Federal Court of Australia

Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2025] FCAFC 43

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay 60% of the respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    Mayfield Development Corporation Pty Ltd says that it lost the opportunity to develop land at the Port of Newcastle because, in 2013, the State of New South Wales entered into deeds with the operators of each of Port Botany and Port Kembla. Entry into those deeds (the Port Commitment Deeds) as well as the arrival at an alleged understanding as between the two operators and their parent (together, the NSW Ports) and the State is alleged by Mayfield to have contravened s 45 of the Competition and Consumer Act 2010 (Cth) (CCA). A claim of that kind was made by the regulator, the Australian Competition and Consumer Commission (ACCC), in proceedings in this Court brought against the NSW Ports and the State. The ACCC's claim failed for reasons that included a determination that construing the CCA by applying the principle of construction as to Crown immunity led to the conclusion that s 45 of the CCA did not apply to the conduct of the NSW Ports in respect of their entry into the Port Commitment Deeds.

2    In separate proceedings in this Court, Mayfield maintained its own claim that the CCA had been contravened.

3    The Mayfield proceedings were pending when an appeal was heard in the ACCC proceedings. Mayfield was given leave to intervene in the appeal. It provided written submissions, but otherwise did not participate in the hearing of the appeal. By majority (Allsop CJ and Yates J), the Full Court upheld the Crown immunity based conclusions of the primary judge: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16; (2023) 296 FCR 364 at [402], [410]-[412], [427]. Beach J dissented: at [566], [594], [611]-[616], [618]-[624].

4    In addition to denying the alleged contraventions of the CCA, the NSW Ports advanced the same Crown immunity position in answer to the Mayfield claim. It also said that by reason of Mayfield's intervention in the appeal in the ACCC proceedings, principles of issue estoppel (or related principles concerned with abuse of process) operated to bind Mayfield to the determination by the Full Court upholding the immunity position. In the alternative, the NSW Ports said that the terms of a release granted by Mayfield in favour of the State mean that Mayfield cannot advance proceedings to which the State is a necessary party.

5    Each of these contentions was also maintained by the State in answer to the Mayfield proceedings, the State having been joined as a party to the Mayfield proceedings on the basis that it is a necessary party because success in the claims made by Mayfield would mean that relevant parts of the Port Commitment Deeds would be severed by operation of s 4L of the CCA.

6    Three separate questions were stated for determination in the Mayfield proceedings. The first question concerned whether Mayfield's intervention in the appeal in the ACCC proceeding precluded it from advancing its claim. Relevantly for present purposes, that question concerned issue estoppel and abuse of process. The second question concerned the defence raised by the NSW Ports and the Crown based upon Crown immunity. The third question concerned the extent of the release granted by Mayfield.

7    The primary judge determined that (a) Mayfield's intervention in the appeal did not preclude it from advancing the Mayfield proceedings; (b) he was bound to follow the decision of the Full Court in the appeal in the ACCC proceedings as to Crown immunity; and (c) the release did not preclude the claims made in the Mayfield proceeding. On the basis of those answers, the originating application by Mayfield was dismissed.

8    Mayfield now appeals against the dismissal of its proceedings. It says that the determination of the second question as to derivative Crown immunity was in error. In addition to opposing the appeal, each of the NSW Ports and the State contends that the primary judge erred as to the answers given to the first and third questions and the dismissal of the proceedings should be upheld on that basis.

Outcome

9    The appeal should be dismissed. It follows that it is not necessary to determine the contention points. However, had they been necessary to decide, we would not have upheld them.

The appeal: derivative Crown immunity

10    Although the parties' submissions in the present appeal tended to refer to the second question as one concerned with whether the NSW Ports were entitled to derivative Crown immunity, all parties recognised that the question raised was one of statutory construction. That is to say, for present purposes, notions of Crown immunity take the form of a presumption to the effect that the Crown will not be bound by provisions which have particular consequences for the interests of the Crown (noting that both the nature of the Crown interests and the consequences for them that are encompassed by the presumption are very much matters in issue in the present appeal).

11    Since the decision in Bropho v State of Western Australia (1990) 171 CLR 1 it has been clear that the notion of immunity of the Crown from the application of a statute does not involve the assertion of some form of prerogative, but rather is a general principle of statutory construction. Further, the question of construction is not a binary one in the sense that an Act may be construed as either binding the Crown or not. Rather, as was stated in the joint reasons in Bropho at 23-24:

… notwithstanding the absence of express words, an Act may, when construed in context, disclose a legislative intent that one of its provisions will bind the Crown while others do not and that a disclosed legislative intent to bind the Crown may be qualified in that it may, for example, not apply directly to the Sovereign herself or to a Crown instrumentality itself as distinct from employees or agents. Always, the ultimate questions must be whether the presumption against the Crown being bound has, in all the circumstances, been rebutted, and, if it has, the extent to which it was the legislative intent that the particular Act should bind the Crown and/or those covered by the prima facie immunity of the Crown.

12    Expressed in those terms, the presumption encompasses both the Crown and 'those covered by the prima facie immunity of the Crown'. It has long been recognised that there will be circumstances in which affording immunity to the Crown from the application of particular legislation will extend to include private persons and entities where there would be consequences for the interests of the Crown if that were not so. This field of derivative Crown immunity is encompassed by the language used in Bropho to explain the nature of the principle of statutory construction. However, the precise ambit of the derivative extent of the principle was not addressed in Bropho. It is within this territory that the questions raised by Mayfield's appeal arise.

13    Mayfield accepts, as it must, that in order to succeed in its appeal as to the application of the principle of statutory construction to the CCA it must persuade this Court that the decision of the Full Court in the appeal in the ACCC proceedings was 'plainly wrong'. That phrase serves to emphasise the need for compelling reasons for an appeal court to overrule one of its earlier decisions due to the institutional consequences if it was to do so. The authorities are replete with statements of the need for caution and proper regard to the need to preserve coherence, consistency and predictability in decision making. In effect, there needs to be such a degree or quality of conviction of error that failure to correct the earlier decision once the error has been exposed would itself affect institutional integrity, even allowing for the adverse consequences for coherence, consistency and predictability. Accordingly, no mere difference in view, even one firmly held, will suffice. As to these matters see Hill v Zuda Pty Ltd [2022] HCA 21; (2022) 275 CLR 24 at [25]-[26]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [2]-[20] (Allsop CJ, Kerr and Mortimer JJ agreeing); and Pallas & Pallas (atf Pallas Family Superannuation Fund) v Lendlease Corporation Ltd [2024] NSWCA 83; (2024) 114 NSWLR 81 at [19]-[23] (Bell CJ), [127] (Ward P), [138] (Gleeson JA), [139]-[140] (Leeming JA), [160] (Stern JA).

