New South Wales Supreme Court CITATION : St George Soccer Football Association Inc v Soccer NSW Ltd [2005] NSWSC 1288 HEARING DATE(S) : 22/11/05, 23/11/05, 24/11/05, 25/11/05, 29/11/05, 30/11/05 Written submissions: 30/11/05, 01/12/05, 02/12/05 JUDGMENT DATE : 13 December 2005 JURISDICTION : Equity Division JUDGMENT OF : Barrett J DECISION : Proceedings dismissed with costs CATCHWORDS : CONTRACTS - application by member clubs to football governing body to participate in new competition - whether "process contract" formed - CORPORATIONS - constitution of company as statutory contract - whether implied term of good faith performance and fair dealing where directors perform functions under constitution - CORPORATIONS - oppression and related conduct - whether directors performing functions under constitution acted otherwise than in good faith - whether decision such that no board acting reasonably could have made it - TRADE AND COMMERCE - statutes relating to misleading or deceptive conduct - whether football governing body engaged in trade or commerce - whether "12 teams representation" and "criteria representation" made - whether "criteria representation" misleading or deceptive - whether statement as to future matter - whether statutory injunction would be granted - whether club members to which representation was made suffered damage "by" such conduct - ESTOPPEL - whether applicant member clubs acted to their detriment on basis of "criteria representation" Corporations Act 2001 (Cth), ss.140(1), 232, 233 LEGISLATION CITED : Fair Trading Act 1987, ss.41, 42, 65, 72 Trade Practices Act 1974 (Cth), ss.51A, 52, 80, 87 Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [1999] FCA 1458 Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546 Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 Bratton Seymour Service Co Ltd v Oxborough [1992] BCLC 693 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 Commonwealth v Verwayen (1990) 170 CLR 394 Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 Fraser v NRMA Holdings Ltd (1995) 15 ACSR 590 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599 Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2003] 1 AC 649 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192 CASES CITED : New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 Pioneer Electronics Australia v Edge Technology Pty Ltd [1999] FCA 142 Pratt Contractors Ltd v Transit New Zealand [2005] 2 NZLR 433 Rush v WA Amateur Football League (Inc) [2003] WASC 70 Quancorp Pty Ltd v Macdonald (1999) 32 ACSR 50 Scott v Frank F Scott (London) Ltd [1940] Ch 794 Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 Stanham v The National Trust of Australia (New South Wales) (1989) 15 ACLR 87 Sydney United Football Club Pty Ltd v Soccer NSW Ltd [2005] NSWSC 474 Thomas v H W Thomas Ltd [1984] 1 NZLR 686 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 Wayde v New South Wales Rugby League Ltd (1984) 9 ACLR 349 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. Christie/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 TUESDAY, 13 DECEMBER 2005 5501/05 ST GEORGE SOCCER FOOTBALL ASSOCIATION INCORPORATED & ANOR v SOCCER NSW LIMITED JUDGMENT Background 1 The plaintiffs, St George Soccer Football Association Inc ("St George") and Bonnyrigg White Eagles Sports Club Ltd ("Bonnyrigg"), are soccer football clubs based in different parts of Sydney. The defendant, Soccer NSW Limited ("Soccer NSW"), is the peak body in the State in the administration of soccer football. Its activities include the organisation and co-ordination of football competitions in Sydney. St George and Bonnyrigg have for some time been participants in Soccer NSW's premier league or first division competition. Each was one of sixteen participants in the 2005 competition. 2 As a result of a decision made by the board of Soccer NSW on 12 October 2005, the first division competition commencing in February 2006 is to be a competition among ten clubs rather than sixteen. The decision of 12 October 2005 concerned not only the number of participating clubs but also their identities. St George and Bonnyrigg are not among the clubs chosen to participate. The chosen participants are Bankstown City Lions, Parramatta Eagles, Sydney Olympic, APIA Leichhardt, Sutherland Sharks, Wollongong Wolves, Blacktown City Demons, Manly United, Marconi Stallions and Sydney United. 3 Soccer NSW is a company registered under the Corporations Act 2001 (Cth) and limited by guarantee. St George and Bonnyrigg are both members of the company. Each is itself an incorporated body. Eighteen members of Soccer NSW applied for places in the 2006 competition, as did two other clubs which were not members at the time of lodging their applications (no doubt on the footing that they would become members, given a stipulation in the criteria for admission and in the application form that clubs would be required to adhere to the constitution and rules of Soccer NSW). 4 St George and Bonnyrigg sue Soccer NSW upon various causes of action said by them to be made available by the conduct of Soccer NSW in relation to the decision of 12 October 2005. Each says, in the first place, that there existed a contract between it and Soccer NSW as to the manner in which Soccer NSW would deal with applications for inclusion of clubs in the 2006 competition (including as to the criteria to be applied and the manner of applying them) and that Soccer NSW breached that contract. There is also a claim that the making of the decision and events associated with it entailed conduct of the affairs of Soccer NSW that was contrary to the interests of the members as a whole or oppressive and unfairly prejudicial to and unfairly discriminatory against St George and Bonnyrigg, so as to attract the operation of ss.232 and 233 of the Corporations Act. It is further claimed that, in relation to the subject matter of the decision, Soccer NSW made representations that were misleading or deceptive within the contemplation of s.52 of the Trade Practices Act or s.42 of the Fair Trading Act. There is also an estoppel claim. 5 The relief sought by St George and Bonnyrigg is as follows: "In the premises, the Plaintiffs are entitled to, and claim, the following relief: (a) A declaration that the decision was invalid or oppressive and was not reached in accordance with a fair and reasonable application of the competition criteria and that the Defendant is estopped from giving effect to the decision; (b) A declaration that in making, the decision, the Defendant acted: (i) contrary to the interests of the company as a whole; and/or (ii) in a manner which is oppressive and unfairly prejudicial to and unfairly discriminatory against the Plaintiffs; (iii) in breach of the agreement; and (iv) contrary to the representations; (c) An Order that the decision is void from its beginning and that it be set aside; (d) An order preventing the Defendant from conducting the New Competition as constituted by the decision; (e) Costs; and (f) Such further or other relief as the Court sees fit (including an order for an inquiry into damages and interest). 6 The defendant says, with some justification, that the estoppel claim is defective as a matter of pleading in that the representations on which the alleged estoppel is based are not specifically pleaded and there is no identification of relevant unconscionability, reliance and detriment. I approach the matter on the basis that the estoppel claim is, in a sense, an adjunct to the statutory misconduct claim and is concerned with the same representations, being the "criteria representation" and the "12 teams representation" described at paragraph [27] below. The events leading to the decision 7 In the first half of 2005, Soccer NSW developed plans to re-organise the Sydney first division competition. On 14 June 2005, its chief executive officer, Mr Quarmby, sent a memorandum to all premier league clubs attaching Soccer NSW's Football Committee's Recommendations for Premier League competitions 2005/2006, 2006/2007. The Football Committee was made up of both board members and staff members. 8 On 28 June 2005, there was a meeting of the Premier League Clubs Forum, a body having no separate legal existence and no formal role in the affairs of Soccer NSW, but made up of representatives of the clubs fielding teams in the first division competition. This meeting was convened by Soccer NSW to discuss the recommendations of the Football Committee. There are no minutes of the meeting of 28 June 2005. Accounts of what happened at it differ, but it is agreed that representatives of fourteen clubs attended. An issue which, on the plaintiff's case, arises for determination is whether, at this meeting, the chairman of Soccer NSW, Mr Doumanis, made a representation that the number of clubs participating in the new competition would be twelve. A recurring theme in the proceedings was whether representations made at various times referred to exactly twelve clubs (or teams) or "up to" twelve clubs (or teams). It is not in dispute, I think, that the meeting of 28 June 2005, attended by representatives of fourteen clubs, was evenly divided on the question of the time at which the new competition arrangements should be brought into operation. 9 On 29 June 2005, there was a meeting of the board of directors of Soccer NSW. The board resolved that the existing premier league competition be discontinued forthwith; that clubs 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 successful applicants would be notified by 15 October 2005. Immediately after that meeting, Mr Culina, the Executive Manager, Football Services of Soccer NSW, wrote to the premier leagues club informing them of the decisions of the board. 10 A meeting of the Football Committee took place on 12 July 2005. The minutes of that meeting record a decision "that it will be a 12 team competition" and that there was discussion of criteria. 11 On 29 July 2005, the Football Committee's "Report into the Structure of the New Premier League Competition" was produced. It had been adopted, with a few amendments, at a meeting of the board the previous day. The minutes of the board meeting show that a timetable had been determined, so that relevant documents would be sent to premier league clubs on 1 August; a meeting with those clubs would be held on 8 August; the documents would be placed on the Soccer NSW website on 8 August; and a letter would be sent to other clubs informing them that the documents would be available on the website. The meeting noted that the Football Committee was currently completing a business plan. 12 On 1 August 2005, Mr Quarmby notified the premier league clubs that the board of Soccer NSW had adopted the recommendations of the Football Committee. The clubs were informed that expressions of interest in participating in the new competition were required by 24 August and that, for clubs thus registering interest, documents necessary in connection with applications to participate would be made available and would be open for discussion at a meeting to be held on 8 August. The documents in question were entitled "New Competition Business Plan 2005 – 2008" and "New Competition Application Form 2006". It will be necessary to say more about them in due course. I shall refer to them as "the Business Plan" and "the Application Form". 13 A meeting of club representatives was held on 8 August as planned. Those clubs which had already lodged the necessary form of expression of interest (or did so at the meeting itself) were given a copy of the Business Plan and a copy of the Application Form. Fifteen of the premier league clubs were represented at the meeting. Several representatives of Soccer NSW, including Mr Doumanis and Mr Quarmby, were also in attendance. 14 On 22 August 2005, there was another meeting of the Premier League Clubs Forum. It was attended by representatives of thirteen of the sixteen premier league clubs. No representative of Soccer NSW was present. It was decided at the meeting that there was an urgent need for a meeting with the Soccer NSW board and that the clubs rejected the new competition as it then stood. 15 On 30 August 2005, another meeting of the Premier League Clubs Forum took place. Representatives of fifteen of the sixteen clubs were present, as were Mr Doumanis (the president of Soccer NSW) and two directors of Soccer NSW, Mr Jackson and Mr Ronis. There are in evidence both contemporaneous notes of the meeting taken by Mr Sivris (an official of St George, who acted as minute-taker) and handwritten minutes afterwards produced by Mr Sivris from his contemporaneous notes. A great deal of evidence was given about certain events at this meeting relevant to that part of the plaintiffs' case based on alleged representations by Soccer NSW that twelve clubs would be admitted to the new competition. 16 A meeting of the board of Soccer NSW was held on 31 August 2005. It considered progress of the moves towards a new first division competition. Mr Doumanis says he reported to that meeting certain matters that had arisen at the meeting of the Premier League Clubs Forum on the previous evening. 17 On 9 September 2005, Soccer NSW 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. The criteria were spelled out in the Business Plan. Of those nine clubs, four were ultimately admitted to the new competition (Bankstown City Lions, APIA Leichhardt, Wollongong Wolves and Parramatta Eagles). Five the nine were ultimately unsuccessful (St George, Penrith, Rockdale, Belconnen and Central Coast United). 18 The closing date for applications for inclusion in the new competition was 30 September 2005. Four days earlier, on 26 September, there was a meeting of the Premier League Clubs Forum which was attended by two directors of Soccer NSW, Mr Kelly and Mr Jackson. Bonnyrigg was represented at the meeting, but St George was not. Evidence of Mr Ilijevski of Bonnyrigg referred to a discussion at that meeting about the question of "regions" that had been ventilated at the meeting of 30 August. The minutes of the meeting record: "There has been no reply in regard to the Clubs' concerns and questions asked [at the 30 August meeting]. Mr Ross Kelly informed the meeting that the criteria still stands as written in the Application form. He is not aware that the President, Mr Tom Doumanis at the above meeting, changed certain items." 19 Following 30 September, when applications closed (and some twenty had been received), an assessment program began. This was undertaken by an Assessment Panel within Soccer NSW. 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 NSW on 4 October. On 10 October, Mr Quarmby sent an email to members of the Football Committee attaching copies of various documents relevant to the assessment of applications. 20 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" (1 point), "fair" (3 points) and "good" (5 points). 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 points 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. 21 The next day, 11 October 2005, the Assessment Panel worked on re-assessing 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 NSW that took place the following evening, 12 October. 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. 