Leisure & Entertainment Pty Ltd v Willis, Ralph Federal Treasurer of the Commonwealth of Australia & Ors [1996] FCA 1

CATCHWORDS

LOCUS STANDI - Administrative Law - Applicant for a writ of mandamus against a Minister of the Crown - public rights - whether the applicant has a special interest - whether the Treasurer has a duty to act - whether duty owed to the applicant.

ADMINISTRATIVE LAW - Mandamus - not available to force the exercise of a discretion - not available to enforce policy.

INTERLOCUTORY INJUNCTIONS - no standing in principal proceedings therefore no standing to seek interlocutory relief - value of undertaking with respect to damages.

INTERPRETATION OF STATUTES - "may" - whether imperative or permissive.

Judiciary Act 1903 - s39B

Foreign Acquisitions and Takeovers Act 1975 - ss19(1)(a), 19(2), 21A(1)(a), 21A(2), 22, 23, 24, and 25

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Epitoma Pty Ltd v AMIEU (1984) 54 ALR 713

Active Leisure (Sports) Pty Ltd v Sportsman's Australia Limited [1991] 1 Qd R 301

Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493

Onus v Alcoa of Australia Limited (1981) 149 CLR 27

Ogle v Strickland (1987) 13 FCR 306

United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520.

Robinson v The Western Australian Museum (1977) 138 CLR 283 Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70

Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1

Australian Agricultural Company v Oatmont Pty Ltd (1992) 106 FLR 314

R v Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69

Murphyores Incorporated Pty Ltd v The Commonwealth (1975-76) 136 CLR 1

R v Anderson; Ex parte Ipec Air Pty Ltd (1965) 113 CLR 177

Barnett v Minister of Housing (1991) 31 FCR 400

LEISURE & ENTERTAINMENT PTY LTD V THE HONOURABLE RALPH WILLIS, FEDERAL TREASURER OF THE COMMONWEALTH OF AUSTRALIA & ORS.

No. QG 204 of 1995

SPENDER J

BRISBANE

2 JANUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA)

QUEENSLAND DISTRICT REGISTRY ) No. QG 204 of 1995

GENERAL DIVISION )

BETWEEN : LEISURE & ENTERTAINMENT PTY LTD ACN 071 763 427

Applicant

AND : THE HONOURABLE RALPH WILLIS, FEDERAL TREASURER OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

AND : JANOLA DALE PTY LTD

Second Respondent

AND : KENNETH JOHN STOUT and ROSS ANDREW DUUS as Receivers and Managers of DREAMWORLD PRODUCTIONS PTY LTD (RECEIVERS AND MANAGERS APPOINTED)

ACN 009 904 492

Third Respondents

CORAM: Spender J

PLACE: Brisbane

DATE: 2 January 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

(1) the motion filed on 27 December 1995 seeking interlocutory relief is dismissed;

(2) the applicant is to pay the respondents' costs of and incidental to the application for interlocutory relief, to be taxed if not agreed, and those costs are to include the costs of the motions to be joined as respondents.

THE COURT GRANTS liberty to apply.

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

IN THE FEDERAL COURT OF AUSTRALIA)

QUEENSLAND DISTRICT REGISTRY ) No. QG 204 of 1995

GENERAL DIVISION )

BETWEEN : LEISURE & ENTERTAINMENT PTY LTD ACN 071 763 427

Applicant

AND : THE HONOURABLE RALPH WILLIS, FEDERAL TREASURER OF THE COMMONWEALTH OF AUSTRALIA

First Respondent

AND : JANOLA DALE PTY LTD

Second Respondent

AND : KENNETH JOHN STOUT and ROSS ANDREW DUUS as Receivers and Managers of DREAMWORLD PRODUCTIONS PTY LTD (RECEIVERS AND MANAGERS APPOINTED)

ACN 009 904 492

Third Respondents

CORAM: Spender J

PLACE: Brisbane

DATE: 2 January 1996

REASONS FOR JUDGMENT

An application was filed on 27 December 1995 by Leisure & Entertainment Pty Ltd ('Leisure') under s 39B of the Judiciary Act 1903 seeking, against the Honourable Ralph Willis, Treasurer of the Commonwealth of Australia, first, an order that he show cause why a writ of mandamus should not issue directing him to refuse an application by Janola Dale Pty Ltd ('Janola') to acquire the business and real estate known as the Dreamworld Theme Park, Coomera, Queensland; secondly, an injunction restraining him from approving that application; and thirdly, by way of interlocutory relief, an
injunction, pending the hearing of the application, restraining the Treasurer from approving Janola's application.

Section 39B(1) of the Judiciary Act 1903 provides:

" The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. "

It is common ground that the Treasurer is "an officer of the Commonwealth" for the purposes of that section.

I am presently concerned with the application for interlocutory relief. By notice of motion filed also on 27 December 1995, the applicant sought an order that, pending the hearing of this matter, an injunction issue restraining the respondent, Mr Willis, from approving an application by Janola to acquire the business and real estate known as Dreamworld Theme Park, Coomera, Queensland. The time within which that motion was to be served was abridged.

On an application for interlocutory relief, an applicant must show, first, that there is a serious question to be tried and, secondly, that the balance of convenience favours the granting of the injunction. In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, Mason ACJ, as he then was, said at 153:

" The principles governing the grant or refusal of interlocutory injunctions in private law
litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction, the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. "

It may be that the second matter referred to by his Honour is merely an aspect of the third. See also Epitoma Pty Ltd v AMIEU (1984) 54 ALR 713 at 739-740, and the judgment of Cooper J in the Full Court of the Supreme Court of Queensland in Active Leisure (Sports) Pty Ltd v Sportsman's Australia Limited [1991] 1 Qd R 301 at 311.

