2 NZLR 208; see also GHL Fridman, "Tendering Problems", (1987) 66 Canadian Bar Review 582.

57 At page 185 his Honour adopted the remarks of Gallen J in Pratt Contractors Limited v Palmerston North City Council ([1995] 1 NZLR 469) where his Honour said the following (at 478-9): Authority makes it clear that the starting point is that a simple uncomplicated request for bids, will generally be no more than an invitation to treat, not giving rise to contractual obligations, although it may give rise to obligations to act fairly. On the other hand it is obviously open to persons to enter into a preliminary contract with the expectation that it will lead in defined circumstances to a second or principal contract…. Whether or not the particular case falls into one category or the other will depend upon a consideration of the circumstances and the obligations expressly or impliedly accepted. 58 The specific findings in Hughes to the effect that the factual matrix there prevailing gave rise to a binding process contract are markedly different from those in the present case. Absent a contract of the nature contended for, there is no call to examine whether or not "fairness", "good faith" or some more specific criteria became obligatory, nor whether the decision making in the present case involved departure from any such contractual standard. 59 I therefore agree with Barrett J. I would also uphold, for the reasons given, the respondent's notice of contention that any consensual contract between the members and the respondent constituted by documents issued by the respondent in relation to competitions was not intended to and did not give rise to legal relations. I would add, legal relations in the nature of a contract. 60 At times the appellants sought to bring themselves within the scope of administrative law cases in which the principles of natural justice or the concepts of relevant and irrelevant considerations were applied to disciplinary processes involving tribunals and/or professional sports. These principles have no application in the present case. The appellants were not being disciplined or punished. No question of restraint of trade is involved (contrast Nagle v Fielden [1966] 2 QB 633, Forbes v New South Wales Trotting Club Limited (1979) 143 CLR 242). A decision whether or not to hold a competition, its terms and conditions, and selection of playing clubs did not involve any infringement of property or, for the reasons I have already given, any relevant contractual rights. 61 In Pratt Contractors in the Privy Council there was express approval (at 446) of the statement in Finn J's judgment in Hughes Aircraft (76 FCR 151 at 197-8). His Honour was speaking of a term sometimes implied in law to deal fairly. He said this: Importantly it does not as such impose on the CAA under the guise of contract law the obligation to avoid making its decision or otherwise conducting itself in ways which would render it amenable to judicial review of administrative action. 62 The appellants' submissions as to relevant considerations being overlooked and irrelevant considerations being taken into account also founder because of the non-statutory context and the absence of any contractual obligation to proceed in such a manner. Even administrative law recognises that considerations are only relevant and irrelevant if there is a pre-existent obligation to take them into account (see Foster v Minister for Customs (2000) 200 CLR 442 at 452 and 480).

Estoppel 63 In the alternative, the appellants argued that the criteria representation was relied upon by them in circumstances giving rise to an estoppel precluding Soccer New South Wales from making the decision it ultimately did. Barrett J rejected this claim for the following reasons: [174] To establish, in accordance with the principles in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 and Commonwealth v Verwayen (1990) 170 CLR 394, an estoppel of the relevant kind - in this case, an estoppel precluding departure by Soccer NSW from the "criteria representation" - it would have to be shown that St George and Bonnyrigg, relying on the "criteria representation", acted to their detriment. [175] The only action they took was to submit applications in the prescribed form. It may well be that they did so in reliance on the representations in the Business Plan, including the "criteria representation". But it cannot be said that they thereby acted to their detriment. The alternative course of action would have been to refrain from submitting applications. Had they done that, their ultimate position would have been the same as that they in fact came to occupy, namely, non-participation in the new competition. The requirements for the creation of an estoppel are therefore not established. 64 I agree with this reasoning. I would add that it seems impossible to conceive what the appellants could have done in the circumstances, given that the board's decision to adopt the recommendation of the Football Committee about changed ground criteria happened instantaneously with its decision about the structure and composition of the new competition. 65 I would also indicate that the nature and content of the representations relied upon lack the clarity required as the basis of an enforceable representation. I will say a little more on this topic in dealing with the Trade Practices and Fair Trading claims. But the central problem for the appellants is that Soccer New South Wales never represented unequivocally that it bound itself not to formulate a 2006 competition as it saw best, in all of the circumstances as presented by the applications placed before it. Soccer New South Wales did not represent that compliance with the ground criteria by 30 September 2005 would be a pre-condition to its right to select enough of the "best teams" to make up a viable competition.