22 Notifications to applicant clubs were made on 14 October. On the same day, there was a media release by Soccer NSW announcing the ten clubs that had been selected to participate in the new competition. The central issues and the court's approach to them 23 Two broad areas of factual inquiry require attention. The first relates to the conduct of Soccer NSW in the assessment of applications received and the way in which applicant clubs were compared with one another and evaluated against the criteria published in the Business Plan and the Application Form. The second concerns words and actions said to amount to representations giving rise to an estoppel or a contravention of s.52 of the Trade Practices Act (or s.42 of the Fair Trading Act) or both. 24 Events related to the assessment of applications and selection among applicants will have significance, for present purposes, only to the extent that a legal basis for the claims in which they play a part is seen to exist. The claims in question are the contract claims and the Corporations Act claims. For the moment, it is sufficient to refer briefly to the relevant events (or, at least, the plaintiffs' contentions as to the relevant events) as a prelude to a consideration of the legal basis for the claims founded on them. 25 The Business Plan and the Application Form set out a number of criteria with which applicant clubs had to comply. St George and Bonnyrigg have, for the purposes of these proceedings, undertaken a thorough investigation of the processes by which Soccer NSW assessed each applicant against the published criteria. They say the court should reach, at a factual level, a number of conclusions about the ways in which particular applicant clubs measured up to the several criteria. One such conclusion for which the plaintiffs contend is that seven clubs admitted to the competition (APIA Leichhardt, Parramatta Eagles, Wollongong Wolves, Sutherland Sharks, Sydney Olympic, Bankstown City Lions and Manly United) did not comply with the "ground criteria" (relating to the home ground or stadium and its facilities), whereas St George did. Another is that that Bonnyrigg which, in the final assessment, was awarded only one point ("poor") under the "coaching and development criteria", was, in that respect, as good as or better than a number of teams awarded three points ("fair") or five points ("good"). A third allegation is that Soccer NSW departed from the published criteria in carrying out its assessment, in that some members, but not all, were informed that the ground criteria would be applied not by reference to stadium condition at the time applications were considered but on the basis that improvements to be completed by 31 December 2005 would be taken into account. 26 Factual findings on these matters would, on the plaintiffs' case, lead to a conclusion that Soccer NSW had acted in an unfair and discriminatory way in carrying out the assessment and making the decision of 12 October 2005; and that there had therefore been a breach of contract by Soccer NSW as against St George and Bonnyrigg, as well as conduct of the kind relevant to the statutory cause of action under ss.232 and 233 of the Corporations Act. 27 The second area of factual inquiry relates to the estoppel claim and the claim based on statutory misconduct under s.52 of the Trade Practices Act or s.42 of the Fair Trading Act. The question there is whether Soccer NSW made to St George and Bonnyrigg two particular representations called in the amended statement of claim "the criteria representation" and "the 12 teams representation". According to the amended statement of claim, those representations were made during the period 8 August 2005 to 30 September 2005 by various representatives of Soccer NSW to St George and Bonnyrigg so as to be "continuing representations". The terms of the representations, as pleaded, are, respectively, "that applicants were required to meet and comply with the criteria in the New Competition Business Plan" and "that the New Competition would comprise 12 teams". 28 The desirable course in approaching the plaintiffs' claims is to begin by examining the availability of the legal bases on which the claims in contract and under ss.232 and 233 of the Corporations Act are advanced. It will then be possible to address the question of the factual inquiry that needs to be made in relation to those claims. Thereafter, it will be appropriate to examine factual matters relevant to the statutory and estoppel claims relevant to the "criteria representation" and the "12 teams representation". The asserted bases for the contract claims 29 The contract-based claims of St George and Bonnyrigg are pleaded as follows: "10. By inviting applications for inclusion in the New Competition, the Defendant agreed to consider and determine any such applications in accordance with the New Competition Business Plan and the competition criteria (' the Agreement '). 11. The Agreement contained inter alia the following terms: (a) the New Competition would comprise no more than 12 teams, with district/regional representation; (b) nine identified district/regions were to be represented, with six of those districts/regions (namely the district/regions of North, East, Far West, South West, Central West and Far South) each being eligible for 2 positions in the New Competition and three of those districts/regions possibly being represented by 1 team; (c) within the districts/regions of North, East, Far West, South West, Central West and Far South up to 2 clubs may be eligible for admission; (d) the method of selecting clubs for the New Competition would include the following steps: (i) applicants would be required to nominate the district/region they sought to represent and must base their operations within that district/region; (ii) each application would be considered against other applications from within that district/region; (iii) within each district/region, each applicant's business plan would firstly be assessed and, having considered the business plan, the conformity of each applicant to meet the competition criteria would be assessed; (iv) where there were only 1 or 2 applicants within a district/region, the Board of Directors of the Defendant would only approve such applications where the applicants' Business Plans and their capacity to meet the necessary competition criteria were deemed to be in order; (v) if an applicant in excess of the proposed eligible number of clubs within a district/region provided a compelling submission that warranted inclusion in the New Competition, the Board of Directors of the Defendant was empowered to include that club; and (vi) the best applications would be granted admission into the New Competition up to a maximum of 12 clubs; (e) the system of selecting clubs was designed to balance the requirement for district/regional representation and the responsibility to ensure that the best applications were successful; (f) applicants were required to meet and comply with the competition criteria including the Ground Criteria (which were set out In Appendix C to the New Competition Business Plan) and would not be granted exemptions or concessions; (g) clubs would be informed prior to applications being made whether their current playing venue remained eligible for use in the New Competition and the Defendant would identify suitable alternative playing venues for clubs whose existing venues did not meet the ground criteria and would assist clubs in ground leasing negotiations; (h) applicant clubs' compliance with the Defendant's rules and regulations relating to matters of security and crowd behaviour would be considered in determining admittance to the New Competition. 12. The Agreement contained an implied term that the applications would be considered and assessed by the Defendant in good faith and in particular that: (a) all applications for the New Competition would be considered and assessed in a consistent, fair and reasonable manner; (b) in assessing the various applications, the Defendant would: (i) fairly and consistently apply the competition criteria; (ii) not select clubs which did not meet all relevant criteria, without exception; and (iii) take into account all relevant considerations and would not take into account irrelevant considerations. 13. The Agreement contained an implied term that the clubs which had submitted the best applications would be included in the New Competition." 30 The foundation of the contract claims brought by the plaintiffs are described in the written outline of submissions furnished to the court on their behalf by Mr Biscoe QC and Mr Philips as follows: "The plaintiffs sue on the following causes of action:- (a) a 'process' contract: Hughes Aircraft v Air Services Australia (1997) 76 FCR 151 (Finn J), Pratt Contractors v Transit New Zealand [2005] 2 NZLR 433 (PC). (b) a contract between the plaintiffs as members of an incorporated body, SNSW Ltd: s.140 Corporations Act; McClelland v Burning Palms Surf Lifesaving Club (2002) 191 ALR 759 at 786-788 (paras 103-109); Smith v South Australian Hockey Association Inc (1988) 48 SASR 263 at 264-5; Cameron v Hogan (1934) 51 CLR 358, Rush v WA Amateur Football Club Inc [2001] WASC 154 at para 54, [2003] WASC 70 at [48]." 31 Disparate sources of contractual obligation are thus asserted. In basing their claims on a "process contract", the plaintiffs are saying that events surrounding and following the request by Soccer NSW for applications from clubs desiring to be considered for the new competition and responses to the request gave rise to a contract – or, more precisely, I think, to several contracts, in that a separate contract arose between Soccer NSW and each club lodging an application. It is submitted in relation to the contracts thus said to have been made by Soccer NSW with St George and Bonnyrigg (and would no doubt also be said in relation to the equivalent contract with each other applicant) that the contract contained, expressly or by implication, promises by Soccer NSW, first, to assess applicants and applications strictly in accordance with the criteria Soccer NSW had laid down in the Business Plan and the Application Form and, second, to carry out the assessment of applications fairly and in good faith. 32 Both a finding of the existence of such a contract or series of contracts and a finding of terms to the effect I have outlined are said to be warranted by principles discussed in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Pratt Contractors Ltd v Transit New Zealand [2005] 2 NZLR 433 (PC, 2003). Each of those cases involved an invitation to tender for the supply of services in a commercial setting, where the outcome would be that one tenderer only was successful, or the invitor decided to accept no tender. In the former case, Finn J said, at p.42, that the "process contract" between the invitor and a tenderer contained an implied term of good faith and fair dealing but: "does not as such impose on [the invitor] 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." 33 In the Pratt Contractors case, Lord Hoffmann, speaking for the Privy Council, described, at paragraph [48], the standard of conduct required of the invitor (the TET) by the implied term: "In Their Lordships' opinion, the duty of good faith and fair dealing as applied to that particular function required that the evaluation ought to express the views honestly held by the members of the TET. The duty to act fairly meant that all the tenderers had to be treated equally. One tenderer could not be given a higher mark than another if their attributes were the same. But Transit was not obliged to give tenderers the same mark if it honestly thought that their attributes were different. Nor did the duty of fairness mean that Transit were obliged to appoint people who came to the task without any views about the tenderers, whether favourable or adverse. It would have been impossible to have a TET competent to perform its function unless it consisted of people with enough experience to have already formed opinions about the merits and demerits of roading contractors. The obligation of good faith and fair dealing also did not mean that the TET had to act judicially. It did not have to accord Mr Pratt a hearing or enter into debate with him about the rights and wrongs of, for example, the Pipiriki contract. It would no doubt have been bad faith for a member of the TET to take steps to avoid receiving information because he strongly suspected that it might show that his opinion on some point was wrong. But that is all." 34 Their Lordships also quoted with apparent approval the statement of Finn J (at paragraph [32] above). 35 The other contract (or contractual matrix) relied upon by the plaintiffs is that created by s.140(1) of the Corporations Act by reference to the constitution of Soccer NSW: "A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract: (a) between the company and each member; and (b) between the company and each director and company secretary; and (c) between a member and each other member; under which each person agrees to observe and perform the constitution and rules so far as they apply to that person." (It was not suggested that any replaceable rules are relevant in this case, with the result that the reference to replaceable rules in s.140(1) may be ignored.) Assessment of the contract claims 36 The constitution of Soccer NSW sets out, in article 65, the objects for which the company has been established. The objects are expressed also to be powers. It is sufficient to quote two of them: "(b) To foster and control the game of football including whatever competitions are deemed in the interests of the Company through the football state of New South Wales and/or inter state or territories and generally to implement such action and procedures as may be considered conducive to the company's objects." "(h) 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." 37 It is thus clear that the process upon which Soccer NSW embarked in the first half of 2005 and which culminated on 12 October, when ten of the approximately twenty applicant clubs were chosen for the new competition, was a process undertaken in pursuance of one of the expressed objects of the company and in exercise of one of its expressed powers. 38 The constitution makes provision for several classes of members. One such class is "Club members". Article 3(a) of the constitution provides: "Club members: Shall be deemed to include Club members admitted in any of the Divisions or competitions referred to in Schedule 'A' together with any other members who from time to time are admitted to such Divisions or competitions." 39 Under article 4(a), only incorporated bodies are eligible to be Club members. In addition, each Club member must have in its own constitution a provision saying that the club "shall at all times be bound by the Constitution, Rules and Regulations of Soccer NSW Limited" and "shall be bound by the lawful decisions of the Board of Soccer NSW Limited and shall do all things reasonably necessary to implement and enforce such decisions". 40 Article 44 of the constitution is in these terms: "The business of the Company shall be managed by the Board of Directors who may exercise all such powers of the company as are permitted from time to time by part 2(d) division 4 of the Act or are not by the Act or by this Constitution required to be exercised by the Company in General Meeting." 41 Provisions with respect to voting at general meetings of members are contained in articles 21 to 26 and schedule A to the constitution. It is sufficient to record that specified proportions of total voting rights are vested in groups of Club members according to the division or competition to which they are "admitted". Thus, for example, the Club members "admitted" in the first division are, between them, entitled to a particular percentage of total voting rights; the Club members "admitted" in the second division are together entitled to another percentage of total voting rights; and so forth. In this way, "admission" to a division or competition is something that goes to definition of member rights. 