14    Insofar as it concerned the derivative Crown immunity aspects of the principle of statutory construction, the reasoning in the appeal decision in the ACCC proceedings principally turned upon a proper understanding of the High Court decision in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38; (2007) 232 CLR 1. Mayfield submits that the majority in the Full Court erred in its approach and it is the reasoning of Beach J in dissent that is correct. Although the submissions for Mayfield were developed by seeking to demonstrate error in the reasoning of the majority (and correctness in the reasoning of Beach J), much turns upon the contentions advanced by Mayfield as to what was decided in Baxter, particularly as expressed in the joint reasons of Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ (references hereafter to Baxter are to the joint reasons).

Baxter

15    The relevant facts in Baxter can be stated briefly for present purposes. Baxter supplied medical products to purchasing authorities of certain States and Territories. The ACCC alleged that, in its dealings with the purchasing authorities, Baxter had contravened s 46 and s 47 of what was then the Trade Practices Act 1974 (Cth). Baxter claimed that its dealings with the purchasing authorities came within the derivative immunity aspects of the Crown immunity principle of statutory construction and s 46 and s 47 should be construed as not applying to such conduct.

16    By the time of the events being considered in Baxter, s 2B of the legislation provided for the relevant provisions to bind 'the Crown in right of' each of the States and the relevant Territories 'so far as the Crown carries on a business'. Necessarily implicit in this express provision is an intention that the State would otherwise not be bound. Plainly, it invited the application of the principle of construction explained by the majority in Bropho.

17    In Baxter, the High Court considered the respects in which it was to be presumed that provisions would not bind the Crown when it came to applying the Crown immunity principle of construction, particularly the extent to which the principle encompassed derivative forms of Crown immunity. As to that aspect, consideration was given to the reasoning of Kitto J in Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 393-394 as to the instances in which the principle would apply (at [59]-[62]). Those instances included:

… the class of cases in which a provision, if applied to a particular individual or corporation, would adversely affect some proprietary right or interest of the Crown, legal equitable or statutory.

18    It was that class of case that was said to be relevant to the circumstances in Baxter. As to its scope, the following reasoning was expressed at [60]:

General references to unspecified forms of prejudice to interests of the Crown in a context such as this are unhelpful. There were references in the argument for the respondents to the 'right' of States to enter into contracts, where what was in contemplation would be described more accurately as a freedom. There is also a risk of confusing governmental, commercial, or even political interests with legal, equitable or statutory rights and interests. From one point of view, it may be in the interests of a government for it, and anyone who deals with it, to have complete freedom to contract, but in reality no one has such freedom.

19    Further, it was said that in the application of the principle of construction there was a need to concentrate 'on legal consequences' (at [62]).

20    On that basis, the principle of construction to be applied in the circumstances before the Court in Baxter was expressed in the following terms (at [62]):

… since the Act does not bind the Crown in right of a State or Territory when it is not carrying on a business, then, save to the extent to which a contrary intention appears, the Act will not be read so as to divest the Crown of proprietary, contractual or other legal rights or interests.

(original emphasis)

21    Significance was given in the course of oral argument for Mayfield to the use of the term 'divest'. It was said to be language that was intended to limit the presumption to those instances where there was a deprivation or taking away of the Crown's legal rights or interests as distinct from some form of burdening of them. However, in context, we do not understand the term 'divest' to have been used in the majority reasons in that narrow sense. In the reasoning of Kitto J in Wynyard Investments being deployed at this point in the joint reasoning in Baxter, the expressions 'adversely affect' and 'interfered with' were used by his Honour. The point being made in the joint reasons was that the rights or interests that were protected by the Crown immunity principle of construction were legal rights or interests and the protection was from legal consequences for those legal rights or interests. On that basis, broader conceptions of the interests of the Crown with which a statute might be said to interfere were not covered by the presumption. However, that was not to say that the only way in which there might be legal consequences for the Crown's rights or interests for the purpose of the principle was if the Crown was to be deprived of those rights or interests.

22    Regard to the reasoning in Baxter does not indicate any intention to depart from the relatively broad conception of the degree of affect or interference that required the principle of construction to be invoked. Rather, the concern was to ensure that the principle of construction was confined to affect or interference in respect of legal rights or interests, being the field of operation of statutory provisions that affected the nature or extent of those legal rights or interests; that is, affected the legal characteristics of those rights or interests. Provided the legal rights or interests themselves were diminished or adversely altered in some material way that was sufficient to require the application of the Crown immunity principle of construction. The use of the word 'divest' served to emphasise the need for some respect in which the statute operated to lessen or reduce or otherwise alter the nature or extent of the Crown's legal rights or interests (whether they be proprietary, contractual or have some other source in the law). A law which restricted the circumstances in which, or way in which, or extent to which, those rights or interests held by the Crown may be exercised or enjoyed would still be a means by which they were divested (to the extent of the restriction) even though they were still held by the Crown.

23    Indeed, a few years before Baxter, the High Court had decided NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90. In that decision, the majority also referred to the reasoning of Kitto J in Wynyard Investments in dealing with a derivative Crown immunity based statutory construction argument. Their Honours resisted any expansion of Kitto J's formulation on the basis of what had been decided in Bropho: at [169]-[173]. The focus in NT Power was upon whether the principle of statutory construction might be expanded to include 'financial consequences' to the Crown in the absence of some demonstrable affect upon the rights or interests of the Crown. In rejecting that argument, the majority reasoned in the following way concerning the consequence for PAWA, a party said to be encompassed by the immunity at [172]:

The prejudice found by the trial judge was that to the extent that gas bought by third parties could not be acquired by Gasgo, less would be sold to NT Gas and thence to PAWA. Gasgo would have to seek to enter further negotiations for replacement quantities. If it failed, or succeeded only by paying a higher price, PAWA would be worse off. But it would be worse off only in an indirect economic sense. No proprietary right or interest or contractual right or prerogative of the Northern Territory Government would be affected, for neither PAWA nor any other part of the Northern Territory Government have any such rights, interests or prerogatives …

(emphasis added)

24    The reasoning of the majority in NT Power proceeded on the basis that the Crown immunity principle of statutory construction applied where there was some prejudicial affect upon 'property rights, legal rights, legal interests or legal prerogatives': at [174]. In doing so, the reasoning in NT Power explained various expressions in Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 as to the nature and extent of the Crown interests and the consequences for those interests that was encompassed by the principle of statutory construction: at [170]-[175].