When the application for interlocutory relief was called on last Friday, 29 December 1995, application was made pursuant to O 6 r 8(1)(b) by Janola and by Kenneth John Stout and Ross Andrew Duus to be joined as respondents to the principal application. Mr Stout and Mr Duus are the receivers appointed by the mortgagee of Dreamworld, the Independent Order of Odd Fellows of Victoria Friendly Society ('IOOF').

As Janola and the receivers were clearly interested in the grant of interlocutory relief, as well as the relief claimed in the principal proceedings, they became, respectively, the second and third respondents in these proceedings.

The affidavit in support of the application for, inter alia, interlocutory relief, was by Mr Lindsay Schmalkuche, a director of Leisure.

Leisure was incorporated on 10 November 1995 with a paid up capital of $2. Mr Schmalkuche was appointed a director of Leisure on 22 December 1995; the other directors are Ross Palmer and his wife, Sue Palmer, and the ultimate controller of Leisure is Mr Palmer, an Australian citizen.

Dreamworld is a major tourism and leisure theme park, situated at Coomera near the Gold Coast, which comprises a main tourism and leisure park of approximately 30 hectares and a large amount of surplus land adjacent to the main park, which is undeveloped and vacant, of approximately 52 hectares. Dreamworld is owned by Dreamworld Productions Pty Ltd (Receivers and Managers appointed) and, as I indicated, Mr Stout and Mr Duus of Messrs Ernst & Young, chartered accountants, were appointed by IOOF, the mortgagee of Dreamworld, to be receivers.

On 13 November 1995, a contract was executed between the receivers and Janola. That contract was unconditional except in that it required the "approval" of the Financial Investments Review Board. In the affidavit of Paul Geoffrey Newman, solicitor of Feez Ruthning, he says:

" The Contract is conditional upon Janola Dale obtaining approval by the Completion Date of the Treasurer under the Foreign Acquisitions and Takeovers Act for the acquisition by Janola Dale of Dreamworld. "

I should say that both in the principal application and in the notice of motion for interlocutory relief, as well as in the paragraph to which I have just referred, there is reference to obtaining the "approval" and "refusing to approve" an application. The significance of that description will appear later.

The original completion date for the contract between the receivers and Janola was 16 December 1995, but it was extended until 14 February 1996. Under clause 5(4) of the contract, Janola is obliged to pay interest on $76,141,502 at the rate of 10% per annum. That is, at a rate of $20,860 per day from 16 December 1995 until completion is effected. The interest is payable on completion. On 20 November 1995 an application was lodged with the Foreign Investment Review Board seeking "approval".

Dreamworld has been marketed extensively both within and outside Australia, both prior to and following the appointment of receivers on 20 July 1990. That marketing includes marketing by merchant bankers, Capel Court, on behalf of a Mr Bruce Jenkins who was formerly associated with Dreamworld; marketing by merchant bankers Wardley James Capwell on behalf of the receivers between August 1991 and September 1993; an option granted to a major listed tourism company in late 1993; and an agreement to sell to a company to
be floated which was frustrated by litigation by a former owner and disclosure demands placed upon the float company by the Australian Securities Commission.

In addition there have been, I accept, frequent approaches by interested parties between October 1994 and June 1995 being inquiries both from Australian interests and interests of overseas parties.

The contract executed between Janola and the receiver met the criteria of the IOOF Board and has the full support of the receivers and of that Board.

By letter of 29 November 1995 the Victorian Financial Institutions Commission gave its support to the purchase of Dreamworld by Janola noting that it was imperative that a sale be completed before the Commission could agree to lifting of freeze conditions on redemption of investment bonds held by three of the IOOF benefit funds, a freeze which impacted on the ability of in excess of 20,000 members to access their funds.

On 6 December Janola responded to reports said to emanate from the Queensland Premier which referred to the extensive marketing of Dreamworld which had occurred both before and after the appointment of the receivers in 1990; which confirmed Janola's intention to retain Australian management and to enhance the Australian theme of Dreamworld; and which confirmed the intentions Janola had in respect of the excess land which forms part of the sale.

Importantly, on Wednesday 8 November 1995, the receivers had written to Mr Paul Rogers of InterFinancial Limited who were acting on behalf of Mr Palmer, controlling interest of Leisure. At that time the receivers advised Mr Rogers that IOOF would accept a contract "which is unconditional as to due diligence and finance" and that the first party that could provide the same and meet all other criteria, including payment of a non-refundable 10% deposit, would be the preferred purchaser.

On 20 December 1995 the Treasurer, Mr Willis, issued a press release headed 'Foreign Investment Proposal: Dreamworld Theme Park, Coomera Queensland'. It said:

" The Government has decided to issue an interim order under subsection 22(1) of the Foreign Acquisitions and Takeovers Act 1975 (FATA) which will extend the examination period for a proposal by Janola Dale Pty Ltd (Janola Dale) to acquire the business known as the Dreamworld Theme Park, Coomera, Queensland.

2. Janola Dale is a Victorian incorporated company ultimately owned by KPL Holdings Private Ltd (KPL) owned by Mr Kua Phek Long, a Singaporean resident. KPL is an investment holding company which is engaged primarily in property development and investments in Singapore, China and Thailand.

