Federal Court of Australia
Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 4) [2024] FCA 538
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The separate questions be answered as follows:
(a) By reason of the applicant’s intervention in the appeal in ACCC v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16, is the applicant precluded (by principles of res judicata, estoppel, abuse of process or similar) from contending in these proceedings that ss 45 and 45DA(1) of the Competition and Consumer Act 2010 (Cth) (CCA) apply to the entry into the Port Commitment Deeds by the first to third respondents (NSW Ports) or were contravened by reason of the facts and circumstances pleaded in paragraphs 1–54 of the Statement of Claim?
Answer: No.
(b) If the applicant is not estopped or otherwise precluded from arguing that ss 45 and 45DA(1) of CCA apply or were contravened, is “derivative Crown immunity”, pleaded at paragraphs [57]–[92] of NSW Ports’ Defence and [57]–[89] of the State’s Defence, a complete answer to the applicant’s claims made in the FASOC?
Answer: Yes.
(c) Does the Deed of Release entered into on 24 December 2013, by the applicant, Anglo Ports, Grup Maritim TCB, SL, NPC and the State, and payment being made upon settlement on that date in accordance with its terms, operate as a release, bar and or complete defence to, or otherwise preclude, the claims made by the applicant in this proceeding?
Answer: No.
2. The parties are to confer in order to provide an agreed form of any consequential orders, including costs, by 4pm on 31 May 2024.
3. If the parties are unable to agree on a form of orders, they shall each provide their proposed orders by 4 pm on 31 May 2024 accompanied by any written submissions not exceeding three pages, and in that event, subject to any further order of the Court, consequential orders will be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MCELWAINE J:
1 These reasons determine three separate questions pursuant to orders made by Lee J on 2 February 2024. The parties agreed a Statement of Facts (SOF) for that purpose. The questions relate to decisions taken by the State of New South Wales between 2012 and 2014 to privatise Port Botany, Port Kembla and the Port of Newcastle, the relevant effect of which was to prioritise Port Botany as the primary container terminal (and to develop it to full capacity) with the consequence that container handling facilities at the Port of Newcastle would be limited. The Port of Newcastle is the primary coal export facility in the State.
2 The applicant, Mayfield Development Corporation Pty Ltd, claims in this proceeding that Port Commitment Deeds entered into on or about 31 May 2013 by the respondents are void in that they had the purpose or had or were likely to have the effect of substantially lessening competition in the market for the supply of port services for container cargo in the State contrary to s 45(2)(a)(ii) of the Competition and Consumer Act 2010 (CCA), as it was in May 2013. Mayfield also claims that the respondents were involved in the State giving effect to an understanding contained in the Port Commitment Deeds to the effect that the operator at the Port of Newcastle would be obliged to reimburse the State for its liability to pay compensation pursuant to the Port Commitment Deeds to the operator of Port Botany or Port Kembla if the volume of containers imported or exported through the Port of Newcastle exceeded a threshold amount. Mayfield further claims that the understanding extended to a commitment that the State would not approve an agreement for the construction of port facilities at the Port of Newcastle with a proponent who would not comply with a requirement of the State to reimburse it should it be obliged to pay such compensation. The understanding is also said to be contrary to s 45(2)(b)(ii) of the CCA. There is an associated claim of unlawful involvement by the respondents contrary to s 45(2)(b)(ii) and another that the conduct hindered Mayfield in supplying container handling services at the Port of Newcastle which caused it substantial damage contrary to s 45DA (1) of the CCA.
3 Mayfield had proposed to develop a portion of the Port of Newcastle for use as a container facility (Mayfield site). It lost the opportunity to do so when the State determined that Port Botany would be developed as the primary container terminal and entered into the Port Commitment Deeds as a step in implementing that decision.
4 Mayfield initially claimed declaratory relief and damages. During the hearing I granted leave to Mayfield to amend by deleting each claim for declaratory relief.