25    In Baxter the majority reasons made clear that Bropho had over-ruled Bradken by requiring 'a more flexible approach to construction that took account of the nature of the statutory provisions in question and the activities of government to which they might apply': at [41]. However, it was not suggested in Baxter that the statements in Bradken (and the reliance upon them in NT Power) as to the nature and extent of the Crown rights and interests (and the affect upon them) that are encompassed by the Crown immunity principle of construction had been over-ruled. Indeed, as was the case in NT Power, the joint reasons in Baxter engaged with Bradken and identified the limits of what was decided in Bradken: at [52]-[58]. The reasoning in Baxter ultimately grappled with the extent to which the terms of the CCA (as amended since Bradken, particularly as to the terms of s 2B, but also by the introduction of the power in s 51(1)) manifested a contrary intent which meant that the derivative aspects of the presumption that may otherwise confer derivative immunity upon Baxter did not result in that conclusion in respect of the conduct in issue in that case.

26    At the heart of the reasoning in Baxter was a consideration of the significance of the express partial subjection of the Crown to the provisions of the CCA. Plainly, the terms of s 2B exposed an intention that it was only where the Crown was carrying on a business that the relevant provisions were binding on the Crown. Otherwise, Crown immunity remained. But how did that affect the interpretation of the CCA provisions in their application to parties who were involved in dealings with the Crown? As to that issue of construction, the joint reasons in Baxter approached matters in the following way.

27    The joint reasons began by observing that s 46 and s 47 do not apply 'to conduct of the Crown in right of a State or Territory so far as the Crown does not carry on a business' (at [63]). This was said to be particularly because of the terms of s 2B of the CCA.

28    Next, the reasons stated the proposition that it would be wrong to conclude that s 46 and s 47 had no application to any conduct of Baxter in its dealings with the purchasing authorities (at [64]). This was to say, the provisions had at least some application to conduct of Baxter in its dealings with those authorities. In support of that proposition the following reasons were stated:

(1)    it would be remarkable (and impossible to reconcile with the express object of the CCA) to conclude that, in carrying on dealings with a government in the course of its own business, [Baxter] enjoyed a general immunity not available to the government when the government was carrying on business;

(2)    Baxter's construction went 'far beyond' what was necessary 'to protect the legal rights of governments, or to prevent a divesting of proprietary, contractual and other legal rights and interests';

(3)    as a result of the changes to the CCA which bound the Crown when carrying on a business, governments no longer enjoyed any general immunity from the CCA; and

(4)    the introduction of s 51(1) which allows States and Territories to legislate to protect governmental interests by authorising conduct but with an emphasis on specificity, drew attention to the importance attached to the pursuit of the express object of the CCA (at [64]).

29    Then, having reasoned why it would be wrong to conclude that s 46 and s 47 had no application to any conduct of Baxter in dealing with the purchasing authorities, the joint reasons said (at 66]):

The real question is the extent to which the reach of ss 46 and 47 of the Act, and the provisions relating to remedies, in their potential application to the conduct of the first respondent, is modified by the operation of the principle of construction discussed above.

(original emphasis)

30    In considering that question, the joint reasons pointed out that many statutes, and the CCA in particular, 'may produce the consequence that making or performing a contract is illegal for one party but not for the other': at [70].

31    Then, the joint reasons dealt with whether there was any significance in a particular aspect that arose from the findings made by the primary judge in Baxter to the effect that the only conduct that fell within the terms of s 46 or s 47 was pre-contract conduct and whether conduct of that kind might be said to fall within the scope of the presumed field where the ACCC did not operate based upon the Crown immunity principle of construction: at [71]. As to that aspect, the joint reasons stated (at [72]):

The premise that the Act would not apply to [Baxter] in relation to the formation or performance of the contract is unwarranted. Even if it were correct, it would not follow that pre-contract conduct, or conduct that never resulted in a contract, would be beyond the reach of the Act.

32    Their Honours considered whether the approach of the primary judge in reasoning by reference to the Crown's 'freedom of contract' described as 'an aspect of the prerogative' was correct. In that regard, the following passage from the primary judge was quoted in the joint reasons (at [72]):

Does, then, the Act operate to make it unlawful for non-government parties to respond to such tenders or invitations or to participate in negotiation if a specified norm of conduct is contravened? If the answer to that were yes, it would follow (at least insofar as the response was such as to be within the contemplation of the request or invitation) that the legal rights, interests or prerogatives of the polity in question were qualified or impaired. Thus, the answer must be, no.

33    As to this reasoning by the primary judge which had been expressed in terms of an interference with a right on the part of the Crown to invite tenders or participate in negotiations, the joint reasons said (at [73]), amongst other things:

Whether it was open to the first respondent to argue, as it did, successfully, that the conduct of the [purchasing authorities] was of factual relevance in considering whether its conduct had the necessary anti-competitive purpose or effect can be left to one side for present purposes. As a matter of construction of the Act, however, it is wrong to conclude that it operates to preserve unfettered the contractual capacities of the Crown, to the extent of withholding the application of the Act from conduct by non-government parties in response to an invitation to tender. To return to an example given earlier, suppose a response to an invitation to tender is a refusal to supply except on certain exclusive terms, and that refusal is made with the purpose of lessening competition. It is unsatisfactory to make the application of the Act depend on whether this is a response that was within the contemplation of the procuring authority. It is also at odds with the restrictions imposed by s 51(1) on the capacity of a Parliament to exempt anti-competitive behaviour from the Act. It seems to give the public officials of States and Territories a wider power to give dispensations from the operation of Commonwealth law than State or Territory legislatures.

(emphasis added)

34    Finally, the joint reasons rounded out this reasoning by stating (at [74]):

The construction urged by the respondents imposes a very extensive qualification upon the Act's object of promoting competition and fair trading in the public interest, in the name of the protecting of the capacities of the Crown, a qualification strikingly at odds with the way the Act deals with governments when they themselves carry on a business.

35    Then, the conclusion reached was stated in the following terms (at [76]):

It should be concluded that, in its dealings with the [purchasing authorities], [Baxter] was bound by ss 46 and 47.

36    On that basis, the matter was remitted to the Full Court. Of some significance for present purposes is the terms of that remitter in circumstances where the Full Court had only dealt with the claim of derivative Crown immunity and had not considered an appeal by the ACCC against findings by the primary judge that the contracts between Baxter and the purchasing authorities did not fall within the prohibitions in s 46 or s 47. In that context, the joint reasons said (at [77]):

It is not desirable to say anything about the question whether, if the Full Court concludes, contrary to [the primary judge], that the conduct of the first respondent in making and giving effect to the impugned contracts fell within the prohibitions in s 46 or s 47, those contracts were enforceable.

37    The terms of that observation indicate that there was no significance for the reasoning in Baxter that the application of the Crown immunity principle of construction to the CCA still led to the conclusion that s 46 and s 47 applied to Baxter in its dealings with the purchasing authorities. It follows that there is no significance in the point advanced for Mayfield that its case must be distinguished in some way from Baxter because it alleges contravention of s 45 of the CCA which requires a contract, arrangement or understanding.