3. The proposal by Janola Dale involves the acquisition of Dreamworld which includes the theme Park and 57 hectares of excess land.

4. Dreamworld was placed into receivership in July 1990 by the Independent Order of Odd Fellows of Victoria Friendly Society with Ernst & Young appointed as Receivers and managers. Dreamworld has been extensively marketed both nationally and internationally prior to and subsequent to its receivership in July 1990.

5. The interim order is being issued to allow the Australian interests of Mr Ross Palmer until 29 December 1995 the opportunity to pursue a contract for the purchase of Dreamworld should the sale to Janola Dale not proceed. "

That paragraph is particularly important. The press release continues:

" 6. However, if Mr Palmer has not entered into a contract by 29 December 1995 to purchase Dreamworld on at least the same terms and conditions as the Janola Dale contract, the Government will approve Janola Dale's proposal to acquire Dreamworld subject to the following, in broad terms, conditions:

. Janola Dale completes feasibility studies concerning the development of the excess land by 31 December 1996 and commences continuous development within twelve months of receipt of the necessary planning approvals. Otherwise the excess land, or part thereof, as the case may be, is to be sold within twelve months irrespective of price; and

. Janola Dale provides advice on completion of the project notifying the completion date and actual development expenditure. This advice should be provided within three months of completion. "

I will refer to the Foreign Acquisitions and Take-overs Act (1975) as 'the Act'. Leisure is an "Australian corporation" for the purposes of the Act, and Janola is a "foreign person" pursuant to ss 19(1)(a) and 21A(1)(a) of the Act.

The provisions of ss 19(2) and 21A(2) are central to these proceedings.

Section 19(2) provides:

" Where the Treasurer is satisfied that:

(a) a person proposes, or persons propose, to acquire assets of an Australian business carried on solely by a prescribed corporation or prescribed corporations;

(b) the proposed acquisition or acquisitions would have the result that:

(i) in the case of a business not controlled by foreign persons - the business would be controlled by foreign persons...

and...

(c) that result would be contrary to the national interest;

the Treasurer may make an order prohibiting the proposed acquisition or all or any of the proposed acquisitions, as the case may be. "

Section 21A(2) provides:

" Where the Treasurer is satisfied that:

(a) a foreign person proposes to acquire an interest in Australian urban land; and

(b) the proposed acquisition would be contrary to the national interest;

the Treasurer may make an order prohibiting the proposed acquisition. "

The Act describes itself as:

" An Act relating to the foreign acquisition of certain land interests and to the foreign control of certain business enterprises and mineral rights. "

Section 22 provides that:

" (1) For the purpose of enabling due consideration to be given to the question whether an order should be made under subsection ...19(2)... or 21A(2), the Treasurer may make an order of the kind that he would be empowered to make under that subsection if it were applicable.

(2) An order made under this section has effect for such period, not exceeding 90 days after the coming into operation of the order, as is specified in the order. "

Section 23 provides that:

" The Treasurer may at any time make an order revoking an order made under section ...19,...21A or 22..."

Section 24 provides that:

" An order made by the Treasurer under this Part shall be made in writing signed by him, shall be published in the Gazette within 10 days after the date on which it is made, and comes into operation...[except in the case which is not presently applicable]...on the date of the publication. "

That provision highlights the difference between orders made under the Act and the contents of press releases which have been issued.

Section 25(1A) provides:

" Where the Treasurer is empowered to make an order under subsection 18(2), 19(2), 20(2), 21(2) or 21A(2) in relation to the acquisition, agreement, arrangement, issue or alteration specified in the notice, the Treasurer may, instead of making such an order, decide that the Commonwealth Government has no objection to the proposal specified in the notice, provided that the person or corporation complies with conditions that the Treasurer, when making the decision, considers necessary in order that the proposal, if carried out, will not be contrary to the national interest. "

The effect of that is that the Treasurer may impose conditions which, in his opinion, he considers necessary so that a proposal will not be contrary to the national interest.

Section 25(2) provides that:

" If 30 days pass after the day on which the Treasurer receives the notice and by the end of that period:

(a) the Treasurer has not:

(i) made a decision under subsection (1A) in relation to the proposal specified in the notice, being a decision of which advice is given in writing to the person or corporation before the end of 10 days after the day on which the decision is made; or

(ii) made an order under this Part in relation to the acquisition, agreement, arrangement, issue or alteration specified in the notice, being an order published in the Gazette before the end of 10 days after the day on which the order is made; and

(b) the person or corporation has not carried out the proposal;

the Treasurer is not empowered:

(c) to make an order under this Part in relation to the acquisition, agreement, arrangement, issue or alteration; or

(d) to make a decision under subsection (1A) in relation to the proposal. "

Section 25(3) makes similar provision in circumstances where an interim order has been made, such as in the present case, so that if the Treasurer has not made a decision or made and published an order within 90 days after the date on which the interim order is published, then he is not empowered to make any further order or to make a decision under subsection 25(1A).

It is only in the sense indicated by these provisions that the Treasurer "approves" or "refuses to approve" an application for the acquisition by a "foreign person" of assets of an Australian business or the acquisition by a foreign person of Australian urban land.