42 The structure and content of the constitution are such that the matter of determining "which Members shall be entitled to enter teams in the football competitions conducted by the Company", as well as the matter of "the terms and conditions upon which and the manner in which Members shall make … such applications", are placed firmly within the province of the board of directors. Within that framework, members' rights, entitlements, obligations and duties with respect to the making of applications to participate in competitions and actual participation are clearly recognised as something to be determined by the board – subject, of course, to any particular provision which, under or through the constitution, has a bearing upon the matter. And the results of such determinations will, in cases of admission to divisions or competitions recognised by the provisions of the constitution as to members' voting rights, play a part in defining rights derived from membership. 43 Each of the plaintiffs is a "Club member" of Soccer NSW. In these circumstances, I am not satisfied that there is a basis on which the "process contracts" for which the plaintiffs contend can be seen to have arisen between them and Soccer NSW. It is, of course, possible for membership rights under a company constitution to co-exist with separate contractual rights between member and company in relation to the form of activity the company exists to pursue. Co-operative marketing companies and mutual insurance companies provide good examples. In relation to the latter, the decision of the High Court in Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 is instructive. In the present case, however, the process under which clubs, being members of Soccer NSW, put themselves forward for selection as participants in the competition and the board of directors made a selection did not involve any extraneous dealing or transaction between an individual Club member and the company. It was a process expressly envisaged by the constitution as an object of the company – an object, moreover, which was recognised as involving action by the board in relation to members so as to affect the status and rights of those members within the membership community existing under the constitution. The process contemplated by the constitution is one under which there is a playing out of that constitution as it affects members, the performance of functions under that constitution as it affects members and the exercise of powers under that constitution as it affects members, all in a way producing consequences in terms of member rights under that constitution. No separate or parallel set of contractual rights and obligations came into being outside the constitution when Soccer NSW, through its board, set out to restructure the first division competition and to select the Club members that were to field teams in it. 44 It follows that, to the extent that a contractual claim may be sustainable at all, it may be advanced only by reference to one of the statutory contracts created by s.140(1) of the Corporations Act. Within that context, the only potentially relevant contract is that referred to in s.140(1)(a), that is, the contract "between the company and each member". The claim in contract must accordingly be addressed as a claim by St George against Soccer NSW alleging breach by Soccer NSW of the contract between St George and Soccer NSW that is the constitution of Soccer NSW; and a corresponding claim by Bonnyrigg against Soccer NSW in relation to the contract between Bonnyrigg and Soccer NSW that is the constitution of Soccer NSW. 45 The constitution contains no express provision concerning standards of conduct to be observed or things actually to be done in the performance of the object of determining terms and conditions for admission to competitions and the members entitled to enter teams in competitions. Claims based on the relevant s.140(1)(a) contract would therefore be productive for those asserting them only if the constitution were found to contain implied terms of the kind said to be included by implication in a "process contract". 46 The process of implication of terms is, in theory, available in relation to the constitution of a company. I say "in theory" because there is no abstract reason why the form of contract recognised by s.140 should be different, in that respect, from any other. And there are cases in which implied terms have been found. In Quancorp Pty Ltd v Macdonald (1999) 32 ACSR 50, for example, it was held that a stock exchange listed company was under an implied contractual obligation to its shareholders to observe the listing rules of the stock exchange. The only possibly relevant contract there was the s.140(1)(a) contract. The basis for the conclusion as to an implied term was not stated by the Full Court of the Supreme Court of Western Australia and may be considered elusive: see (1999) 73 ALJ 726. 47 Courts are, however, generally reluctant to find an implied term in a company constitution. In Stanham v The National Trust of Australia (New South Wales) (1989) 15 ACLR 87, Young J gave three reasons for this reluctance. First, it is more difficult to imply a term where parties have purportedly spelt out their rights and obligations in an extensive set of articles. Second, it is customary in corporations to set great store by the actual wording of each of the articles. Third, there is always power to amend the constitution by special resolution, so that it is always possible for any missing elements necessary for efficacy to be supplied with relative ease. The matter of implication of terms in company constitutions was also addressed by members of the English Court of Appeal in Bratton Seymour Service Co Ltd v Oxborough [1992] BCLC 693. Dillon LJ expressed the opinion (at p.697) that it would be wholly inconsistent with Scott v Frank F Scott (London) Ltd [1940] Ch 794 to imply into a company constitution a term said to be warranted by surrounding circumstances not apparent from the terms of the constitution itself. Steyn LJ (at p.698) accepted that a term might be implied from the language (what he called "a purely constructional implication") but rejected the possibility of implication of a term from extrinsic circumstances. Sir Christopher Slade said (at pp.699-700): "No authority has been cited to us which begins to support the proposition that extrinsic evidence is admissible for that wide purpose in construing the statutory contract created by the articles of association of a company. In my judgment, the admission of such evidence for such purpose would be quite contrary to the principles governing this type of statutory contract. If it were to be admissible, this would place the potential shareholders in a limited company, who wished to ascertain their potential obligations to the company, in an intolerable position. They are in my judgment entitled to rely on the meaning of the language of the memorandum and articles of association, as such meaning appears from the language used." 48 Leaving to one side the process of implication of terms by statute, an implied term may be found in one of two ways. A term may be implied because of a need to give business efficacy to the contract. Alternatively, it may be implied from the nature of the contract or the obligations it creates. In the "process contract" context, the implication of a term of good faith performance and fair dealing is of the second kind. Whether such an implied term is an incident of commercial contracts generally is a question that does not arise in this case: see, for example Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 and, more recently, Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228. 49 There is no need, as a matter of business efficacy, to imply a term of good faith performance and fair dealing into the contract between Soccer NSW and each of its members recognised in s.140(1)(a) of the Corporations Act; nor is such a contract one that, of its nature, should be found to be subject to such an implied term. This is because the statutory and general law context in which company constitutions operate and are to be construed in relation to decision making entrusted to directors provides a comprehensive – indeed, exhaustive – set of rules dealing with the relevant subject matter in a way that leaves no room for any implied term. 50 The directors of Soccer NSW, in exercising the powers reposed in them with respect to selection of clubs to compete in the new competition, were performing a function entrusted to them by the corporate constitution. They were therefore bound to proceed in the way dictated by the duties to which they are subject by reason of both statutory provisions and the general law. The duties of each director are principally duties to act in good faith, to act in the best interests of the company, to avoid conflicts between the interests of the director and his associates, to act honestly, to exercise care and diligence and to refrain from using his position as a director to gain an advantage for himself or any other person. 51 These duties are owed to the company. Corresponding or parallel duties (being duties of a fiduciary kind) may be owed by a director to an individual member only in exceptional circumstances where a special relationship has, in the particular fact situation, come into existence between the director and the shareholder. Brunninghausen v Glavanics (1999) 46 NSWLR 538 provides an example of such a special relationship. There was, in that case, a relationship of ascendancy and reliance between the relevant director and the relevant member which was a source of vulnerability giving rise to a fiduciary duty on the director's part towards the member on the facts of the case. That duty was distinct from the duty owed by the director to the company. No such relationship of ascendancy and reliance is pleaded in the present case; nor is any such fiduciary duty towards any individual member. Soccer NSW has interests distinct from those of its member clubs and there is no reason to think that, within the boundaries of the constitution, it is not entitled to pursue them; also that each club is free to pursue its own interests. In neither case, is there any expectation that self-interest will be subordinated. The position here, in this respect, is the same as in News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at p.551-2. Conclusion on the contract claims 52 The plaintiffs contractual claims must, in my judgment, be determined solely by reference to the express terms of the s.140(1)(a) contract. A breach of contract could be found only if a right conferred by those express terms on the particular plaintiff member (as distinct from the form of right that may be said to be the concomitant of any duty owed by directors to the company, rather than any individual member) has been invaded. St George and Bonnyrigg do not point to any express term of the constitution as the source of any such right relevant to their contractual claims. Those claims therefore fail. 53 I should add, in conclusion and by way of explanation, that the circumstances of this case differ fundamentally from those considered by McDougall J in Sydney United Football Club Pty Ltd v Soccer NSW Ltd [2005] NSWSC 474. That case concerned the proceedings of a panel of inquiry established by Soccer NSW to investigate what his Honour described as "disgraceful" conduct at a premier league match in its premier league competition. It was accepted by the parties to that case that principles of natural justice applied in such a context: see, for example, Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242. The present case, by contrast, does not involve disciplinary or analogous proceedings. Its subject matter is, as I have said, the furtherance of a specific object of the company by the corporate processes provided for in the constitution. A number of the cases cited on behalf of the plaintiffs, including Smith v South Australian Hockey Association Inc (1988) 48 SASR 263, Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, Modahl v British Athletic Federation Ltd [2002] 1 WLR 1192 and Rush v WA Amateur Football League (Inc) [2003] WASC 70 are distinguishable on the same basis as the Sydney United case, that is, as involving disciplinary tribunals and questions of exclusion or expulsion. 54 Because of my conclusion on the bases on which the contract claims are advanced, it is unnecessary, in that connection, to go further into the factual aspects of the application assessment and comparison processes to which the plaintiffs take exception. The plaintiffs' Corporations Act claims 55 Because the selection of members of Soccer NSW to field teams in the new first division competition was a corporate decision made by the board of directors in furtherance of a specific object in the company's constitution, St George and Bonnyrigg, as members of the company, assert statutory rights given to members to seek relief and redress in relation to matters adversely affecting them. They contend that, by reason of the board's decision of 12 October 2005, Soccer NSW acted in a manner that was contrary to the interests of the members as a whole or oppressive and unfairly prejudicial to and unfairly discriminatory against St George and Bonnyrigg. This aspect of their claims is based on ss.232 and 233 of the Corporations Act, described by L S Sealy ("The Enforcement of Partnership Agreements, Articles of Association and Shareholder Agreements" in Finn "Equity and Commercial Relationships", 1987) as providing for members a remedy supplemental to the limited remedies that may be available for breach of the s.140(1) contract. Sections 232 and 233 are in the following terms: "232 Grounds for Court order The Court may make an order under section 233 if: (a) the conduct of a company's affairs; or (b) an actual or proposed act or omission by or on behalf of a company; or (c) a resolution, or a proposed resolution, of members or a class of members of a company; is either: (d) contrary to the interests of the members as a whole; or (e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity. For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company. Note: For affairs , see section 53. 233 Orders the Court can make (1) The Court can make any order under this section that it considers appropriate in relation to the company, including an order: (a) that the company be wound up; (b) that the company's existing constitution be modified or repealed; (c) regulating the conduct of the company's affairs in the future; (d) for the purchase of any shares by any member or person to whom a share in the company has been transmitted by will or by operation of law; (e) for the purchase of shares with an appropriate reduction of the company's share capital; (f) for the company to institute, prosecute, defend or discontinue specified proceedings; (g) authorising a member, or a person to whom a share in the company has been transmitted by will or by operation of law, to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the company; (h) appointing a receiver or a receiver and manager of any or all of the company's property; (i) restraining a person from engaging in specified conduct or from doing a specified act; (j) requiring a person to do a specified act. Order that the company be wound up (2) If an order that a company be wound up is made under this section, the provisions of this Act relating to the winding up of companies apply: (a) as if the order were made under section 461; and (b) with such changes as are necessary. Order altering constitution (3) If an order made under this section repeals or modifies a company's constitution, or requires the company to adopt a constitution, the company does not have the power under section 136 to change or repeal the constitution if that change or repeal would be inconsistent with the provisions of the order, unless: (a) the order states that the company does have the power to make such a change or repeal; or (b) the company first obtains the leave of the Court." 