Applying Baxter in the present case

38    Of considerable significance for present purposes are the following aspects of the joint reasons in Baxter:

(1)    The reasoning was strongly influenced by the incongruity that arose from the fact that Baxter sought to rely upon the derivative operation of the Crown immunity principle of construction to read the CCA as not applying to its own business conduct in dealing with the Crown when the CCA expressly applied to the Crown when it engaged in such conduct in carrying on a business. That is to say, Baxter claimed that it had an immunity from the operation of the CCA of a kind that the Crown did not enjoy. That was because the dealings concerned the commercial supply of medical products by Baxter.

(2)    As has been explained, the reasoning articulated the limits of the Crown immunity principle of construction when it came to the nature and extent of the presumed protection of the Crown from being bound by statute. That protection was in respect of statutory provisions that had adverse consequences for the nature or extent of the Crown's proprietary, contractual or other legal rights or interests.

(3)    The Crown immunity principle of construction was not to be confined to statutory provisions that took away the Crown's legal rights or interests. A statute's legal affect upon or diminishment of those legal rights or interests will give rise to the application of the principle. It is a principle that is concerned with the preservation and protection of the nature and extent of the Crown's legal rights and interests, not some broader notion of the interference with the purposes or objects that might be advanced or obtained through the exercise by the Crown of those rights and interests.

(4)    The derivative aspects of the principle of construction must be applied to the CCA with due regard to the capacity for its provisions to apply to a contract in a unilateral way by invalidating only those parts that were of interest to the non-State counter-party.

39    For the following reasons, it cannot be said that resort to Baxter affords compelling reasons as to why the conclusion of the majority in the appeal in the ACCC proceedings was wrong. That is because, the resort by the NSW Ports and the State to the Crown immunity principle of construction in the present case gives rise to different questions to those decided by the joint reasons in Baxter.

40    First, the conduct of the NSW Ports that Mayfield alleges contravened the CCA was not conduct of a kind that the State might undertake in carrying on a business. It was common ground that entry into the Port Commitment Deeds was part of a privatisation process conducted by the State in respect of Port Botany, Port Kembla and the Port of Newcastle. The privatisation was effected by the State entering into long term leases of the three ports. It was not a dealing of a kind in which there might be analogous circumstances in which the State might participate in carrying on a business.

41    Second, in Baxter the reasoning emphasised that s 4L required severance of offending aspects of a contract but marked out a limit of that invalidity by the words 'in so far as': at [17]. Further, it was qualified in its operation by the remedial provisions in the CCA: at [22]-[23]. Statutes may produce the result that performance of a contract is illegal for one party but not the other. Consequently, the outcome where a contract is made in contravention of the competition provisions of the CCA is determined by the legislative scheme and not by extending general immunity to any non-governmental party negotiating or contracting with the Crown: at [70]. That is to say, the CCA had mechanisms by which the conduct of Baxter may be unlawful as contravening the CCA but the Crown's interest in enforcing the contracts made with the purchasing authorities may be preserved. That analysis was possible in that case because it was Baxter's conduct in the way it dealt with the purchasing authorities that was impugned. It meant that the application of the CCA to the conduct of Baxter in that case did not have necessarily adverse consequences for the Crown's contractual rights.

42    Third, the relevant interest of the Crown is not articulated by the State and the NSW Ports in the same way that it was articulated in Baxter where the consequence of the application of the CCA to the conduct of Baxter was said to interfere with the Crown's freedom to contract, that is to say its capacity to make and give effect to an agreement as purchaser of the medical supplies.

43    Here, there is express statutory legislation by which capacity was conferred upon the Treasurer to enter into contracts to effect the privatisation. It took the form of the Ports Assets (Authorised Transactions) Act 2012 (NSW) (State Act). In particular, the State Act:

(1)    authorised 'the transfer of ports assets to the private sector or to any public sector agency' subject to certain limitations (s 4(1));

(2)    provided for the proceeds of the transfer to be paid into a specific fund established under the Restart NSW Fund Act 2011 (NSW) (s 5);

(3)    conferred upon the Treasurer 'all such functions as are necessary or convenient for the purposes of an authorised transaction' (s 6); and

(4)    provided that any 'authorised transaction is to be effected as directed by the Treasurer and can be effected in any manner considered appropriate by the Treasurer' (s 7(1)).

44    The parties are in dispute as to the precise characterisation of the way in which the terms of that legislation might properly be viewed for the purposes of the application of the principle of construction as to Crown immunity. It is not necessary to plumb the depths of the competing contentions. It is sufficient for present purposes to observe that Baxter's claims gave rise to very different questions to those that arise in the present case and were the subject of the decision by the Full Court in the appeal in the ACCC proceedings.

45    Fourth, in the present case, the State's interest in the ports was not brought into existence by the relevant dealing as it was in Baxter where the negotiation and entry into the contracts (being the impugned conduct) created the contractual rights to the supply of the medical products. In the present case, quite plainly, the State was dealing with its existing rights and interests in the ports. The Port Commitment Deeds were entered into for the purpose of the privatisation. They did not themselves effect any dealing in the relevant assets. However, they were made in order to enhance the consideration that might be received for them. That is to say, they enhanced the State's assets.

46    Fifth, in the present case it is the commitment to the performance of the Port Commitment Deeds by the State making and receiving the required compensation payments that is at the heart of the alleged contravening conduct. The State is an active participant in the conduct that Mayfield seeks to impugn. Indeed, submissions were advanced by the parties on the basis that it was the State that instigated the Port Commitment Deeds in order to advance its own interests. Accordingly, Mayfield's case seeks to impugn indirectly that which it could not impugn by bringing proceedings against the State in respect of its own conduct. To do so is to seek to apply the provisions of the CCA to conduct of the State even though it is common ground that the State's conduct was not undertaken by the State in carrying on a business.

47    For all those reasons, resort to Baxter does not demonstrate that the conclusion reached by the majority of the Full Court in the appeal in the ACCC proceedings was plainly wrong (using that term in the sense in which it is explained in the cases).

The reasoning in the appeal in the ACCC proceedings

48    As has been explained, Mayfield also sought to characterise the reasoning of the majority in the appeal in the ACCC proceedings as being plainly wrong by undertaking a detailed analysis of the reasoning pathway in that case. Mayfield contended that the reasoning of Beach J expressed the correct approach. For the following reasons, we are also not persuaded that the reasoning of Beach J is so plainly correct that it might be the foundation for a conclusion that there are compelling reasons as to why reasoning to an alternative conclusion might be characterised as plainly wrong in the relevant sense.