There was published in the Government Gazette No. S502 of 22 December 1995 two orders made by the Treasurer dated 20 December 1995 and signed by him. They were in the following terms:

" ORDER UNDER SUBSECTION 22(1)

WHEREAS -

(A) Dreamworld Productions Pty Ltd (Receivers and Managers Appointed) (ACN 009 904 492)(Dreamworld), is a prescribed corporation for the purposes of subsection 13(1) and section 19 of the Foreign Acquisitions and Takeovers Act 1975 ('the Act')

(B) Janola Dale Pty Ltd (ACN 071 556 992) (Janola Dale), of Level 33, 120 Collins Street, Melbourne, Victoria, postcode 3000, being the trustee for the Euro-Asia Leisure Trust, is a foreign person for the purposes of section 4 and section 19 of the Act;

(C) Janola Dale proposes to acquire such assets of the Australian business carried on by Dreamworld as specified in the notice received on 20 November 1995, furnished under section 25 of the Act;

NOW THEREFORE I, Ralph Willis, Treasurer, pursuant to subsection 22(1) of the Act, for the purpose of enabling due consideration to be given to whether an order should be made under subsection 19(2) of the Act, PROHIBIT the proposed acquisition for a period not exceeding ninety days after this order comes into operation. "

" ORDER UNDER SUBSECTION 22(1)

WHEREAS -

(A) Janola Dale Pty Ltd (ACN 071 556 992) (Janola Dale), of Level 33, 120 Collins Street, Melbourne, Victoria, postcode 3000, being the trustee for the Euro-Asia Leisure Trust, is a foreign person for the purposes of subsection 4(6) and section 21A of the Foreign Acquisitions and Takeovers Act 1975 ('the Act');

(B) Janola Dale proposes to acquire such interests in Australian urban land in the State of Queensland as specified in the notices received on 20 November 1995, furnished under sections 25 and 26A of the Act;

NOW THEREFORE I, Ralph Willis, Treasurer, pursuant to subsection 22(1) of the Act, for the purpose of enabling due consideration to be given to whether an order should be made under subsection 21A(2) of the Act, PROHIBIT the proposed acquisition for a period not exceeding ninety days after this order comes into operation. "

The basis of the complaint by Leisure is said to be, first, non-compliance with Queensland Government policy; secondly, disconformity with the national policy guidelines summarising Australia's foreign investment policy as at 30 June 1994; thirdly, concerns about the purchase of the excess land and the possible environmentally sensitive nature of it and the time within which that excess land might be developed; and fourthly, any possible conflict with policies of either the State or Commonwealth Government of an environmental kind.

It was further submitted by Mr C E K Hampson QC, senior counsel for Leisure, in relation to a matter which loomed large in the course of submissions, that it was contrary to the national interest not to prohibit the acquisition of assets and urban land by a foreign investor who has contracted to acquire those assets and land, the contract being conditional only on "foreign investment approval", where, after the execution of that contract, an Australian buyer appears who is prepared to match or better the terms of the contract with the foreign person.

As to the first matter asserted, that dealing with alleged non-compliance with Queensland Government policy, the text "Foreign Investment Regulation in Australia" by Roger Hamilton, contains details of the Queensland Government's policy on foreign investment. Under the heading "Foreign Investment in Queensland - A Guide for Investors", the following general principles are espoused:

" The Queensland Government welcomes foreign investment as a major contributor to Queensland's economic development. The Government recognises that Australia has historically been capital deficient, and that foreign investment has played a significant role in the development of Queensland and Australian economic capacity, particularly in the export sector.

Foreign investment, in addition to creating growth and employment, has also introduced new skills and technologies and provided access to new markets.

The Queensland Government encourages foreign investment in all sectors of the State's economy. However, the government seeks to influence the flow of such investments into sectors of the economy where the investment will make a positive contribution to the economy. "

The guide then refers to the type of benefits which the Government particularly wishes to foster, and continues:

" ...these benefits would generally be maximised in joint venture arrangements between Australian companies and foreign investors.

However, it is acknowledged that there will be circumstances when Australian equity participation is not available and when the State and national interests can be enhanced only by full foreign ownership. "

The guide continues:

" The role of the State Government in regard to foreign investment is recommendatory. The Commonwealth Government has legislative power over the foreign investment. Commonwealth policy on foreign investment is embodied in the guidelines released by the Commonwealth Department of the Treasury. "

And later:

" The Commonwealth guidelines on foreign investment specifically include a consultative role for State Government departments and authorities in the examination of large or otherwise significant foreign investment proposals. "

And later still:

" The policy approach by the Commonwealth to foreign investment is governed by national interest considerations relating to Australia as a whole. By consulting with the relevant State Government, the Commonwealth Government acknowledges that particular State interests are taken into account.

The Queensland Government acknowledges and supports this consultative process and recognises that the Commonwealth's foreign investment guidelines impose on the States a responsibility to provide advice to the FIRB in terms of support for or opposition to specific foreign investment proposals. "

Later in the Queensland Guide under the heading "Tourism" it says:

" As a major growth sector of the Queensland economy, the tourism industry will have a continuing need for investment capital. The Queensland Government accordingly encourages foreign investment in the tourism industry but would prefer joint venture projects between Australian and foreign companies.

With regard to the foreign acquisition of developed tourism-related assets or business and property for tourism-related development, the Queensland Government supports the Commonwealth guidelines. "

So far as the Commonwealth National Guidelines are concerned there appears, in the same text by Hamilton, a "Summary of Australia's Foreign Investment Policy as at 30 June 1994". It commences:

" The Government's foreign investment policy is framed and administered with a view to encouraging foreign investment in Australia and ensuring that such investment is consistent with the needs of the community.