56 In approaching this part of the plaintiffs' case, I must go immediately to the course of litigation that culminated in the decision in Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459. The High Court there dismissed an appeal from the New South Wales Court of Appeal (New South Wales Rugby League Ltd v Wayde (1985) 1 NSWLR 86) which had allowed an appeal against a decision of Hodgson J that there should be an order under the then equivalent of s.233 restraining the New South Wales Rugby League from acting upon and implementing a decision to reduce the number of teams in its first grade competition and to exclude the Western Suburbs club (Wayde v New South Wales Rugby League Ltd (1984) 9 ACLR 349). There, as here, the power to select member clubs to participate in competitions was vested in the board of directors. That the proceedings were framed by reference to the equivalents of ss.232 and 233 represented recognition of the reality in company law that directors' duties are not owed to individual members but to the company itself. 57 In Wayde, as in the present case, the complainant club was a member of the company that was the governing body for the sport. There, as here, the constitution of the company set out objects and powers which included the fostering and control of the relevant sport in New South Wales and determination of which member clubs should be entitled to enter teams in the relevant competition. The provisions of the constitution in those respects are strikingly similar to those applying in this case (see paragraphs [36] to [40] above). There was also a provision in generally the same terms as article 44 of the constitution of Soccer NSW (see paragraph [40] above). In Wayde, it was conceded by the excluded member that the relevant decision of the board had been made in good faith, also that there had been no failure to take relevant considerations into account and no attention paid to irrelevant considerations. The plaintiffs in the case before me make no corresponding concessions. The contention of the excluded club in Wayde (at p.467) was that: "the exclusion of a viable club, such exclusion not being required to render the competition workable, would promote 'purposes foreign to the company's operations, affairs and organizations', adopting the meaning ascribed to the phrase 'benefit of the company as a whole' by Dixon J in Peters' American Delicacy Co Ltd v Heath (1939) 61 CLR 457, at p.512." 58 The majority (Mason ACJ, Wilson J, Deane J and Dawson J) said (at pp.467-8): "The answer to this contention is that no amount of sympathy for Wests can obscure the fact that the League was expressly constituted to promote the best interests of the sport and empowered to determine which clubs should be entitled to participate in competitions conducted by it. It was upon this basis that the clubs, including Wests, chose to incorporate. Indeed, the 1984 correspondence between Wests and the League which is in evidence plainly shows that Wests itself fully appreciated that it had no secure right to participate in the premiership competition. In truth, the Board was confronted with a conflict of immediate interest between Wests on the one hand and the League as a whole on the other and the exercise of the power conferred by Art 76 must necessarily be prejudicial to one or the other. Given the special expertise and experience of the Board, the bona fide and proper exercise of the power in pursuit of the purpose for which it was conferred and the caution which a court must exercise in determining an application under s 320 of the Code in order to avoid an unwarranted assumption of the responsibility for management of the company, the appellants faced a difficult task in seeking to prove that the decisions in question were unfairly prejudicial to Wests and therefore not in the overall interests of the members as a whole. It has not been shown that those decisions of the Board were such that no Board acting reasonably could have made them. The effect of those decisions on Wests was harsh indeed. It has not, however, been shown that they were oppressive or unfairly prejudicial or discriminatory or that their effect was such as to warrant the conclusion that the affairs of the League were or are being conducted in a manner that was or is oppressive or unfairly prejudicial. That being so, the appellants have failed to make good their second submission." 59 The relevant question was therefore identified as being whether the decisions of the board as to the composition of the competition "were such that no Board acting reasonably could have made them". In addressing that question, a court must bear in mind the warning sounded by the Court of Appeal (Street CJ, Kirby P and Hope JA) in Wayde ((1985) 1 NSWLR 86 at p.102): "Courts may only interfere in the directors' decisions, relevantly, where oppression or unfair prejudice is shown. Whilst it is true that the Code should be given a beneficial construction and not unduly narrowed by judicial decisions, the terms of s 320 must not lead courts into assuming the management of corporations, substituting their decisions and assessments for those of directors, who can be expected to have much greater knowledge and more time and expertise at their disposal to evaluate the best interests of the members of the corporation as a whole." 60 The Court of Appeal then quoted with approval a passage from the judgment of Sir Thaddeus McCarthy in Thomas v H W Thomas Ltd [1984] 1 NZLR 686 (at p.697): "[T]he powers given by s 209 are ones which in my view should not be lightly exercised, especially so when a lack of probity or want of good faith is not established. These powers can invade the traditional rights of the shareholders to determine the management of their company according to their shareholding, and while few would deny the necessity for such provisions as those of s 209 in the interests of minorities, the danger of allowing minority interests to inflict serious damage to a company's structure can be quite real." 61 I do not read anything in the majority judgment in the High Court's decision as calling into question these observations by the Court of Appeal. The fifth member of the High Court, Brennan J, delivered a concurring judgment in the course of which he said that the operation of what is now s.232 may be attracted to a decision of directors "which is made in good faith for a purpose within the directors' power but which reasonable directors would think to be unfair". Brennan J continued (at pp.472-3): "The test of unfairness is objective and it is necessary, though difficult, to postulate a standard of reasonable directors possessed of any special skill, knowledge or acumen possessed by the directors. The test assumes (whether it be the fact or not) that reasonable directors weigh the furthering of the corporate object against the disadvantage, disability or burden which their decision will impose, and address their minds to the question whether a proposed decision is unfair. The court must determine whether reasonable directors, possessing any special skill, knowledge or acumen possessed by the directors and having in mind the importance of furthering the corporate object on the one hand and the disadvantage, disability or burden which their decision will impose on a member on the other, would have decided that it was unfair to make that decision." 62 The plaintiffs emphasise in submissions that, in Wayde, it was conceded that the directors had acted in good faith and by reference to relevant considerations. There are no such concessions in the present case. Indeed, it is part of the plaintiffs' pleaded case that: "… the Defendant by its board of directors, representatives and football committee failed to act in good faith and reasonably in respectively making the decision [that is, the decision fixing the number of participating clubs at 10 and selecting those 10], assessing and supervising applications for admission into the New Competition and making a recommendation to the board." 63 The particulars to this paragraph of the amended statement of claim refer to the alleged shortcomings summarised at paragraph [31] above. It is important to note, however, that the paragraph refers, in terms, to the claims in contract and to the postulated contractual obligation of good faith. The concept of good faith contractual performance is to be distinguished from the duty of good faith to which directors are subject in the performance of their functions and the exercise of their powers. It is, of course, to the latter obligation of good faith that the comments on the subject of good faith were directed in the judgments in Wayde, both in the High Court and in the Court of Appeal. 64 The duty of good faith to which directors are subject and which was the subject of the concession in Wayde is both a fiduciary duty incidental to the office of director of a company and a statutory duty imposed by s.181 of the Corporations Act. It is a duty with respect to the exercise of directors' powers and, of course, a duty owed to the company. 65 The duty of good faith has existed in explicit statutory form only since 13 March 2000 when the Corporate Law Economic Reform Program Act 1999 (Cth) commenced. Section 181(1) now requires directors to exercise their powers and discharge their duties in good faith in the best interests of the corporation. It has been suggested that the statutory requirement of "good faith" will be found not to be satisfied where there is fraud, dishonesty, malice, an intentional breach of duty, recklessness or an improper purpose or where a director acts honestly but fails to make a real or genuine attempt to discharge his or her duty: E Kyrou, "Directors' Duties, Defences, Indemnities, Access to Board papers and D&O Insurance Post CLERPA", (2000) 18 C&SLJ 555 at pp.558-9. This analysis involves definition by exception: if all the negative elements are lacking, the positive requirement is satisfied. This approach has been taken to the definition of "good faith" in other contexts: see, for example, the observations of Lord Scott of Foscote in Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [2003] 1 AC 649. As far as the "good faith" aspect of directors' fiduciary duties is concerned, a definition employing both negative and positive elements is to be found in a description by Isaacs J in Australian Metropolitan Life Assurance Co Ltd v Ure (1923) 33 CLR 199 (at p.217): "A regulation such as art. 21 entrusts to the directors a corporate power, which is exercisable by them as agents of the Company. But, although it is a power which necessarily involves some discretion, it must be exercised, as all such powers must be, bona fide--that is, for the purpose for which it was conferred , not arbitrarily or at the absolute will of the directors, but honestly in the interest of the shareholders as a whole." 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 The matters that were the subject of concessions in Wayde may thus be seen not to arise here. It follows that, from the perspective of ss.232 and 233 of the Corporations Act, the question to be addressed is whether the decisions of 12 October 2005 was, in the words of the majority in the High Court, "such that no Board acting reasonably could have made them". The fact that the effect upon one or more disappointed applicant members may be "harsh" is not sufficient to cause the decision actually made to be an unreasonable or irrational decision of the kind contemplated. The effect of the decisions made by the board of Soccer NSW on 12 October 2005 were unfavourable from the point of view of St George, Bonnyrigg and the other applicant clubs which were not admitted to the new first division competition. The result for them was that they would be able to field teams in 2006 only in the second division and lower competitions. But, as I have said, that, even if judged to have a "harsh" effect, does not mean that the decisions were such that no reasonable board could have made them. The several factors that lead to the conclusion that there was no lack of good faith also mean, in my judgment, that the "no Board acting reasonably" quality does not attach to the board's decisions of 12 October. 68 The claims based on ss.232 and 233 of the Corporations Act therefore fail. The representations relevant to the estoppel and deceptive conduct claims 69 In seeking to rely on estoppel and s.52 of the Trade Practices Act (or s.42 of the Fair Trading Act), St George and Bonnyrigg say, in paragraph 14 of the amended statement of claim: "During the period between 8 August and 30 September 2005, various representatives of the Defendant represented to the First and Second Plaintiffs that the New Competition would comprise 12 teams (' the 12 teams representation '). PARTICULARS (a) Conversations between Ross Gardner, President of the First Plaintiff and Tom Doumanis, President of the Defendant. (b) Conversation between Ross Gardner and Michael Sivris of the First Plaintiff and Tom Doumanis and Michael Quarmby, Chief Executive Officer of the Defendant on 30 August 2005. (c) The Plaintiffs repeat paragraph 7 above. (d) The representation was by its nature, a continuing representation." 70 This is followed by paragraph 15: "On 30 August 2005, representatives from 15 of the 16 Premier League clubs (including both of the Plaintiffs) and three directors of the Defendant (including the President, Tom Doumanis) attended a meeting convened by the Defendant during which the clubs presented their concerns with respect to the New Competition to the directors of the Defendant. During this meeting, the Defendant through Mr Doumanis represented that: (a) the New Competition would kick off in 2006 with the best 12 teams; and (b) Clubs were to ignore the allocation of member associations within districts/regions set out on page 10 of the application form for the New Competition, as this allocation would be redefined." 71 It is then pleaded in paragraph 16 that, in reliance on the representations in paragraphs 14 and 15, St George and Bonnyrigg prepared and submitted applications for admission to the new competition. 72 Paragraph 14 of the amended statement of claim alleges that the "12 teams representation" was made during the period 8 August 2005 to 30 September 2005. Somewhat curiously, the particulars to paragraph 14 then refer to events that happened before 8 August 2005. They do so by referring back to paragraph 7 which is in these terms: "On or about 28 June 2005, representatives from 14 of the 16 Premier League clubs (including both the Plaintiffs) attended a meeting convened by the Defendant at which meeting a resolution was put seeking support for the introduction of a New Competition comprising 12 or 14 clubs to start in January 2006. As the vote of the clubs was tied, the President of the Defendant declared that the New Competition would comprise twelve clubs starting in January 2006." 73 The claim based on the "criteria representation" is pleaded in paragraphs 30 and 31 of the amended statement of claim: "30. Further or in the alternative, the Defendant represented to the Plaintiffs and to all applicants for admission to the New Competition that applicants were required to meet and comply with the criteria in the New Competition Business Plan (' the criteria representation '). Particulars The criteria representation was express, written and was made in the New Competition Business Plan. The representation was by its nature a continuing representation. 