5 The separate questions arise because of three matters that are pleaded as defences. In 2018, the Australian Competition and Consumer Commission (ACCC) commenced proceedings (ACCC Proceeding) against NSW Ports Operations Hold Co Pty Ltd, Port Botany Operations Pty Ltd and Port Kembla Operations Pty Ltd (collectively NSW Ports) and contended that the Port Commitment Deeds contravened s 45(2)(a)(ii) of the CCA. The ACCC Proceeding failed at trial before Jagot J: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2021] FCA 720 (PJ). The ACCC unsuccessfully appealed to the Full Court: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16; (2023) 296 FCR 364, Allsop CJ, Yates and Beach JJ (FC). Mayfield was granted leave to intervene in the appeal to the Full Court and provided written submissions but did not otherwise seek to be heard upon the appeal.
6 NSW Ports are respectively the first, second and third respondents to this proceeding. The State was later joined as the fourth respondent. The first matter of defence that is presently relevant is that each of the respondents contend that Mayfield is “issue estopped” or is “precluded by res judicata” from asserting that ss 45 and 45DA of the CCA have been contravened by reason of Mayfield’s intervention in the appeal to the Full Court.
7 The second defence (relied on by all respondents) is that the provisions of the CCA do not apply to the alleged conduct of the respondents because they are entitled to rely on derivative Crown immunity. The Full Court held that the port privatisation process, including entry into the Port Commitment Deeds by the State, was not conduct in the course of a business by the State or an authority of it within the meaning of s 2B of the CCA and further by majority (Allsop CJ and Yates J; Beach J dissenting) that the relevant provisions of the CCA did not exclude the construction principle that where an Act does not bind the Crown, then absent a contrary intention, it does not divest the Crown of “proprietary, contractual or other legal rights or interests”: Australian Competition and Consumer Commission v Baxter Health Care Pty Ltd (2007) 232 CLR 1 at [62], Gleeson CJ. This is often referred to as the principle of derivative Crown immunity as explained by Allsop CJ at: FC [386]-[400].
8 The majority of the Full Court accepted that if the counterparties to the Port Commitment Deeds could not give effect to the compensation provisions, then the State would be relevantly divested. Justice Beach concluded that the CCA manifests an intent to exclude the operation of derivative Crown immunity.
9 The third matter of defence (relied on by the State) is that Mayfield is barred from bringing the proceedings in that it, amongst others, is a releasor party to a Deed of Settlement and Release entered into with the State on or about 24 December 2013 of all claims relating to the port privatisation process, including Mayfield’s proposal to develop the Mayfield site as a container port.
10 This brief summary of the background provides context to the three separate questions and the answers that I have concluded thereto:
(a) By reason of the applicant’s intervention in the appeal in ACCC v NSW Ports Operations Hold Co Pty Ltd [2023] FCAFC 16, is the applicant precluded (by principles of res judicata, estoppel, abuse of process or similar) from contending in these proceedings that ss 45 and 45DA(1) of the Competition and Consumer Act 2010 (Cth) (CCA) apply to the entry into the Port Commitment Deeds by the first to third respondents (NSW Ports) or were contravened by reason of the facts and circumstances pleaded in paragraphs 1–54 of the Statement of Claim?
Answer: No.
(b) If the applicant is not estopped or otherwise precluded from arguing that ss 45 and 45DA(1) of CCA apply or were contravened, is “derivative Crown immunity”, pleaded at paragraphs [57]–[92] of NSW Ports’ Defence and [57]–[89] of the State’s Defence, a complete answer to the applicant’s claims made in the FASOC?
Answer: Yes.
(c) Does the Deed of Release entered into on 24 December 2013, by the applicant, Anglo Ports, Grup Maritim TCB, SL, NPC and the State, and payment being made upon settlement on that date in accordance with its terms, operate as a release, bar and or complete defence to, or otherwise preclude, the claims made by the applicant in this proceeding?
Answer: No.