Corporations Act claims 66 Barrett J dismissed the claims for relief under ss232 and 233 of the Corporations Act for the following reasons: [66] Even if the complaints of the plaintiffs regarding misapplication of and departure from the criteria notified to members were made out, it would not follow that the directors of Soccer NSW had failed to act in good faith. It was for the directors to make a decision in the best interests of the company, as they saw them. The criteria notified to members and assessments of staff panel and the Football Committee by reference to the criteria were among the matters the directors properly took into account. Subjective judgments were necessarily and inevitably brought to bear. The directors were not bound to confine themselves to the stated criteria. Members' responses to questions related to the criteria, as well as inquiries made by staff about aspects relevant to satisfaction of the criteria, represented only part of the body of considerations to be taken into account by the directors. It was not the function or duty of directors to act in some automatic and unthinking way by simply admitting every member that appeared to meet the criteria and excluding every member that appeared not to meet them. There is no evidence of dishonesty, fraud, malice or recklessness. There is no evidence of improper or collateral purpose: everything done was obviously done with a view to producing an improved first division competition in furtherance of the company's objects and to the advantage of the general body of members. There is no evidence suggesting that there was not a real and genuine attempt to discharge directors' duties. That attention was paid to matters beyond the criteria and that the eventual decision may not have corresponded exactly with the result of strict and literal application of the criteria does not mean that the directors, as directors, failed to act in good faith or took irrelevant considerations into account. 67 In their written submissions the appellants argued: 31. Unlike the factual situation in Wayde [ v New South Wales Rugby League Ltd (1985) 180 CLR 459], but as contemplated in Wayde , in the present case:- (a) the Board failed to have regard to relevant considerations, namely the specified criteria in the New Competition Business Plan, and took into account irrelevant considerations, namely criteria that were not in that Business Plan; (b) the Board, in the exercise of its power, decided upon a course of action which was unfairly prejudicial to a minority of members of the company, namely member applicants who were thereby excluded from the New Competition. The prejudice lay in their exclusion and was unfair because the Board did not apply the specified criteria, took into account unspecified criteria and unfairly and unequally applied criteria. Insofar as they were previously members of the Premier League Division, this also adversely affected their voting rights under the Constitution; (c) no reasonable director would have thought the selection decision was fair because the specified strict criteria were not applied or were applied unfairly. 32. The New Competition Business Plan expressly contemplated that an applicant in a region where two applicants had already been chosen could be included in the competition [Appeal Book tab 5]. If certain clubs should not have been assessed at all or should have received a lower assessment because they did not meet the criteria in the New Competition Business Plan - or those criteria as changed by the 10 October resolution - or if the criteria were applied fairly and equally, the appellants' prospects of being selected would have been substantial if not certain. For example, only 7 clubs, including the appellants, satisfied the published ground criteria in the New Competition Business Plan. Yet in a ten team competition the appellants were both excluded on the basis of an unpublished change to that criteria by the 10 October resolution.

68 In my view, these submissions elide disappointed expectations with a finding of bad faith or oppression. Section 232 of the Corporations Act refers to conduct that is either contrary to the interests of the members as a whole or oppressive or unfairly prejudicial to or unfairly discriminatory against a member or members, whether in that capacity or in any other capacity. 69 The appellants' submissions seek to elevate the aspects of the Business Plan upon which they claim to have a long suit into binding promises or guarantees of favourable outcome in a multi-factorial decision-making process. The board of Soccer New South Wales had a very difficult task to perform. The minutes of the critical meeting of 12 October 2005 which are found at tab 9 of the appeal book bear no evidence of a failure to act conscientiously or in good faith. They disclose the myriad of factors addressed both in terms of matters supporting the inclusion of the teams that were included, and matters indicating why in the case of the St George team in particular that team was not one of the successful applicants. 70 It is unnecessary to set out the minutes in toto but they do speak for themselves, indicating the decision-making process and its rationality. No error has been shown in the trial judge's reasons for rejecting the Corporations Act claim. 71 Part of the appellants' submission was to the effect that the failure to signal in advance any intention to change the ground criteria was itself unfairly discriminatory or otherwise within s 232. I do not agree. This submission is one of several that elides the principles of natural justice with those applicable in the more relevant areas of discourse.