31. Contrary to the criteria representation, applicants for admission to the New Competition were not required to meet and comply with all aspects of the New Competition criteria. Particulars The Plaintiffs repeat the particulars to paragraph 20." 74 The "criteria representation" is linked wholly to the content of the Business Plan. I shall refer to the relevant parts of it presently. As far as the "12 teams representation" is concerned, I propose to consider separately the evidence relevant to each of the significant occasions involved in the plaintiffs' allegations. The meeting of 28 June 2005 75 St George and Bonnyrigg accept that the meeting of 28 June 2005 and statements at it are less significant than later events in this part of their case. 76 There are no minutes of the 28 June meeting. Mr Gardner and Mr Sivris of St George and Mr Ilijevski of Bonnyrigg were all present at the meeting. Each gave evidence that Mr Doumanis, chairman of Soccer NSW, said after the taking of a vote (necessarily, non-binding, in view of the nature of the meeting) words to the effect: "Okay, it will be a twelve team competition starting in January." 77 Mr Quarmby, the chief executive of Soccer NSW, said in evidence that Mr Doumanis said these words, but with "up to" inserted before "twelve". Mr Doumanis himself gave evidence that he could not recall saying after the vote that the competition would be a twelve team competition and thought that he may have spoken of a competition of "up to" twelve teams. Mr Culina of Soccer NSW accepted that Mr Doumanis had said words to the effect attributed to him by the plaintiffs' witnesses. 78 Mr Kelly, a director of Soccer NSW, could not recall Mr Doumanis saying that the new competition would be a twelve team competition. Mr Jackson, another director, said that the words "twelve teams" and "up to twelve teams" were used by various people. He accepted that Mr Doumanis may have referred to a "twelve teams" competition, although also using the phrase "up to twelve teams", of which "twelve teams" should have been recognised as a shorthand version. 79 Although there were no minutes, there is some contemporary documentary evidence of proceedings. It consists of a copy of a series of overhead slides shown at the meeting. The first slide, headed "Concept" showed: " · Up to a 12 team competition · Home and away basis · 22 Rounds · Top 5 Final Series." Events after 28 June 2005 80 The plaintiffs referred to documents created after 28 June 2005 as possibly throwing light on what was said on that occasion by Mr Doumanis. 81 They referred to a note made by Mr Culina the following day, 29 June 2005, of a phone call from Mr Patterson of Belconnen Blue Devils: "Tony Patterson supports the idea of a 12 team comp Jan 2005 [sic] start. I spoke to him 5.45 pm 29.6.05." 82 They also referred to minutes of a Football Committee meeting of 12 July 2005 (the correctness of which was not conceded by some of Soccer NSW's witnesses involved): "It was decided that it will be a 12 team competition." 83 Next they referred to an email from Mr O'Regan, chairman of the Premier League Clubs Forum to Mr Kelly dated 18 July 2005 which included the words: "After being told that we will now have a 12 team competition …" 84 There is also reference to minutes of a meeting of the Premier League Clubs Forum on 22 August 2005 referring directly to the meeting of 28 June 2005 in these terms: "At a previous meeting called by SNSW at Valentine Park the main topic was whether to 'fast track' a competition made up of 12 clubs rather than 14 or 16 and this was voted on by the clubs present." 85 It is relevant to refer, by way of context, to a document circulated to clubs by Soccer NSW on 14 June 2005, entitled "NSW Premier League 2006-2007". That document set out the views of the Football Committee regarding the future of the first division competition, in particular that "the Premier League should be dismantled at the conclusion of the 2005-2006 season and that a restructured competition of no more than 12 teams should commence operations in the 2006-2007 season." 86 Also that: "the successful applicants should represent districts/regions and that the total number of clubs should be no more than 12, including a team from the ACT and such regional teams as the Board deems fit." 87 Included in that document were draft terms of reference for the Football Committee's further activity in relation to the proposal. These referred to both "geographic areas to be represented by each team" and "criteria and benchmarks required to be met by the participating clubs". The document of 29 July 2005 88 On 29 July 2005, the Football Committee produced detailed recommendations on the matters within its terms of reference. These were contained in the document of that date entitled "Report into the Structure of the New Premier League Competition". It became available to interested parties through the Soccer NSW website. Mr Gardner of St George downloaded a copy before 7 August. The "summary" appearing early in the document reads: "The Football Committee, in presenting its findings and recommendations, has done so in accordance with the Terms of Reference and the requirements of the Board for a competition of no more than 12 teams with district/regional representation. In formulating its conclusions, the Football Committee holds the philosophy that there is a need to ensure that the requirement for geographic representation is balanced with the responsibility to ensure that the best credentialled teams comprise the members of the New Competition ." 89 The document went on to deal in some detail with selection criteria and the matter of "regions". 90 The following appear as recommendations: "42. Each application within a district/region be considered against other applications within that district/region. 43. Within each district/region, each applicant's Business Plan be assessed. 44. Having considered the Business Plan, the capacity of each applicant to meet the criteria then be assessed, in order to determine the best applications. 45. Within a district/region (other than Far North, Country South/Riverina and Country West, which may each be represented by 1 up to team) up to 2 teams may be admitted to the New Competition. 46. Should an applicant in excess of the proposed eligible members within a district/region provide a compelling submission that warrants its inclusion, the Board be empowered to include that club if it can be clearly demonstrated that to do so would be beneficial to the district/region and the New Competition, provided that such decision does not cause the exclusion of a club in another district/region which has a superior application." The meeting of 8 August 2005 91 At the information session held by Soccer NSW on 8 August 2005, member clubs present which had signed the necessary expression of interest form were given copies of the Business Plan and the Application Form. St George's expression of interest is dated 4 August 2005. I infer, therefore, that its representatives received the Business Plan and the Application form at the meeting. Bonnyrigg's expression of interest is dated 11 August 2005, from which I infer that its representatives were not formally provided with the documents on 8 August 2005. But given the nature and purpose of the meeting, it is highly likely that the Bonnyrigg representatives became aware of the important parts of the content of the documents in the course of the meeting. 92 The minutes of the meeting read in part as follows: "Questions were raised by the Clubs as follows: * Clarification of districts * Measures would be used to determine successful applicants * Weighting of components of submission * Clubs were not involved in setting criteria * Associations not willing to be involved with Club * The inclusion on Clubs' boards of a high-profile individuals/local identities required a constitutional change * Clarification of ground sharing * Salary floor in lieu of salary cap. Realistic salary floor so as not to dilute competition * Clarification on district players * Market research not done * The necessity of junior teams * History of participation should be taken into account * The financial problems faced by hiring General Manager The questions were answered by CEO. It was explained that applications would be measured objectively and subjectively. It is in the best interest of the new competition to remain transparent and honest. It was explained the need to improve grounds was paramount to give spectators reasonable comfort." 93 At this point, it is appropriate to review the content of the Business Plan and the Application Form. I begin with the Business Plan. The first paragraph 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." 94 The Business Plan then goes on to outline the competition structure, including: "up to 12 teams with district/regional representation." 95 Then follows: "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. At the club level, the Business Plan demands greater professionalism and strict adherence to membership criteria, but also offers assistance and guidance from Soccer NSW to clubs in all areas of their operations." 96 In section 5 of the Business Plan there is reference to the districts or regions to be represented in the new competition. After a description of the regions (by reference to areas covered by member Association), the Business Plan continued: "Given the large number of districts/regions, compared with the available positions in the New Competition, Soccer NSW has adopted the approach of linking areas covered by member Associations and then making a determination of the maximum number of teams to represent those areas. These linkages have no impact on the ongoing workings of the Associations and only have relevance to the determination of district/regions to be represented in the New Competition ." 97 It was then stated that each of three county regions could be represented by one team and: "All other areas, shown above, may be eligible for 2 positions in the New Competition." 98 The selection methodology was dealt with in section 5.2: "The method of selecting clubs for the New Competition will be as follows: Applicants will be required to nominate the district/region they seek to represent and must base their operations within that district/region. Each application will be considered against other applications from within that district/region. Within each district/region, each applicant's Business Plan will firstly be assessed. Having considered the Business Plan, the capacity of each applicant to meet the competition criteria will be assessed. Within the Far North, Country South/Riverina and Country West districts/regions, up to 1 club from each district/region may be eligible for admission. Within the districts/regions of North, East, Far West, South West, Central West and Far South, up to 2 clubs from each district/region may be eligible for admission. In the case of interstate applications, including the ACT, up to 3 clubs may be eligible for admission. Where there are only 1 or 2 applications within a district/region, the Board will only approve such applications where the applicants' Business Plans and their capacity to meet the necessary competition criteria are deemed to be in order. Should an applicant in excess of the proposed eligible numbers within a district/region provide a compelling submission that warrants its inclusion in the New Competition, the Board will be empowered to include that club if it can be clearly demonstrated that to do so would be beneficial to that district/region and the competition. However, such decision must not cause the exclusion of a club in another district/region which has a superior application. The best applications will be granted admission into the New Competition up to a maximum number of 12 clubs. This system is designed to balance the requirement for district/regional representation and the responsibility to ensure that the best applications are successful ." 99 Section 5.3 dealt with competition criteria. It began: " Competition Criteria Clubs will be required to ensure that they maintain strict compliance with criteria and will not be granted exemptions or concessions." 100 And later: "These criteria must be adhered to by clubs on an ongoing basis in the New Competition, without exception." 101 And again: "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." The ground criteria themselves appear in appendix C to the Business Plan. 102 The Business Plan contains numerous references to the number of clubs to be admitted to the new competition. I have already referred to some of them. In summary, the words "up to 12 teams", "not more than 12 teams", "no more than 12 teams", "no more than 12 clubs" and "up to a maximum of 12 clubs" appear on five occasions and there is one reference to "12 teams" (appearing, however, three lines after "no more than 12 teams"). The references to the maximum number of teams are generally accompanied by references to regional representation. Appendix B to the Business Plan sets out a "Competition Schedule 2006" providing for 22 rounds which is consistent with twelve competing teams. This appendix is referred to in the body of the Business Plan (section 5.6) as a "provisional competition calendar". There is a reference in section 5.5 to "a maximum of 22 rounds with each club playing against every other club on a home and away basis". 103 I consider next the Application Form which consists of fourteen sections. The first section is, in a sense, the operative section by which the application is made and refers to the subsequent sections. By the first section, an applicant club "hereby applies for admission to participate in the 2006 premier football competition … conducted by Soccer NSW Limited", "warrants that the information contained in this application is true and correct in all respects" and "expressly acknowledges and agrees that": "… (d) If this application is accepted by Soccer NSW the Club will observe and be bound by all of the provisions contained from time to time in the Soccer NSW Constitution, Rules and Regulations, policies and directions; … (h) In lodging this application the Club has not relied on any representations made by Soccer NSW in the New Competition Business Plan and has made its own interpretations and conclusions; (i) Soccer NSW is not liable for any loss or damage suffered by the Club in relying upon any information contained in the New Competition Business Plan; … (l) All decisions and determinations of Soccer NSW in any matter relating to this application will be final and binding on the Club." The remaining sections make provision for the insertion of required information. Page 10 (to be mentioned in greater detail presently) requires nomination by the applicant club of a region "in which it will be based and which it will represent". The meetings of 30 and 31 August 2005 104 Another meeting of the Premier League Clubs Forum took place on 30 August 2005. Evidence was given by several persons present at that meeting. Written material is also in evidence. Much of the evidence centres on a point at which Mr Doumanis held up the version of the new competition application form bearing the date 8 August 2005 open at page 10, spoke certain words and, by gesture, crossed through the whole or some part of the page. Several different accounts of that episode exist. They are consistent to the extent of acknowledging that the episode occurred after expressions of concern or disquiet by club representatives about the aspect of the new competition proposal involving regions. 