The Government recognises the substantial contribution foreign investment makes to the development of Australia's industries and resources. Capital from other countries supplements domestic savings and provides scope for higher rates of economic activity and employment.

Foreign capital also provides access to new technology, management skills and overseas markets. "

Later, dealing with real estate, the policy summary states:

" Proposed acquisitions of residential real estate are exempt from examination in the case of Australian citizens living abroad and foreign nationals entitled to permanent residence in Australia.

Proposed acquisitions of real estate for development (within 12 months) are normally approved unless they are contrary to the national interest.

Foreign interests are normally given approval to buy vacant residential land (on condition that construction of a dwelling is commenced within 12 months) and to buy home units, townhouses etc 'off-the-plan', under construction or newly constructed but never occupied, (the 'off-the-plan' criteria only applies to new development projects or extensively refurbished commercial structures which have been converted to residential), on condition that no more than half of the units in any one development are sold to foreign interests. "

On 21 December last year Mr Willis issued a further press release. It states:

" Several inquiries including from the Australian interests pursuing a contract to buy Dreamworld have sought clarification of my announcement yesterday.

If Mr Palmer enters into a contract by December 29, 1995 to purchase Dreamworld on the same or better terms than the current Janola Dale contract, I will not give the Janola Dale bid foreign investment approval.

In the absence of such a binding contract I will approve the Janola Dale application.

It is extremely important that the financial interests of tens of thousands of ordinary Australians, including many Queenslanders, whose savings are entrusted to a friendly society which is the major creditor of Dreamworld are not jeopardised.

The assessment of commercial terms of any new contract can only be made by the receiver, who is responsible at law for the receivership processes including the protection of the interests of Dreamworld creditors.

It is not appropriate for the Government to become involved in negotiations between commercial parties. The financial and legal issues involved need to be resolved by those with the relevant responsibilities.

Mr Palmer asked me at a meeting on Tuesday to provide him with more time to pursue a contract and that is precisely what he has been given. "

If this announcement was intended to give Mr Palmer a final opportunity of negotiating a contract with the receivers, it had, in fact, the consequence of preventing it. Mr F G A Beaumont QC, for the receivers, made it plain that the receivers, in the light of Mr Willis's statement of 21 December 1995, would not do anything that would make the contract they had with Janola "fall over", for to do so would expose them to significant damages for breach of contract. That view was shared by Mr C E K Hampson QC, senior counsel for the applicant.

The receivers' position appears plain from paragraph 9 of an affidavit filed in court on 29 December 1995 of Mr Alastair Ian Beaton. He says:

" The receivers have not currently entered into any agreement with the applicant or Mr Ross Palmer or any companies associated with Mr Palmer and do not intend to do so. If the purchaser does not receive FIRB approval and the contract is not completed then the assets for sale will be re-advertised both within Australia and internationally. The applicant has been informed on several occasions of the position of the receivers in the event of the contract of sale not being completed as a result of FIRB approval not being obtained. "

On 20 December 1995 Messrs Higgins Teale, solicitors for the receivers, wrote to Messrs Hopgood and Ganim, who are the solicitors for Leisure. The middle paragraph of that communication said:

" The answer to your inquiry is that our clients are not prepared at this point to do anything which in any way might jeopardise the existing contract. It is their view that execution of a contract with your client or any other party may prejudice the existing contract. "

On 21 December 1995, Higgins Teale said:

" In relation to your request that our clients execute a contract with your client, we reiterate our previous advice that our clients are precluded at this time from entering into any further contract in relation to the Dreamworld assets. "

And on 22 December 1995, they again said:

" We reiterate in the strongest possible terms that our clients' position regarding the sale of the Dreamworld Assets remains as detailed to you in our letter of 21 December, 1995 i.e. our clients are precluded from entering into any further contract in relation to the sale of the Dreamworld assets. "

It was submitted by Mr J McGill QC, senior counsel for the Treasurer, that under the Act the function of the Treasurer is limited. It was submitted that:

" Where there is a particular proposed acquisition which he is satisfied is contrary to the national interest, he may prohibit it or impose conditions so as to prevent its being contrary to the national interest.

Subject to that, everyone is free to sell their property as they wish. It is no part of the Treasurer's function to decide that a vendor is to sell to one person rather than another, or to interfere in commercial negotiations to give one person an advantage over another, particularly an unfair advantage. The Treasurer can not, and will not, force the receivers to sell to Mr Palmer. "

Submissions on behalf of the Treasurer referred to the circumstance that the property has been on the market since before 1990. It was submitted on behalf of the Treasurer that:

" Mr Palmer has had plenty of opportunity to purchase it but for whatever reason (and the reason is irrelevant) the receivers have entered into a contract to sell to another. After that contract was in place, Mr Palmer has come along and said: Prohibit that sale, so the receivers can sell to me, without my having to buy out the prior purchaser.

It is not the purpose of this legislation to assist in overturning contracts to further the commercial advantage of third parties. It could be very damaging to Australia's international commercial reputation if the Treasurer interfered with contracts in this way, or if this occurred in the courts.

It was submitted in this respect by the Treasurer that:

" The interim order gave Mr Palmer an opportunity, but that was all. He says it was not much of an opportunity, but at least he is no worse off for it. He has lost nothing by it, and it does not give him a legal right to anything more. "

I have already commented in respect of what I perceive to be the effect of the press releases by the Treasurer. They preclude the receivers from entering into any further contract with Mr Palmer except at the price of exposing themselves to a possible claim for large damages for breach of contract.