Misleading and deceptive conduct claims 72 The appellants submit, as they did below, that the Business Plan contained criteria representations, especially as regards grounds, that were continuing as to a future matter, misleading and deceptive as from 10 October 2005 when the ground criteria were changed without notice to the appellants, and apt for the relief claimed in the Court below by the appellants. 73 At pars [141] and [27] of his reasons, Barrett J found that the Business Plan embodied a representation made to the appellants that applicants were required to meet and comply with the criteria in the Business Plan. There is, I perceive, a deal of ambiguity as to the relevant content of this representation. But like his Honour I can pass over it. I content myself with observing that the appellants really do have to show that the representation was to the effect that each applicant was assured that every other applicant would be held to the standards of the ground criteria, presumably as at 30 September 2005, upon pain of being rejected outright regardless of other considerations, and even if this meant that there would be no competition in 2006. 74 The learned trial judged further held that the representation was made in trade and commerce thereby attracting s42 of the Fair Trading Act as well as s 52 of the Trade Practices Act if the respondent is a trading corporation. These conclusions were not put in issue in the appeal. His Honour then turned to what he described as the "quality of the representation", a topic that involved attention to its futurity and policy-laden nature. He cited with approval the observation of Kenny J in Pioneer Electronics Australia v Edge Technology Pty Limited [1999] FCA 142 at [7]: The mere non-fulfilment of a statement as to a future matter does not establish that the statement was relevantly misleading or deceptive. 75 This led to consideration of s51A of the Trade Practices Act, and s41 of the Fair Trading Act, which states: 51A. Interpretation (1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation. (3) Subsection (1) shall be deemed not to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material particular or conduct that is misleading or is likely or liable to mislead. 76 I do not see how s51A of the Trade Practices Act or its State counterpart has anything to say about the capacity of Soccer New South Wales to change the policies embodied in the Business Plan with or without notice. Section 51A facilitates proof in cases involving representation with respect to future matters. The future matter here involved, according to the appellants, is the manner in which teams will be selected to play in the new competition, if there is to be one. 77 It was not the appellants' case that Soccer New South Wales lacked reasonable grounds for making whatever representations were embodied in the Business Plan. Nor did the appellants establish that Soccer New South Wales issued the Plan, intending at the time not to carry it into effect to the extent possible. Barrett J found (especially at pars [152] and [156] of his reasons) that the respondent intended to act in accordance with its criteria representation at the time it was made, ie when the Business Plan was promulgated. This finding was not challenged on appeal. 78 Section 51A(2) says nothing about the capacity of Soccer New South Wales to change its policies. A change of policy does not retrospectively render the former policy misleading. Absent the clearest of express assurances, no-one expects policies to be set in stone. Administrative law does not regard persons as having any legitimate expectation to that effect (see generally Attorney General v Quin (1990) 170 CLR 1). I have already drawn attention to the many indications in the Business Plan itself to the effect that the conditions surrounding the 2006 competition were not set in stone. 79 I respectfully agree with and adopt his Honour's findings at pars [157] and [158] of the judgment. 80 For these reasons I am of the view that the matters raised by the appellants as the grounds of their disappointed expectations have no grounding in legal rights on the facts of the case. In the upshot it is unnecessary to consider the remedial issues. They are also not without difficulties for the appellants. Barrett J refused in his discretion to award injunctive relief for reasons that appear rather compelling. The appellants indicated in their notice of appeal that the primary relief they seek is a declaration to the effect that the entire decision is null and void. I think there are very significant problems with the Court granting any such relief. Once again it is unnecessary to address them at any length or at all. 81 In my view the appeal should be dismissed with costs. 82 HANDLEY JA: I agree with the previous judgments, and in view of their full analysis I can be brief. I agree that the notice of contention should be upheld. Clubs were told that their applications had to strictly comply with the criteria in the Business Plan, and that they would have to comply on an ongoing basis if they were admitted to the competition. However, the Plan also made it clear that it was not to be a legal straitjacket for the board. Thus the executive summary stated: "The Business Plan provides the board with flexibility to ensure that it can retain the objective of district/regional representation, yet still ensure that the competition comprises the best clubs." 83 One important consideration referred to in the Plan was the establishment of a competition between clubs with district regional representation, spread across the Metropolitan area and possibly elsewhere in the State and the Australian Capital Territory. The Plan outlined the method of selecting clubs for the new competition and the President and the Chief Justice have referred to these statements. In my judgment Soccer New South Wales did not breach any contract that may have been embodied in the Plan when it selected the ten teams, including the Wollongong Club, which were to take part in the new competition. I agree with the orders proposed. 84 WALTON: There is just one matter. Mr Biscoe and I have agreed between us that on and from the 16 December 2005 costs should be on the indemnity basis. 85 SPIGELMAN CJ: The orders of the Court are:

Order the appellant to pay the respondent's costs.

On and from the 16 December the appellant pay the respondent's costs on an indemnity basis.

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At a glance

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Judgment (37 paragraphs)

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Cases Cited (9)