105 Page 10 contained section 4 of the application, headed "District/Region to be Represented". The text began: "Your Club is required to nominate the district/region in which it will be based and which it will represent. The districts/regions are defined below and your Club is required to tick the appropriate box on the right." There followed three columns headed respectively, "District/Region", "Area covered by member associations within each district/region" and "Please tick one box". In the first column appeared the names or descriptions of regions, the first being "North". Against each such name or description, there appeared in the second column a number of member associations (so that, for example, placed against "North" was "Gladesville Hornsby, Manly-Warringah, Ku-ring-gai"). The third column was, of course, blank. 106 It is clear (despite some uncertainty on the part of Mr Doumanis himself) that discussion about regions caused Mr Doumanis to hold up page 10 so that all could see it and to cross through something. Mr Ilijevski testified that Mr Doumanis crossed out the whole page, saying words to the effect: "If it is causing too much confusion, forget that page. The regions will be redefined and the best 12 teams will get in." Mr Ilijevski is the only witness who testified that it was the whole of page 10 that was crossed out. Each of Mr Gardner, Mr Ivanovic and Mr Sivris gave evidence that only the content of the second column (that is, the association areas covered by the several regions) was crossed out by Mr Doumanis. 107 Mr Gardner testified that, at the time of crossing out the second column, Mr Doumanis said words to the following effect: "Don't worry about what this says. We are going to redefine the regions. The best 12 clubs will get into the competition." 108 Mr Ivanovic attributes to Mr Doumanis words to the effect: "Forget page 10. The regions will be redefined. The best 12 clubs will get into the competition." 109 The version of Mr Doumanis's statement deposed to by Mr Sivris is: "Wipe out what this says in relation to the regions, we are going to redefine them." 110 Mr Sivris, although present in his capacity as vice-president of St George, had the task of taking notes and preparing minutes of the meeting. Both his rough contemporaneous notes and the minutes subsequently written by him are in evidence. The contemporaneous notes contain the following passage: "Clarification of point 4 of document page 10. By Syd Olympic Delete . Response by TD 'Wipe out middle column & it will be re-defined'." (Mr Sivris confirmed that "TD" refers to Mr Doumanis.) 111 The minutes subsequently prepared by Mr Sivris read: "Member Club wanted clarification of point 4 of the document on page 10. Chairperson requested the deletion of middle column as it will be redefined." 112 Mr Doumanis was cross-examined about these matters. It was put to him that he had, in the course of the meeting, pointed to the application form and said words to the effect: "Don't worry about what this says. We are going to redefine all the regions. The best twelve clubs will get into the competition." Mr Doumanis denied this. It was also put to him that he held up page 10 and crossed out the middle column. He said that he did not recall having done so. The cross-examination continued: "Q. It would be a pretty dramatic thing for you to do, don't you agree? A. I would agree with you, yes. Q. If you did it, you would remember it, wouldn't you? A. I cannot remember it. Perhaps I showed, or I lifted it up and said: "Is this what you mean?", but I don't know that I - look, I may have crossed part of that document, but not to what you are referring to, Mr Biscoe." 113 Asked which part he though he may have crossed out, Mr Doumanis said: "I think I may have crossed out reference to 'associations'." 114 The cross-examination continued: "Q. Oh, I see. That word 'associations' you think you might have crossed out? A. Possibly. Q. Do you have any recollection of doing so? A. I may have, Mr Biscoe. Q. Do you have any recollection? A. I'm struggling. Q. You don't have any recollection, do you? A. No. Q. You are shaking your head, aren't you? A. That's correct. Can I explain why, Mr Biscoe? Q. I don't think that's necessary. Go ahead. Why you don't have a recollection? A. There was much discussion about clubs being linked to associations in order to apply to the new competition. I believe that the business plan covered that, and said that you do not have to be linked with an association to apply for the new competition. But there was no other means by which we can establish geographical boundaries to identify these regions, and that's why we adopted the associations. Now, I may have said: 'Okay, we'll cross out "associations"', but it was in that context, that the regions would nevertheless be defined by the geographical boundaries of the associations, which formed part of a region. Q. So, is this the point of that explanation you have just offered: In order to support the possibility which you do not recall that you may have struck out the word 'associations'? A. Correct. Q. I see. Now, what I want to suggest to you is, not only did you strike out at this meeting this middle column on page 10, but you held it up so that those who were present could see it; correct? A. I may have held it up to identify that we were talking about the same document. Q. Do you deny-- A. I can't. Q. --that you struck out that middle column and held it up for people to see? A. I would not deny it, Mr Biscoe. HIS HONOUR: Q. You do not deny both the holding up and the crossing out of the middle column; is that right? A. No, I didn't cross out the middle column. I crossed out 'associations'. BISCOE: Q. You have just told us several times that you don't recall crossing out 'associations'? A. No. Perhaps I should say that I may have crossed out 'associations', Mr Biscoe. Q. Tell us this: Whether or not you crossed out anything, did you hold up that page for the meeting to see? A. I may have. Q. And you would only have done that, wouldn't you, to indicate that something had been crossed out on it by you? A. No. It was whether we were talking about the same document. Q. You thought that there may have been some doubt, on the subject of the regions, as to whether you were talking about the same thing? A. Mr Biscoe-- Q. Is that right, A. Sorry, would you repeat that? Q. Yes. Are you saying that you have any recollection of there being any doubt, as you understood it, between you and the members as to what you were talking about in relation to the regions? A. Well, as far as I was concerned, we were talking about regions comprising association boundaries. Q. Yes. You were talking about the regions on page 10 of the application, weren't you? A. Well, we were talking about regions, yes. Q. And there was a good deal of discussion, wasn't there, about the regions as they appear on page 10 of the application, correct? A. Well, I would disagree with you. Q. You disagree with me? A. Yes." 115 Mr Doumanis was asked in cross-examination whether he had said at the meeting, "We are going to redefine the regions". He replied that he did not. He then gave an account of what he did say on the matter: "A. No. I was asked by one of the club members whether we could expand the regions. My response was that it would go back to the board. I took notes of that meeting and I took notes of every club that spoke at the meeting and in my notes of that meeting - it was an interval of the meeting, I separated what I considered to be the main issues discussed at the meeting or discussed by the clubs at the meeting and what was to be recommended to the board at the next board meeting." 116 Mr Doumanis then referred to notes he had taken at the meeting. These are annexed to his affidavit. Under a heading "Main issues" appears, among other things, "Regionalisation – change to increase regions". Under another heading "To recommend", Mr Doumanis wrote, "Regions – can they be expanded?" He said in cross-examination that, at a board meeting of the defendant on 31 August 2005: "I raised to the board, in the course of my report to the board of the meeting, that there was a request to expand the regions." This is consistent with his having reported to Mr Forrest, vice-president of the defendant in an email of 31 August 2005, that "some concern about regions" was one of "a number of issues raised in respect of the new competition, none of which are unreasonable". The board minutes of 31 August 2005 do not, however, record anything about regions. Mr Doumanis explained that his report to the board on that occasion had been an oral report. 117 Virtually at the close of the defendant's case on the fourth day of the trial, new and important evidence was given relevant to the meeting of 30 August 2005 and Mr Doumanis's actions at it. The defendant was permitted to lead oral evidence in chief from Mr Jackson, a director of Soccer NSW, who had sworn an affidavit and was about to be cross-examined. He produced a copy of the application from that had been circulated at the 30 August meeting. It was the copy he had himself had at the meeting. He had realised only on the day he was to give evidence that he still had this document. In it, the second column on page 10 was crossed through. 118 Mr Jackson confirmed that, in the course of the 30 August meeting, Mr Doumanis had taken Mr Jackson's copy of the application form, open at page 10, held it up towards those present and crossed out the second column. He attributed to Mr Doumanis two alternative statements spoken at the time he crossed out the middle column. The version he gave in cross-examination was: "Don't worry about the associations, you don't have to link yourselves to associations to apply for this competition. As long as you have regional support from clubs or various other things, so there is other ways you can – you can get support from your region." 119 In his affidavit, on the other hand, Mr Jackson said that Mr Doumanis said words to the effect: "We will see what we can do about the associations and the regions." 120 It is clear that Mr Jackson does not remember exactly what Mr Doumanis said. His evidence was that the focus of discussion at the time was on concerns about a perceived need for affiliation with a district association as an incident of being part of a particular region. In this respect, Mr Jackson's evidence is to the same effect as Mr Doumanis's. 121 Mr Doumanis denied making a statement to the effect set out at paragraph [112] above. He was prepared to concede that he held up page 10 and may have crossed out something. He could not say with any certainty what he may have crossed out but thought it may have been part of the heading of the second column referring to associations, there being, as he saw it, some concern about adopting regional boundaries corresponding with association boundaries. Mr Doumanis, in his evidence, seemed to draw some form of distinction between "redefining" regions and "expansion" of regions. The distinction appears to me to be one without a difference: if regions are "expanded", they are "redefined". Mr Quarmby says in his affidavit that Mr Doumanis said to him on 31 August, referring to the meeting the previous evening, "Blacktown City suggested the regions be redefined". The entries in Mr Doumanis's notes of the 30 August meeting, the content of his email to Mr Forrest and his evidence about his oral report to the board on 31 August 2005 that the matter of redefinition of regions would be taken to the board and, accordingly, that the clubs might, for the moment at least, take it that the regional definitions on page 10 were not necessarily final. He did not, however, say that the regional approach would be abandoned or would not play a part in the new season arrangements. 122 The preponderance of the evidence is (and I find) that Mr Doumanis crossed out the content of the second column when he held up page 10 towards those present at the meeting on 30 August 2005. All accounts of what Mr Doumanis said (except his own) are consistent to the extent of attributing to him a statement to the effect that the regions would be re-defined or, at least, that the possibility of re-definition would be pursued. No witness attributed to him anything that could be construed as an indication that the proposed system of regions would be abandoned. And Mr Doumanis himself confirmed having spoken of "expanding" regions. 123 I turn now to another aspect of the discussion at the meeting of the Premier League Clubs Forum on 30 August 2005. Each of Mr Ilijevski, Mr Gardner and Mr Ivanovic attributed to Mr Doumanis a further statement (immediately after the statement about re-definition of the regions) to the effect that "the best 12 clubs" would get into the competition. That addendum is missing from the account in Mr Sivris's affidavit and also from the relevant area of both his contemporaneous notes and the subsequently written minutes. By "the relevant area", I mean the part dealing with Mr Doumanis's statement about deletion of part of page 10. 124 The subsequently written minutes recorded: "In summary the clubs were accepting of the new criteria for the proposed competition however did again express concerns and fears for the unknown and untried entity." There followed thirteen separate items. The minutes continued: "Chairperson's response to the clubs was one of empathy and noted that the Board will attempt to address some of the key issues with the other matters being raised at the Board meeting the following evening. Therefore the majority of the concerns being addressed is it safe to expect that the new competition will 'kick-off' with 12 teams. Response by the club was a unanimous agreement." 125 Mr Sivris's contemporaneous notes do not link "kick off" in 2006 and twelve teams. The first matter is mentioned about one-third of the way down page 10 of the notes: "Subject to majority issues being addressed is it safe to say to the board that the new competition kicks off in 2006." The reference to twelve teams appears towards the bottom of page 11: "Best 12 teams but regions are there concerns are accepted based on [illegible] to broader community - Sponsorship/TV" 126 It is noteworthy that, in both the notes and the minutes, the passage about "kick off" in 2006 is cast as a question, not a statement: "is it safe to expect"; "is it safe to say". Also, of course, the passage about "kick off" in 2006 is, in the notes, widely separated from the passage about the "best 12 teams". 127 Mr Sivris's contemporaneous notes are the best evidence of what happened at the meeting. They indicate that an inquiry was made of the clubs whether, in effect, they were content for the new arrangements to begin in 2006: "… is it safe to say to the board that the new competition kicks off in 2006". This is consistent with the evidence of the several witnesses who were at the meeting that timing of the introduction of the new arrangements was a matter canvassed with the clubs' representatives. According to the contemporaneous notes, however, the reference to "best 12 teams" was not connected in any way with "kick off" in 2006. It was associated with the regions issue. The words "Best 12 teams but regions are there …" indicate that a regional structure would be adopted and that any "best 12 teams" criterion would be qualified accordingly. 