It was submitted on behalf of Leisure that the approval of the purchase of Dreamworld by a foreign person would be contrary to the national interest and that the threatened determination by the Treasurer, in the first and second press releases, to grant approval to Janola to purchase Dreamworld under the provisions of the Act, if Leisure has not entered into a contract by 29 December 1995, is contrary to law.

It was said that the Treasurer had taken into account irrelevant considerations and failed to take into account relevant considerations including the policy guidelines to which I have referred and what is said to be the objection by the Queensland Government to the proposed purchase by Janola. That submission misrepresents the position of the Queensland government.

On 1 December 1995 the Premier, Mr Goss, wrote to Mr Palmer. The letter commenced:

" As you are aware the Queensland Government has been asked by the Commonwealth to comment on the foreign investment application by Mr Kua Phek Long of Singapore to purchase Dreamworld.

I understand you have sought clarification of the Government's position on this matter. As you would appreciate the Government's detailed submission to the Federal Treasurer, Mr Willis is confidential, nevertheless, I am happy to advise you of the Government's position in general terms.

I note your concerns about the sale of Dreamworld to overseas interests and share your view that Australian investors should be given every opportunity to purchase Dreamworld and other significant tourist assets especially when they incorporate a strong Australian theme. "

He made other observations, and then concluded:

" The government also accepts that the purchase of Dreamworld by foreign interests may well be in breach of both State and Federal Government urban land policy.

The Dreamworld facility comprises both the existing park which occupies about 30 hectares and approximately 52 hectares of vacant land. The urban real estate policy of both the Commonwealth and State Government requires foreign purchasers to give undertakings to develop vacant land within 12 months of purchase. Given the regional planning study being undertaken in the Coomera area it is unlikely that the development of the land could be achieved within that twelve month period.

The Queensland Government as you know is keen to attract new investment into Queensland and believes foreign investment plays an important role in the development of the State. The Government however believes that in the case of Dreamworld every opportunity should be given to Australian investors before selling to overseas interests. "

I decline to grant the interlocutory relief that is sought. It would be futile, in my opinion, because the applicant has no prospect of obtaining the relief it claims in the principal proceedings. There are two key reasons for that view.

First, on the authorities, in my opinion, Leisure has no standing to bring proceedings for the principal relief it claims. It follows then that it has no standing to seek interlocutory relief in support of that principal application.

Secondly, mandamus under s 39B of the Judiciary Act 1903 is an order made by the court to enforce the performance of a duty owed by an officer of the Commonwealth to the applicant. In this particular case, in my opinion, there is no duty imposed on the Treasurer under either s 19(2) or s 21A(2) of the Act. The power conferred on the Treasurer is discretionary and not mandatory. Further, if I am wrong in that conclusion and there is a duty imposed on the Treasurer, it is not a duty which is owed to the applicant and it follows that, in my opinion, mandamus does not lie to compel the making of an order under s 19(2) or s 21A(2).

The question of standing has been the subject of much authority at the highest levels. The question of standing to maintain a proceeding has been considered by the High Court in Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Limited (1981) 149 CLR 27; and by the Full Court of the Federal Court in Ogle v Strickland (1987) 13 FCR 306 and United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520.

The High Court also considered the question in Robinson v The Western Australian Museum (1977) 138 CLR 283 and there is the useful judgment in the Federal Court of Davies J in Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70.

More recently and more directly for present purposes is the judgment of the Full Court of the Federal Court in Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1. The three members of the court, Lockhart, Morling and Pincus JJ, were unanimous in their conclusion that, in the circumstances of that case, Yates lacked standing to challenge the determination made by the Minister, which was concerned, amongst other things, with the heritage significance of Paddy's Market in Sydney.

The judgment in Yates was followed by the Court of Appeal of the Northern Territory in Australian Agricultural Company v Oatmont Pty Ltd (1992) 106 FLR 314. The judgment of Mildren J was agreed with by Asche CJ and Martin J. There the case which Oatmont sought to establish was that it was a competitor with AACO for the acquisition of land on the Barkly
Tablelands generally and for the Austral Downs and Barramurra pastoral leases in particular. Those leases were held by Waxahachi Pty Ltd ('Waxahachi').

Whilst Oatmont did not engage in any tender for the shares in Waxahachi that were purchased by AACO, it sought to compete commercially with AACO for the acquisition of Austral Downs and Barramurra by entering into negotiations with Waxahachi to purchase those leases at a time when Waxahachi was not owned by AACO. It was submitted that Oatmont had a special interest in requiring that its competitor for the acquisition of property complies with the law concerning restrictions on entitlement to have an interest in pastoral property exceeding a prescribed area. At 328 his Honour said:

" Putting aside any question as to the lack of evidence of the financial capacity of either Oatmont or Delamere to acquire the properties, and assuming that, if the declaration sought was granted, the consequences of the declaration would have the results contended for, it is my opinion that neither Oatmont nor Delamere has any special interest to give it standing to sue under the second limb of Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114...as that limb has since been developed by such cases as Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493; Robinson v The Western Australian Museum (1977) 138 CLR 283 and Onus v Alcoa Australia Limited (1981) 149 CLR 27. "

In Yates, the position of standing was discussed by Lockhart J at 14 where his Honour said:

" The essential findings of the trial judge were that Yates desired to redevelop the site itself and it hoped that success in this proceeding would provide the opportunity to do so... "

Yates brought proceedings opposing foreign investment approval to a foreign company, Rockvale Pty Ltd. Further, at 14, his Honour said:

" ...that although success in the case would not enable Yates to make a financial claim, it would confer upon it commercial benefit in the sense of the opportunity to negotiate for the acquisition and development of the site; this benefit would not be unique to Yates as other developers would also have the opportunity to negotiate if they wished. The evidence was that Yates had incurred expenditure in excess of $100,000 with respect to a proposal for the development of Paddy's Market, a proposal which Yates abandoned during the course of the hearing.