The reasoning of Beach J

49    In the appeal in the ACCC proceedings, Beach J reasoned that the executive power to contract and the common law freedom to contract are not rights or interests of a kind that are the subject of the Crown immunity principle of statutory construction: at [594]. So much may be accepted. His Honour then reasoned that the power identified by the primary judge as engaging the principle was 'a statutory power relating to a contractual capacity' which was of a kind that was 'not relevantly different from the contractual capacity that was held not to engage the principle of derivative Crown immunity in Baxter': at [595]. His Honour characterised the statutory power in issue as a 'right to create rights': at [596]. Later, after considering the authorities, his Honour said at [611]:

But in the present context, the so-called right to deal with the State's assets in a value maximising way was not a right capable of engaging the principle of derivative Crown immunity. Of course the State was free to maximise the value of its business assets, but subject to compliance with the requirements of the CCA by the potential buyer as a potential counter-party.

50    His Honour continued at [612]:

Further, the very proposition of the State, which is to the effect that by depriving a third party of the ability to enter into transactions of a particular kind, s 45 would necessarily circumscribe transactions and arrangements that the State might require of a third party in order for the State to be willing to contract, presupposes that the Treasurer had an absolute freedom to contract on whatever terms he required, regardless of federal law. Yet as the plurality said in Baxter, no one has such freedom.

51    Respectfully, this reasoning fails to engage with the fundamental proposition advanced for the State against the ACCC. It was not concerned merely with an alleged freedom to contract. It was concerned with legislation which conferred express authority to deal with the port assets by effecting their 'privatisation'. The dealing was to be effected consensually. The issue of complexity concerned the extent to which the exercise of the statutory power by entering into the Port Commitment Deeds was part of effecting that dealing with those assets. Plainly, the State had legally enforceable rights or interests as to the assets themselves of a kind that may give rise to the application of the principle of statutory construction if those rights or interests were affected. The Port Commitment Deeds did not, of themselves, take effect as a dealing in respect of those rights or interests. However, the deeds were put in place as part of a process which was designed to carry out that dealing in a manner that would enhance the value that would be obtained from the privatisation.

52    Ultimately, it was Beach J's conclusion that there was no point upon which to distinguish the entry into the Port Commitment Deeds from the entry into the contracts to purchase the medical products in Baxter. In the view of his Honour, in both contexts there was a prohibition that was directed to the conduct of the non-State party (the NSW Ports and Baxter) and in both contexts the alleged right or interest was the exercise of 'some so-called freedom to contract'.

53    However, as we have endeavoured to explain, there are significant points of distinction between the two cases. Most significantly, the fact that in Baxter the purchasing authorities were seeking to acquire something that the State did not have, the medical products, whereas the NSW Ports were committing to pay compensation under the terms of deeds the purpose of which was to facilitate the State improving the price it may obtain out of the privatisation of its assets.

54    Turning then to the reasoning of the majority which Mayfield sought to characterise as plainly wrong in the sense used in the relevant cases.

The reasoning of Allsop CJ, Yates J agreeing

55    The majority's reasoning was delivered by Allsop CJ with Yates J agreeing. The reasons began with observations about the Port Commitment Deeds. They took account of the way the compensation provisions worked. The conclusion was reached that entry into the Port Commitment Deeds was not in the course of the port businesses of the NSW Ports: at [337]-[343]. In the course of that reasoning, it was said that the compensation provisions in the deeds 'were directed to the maximisation of price not the operations of the businesses by the Crown': at [338].

56    The reasoning of Allsop CJ concerning derivative Crown immunity commenced with a consideration of Wynyard Investments: at [387]. Emphasis was placed upon 'the nature and character of the interference' said to give rise to the immunity: at [389]. It was observed, correctly, that 'it is first to Baxter that one turns for the controlling statement of principle derived from the earlier cases': at [395].

57    Allsop CJ then reasoned that s 51 of the CCA (by which the State may authorise particular conduct that would otherwise contravene the competition law provisions of the CCA) is a provision that assumes contravention and thus the proper ascertainment of the extent of Crown immunity takes place 'at an anterior stage to the possible relevance of s 51': at [402].

58    Having correctly characterised the principle to be applied as one of statutory construction, Allsop CJ then posed the questions to be asked in terms that cannot be criticised having regard to the language used in the joint reasons in Baxter (at [404]):

What was or were the relevant proprietary, legal or equitable or statutory right or rights of the State? And was it, or were they, divested by applying s 45 to NSW Ports in respect of the compensation provisions?

59    This was then said to direct attention to the terms of the State Act conferring the authority to undertake the privatisation. Contrary to submissions advanced for Mayfield, this did not involve Allsop CJ starting with the State Act. Rather, having exposed the significance for the application of the principle of construction of identifying the relevant right or rights that may be interfered with by being 'divested' by the operation of s 45 of the legislation, the reasons embarked upon the task of analysing the nature of the compensation provisions in the Port Commitment Deeds at the heart of the allegations by the ACCC.

60    As to the rights conferred by the State Act concerning the privatisation, Allsop CJ described the process for ascertaining their character in the following terms (at [408]):

(1)    they were identified as rights and interests of the Treasurer derived from the State Act;

(2)    the transactions authorised by the State Act were said to be 'of a character informed by the valuable proprietary interests and rights directed and controlled in the transaction by the Treasurer and were not to be categorised as somehow merely being equivalent to the general capacity or freedom of the Executive to contract';

(3)    the task was said to be contextual; and

(4)    the central task was said to be 'the focus or concentration on legal consequences'.

61    Allsop CJ then reasoned in the following way as to the character of the right exercised by the Treasurer in entering into the Port Commitment Deeds.

62    First, his Honour explained the way in which the legislation would operate if it applied as the ACCC alleged. As to that operation, Allsop CJ said at [411]:

Were s 45 to apply, ss 4L and 45 of the Act would sever and make of no effect the provisions which underpinned the demand by the Treasurer for the highest value for a monopoly asset operating and anticipated to operate under current government policies, both as to the exhaustion of Port Botany's capacity and port sequencing. The value of that demand for the highest value was estimated to be a significant, material amount of money the sum of which is confidential and need not be specified for the purposes of this judgment.

63    So, the relevant consequence was expressed in terms of the effect upon the value that might be obtained for the State's asset. It proceeded on the basis that s 4L would sever the compensation provisions in the Port Commitment Deeds if the ACCC's case was upheld. This approach reflects the High Court's explanation of the manner of operation of s 4L: SST Consulting Services Pty Limited v Rieson [2006] HCA 31; (2006) 225 CLR 516.

64    Then, Allsop CJ explained the entitlement conferred by the State Act in the following terms (at [412]):

The [State] Act, in terms, entitled the Treasurer to effect the transaction [the privatisation of the monopoly asset] as he chose to direct. If the legal effect of the transaction was not as he directed because of the severance and unenforceability of the compensation provisions by way of ss 4L and 45 of the Act, there was or would have been a divestiture of that right, power, authority and privilege conferred by the [State] Act and in that sense, s 45 in its operation on the subject (NSW Ports) would mean the impairment of the existing legal situation of the Executive or Crown and the incidence of the provision on the subject would be in legal effect upon the Crown.