128 In cross-examination, Mr Gardner accepted that, at the meeting in question, Mr Doumanis "never abandoned the idea of a region-based competition", even though he indicated that the definitions of regions on page 10 would be re-considered. Mr Gardner's impression of the significance of the reference to the twelve best clubs emerges from this part of his cross-examination: "Q. But nevertheless you understood that any discussion about the best 12 teams was always going to be subject to the internal competition between clubs within each region. A. That might put a different slant on it then, as much as there was discussion regarding the possible alteration of the regions or the complete change to the regions and therefore on that night the statement that the best 12 clubs would get in could indicate to me that the time that the regions may be altered in order to accommodate what would be deemed as the best 12 clubs." And later: "Q. And as we discussed earlier there was the potential if the regions were staying for the best 12 teams not to be selected? A. Yes. Q. And you understood throughout this meeting that that was the case, didn't you? A. If the regions were going to remain then yes, there was a possibility that the 12 best teams may not be selected. Yes." 129 Mr Ivanovic, on the other hand, took a different message away from the meeting of 30 August. He understood the import of what Mr Doumanis said to be (quoting his own words): "Put your applications in. The best 12 clubs will get chosen. We will deal with the regionalisation later." 130 Mr Doumanis was asked in cross-examination whether he said at the 30 August meeting, "The best twelve clubs will get into the competition", or words to that effect. His reply was: "If I used those words, it was in the context of explaining the regions and that the competition is based on regions." 131 The cross-examination continued: "Q. Well, what I was asking you was, whatever the context was in which you said it, did you say those words, or words to that effect? A. I would have said words to the effect of, 'Up to' - well, I think it's an unfair question, because it's got to be taken in the context of the discussion that had taken place during the course of the meeting. Q. I understand that a context may change the meaning to be attributed to words. At the moment I am focussing on what you said. Did you say words to this effect: 'The best 12 clubs will get into the competition'? A. Within the context of the regions, I would have said something along those lines." 132 Mr Doumanis's notes of the meeting include, under "Main issues", an entry: "Best 12 teams". His email to Mr Forrest dated 31 August contains the following passage: "Some concern about regions and the need to expand them, although I do not see the logic in reducing 6 regions to 5. Their main concern was that the best 12 teams applying for the positions are selected and I do not see that as being contentious. It would be monumentally stupid for a selection process where anything but the 12 best teams were selected." 133 Mr Jackson said in his affidavit that Mr Doumanis said: "The best two clubs within each region will be selected. A third club from a region will only be selected if it has a compelling application warranting it being selected. Within that regional context, the best twelve clubs will be selected." 134 Mr Jackson amplified upon this in cross-examination: "Q. Did you recall him saying anything else of any significance about the regions at this meeting? A. Apart - apart from the fact that how - how the clubs would be selected from each region, two from each region, apart from, I think, Riverina, a couple of country areas there would be one club. Giving the description on that and the third club would have to be - would have to be compelling and the assessment has to be very compelling or better than other regions." 135 I am not satisfied that Mr Doumanis made, at the 30 August meeting, an unequivocal and unqualified statement that "the best 12 teams" would be selected for the new competition. He did, in my judgment, refer to selection of "the best 12 teams" but in the context of statements emphasising that regional criteria would be applied: hence Mr Sivris's contemporaneous note, "Best 12 times but regions are there". 136 It may well be that on one or more occasions during the meeting, Mr Doumanis spoke of "the best 12 teams" without some qualifier such as "up to" or "maximum". But, of course, the whole of the proceedings of 30 August took place against the background of the Business Plan and the Application Form which, by the time of the meeting on 30 August, were in the hands of all interested clubs. The meeting's purpose was to discuss the proposed configuration set out in the business plan. There was, as I have found, discussion about re-definition of regions and an indication by Mr Doumanis that the regional boundaries would be reconsidered, they being, of course, something set out on page 10 of the Application Form accompanying or forming part of the Business Plan. But there is nothing to suggest that the "up to 12 teams" message conveyed by the business plan was addressed in the same analytical and critical way, with participants focussing on the distinction between a maximum of twelve and exactly twelve. There may have been in the minds of some participants the idea that, although the Business Plan spoke consistently of a maximum of twelve, the final result would (or should) be the selection of the maximum. Any reference by Mr Doumanis to twelve, without reference to "up to" or "maximum" may have reflected a corresponding frame of mind on his part. But I am satisfied that he made it clear that the regional criteria (in some form or other) and – equally importantly – the other selection criteria would have applied, from which all present should have appreciated that fewer than twelve teams might ultimately qualify. I say this because it is a matter of simple logic. Take, for example, the criterion requiring that a participating club have a full time general manager. If only ten applicant clubs in fact had full time general managers, applications of that criterion alone would mean that fewer than twelve clubs satisfied the selection criteria. The meeting of 26 September 2005 137 A meeting of the Premier League Clubs Forum took place on 26 September 2005. Mr Kelly and Mr Jackson, directors of Soccer NSW, were in attendance. 138 Mr Ilijevski of Bonnyrigg gave evidence of an interchange as follows at the meeting: "A representative from one of the clubs: 'What happened with the regions that Tom crossed out in the application form at the last meeting? What has the Board decided? Kelly: 'I haven't seen anything and I do not know anything about anyone crossing anything out in the Application form.' Jackson: 'Yes, Tom did cross it out, I saw him. '" 139 This account is not disputed by Mr Kelly or Mr Jackson. The relevant content of the minutes is set out at paragraph [18] above. Events after 26 September 2005 140 Relevant events after 26 September 2005 are summarised at paragraphs [19] to [22] above. Amplification is, I think, necessary only to the extent of quoting in full the minutes of the meeting of the Football Committee held on 10 October 2005: "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" Findings in relation to the alleged representations 141 The "criteria representation" (see paragraph [27] above) was made by Soccer NSW to all clubs which received the Business Plan and the Application Form, including St George and Bonnyrigg. 142 The "12 teams representation", as pleaded, was not made. I am satisfied that, while words referring to "twelve teams" were spoken from time to time by persons acting on behalf of Soccer NSW (including on the occasions referred to in paragraphs 14(a) and 14(b) of the amended statement of claim), the context was always such as to indicate that it was the intention of Soccer NSW that twelve should be the maximum number of teams in the new competition. That was the clear and consistent message in the Business Plan. The one reference to "12 teams" (without "up to" or "maximum") appeared immediately after a reference to "no more than 12 teams" and took its meaning accordingly. The competition schedule based on twelve teams was clearly labelled "provisional" and was to be understood in the light of section 5.5 referring to "a maximum of 22 rounds". The possibility of a competition among fewer than twelve clubs was made plain throughout the Business Plan. 143 The existence of the criteria meant that there would be a screening of applicants, with the possibility that, as eventually happened, fewer than twelve might be found to be suitable. Added to that, the regional factor – which was never abandoned by Soccer NSW – was capable of reducing the number selected. As to the aspect of the "12 teams representation" entailing, in effect, abandonment of the regional factor, my finding is that Mr Doumanis represented at the 30 August 2005 meeting that he would pursue the possibility of changing regional boundaries. He did not say that the regional approach would not form part of the arrangements. 144 The plaintiffs' contentions based on s.52 of the Trade Practices Act (or s.42 of the Fair Trading Act), as well as their estoppel case, therefore need to be considered only in relation to the criteria representation. The statutory misconduct case – threshold issues 145 The defendant submits that it is not a "corporation" as defined by s.4(1) of the Trade Practices Act and that its conduct is therefore not governed by s.52 of that Act. I need not pursue that question since, if s.52 does not, for that reason apply, the equivalent provision of State legislation (s.42 of the Fair Trading Act, applying to "a person") arises for consideration. 146 The defendant next submits that the representation on which the plaintiffs rely (limited, in light of my findings, to the "criteria misrepresentation") was not made "in trade or commerce", as contemplated by both s.52 and s.42. The expression "trade or commerce" is defined differently in each statute, but the differences are not material for present purposes. The words may, for the purposes of this case, be taken to have their ordinary meanings. 147 The proposition for which Soccer NSW contends is that it is a voluntary non-profit association which, in organising a competition for its own member clubs, does not engage in activity of a commercial kind. St George and Bonnyrigg point to the financial position of Soccer NSW and its profitability, noting that in the last financial year Soccer NSW received $362,990 from membership fees but $4,580,000 from other fees and $2,200,000 from sales of goods. I am satisfied that Soccer NSW engages in trade or commerce and that the organisation of competitions forms part of its commercial activity. In News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, the Australian Rugby League and its member clubs were found to engage in trade and commerce because they derived substantial sums from sponsorships, sold television rights and merchandising rights, received gate takings and hired grounds. There is a close parallel here and, for the same reasons, I am satisfied that Soccer NSW and its member clubs are engaged in trade or commerce. 148 It is, of course, relevant that the criteria representation was made by a company (Soccer NSW) to its members (St George and Bonnyrigg) in the course of activities engaged in for the purpose of effectuating a corporate object (see paragraph [36] above) and related to the relationship between the company and its members. That, however, does not take the matter outside the sphere of trade and commerce: cf Fraser v NRMA Holdings Ltd (1995) 15 ACSR 590. The statutory misconduct case – quality of the representation 149 Soccer NSW contends that the "criteria representation" was not misleading or deceptive. It points to an observation of Kenny J in Pioneer Electronics Australia v Edge Technology Pty Ltd [1999] FCA 142 at [7]: "[T]he mere non-fulfilment of a statement as to a future matter does not establish that the statement was relevantly misleading or deceptive." 150 Soccer NSW also refers to a passage in the judgment of Goldberg J in Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 approved by Katz J in Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [1999] FCA 1458 (at [19]): "Although the mere fact that a representation as to future conduct or the happening of a future event does not occur does not make the representation misleading or deceptive, such a representation can ripen into misleading or deceptive conduct for the purposes of s52 in a number of circumstances; namely, if there is an implied statement in the representation as to a present or past fact; if the representation represents impliedly that the representor has a present intention to make good the promise or has the means or ability to do so; if the representation involves a representation that the representor has a present state of mind; or if a representation is made, which having regard to relevant circumstances at the time, requires a qualification because of the possibility of its non-fulfilment (see James v Australia and New Zealand Banking Group Ltd (supra); Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (supra); Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR ¶40-940). In any of these circumstances it is necessary to plead more than simply the fact of the representation as to the future matter and the fact that it does not occur. One has to plead material facts in relation to the implication in the statement of the present or past fact, the present intention and the means to carry it out, the relevant state of mind and the fact that there was no basis for it, and the relevant circumstance giving rise to the qualification. Without pleading such matters all the material facts necessary to complete the cause of action have not been stated and the respondent does not know what case it has to meet." 151 St George and Bonnyrigg rely, however, on s.51A of the Trade Practices Act (s.41 of the Fair Trading Act) which says, in sub-s.(1), that a representation with respect to any future matter is to be taken to be misleading if the corporation (or person) making the representation does not have "reasonable grounds" for making it. Section 51A(2) (s.41(2)) says that, for these purposes, the corporation (or person) shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation. 152 It is significant that the "criteria representation" was a representation with respect to a policy Soccer NSW had adopted and intended to pursue. The quality of the representation, for the purposes of ss.52 and 41, must be judged at the time it was made. Only if it is found to have been misleading or deceptive at that time is it within the legislative provisions. There are, in reality, two aspects to the representations. The first turns on the question whether Soccer NSW in truth held the relevant intention and subscribed to the relevant policy at the time the representation was made. The second is concerned with the aspect of the representation that caused it to be a statement as to a future matter, that is, as to what it would do in pursuance of its intention or policy. It cannot be suggested, on the evidence, that, viewed from the first of these perspectives, the representation was misleading or deceptive. I say this because there is no indication at all that Soccer NSW did not genuinely hold the relevant intention or subscribe to the relevant policy when the Business Plan containing the "criteria representation" was published to interested clubs, including, in particular, St George and Bonnyrigg. There was no element whatsoever of deception in the sense of stating something that, at the time of the statement, was untrue. 