In my opinion, the ability to negotiate for the acquisition and development of the site, even if it is a commercial benefit, is one which Yates has whether it wins this case or not. Like any other member of the public it may negotiate for the acquisition and development of the site. The Treasurer's order of revocation places no impediment on Yates negotiating with Rockvale to acquire Paddy's Market and to negotiate with the Darling Harbour Authority to develop the site. The evidence does not establish that Yates has a special interest in the subject matter of the proceedings. Therefore it has no standing to bring it. "

Morling J said, at 21:

" Moreover, even if it be assumed, contrary to my opinion, that the opportunity to negotiate for the acquisition and development of the Paddy's Market site conferred a benefit upon Yates, such a benefit was enjoyed by all other members of the Australian public. The opportunity to negotiate was in no way special to Yates. The mere fact that it had expressed interest in developing the site did not give it any advantage over any other member of the public who might be interested to negotiate for its acquisition.

In my opinion, there is no authority to support the finding in the present case that Yates had standing to bring the proceedings. In Australian Conservation Foundation Gibbs J made it plain (at 526) that an ordinary member of the public, who had no interest other than that which any member of the public has in upholding law, has no standing to prevent the violation of a public right or to enforce the performance of a public duty. As his Honour said (at 530):

' A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle, or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails.' "

Pincus J said at 30:

" It should not be forgotten that what was in issue was the validity of the acquisition of an interest in land by Rockvale. It not uncommonly happens that contracts for sale of land are alleged in specific performance suits to be illegal, on one ground or another. If the decision on standing in this case is correct, then a stranger to the contract might have a claim to be heard in such a suit, merely on the basis that if the sale in question fell through the stranger would be interested in buying the property. "

Without the benefit of authority, I was initially attracted to the view that the terms of the two press releases by the Treasurer gave the applicant an interest that was different, and superior to, that of Yates or Oatmont in the two cases to which I have made specific reference, and that it had a sufficient special interest to challenge the foreshadowed determinations of the Minister; but on analysis that is not so. The qualification imposed by the Treasurer was never in fact attained by the applicant, and probably could not in any realistic sense be attained. The applicant is in no different a position, in my opinion, than it would have been if the press releases had not been issued.

True it is that what Leisure has offered is a contract to the receivers which is backed by unconditional finance - at least in a practical sense if not in a legal sense. And further, there is at least a serious question to be tried as to whether the terms of the contract offered by Leisure match or better the terms of Janola's contract. These aspects of this case differ from Mr Yates's case but in my opinion do not give to Leisure any special interest in the sense of which the authorities speak, so as to confer standing on the question of whether or not it is in the national interest that Janola acquire the business or urban land of Dreamworld.

I earlier referred briefly to the principal objection, namely that Mandamus does not lie to enforce the performance of what the Treasurer is empowered to do under s 19(2) or s 21A(2). I indicated that, in my opinion, those subsections do not impose a duty; they are discretionary and not mandatory. In de Smith's text, Judicial Review of Administrative Action, 4th Edition, at p 284 the learned author says:

" Sometimes the question before a court is whether words which apparently confer a discretion are instead to be interpreted as imposing a ministerial duty. Such words as 'may' and 'it shall be lawful' are prima facie to be construed as permissive, not imperative. Exceptionally, however, they may be construed as imposing a duty to act, and even a duty to act in one particular manner.

' Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise that power ought to be exercised, and the Court will require it to be exercised. '

Thus, licensing authorities empowered to renew the licenses of taxi-cab drivers and stevedores were held to be obliged to do so when an applicant had complied with prescribed procedural requirements; and local authorities empowered to approve building plans were held to be obliged to approve plans that were in conformity with their by-laws. But in modern legislation it can generally be assumed that when Parliament has used a word such as 'may' its intention has been to confer a discretion and not merely to impose a duty, other than a duty to exercise the discretion according to proper legal principles. "

In R v Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 10 FCR 69, a decision of Northrop J, his Honour concluded that Mandamus should issue in respect of both overpaid tax and interest thereon, and his Honour concluded that the Commissioner was under a present duty to pay interest as well. At page 74, his Honour said:

" The true position has been stated by Bray CJ in G.H. Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7 at 14:

' 1. Mandamus will not lie against the Crown or against a Minister of the Crown when acting purely as a servant of the Crown, but it may go against him when he is charged with the performance of some statutory duty and the applicant for mandamus is entitled to have an act done in the discharge of that duty without which he cannot enforce or enjoy some right which he possesses. As it is sometimes put, mandamus will lie against a Minister when he is acting, not simply under a duty to the Crown as its servant, but as a persona designata. Many cases, I think, establish this proposition from R v Commissioner of Woods and Forests (1850) 15 QB 761; 117 ER 646 to Ex parte Cornford; Re Minister of Education [1962] SR(NSW) 220. Many of the Australian cases are referred to in Benjafield and Whitmore, Principles of Australian Administrative Law (4th ed, 1971), pp 214-215. "