65    Taking account of the operation of s 4L, the consequence for the State was then explained as follows:

Any such change, through divestment of the legal rights of the parties (the State and NSW Ports), could lead to claims between them as to financial consequences of such a change to the underpinning of the bid structure of the authorised transactions. Such would not merely be financial; it would be a consequence of divestiture of the legal and statutory rights of the Treasurer to direct a framework of rights and obligations of the parties to underpin the maximum value to be obtained on the hypothesis of a monopoly.

66    Therefore, whereas in Baxter the legal right was framed as the freedom of the State to contract on terms of its own choosing, in the reasoning of Allsop CJ, the legal right was framed as the exercise of 'the legal and statutory rights' that had been conferred upon the Treasurer by the State Act to put in place 'a framework of rights and obligations of the parties' (that is, to direct the form of the privatisation transaction). Further, there was emphasis upon the fact that the right to direct the form of the transaction had been undertaken in a manner that was directed to maximizing the value to be obtained from the privatisation of a State asset, namely by entry into the Port Commitment Deeds.

67    In doing so, the reasoning of Allsop CJ also distinguished Baxter in the following way (at [413]):

The above is to be compared with the position in Baxter. There, the application of ss 46 and 47 to the conduct of Baxter imposed upon the State by the exercise of market power only invalidated parts of contracts entered into pursuant to the Crown's general freedom to contract. These contracts saw supplies received and paid for by the State at prices that may have been higher than would have been under unimpaired competitive conditions. There was no relevant divestiture of a relevant legal right. There was only the affectation of contracts entered into pursuant to a general power, which was of no substantive consequence to the legal position of the State authorities, and indeed no consequence to the financial position of them.

68    The reasoning of Allsop CJ is much narrower than the proposition that was rejected in Baxter which was to the effect that the principle of construction applied because the Act interfered with the State's freedom of contract. The case advanced by the ACCC in the appeal was to the effect that s 45 of the competition legislation applied to the making of a particular type of contract, namely one made by the Treasurer in the exercise of an express statutory right to direct the nature of the transaction by which a very substantial asset of the State would be privatised. The reasoning of Allsop CJ emphasised the way in which the Port Commitment Deeds formed part of the steps by which the State effected the privatisation. It led to the conclusion that the application of the legislation to a contract that was entered into by the Treasurer in order to enhance the price at which the privatisation may occur (being a dealing with the State's interest in the assets) was caught within the derivative aspects of the Crown immunity principle of construction.

69    In our view, for reasons that have been given, that reasoning was and still is open on the law and has not been demonstrated by Mayfield to have been plainly wrong. It identified a legal consequence for the legal rights and interests of the State, namely a restriction upon the manner in which it could exercise the statutorily conferred authority of the Treasurer to shape the dealing in the port assets in the form of the privatisation.

70    It follows that the appeal must be refused.

The notice of contention: issue estoppel and abuse of process

71    As we would not uphold the appeal, the notice of contention points raised by the NSW Ports and the State do not arise. However, as they were fully argued we will address them, albeit somewhat briefly in the circumstances.

72    Mayfield sought and obtained leave to intervene in the appeal brought in the ACCC proceedings. It was not a party to the appeal. Mayfield's justifications for seeking to intervene were set out in written submissions. They were as follows:

(1)    Although Mayfield's application for its proceedings to be heard together with the ACCC proceedings had been declined, the case managing judge had recognised that but for the impracticality of retaining hearing dates there would have been much to be said in favour of the two proceedings being heard together.

(2)    Mayfield's interests were likely to be affected substantially by the outcome of the appeal because its own pleading largely reflected the ACCC's statement of claim and was designed to engage s 83 of the CCA (which provides for findings of fact in one proceedings of a particular kind to be prima facie evidence in other proceedings).

(3)    Mayfield's case 'is affected' by the finding by the primary judge in the ACCC proceedings that the NSW Ports had derivative Crown immunity.

73    The justifications were also addressed in an affidavit filed in support of the application for leave to intervene. It deposed to the following matters under the heading '[Mayfield's] Grounds for Intervention':

Certain of the Court's findings at trial, which are now in contest on Appeal and Cross Appeal, concern issues of fact and law, the resolution of which on appeal will have a conclusive impact on the [Mayfield] proceedings at trial (subject to any further appeal). These include a right of NSW Ports to 'derivative Crown immunity', along with the Crown's 'immunity' from the CCA from which it is said to be derived.

(emphasis added)

74    By referring to 'issues of fact and law', the affidavit may reflect the fact that Mayfield was seeking to intervene both on the derivative Crown immunity issue and also on a number of other issues concerned with whether there had been a contravention. Alternatively, it may reflect the fact that application of the principle of construction as to Crown immunity required a factual foundation as to the right or interest of the Crown that was said to be affected and the demonstration of a consequence for that right or interest if the statute applied without affording immunity as to those consequences. In our view, the language in the affidavit does not indicate any attempt by Mayfield to intervene in order to agitate some form of factual error by the primary judge in the ACCC proceedings. There was no such attempt by Mayfield.

75    After Mayfield filed its written submissions, but before the hearing of the appeal, the following statement was made on behalf of Mayfield:

Having reviewed the submissions filed by the parties to date, and having had the opportunity to advance matters by way of written submissions, [Mayfield] considers that the substantive submissions [Mayfield] seeks to put before the Court have now been fully ventilated. In those circumstances, [Mayfield] does not press its application to make oral submissions at the hearing. Instead, it seeks the consent of the parties to intervene on condition that such intervention be limited to the written submissions already filed on behalf of the interested party on 9 December 2021.

76    Before the primary judge in these proceedings, Mayfield accepted that it sought to intervene in the appeal in the ACCC proceedings to seek to establish that derivative Crown immunity did not apply so as to prevent such a conclusion being applied subsequently, as a matter of precedent, for the purposes of Mayfield's own proceedings. That is to say, Mayfield's concern was that the outcome in the appeal in the ACCC proceedings would produce a legal result that a primary judge in the Mayfield proceedings would be bound to follow. It was that concern that motivated the application to intervene.

77    The primary judge found that Mayfield's participation in the appeal was limited. In the present appeal, the NSW Ports and the State maintain that any such limitation was by reason of the election of Mayfield to confine its participation to the making of written submissions and was made on the express basis that the submissions that Mayfield wish to put had been fully ventilated. That is to say, Mayfield could have advanced whatever contentions it chose to advance as to derivative Crown immunity.