153 The correct process of analysis is that employed by Wilcox J in Lyndel Nominees Pty Ltd v Mobil Oil Australia Ltd (1997) 37 IPR 599. In that case, an officer of an oil company (Mobil) had said at a meeting of the company's franchisees: "… the commitment we're making to you here today is that we will find a way to extend your tenure automatically no costs [sic] if you consistently achieve 90% or better in Circle of Excellence judgings." The reference to "Circle of Excellence judgings" was a reference to a system of assessment designed to encourage high standards of performance and customer service by franchisees. The representation was thus to the effect that, if a franchisee consistently scored 90% or better on these performance tests, the franchisor would "find a way" to extend the franchisee's tenure automatically and without cost. The franchisor did not "find a way". 154 Wilcox J held that the representation was a representation with respect to a future matter within s.51A (s.41). The franchisor thus carried the s.51A(2) (s.41(2)) onus. It was found that the franchisor could have "found a way" had it chosen to do so. That, however, did not mean that the franchisor was guilty of statutory misconduct. I quote from the judgment of Wilcox J (at p.625): "I do not think it follows that the representation made by Mr Stumbles was misleading within the meaning of s51A of the Trade Practices Act . In relation to the promise to 'find a way' to extend tenure, Mr Stumbles genuinely intended to do this. … The promise, set out above, was to extend the tenure of franchisees who 'consistently achieve' 90% or better; that is, achieve 90% year after year. Mr Stumbles did not leave the term of the extension uncertain. He spoke about 'another nine years as of right' for those who achieved 90% each year for the next six years. There was no legal problem about that. I think Mr Stumbles, and therefore Mobil, had reasonable grounds for making this representation. It has not been honoured because of a change of policy, not because it was not sincerely intended at the time or because Mobil lacked reasonable grounds for making it." 155 This extract emphasises that the quality of a future representation is to be judged as of the time at which it was made and in the context of the circumstances prevailing when it was made. The question posed by s.51A (s.41) is as to the existence at that time of reasonable grounds for the making of the representation. I emphasise the words "at that time". The words of the section are, "… makes a representation … and does not have reasonable grounds for making the representation …". The requirement for unity of time is apparent on the face of the legislation. 156 In the present case, the whole of the evidence leads to the conclusion that, at the time the criteria representation was made, Soccer NSW did intend to act in accordance with that representation. Its then statements with respect to the course it proposed taking in applying the criteria for entry into the new competition were a correct and accurate reflection of its then intention. 157 The intention or policy of Soccer NSW changed at or about the time of the meeting of the Football Committee on 10 October 2005. The minutes of that meeting are set out at paragraph [140] above. They show that an intensive process of assessment and evaluation had been undertaken after the closing date for applications (30 September 2005). It was at that point that it became clear that, as the minutes record, "there would be a 5-6 team competition if the strict criteria of grounds ready by 20 September 2005 was applied". There was then a decision to include in the assessment clubs that committed in writing to have their grounds ready by December 2005. It was at that point that Soccer NSW modified the intention expressed in "criteria representation". 158 The situation was thus as described by Wilcox J in Lyndel Nominees (above). Soccer NSW did not honour the "criteria representation" because of a change in policy, not because it was not sincerely intended at the time made or because Soccer NSW lacked reasonable grounds for making it. The representation was not brought within s.52 (s.42) by operation of s.51A (s.41). The statutory misconduct case - injunction 159 Before leaving the statutory misconduct case, I should refer to one other matter. Assume that, contrary to my findings, both the "criteria representation" and the "12 teams representation" were made and were of the misleading or deceptive quality with which the legislation is concerned. There then arises the question whether St George and Bonnyrigg would, in any event, have shown an entitlement to the relief they seek. As is made clear by the amended statement of claim, they rely on s.52 as a basis for, first, an injunction under s.80 of the Trade Practices Act (s.65 of the Fair Trading Act) restraining Soccer NSW from giving effect to its decision that the particular ten clubs should be the only clubs to participate in the new competition and, second, an order under s.87 of the Trade Practices Act (s.72 of the Fair Trading Act) "declaring the decision to be void from its beginning". 160 The injunction sought under s.80 is a final injunction. Its effect would be to prevent Soccer NSW proceeding with a competition involving the ten selected clubs only. But that, it seems to me, would not be a result of the kind that the statutory injunctive jurisdiction is intended to produce. The court must, under s.80, decide what is "appropriate", since the statutory power is a power only to grant an injunction "in such terms as the court determines to be appropriate". The determinant of what is "appropriate" is the policy the legislation is intended to serve. 161 It is significant that s.80 (s.65) permits an injunction to be sought by the enforcement authority but also by "any other person". This establishes the status of s.80 as a means by which compliance or rectification may be sought by a person who may have no interest in the subject matter. And that, in turn, emphasises the public aspect of the legislation with which the particular statutory remedy created by s.80 is concerned. The relationship between s.52 (s.42) and s.80 (s.65) was considered in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591. Gleeson CJ and McHugh J said, at p.602: "As Bowen CJ observed in Phelps v Western Mining Corporation Ltd (1978) 33 FLR 327 at 330-331, the purpose of s 52 is to protect the public from being misled or deceived. An application for injunctive relief under s 80 is, in its nature, one for the protection of the public interest. The same may be said of s 163A. Any public protection of the applicant's own business or other interests is incidental or collateral. What is sought to be established by the determination of a court is a violation by the respondent of a statutory norm of conduct, and the existence of a duty or liability. The court is not invited 'to make a declaration of the law divorced from any attempt to administer that law': cf In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266. Such a subject matter is justiciable in character. Parliament, by conferring standing upon any person to invoke the jurisdiction of the court has, at the one time, created the potential for a justiciable controversy and conferred jurisdiction to determine the controversy. This is a common feature of legislation." 162 It is here made clear that the dominant consideration upon any application for an injunction based on contravention of s.52 (s.42) is the protection of the public interest; and that protection of the applicant's own business or other interests can only be secondary. This is consistent with the following observation of French J in ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at p.268: "The Trade Practices Act 1974 (Cth) is concerned primarily with the protection of the public interest in the prevention of anti-competitive conduct in markets within Australia (Pt IV) and the fair treatment of consumers (Pt V). Section 80 is a widely drawn remedial provision available to restrain conduct which may infringe upon that public interest by contraventions of provisions of the Act in Pts IV and V. The standing of persons, other than those whose proprietary interests may be affected by such conduct, to obtain injunctive relief is an indication of the regulatory function of this statutory remedy. The special standing of the Minister and the Commission lends emphasis to that characterisation." 163 Assuming the representations on which the plaintiffs rely to have been made and to be of the misleading or deceptive quality with which the legislation is concerned, an injunction in the terms sought by St George and Bonnyrigg by reference to s.80 (s.65) would not, in my view, contribute to the attainment of the public interest in securing for the future the fair conduct with which s.52 (s.42) is concerned. There would be no remedial effect. The injunction would no doubt assist the private interests of St George and Bonnyrigg, at the same time prejudicing those of the ten selected clubs. From the perspective presently under discussion, therefore, it would promote exclusively or, at least, predominantly the matter that, according to Gleeson CJ and McHugh J, may be incidental or collateral only. 164 The effect of the injunction in assisting the private interests of St George and Bonnyrigg and prejudicing those of the ten selected clubs raises another matter for consideration, namely, the effect on the ten selected clubs. They were not made parties to the proceedings and have accordingly played no part. The plaintiffs point out that the ten were given notice of the proceedings and could have taken steps to involve themselves but obviously chose not to do so. That, however, does not make less relevant the observation Dr Spry at pp.402-3 of the sixth edition (2001) of "Equitable Remedies": "Regard must be had 'not only to the dry strict rights of the plaintiff and defendant, but also to the surrounding circumstances, to the rights or interests of other persons which may be more or less involved'. So it is that where the plaintiff has prima facie a right to specific relief, the court will, in accordance with these principles, weigh the disadvantage or hardship that he would suffer if relief were refused against any hardship or disadvantage that might be caused to third persons or to the public generally if relief were granted, even though these latter considerations are only rarely found to be decisive. (Conversely, detriment that might be caused to third persons or to the public generally if an injunction were refused is taken into account.) 165 Even on the assumption that the plaintiffs had made out their claim that one or both of the "12 teams representation" and the "criteria representation" was caught by s.52 (s.42), the court would not have ordered the injunction they sought by reference to s.80 (s.65). The statutory misconduct case – order declaring decision void 166 If the same assumption is made, the availability to St George and Bonnyrigg of an order declaring the decision to conduct the ten team competition "to be void from its beginning" would have depended on the availability, in the circumstances, of s.87 of the Trade Practices Act (s.72 of the Fair Trading Act). That section is available to a party who "has suffered [sustained], or is likely to suffer [sustain] loss or damage by conduct of another person that was engaged in … in contravention of" certain provisions including s.52 (s.42). (The words in square brackets are those of the Fair Trading Act). 167 A person is within the contemplation of s.87 (s.72) where loss or damage has resulted, or is likely to result, from the statutory contravention. As was pointed out by McHugh J, Hayne J and Callinan J in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at p.515: "The central inquiry is what consequence has the contravention of the Act had on the party in question. That requires comparison between the position in fact of the party which alleges loss and the position that would have obtained had there been no contravention." 168 Their Honours also said: "A party that is misled suffers no prejudice or disadvantage unless it is shown that the party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted." 169 These observations describe the findings that must be made to justify the conclusion required by the word "by" in the phrase "by conduct of another person" in s.87 (s.72). 170 St George and Bonnyrigg say that they could have taken steps to ensure that the criteria were applied in accordance with the "criteria representation" or otherwise to protect their position such as by lobbying other clubs and the directors of Soccer NSW or by negotiating to find another permanent venue in another region (this last possibility is presumably seen as relevant to the "12 teams representation"). They were, they said, denied that "valuable opportunity". 171 In cases such as the present, a finding of the actual or likely loss or damage with which s.87 (s.72) is concerned depends on the plaintiff showing that he would not have entered into the relevant transaction, or would have entered into some different transaction, so that consequences of either inaction or different action can be compared with the consequences of what the plaintiff actually did. St George and Bonnyrigg do not say that they would have refrained from making an application to participate in the new competition had the two relevant representations not been made or had they known of the (presently postulated) misleading quality of them. All they say is that they would have engaged in lobbying activities or perhaps sought a different ground with a view to maximising their chances under the regions system. I do not accept that the opportunity to lobby was a "valuable opportunity" or that lobbying would have produced any different result. And the possibility of seeking a different home ground does not seem to me to be relevant in the particular context since the impact of the system of regions was not part of either the "criteria representation" or the "12 teams representation" as pleaded. 172 In summary, I am not satisfied that the plaintiffs would have crossed the threshold of s.87 (s.72). This is because they would not have shown that the misleading or deceptive conduct (postulated for this part of the discussion) was productive of actual or likely loss or damage. I would add that I am of the opinion that the order the plaintiffs seek by reference to s.87 (s.72), that is, an order declaring void the decision to admit to the competition the ten clubs not party to these proceedings, would, in any event, not be an order that the court would have considered it appropriate to make in the proceedings as now constituted, even if the plaintiffs had succeeded in crossing the threshold of s.87 (s.72) by showing relevant loss or damage. This is because an order making void the decision to admit the ten clubs to the competition would not, of its nature, produce any positive effect for the plaintiffs and would therefore not be of the kind s.87 (s.72) has in contemplation, that is, an order that will "compensate … in whole or in part for the loss or damage or will prevent or reduce the loss or damage". In the absence of any order of the court, St George and Bonnyrigg would not be participants in the new competition. If the vitiating order they seek were made, they would be in exactly the same position, since there would then be no new competition and no participants in a new competition. The estoppel case 173 This part of the plaintiffs' case may be dealt with briefly. Central to it are the findings already made that the "criteria representation" was made through publication of the Business Plan but that the "12 teams representation" was not made. 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. Conclusion 176 St George and Bonnyrigg have not made out an entitlement to the relief they seek. The proceedings are accordingly dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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