St George Football Association Inc v Soccer NSW Ltd [2005] NSWSC 1196

New South Wales Supreme Court

St George Football Association Inc v Soccer NSW Ltd [2005] NSWSC 1196 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 22/11/05, 23/11/05, 24/11/05

JUDGMENT DATE : 24 November 2005

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Passages of affidavit rejected

CATCHWORDS : EVIDENCE - relevance - statement by party of subjectively held intention as to contract formation - such intention not communicated to other party - whether statement may rationally affect assessment of whether contract made

LEGISLATION CITED : Evidence Act 1995, s.55

Air Great Lakes Pty Ltd and KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 CASES CITED : Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241

St George Soccer Football Association Incorporated - First Plaintiff PARTIES : Bonnyrigg White Eagles Sports Club Limited - Second Plaintiff Soccer NSW Limited - Defendant

FILE NUMBER(S) : SC 5501/05

Mr P.M. Biscoe QC/Mr S.J. Philips - Plaintiffs COUNSEL : Mr M. Walton SC/Mr M.S. White - Defendant

Levitt Robinson - Plaintiffs SOLICITORS : Minter Ellison - Defendant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY 24 NOVEMBER 2005

5501/05 - ST GEORGE SOCCER FOOTBALL ASSOCIATION INCORPORATED & ANOR v SOCCER NSW LTD

JUDGMENT - On admissibility of evidence; See p 166

1 An issue in this case is whether a contractual relationship arose between the defendant (Soccer NSW Ltd) and the two plaintiff clubs in circumstances where the clubs submitted applications to field teams in the revised premier league competition to be conducted by the defendant and those applications were considered and deliberated upon by the defendant. 2 The defendant seeks to read a passage in the affidavit of its president, Mr Doumanis, as follows: "It was never intended by me, nor the expressed intention of the board, that any of the criteria or the provisions of the Report would give rise to a contractual relationship between SNSW and the applicant clubs." 3 The reference to the "Report" is a reference to a document circulated by the defendant among potential applicants setting out procedures and content requirements to be observed by clubs making applications. The reference to the "criteria" is a reference to criteria published by the defendant and identified as criteria that would be taken into account in considering applications. 4 The plaintiff clubs object to this passage on the grounds of relevance. They say that evidence of the unexpressed subjective intentions of the defendant and its president could not rationally affect the assessment of the probability of the existence of any fact in issue: Evidence Act 1995, s.55. They submit that evidence of one party's subjective intention as to contract formation (specifically, an intention that no contract should come into existence) has no such capacity where the subjectively held intention remained, as it were, embedded in that party's brain and was never communicated to the other party. 5 The defendant, in contending for the relevance and admissibility of the passage in question, points to a passage in the judgment of Santow J in Forbes v Australian Yachting Federation Inc (1996) 131 FLR 241 at p.285 referring to subjective intention to enter into contractual relations as a matter relevant to the question of contract formation before him. His Honour referred in that connection to the decision of the Court of Appeal in Air Great Lakes Pty Ltd and KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309. It is relevant to quote a portion of the judgment of Mahoney JA in that case appearing at pp.330-331: "But this does not mean that actual subjective intention qua contract may not be relevant. Thus, if A, notwithstanding what he said, had the actual subjective intention that no contract should result, a binding contract may not be held to exist. If the terms of A's promise were such that B, as a reasonable man, would take it to involve a legal commitment and B did not know that A did not intend that there be a binding contract, then a binding contract would result. A would not be permitted to set up, against such a meaning of what he had said, a contrary subjective intention. But the result would not, I think, be the same if B knew of A's actual subjective intention. The law would not, I think, impose the relationship of contract where, eg, A though he was play-acting and B knew of that fact. A's actual subjective intention would be effective to prevent the contract arising. A fortiori, if both A and B had the intention that no contract should result, and each knew of it, then none would be imposed. And, I think, this notwithstanding that a reasonable bystander would take from what they said and did that there was an exchange of congruent promises and a mutual purpose to contract. I put aside for this purpose special cases, of estoppel, third party rights, and the like.