78    In support of the notice of contention, the NSW Ports and the State submit that issue estoppel applies both to parties and intervenors. Reliance is placed upon Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 505. In that case, an issue arose as to whether there had been an issue estoppel by reason of a determination made to convene a meeting of company members for the purposes of considering a scheme of arrangement. The Commission appeared at the hearing at which the orders were made. The Commission's position at that hearing was that it neither consented to nor opposed the application. However, for the purposes of a subsequent hearing to consider whether to approve the scheme the Commission filed a notice of intervention and opposed the scheme. The scheme was approved and the Commission then appealed successfully against the making of the orders. In the High Court, it was claimed that the Commission was estopped from objecting to the approval of the scheme.

79    In finding that there was no estoppel, the High Court said at 505:

Furthermore, in our view, the doctrine of issue estoppel does not apply because the Commission was neither a party nor an intervener when the matter came before the Court on the application for leave to summon meetings. The Commission appeared at that stage of the proceedings because notice was given to it pursuant to s. 411(2)(a) and because the Court is required by s. 411(2)(b) to be satisfied that the Commission has had a reasonable opportunity to examine the arrangement and the draft explanatory statement and to make submissions in relation to them. The fact that the [Corporations] Law requires that notice be given to the Commission does not make the Commission a party. Nor, in our view, does the fact that the Commission appeared to announce its attitude make it a party. That, if anything, was something done by way of making information available to the Court.

80    The High Court then quoted the following passage from Spencer Bower and Turner's The Doctrine of Res Judicata (2nd ed):

For the purposes of estoppel per rem judicatam, a 'party', in proceedings in personam, means not only a person named as such, but also one who intervenes and takes part in the proceedings, after lawful citation, in whatever character he is cited to appear, or who, though not nominatim a party, insists on being made so, and obtains the leave of the court for that purpose.

81    Then the High Court referred to the statutory right of the Commission to intervene which, if exercised, by operation of the Corporations Law resulted in the Commission being made a party.

82    The above reasoning in referring to both intervenors and parties may be said to provide support for the conclusion that an issue estoppel may arise as against an intervenor who takes part in the proceedings. However, care must be taken not to view the reasoning through the lens of modern practice which draws a sharp distinction between an intervenor and a party. As was explained by Black CJ in Forestry Tasmania v Brown (No 2) [2007] FCA 604; (2007) 159 FCR 467 at [5]-[6], past practice, at least in this Court, was to the effect that any intervenor was a party. It produced the consequence that an intervenor at trial was treated as a party to any appeal. The modern practice of this Court is 'a departure from the previous practice': at [8]. Intervenors now are limited to providing assistance to the Court (albeit that private intervenors may do so in their own interest). The High Court's reasoning in Marlborough Gold Mines may not be based upon a sharp distinction of that kind. Indeed, some of the language indicates that reference is being made to an intervenor who takes on the role of a party. Further, as was made plain, the Commission was an 'intervenor' who was a party by operation of the Corporations Law. For those reasons, we are not persuaded that the High Court had in mind the circumstances of an intervenor whose involvement is clearly confined in the manner now provided for by this Court's Rules. The decision in Marlborough Gold Mines is certainly not dealing with a case of that kind.

83    A further difficulty with reliance upon the observations of the High Court for present purposes is that Mayfield was not an intervenor before the primary judge. Consequently, Mayfield did not have an opportunity to frame the issues in dispute. As has been explained, in the view of the majority, the question whether the CCA should be construed on the basis that there was a derivative immunity for the NSW Ports in respect of the conduct concerning the compensation provisions of the Port Commitment Deeds was contextual. Therefore, it depended upon the way in which the particular circumstances were articulated and proven before the primary judge.

84    In this Court, on the contentions advanced by the NSW Ports and the State, an intervenor at first instance would be bound by the determination of the issues in dispute but would not be able to appeal. Instead, the intervenor would need to seek leave to intervene if there was an appeal by one of the parties. Part of the purpose of the practice in this Court is to make that position clear. If there was an appeal by the losing party and the decision was overturned what would be the consequence for the alleged issue estoppel as against the intervenor before the primary judge? Submissions were advanced as to whether, in the present case, Mayfield as an intervenor in the appeal in the ACCC proceedings could have sought special leave to appeal. It is difficult to see how Mayfield’s status as an intervenor in accordance with the practice of this Court would provide a foundation to appeal from the judgment.

85    As has been mentioned, Mayfield did not intervene in or otherwise participate in the trial of the proceedings. Its attempt to have its proceedings heard together with the ACCC proceedings failed. It intervened at the appeal stage because of a concern that the appeal would produce an outcome which, according to the doctrine of precedent, would bind a judge subsequently hearing Mayfield's own proceedings. The fact that Mayfield was not an intervener at the trial stage when all matters were open for determination counts against any ability on the part of the NSW Ports to deny Mayfield taking steps to advance the Mayfield proceedings on the basis of issue estoppel.

86    At least in the circumstances of the present case, we are not persuaded that Mayfield's participation in the appeal in the ACCC proceedings was sufficient to give rise to an issue estoppel. We would have reached the same conclusion even if Mayfield had participated by making oral submissions.

87    There remains the question of abuse of process. The submission advanced for the NSW Ports and adopted by the State was to the effect that if Mayfield's participation was too limited to create an issue estoppel then the primary judge should have found that Mayfield's litigation of the issue in its own proceedings was an abuse of process. They contend, in effect, that to allow Mayfield to have a second go at the issue after it failed in its efforts in the appeal in the ACCC proceedings would be to countenance an abuse of process. It is said to work an unfairness upon the NSW Ports and the State for them to have to reagitate the issue in answer to Mayfield's claim, in circumstances where Mayfield was afforded the opportunity to intervene in the appeal in the ACCC proceedings and it will bring the administration of justice into disrepute if Mayfield was allowed to bring proceedings that require it to persuade the Court to a different outcome to that concluded in the appeal.

88    Of course, it is not Mayfield that has raised the Crown immunity principle of construction. That issue is raised by the NSW Ports and the State in answer to Mayfield's claim. Nor is it the case that Mayfield is denying the relevance of the appeal decision as a precedent. In that regard, on the hearing of the separate questions before the primary judge, Mayfield accepted that the appeal decision was binding.

89    Mayfield's position is that its participation in the appeal, if not a matter that gives rise to issue estoppel, could not be an abuse of process. In effect, it says that there is no separate aspect beyond its participation as an intervenor that might support a conclusion to that effect.

90    It is not said that Mayfield's actions were a breach of the responsibilities that arise when it comes to advancing a claim that a decision was plainly wrong. Rather, it is said that having failed as an intervenor in advancing the point, it is an abuse of process to conduct the present proceedings even on the basis that they are a vehicle for seeking to persuade this Court that the appeal decision was plainly wrong and seeking special leave to appeal to the High Court if the course is unsuccessful. In effect, it is said that another party might be able to do so but that Mayfield could not because of its intervention in the appeal.