Relevant also to my conclusion are the observations by Mason J, as he then was, in Murphyores Incorporated Pty Ltd v The Commonwealth (1975-76) 136 CLR 1. His Honour, at 17, adopted the observations of Kitto J in R v Anderson; Ex parte Ipec Air Pty Ltd (1965) 113 CLR 177, at 189, where Kitto J, with whom Menzies J agreed, had said:

" It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield [1891] AC 173, at p 179. The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed. Even then a court does not direct that the discretion be exercised in a particular manner not expressly required by law, but confines itself to commanding the officer by writ of mandamus to perform his duty by exercising the discretion according to law. "

Of these words Mason J said, in Murphyores, at p 18:

" This statement, in my view, correctly and authoritatively expresses the principle which should be applied to a power to approve exportation conferred in the form in which reg 9 is expressed. "

Unlike many other statutory examples that could be given, there is a further consideration in the present case. The ambit of the power conferred on the Treasurer is very wide. It is predicated by, apart from the factual circumstances of the parties, his opinion as to whether a proposal is contrary to the national interest. The fact that the statute confers the exercise of the discretion to be dependent on the opinion of the Treasurer indicates to me that it is not competent for the court to direct how that discretion should be exercised.

The ambit of the court's power in mandamus extends to requiring the exercise of a statutory power according to law but it does not permit the dictatation of what the result of that exercise should be.

In the course of submissions, I made certain observations about the possible effect on Australia's reputation with foreign investors should the acquisition by the second respondent be prohibited. On reflection, such observations are irrelevant to the present matter. They are subjective opinions that go to the merits of whether a particular acquisition would be contrary to the national interest.

That question is, by the legislation, consigned to the Treasurer and it is his opinion which is necessary as a
precondition to the exercise of his discretion. In respect of that question, given by the Act to the Treasurer, the only basis, in my opinion, on which such opinion by the Treasurer might be impugned (and then only by a person having standing to do so) would be if it were shown that the opinion were not genuinely entertained or that the opinion was wholly unreasonable, by which I mean unreasonable in the Wednesbury sense.

The considerations with which I am presently concerned were extensively discussed by Stephen J in Murphyores to which I have earlier referred. After a lengthy analysis, Stephen J said at 14:

" When such a breadth of considerations is involved only something amounting to lack of bona fides could justify curial intervention in decisions made in the exercise of the power to relax export prohibitions. "

It is for those two central reasons that, in my opinion, it is not open to the applicant in the principal proceedings to pursue mandamus; nor does it have the standing to do so and it follows that it is not entitled to any interlocutory relief.

There are some further matters on which I should briefly touch.

Much of the criticism at the foundation of the applicant's attack is focused on adherence or disconformity with various policy statements. Mandamus is not available to enforce policy. So much appears from the judgment of Heerey J in Barnett v Minister of Housing (1991) 31 FCR 400 at 402-403. Mandamus, in my opinion, is available only to enforce a duty owed to an applicant.

The second matter of a minor kind relates to criticisms that the proffered contract on behalf of Leisure was, in truth, not supported by unconditional finance and, associated with that, having regard to the circumstances of the incorporation, worth and paid up capital of Leisure, any undertaking offered in support of interlocutory relief would be worthless.

In respect of both of those matters I think it right to say that in the light of the affidavit of Trevor George Cameron Smith which has been filed today, no proper basis has been shown to attack in a practical way, as opposed to a legal way, the availability of finance to Leisure to conclude any contract it might be able to obtain. Also, having regard to the contents of Mr Smith's affidavit indicating that the net assets of Ross Palmer Holdings Pty Ltd are in excess of $60 million, there is no basis shown to expect any difficulty with respect to the undertaking which, somewhat belatedly, was offered by Mr Hampson QC on behalf of the applicant, supported by Ross Palmer Holdings Pty Ltd.

The final matter to which I wish to refer is the question of costs. Since the principal bases of my refusing interlocutory relief are that mandamus is not open to compel the performance of the power conferred on the Treasurer by ss 19(2) and 21A(2) in the principal proceedings and also my view that Leisure lacks standing to pursue its claims for principal relief, in my opinion, subject to submissions of the parties, the respondents should have their costs of and incidental to the application for interlocutory relief. I refer to the costs being 'of and incidental to' the application for interlocutory relief to cover the costs of the motions to be joined as respondents.

It is quite plain that in the absence of successful challenge to the order that I have made, either the matter will be discontinued or there will be a successful application to dismiss under O 20 on the basis that there is no reasonable cause of action.

Having regard to what has been said by counsel, the orders that I make are these:

(1) the motion filed on 27 December 1995 seeking interlocutory relief is dismissed; and

Also, I grant liberty to apply.

I certify that this and the preceding thirty-four (34) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 2 January 1996

Counsel for the applicant : Mr C E K Hampson QC and Mr D M Logan

instructed by : Hopgood & Ganim

Counsel for the first

respondent : Mr D J McGill SC and

Ms R G Atkinson

instructed by : Australian Government Solicitor

Counsel for the second respondent : Mr J C S Sheahan and

Mr R M Derrington

instructed by : Feez Ruthning

Counsel for the third respondent : Mr F G A Beaumont QC and

Mr T D O North

instructed by : Higgins Teale

Date of Hearing : 29 December 1995

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