91    The main reason there is said to be an abuse is a form of affront to the administration of justice that arises if Mayfield was to be allowed a second opportunity to agitate in proceedings again involving the NSW Ports and the State, a point that it has lost after making all the submissions it sought to make on the point as intervenor. Against that is the fact that Mayfield respects the decision that was made and is conducting the Mayfield proceedings on the basis that the appeal decision is binding unless and until found to be plainly wrong by this Court or overturned by the High Court.

92    Mayfield's case was not disposed of by the ACCC proceedings. Much of Mayfield's case is the same as that advanced by the ACCC, but in some respects its case is different. The Mayfield proceedings are not a form of collateral attempt to go behind the determination of the ACCC proceedings. Mayfield did not accept that it would be bound by the outcome of the Crown immunity issue as determined in the ACCC proceedings as a condition of its participation as an intervenor. Rather, it sought to intervene on the basis that a determination of the issue in the ACCC proceedings would set a precedent which would have to be applied. Its conduct of the Mayfield proceedings has been consistent with that position. Mayfield is entitled to advance a reasonable case to the effect that there is a basis to challenge the existing state of the law provided it does so within the confines of stare decisis.

93    Mayfield's attempt to have the two proceedings heard together failed. The fact that Mayfield failed due to its own conduct is not enough to treat Mayfield as if it had participated in the trial when it did not. Indeed, as was submitted for Mayfield, the opposition by the NSW Ports and the State to Mayfield's (albeit belated) attempt to have the two proceedings heard together is part of the sequence of events that has produced the current state of affairs.

94    In all the circumstances, we are not persuaded to accept the contentions as to estoppel or abuse of process.

The notice of contention: deed of release

95    The NSW Ports and the State each contend that the terms of a deed of settlement and release (Settlement Deed) made in December 2013 operate as a complete defence to the claims made in the Mayfield proceedings. The Settlement Deed was made between parties that included Mayfield and the State, but not the NSW Ports. The 'Background' to its terms, set out at the beginning of the Settlement Deed, referred to the efforts by Mayfield to develop its site and the involvement of the State in those efforts. It referred to Mayfield having made various 'Claims' against the State and that the parties had agreed to settle those Claims on the terms and conditions of the Settlement Deed.

96    The terms and conditions included a permanent release by 'the Releasors' (a term that included Mayfield) of the 'Releasees' (a term that included the State) from any Claims 'arising from or in connection with the Release Matters'. The Release Matters were expansively defined in the following terms:

(a)    any negotiations, discussions, agreements or other matters whatsoever arising out of the process conducted by [Newcastle Ports Corporation] since 2009 to secure a private sector proponent to develop the Mayfield Site; and/or

(b)    any negotiations, discussions, agreements or other matters whatsoever arising between the Releasors and the Releasees in respect of the Mayfield Site; and/or

(c)    the Term Sheets and any matter referred to in the Term Sheets; and/or

(d)    the facts, matters and circumstances referred to in the Background to this deed.

97    The Settlement Deed also included a plea in bar clause that the releases 'can be pleaded in bar and as a complete defence to any Claim to which they apply'.

98    The terms of the Settlement Deed do not refer to the Port Commitment Deeds or the privatisation process. Nevertheless, it is common ground that the subject-matter of the Mayfield proceedings falls within the definition of 'Release Matters'.

99    It is only the State that is released by the Settlement Deed and only the State that can rely upon the plea in bar clause. The claims made by Mayfield against the NSW Ports in the Mayfield proceedings are not made in respect of some form of joint liability with the State. Mayfield did not sue the State. Rather the Mayfield proceedings were brought against the NSW Ports. It was only when the State was identified as a proper party by reason of the consequence of s 4L of the CCA applying to the Port Commitment Deeds if the claims by Mayfield were upheld that the State was joined.

100    It is in those circumstances, and principally on the basis that the State is a necessary party to the claims as brought by Mayfield against the NSW Ports, that it is submitted for the NSW Ports that Mayfield cannot proceed against the NSW Ports without also proceeding against the State contrary to the release. However, the submission of the NSW Ports does not reveal any basis upon which they can point to the Settlement Deed in defence of claims brought by Mayfield against them.

101    As to the State, at the time of its joinder Mayfield sought declarations that, if made, would implicate the State. However, during the hearing of the separate questions before the primary judge, leave was granted to Mayfield to amend its application to delete the claims to declaratory relief. Consequently, the reliance by the State and the NSW Ports on the terms of the Settlement Deed was adjudicated in circumstances where the ongoing participation of the State in the Mayfield proceedings was to be explained only by the particular manner in which s 4L operates. Significantly for present purposes, the operation of s 4L does not depend upon any claim for relief being made as against the State. Rather, it operates consequentially upon a claim of contravention of the competition law provisions that concerns the making of a contract being upheld.

102    If Mayfield succeeds in establishing that conduct of the NSW Ports in making the Port Commitment Deeds contravened any of the competition law provisions in the CCA then s 4L will operate to effect the removal of the offending provision from the Port Commitment Deeds: see SST Consulting at [52]-[53]. It will not do so as part of the making of orders granting a statutory remedy to Mayfield. Those orders will be directed to the NSW Ports. The way s 4L works is to provide for a further statutory consequence for any contract where it has been established that a party contravened the CCA making that contract. We are not persuaded that a consequence of that kind, which does not arise from the bringing by Mayfield of any form of claim against the State or any application by Mayfield for any form of relief in respect of which the State is a necessary party according to general principles, falls within the terms of the Settlement Deed.

103    No doubt, if Mayfield was to be successful in its claim to the relief that it seeks against the NSW Ports, issues will be likely to arise as to the way in which s 4L will operate in respect of the provisions in the Port Commitment Deeds. Indeed, as has been explained, that prospect has significance for the application of the Crown immunity principle of statutory construction. These are reasons why the State is a proper party. However, that is because of issues as to the statutory consequences that arise even though Mayfield does not advance any claim against the State. The absence of any such claim means that there is no claim for the purposes of the Settlement Deed and the involvement of the State in the Mayfield proceedings arising from circumstances that are outside the terms of the release and plea in bar provisions of the Settlement Deed.

104    For completeness, we note that the general words of a release are to be qualified by the particular matters which the recitals (or the evidence) show to be the occasion of the release: Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 at 123-124, 131. There was no reliance upon principles of that kind or upon any contextual matters to aid the proper construction of the Settlement Deed.

Orders

105    For reasons that have been given, the appeal must be dismissed and there should be an order accordingly.

106    Having regard to the fact that the NSW Ports and the State have been successful in defending the appeal but not as to their notices of contention, we would order Mayfield to pay 60% of the respondents’ costs of the appeal. Those costs should be taxed if not agreed.

Associate:

Dated:    3 April 2025