11 It should be observed that Mayfield accepts that the second question must be answered “Yes” as it is not open to me to reach a conclusion contrary to that of the majority of the Full Court. Mayfield makes the formal submission that the conclusion is wrong for the reasons given by Beach J.
The necessary facts
12 Much of the SOF is consumed by the privatisation process, including business plans, case studies, the Commonwealth National Ports Strategy 2011, Departmental scoping studies, consultant reports, the activities of the Treasury “transaction team”, various assessments of the practical and economic viability of operating more than one container port terminal in NSW, the grant of a concept development consent to develop a container terminal at the Port of Newcastle, assessments as to whether Port Kembla should be considered as the next logical container port facility once Port Botany reached capacity, and a decision made by the Treasurer in July 2012 that the government would support the development of a multi-use cargo facility at the Port of Newcastle (but not a container terminal) all of which ultimately resulted in a decision that Port Botany would remain, and would be developed, as the primary container port in NSW and that each of the ports would be privatised. The framework for privatisation was established by the Ports Assets (Authorised Transactions) Act 2012 (NSW).
13 During the privatisation process concern was expressed by some bidders for Port Botany and Port Kembla that the price that they were prepared to pay for a long-term lease of either might be discounted if additional container capacity were to be developed at the Port of Newcastle. A decision was taken by the State to address this concern in the form of the Port Commitment Deeds respectively for Port Botany and Port Kembla that were entered into by the Treasurer on behalf of the State, the first respondent and the operators of Port Botany and Port Kembla. The effect of clause 3 of the Port Commitment Deeds requires the State to pay compensation (compensation provisions) to the port operator if the following conditions are satisfied in two consecutive financial years:
(a) Port Botany or Port Kembla is not at full capacity for the import and export of containers;
(b) The volume of containers imported or exported through the Port of Newcastle exceeds 30,000 20 Foot Equivalent Units (TEU) plus natural growth (threshold); and
(c) The operator demonstrates to the reasonable satisfaction of the State that container traffic through the Port of Newcastle, which exceeds the threshold, has caused a reduction in containers imported or exported through either port.
14 The Port of Newcastle was privatised in May 2014. A lease was granted for a term of 98 years. As part of that process, the State required the successful bidder to enter the Newcastle Port Commitment Deed which is dated 30 May 2014. Clause 3 of that deed requires the Port of Newcastle Operations Pty Ltd, Port of Newcastle Investments (Property) Pty Ltd and Port of Newcastle Investments Pty Ltd to reimburse the State for any payments it is required to make to the operator of Port Botany or Port Kembla under the compensation provisions of the Port Commitment Deeds for each port (reimbursement provisions).
15 The ACCC contended in the ACCC Proceeding that the compensation provisions of the Port Commitment Deeds had one or more of the following purposes, and/or had or were likely to have one or more of the following effects:
(1) substantially lessening the competitive constraint on the Botany operator and the Kembla operator arising from supply or potential supply of port services for container cargo by the Port of Newcastle by reason of their rights to compensation for loss of container traffic under the compensation provisions;
(2) causing the State to procure that the Port of Newcastle would not materially increase its ability or capacity to compete in the supply of port services for container cargo in NSW (including by developing a container terminal) for so long as the Port of Newcastle was owned directly or indirectly by the State; and
(3) in connection with the privatisation of the Port of Newcastle (then in contemplation) causing the State to impose on any acquirer of the Port of Newcastle an obligation to reimburse the State for any payments the State was required to make under the compensation provisions, consequently preventing or hindering the owner of the Port of Newcastle developing a container terminal and thereby substantially lessening the competitive constraint on the Botany operator and the Kembla operator.
16 The ACCC further contended that the likely effect of the reimbursement provisions was to make it uneconomical to develop a container terminal at the Port of Newcastle for a period of 50 years and as such operated as a barrier to the expansion of the supply of port services for container cargo in NSW. But for those effects, it would be likely that the Port of Newcastle would be developed as a substantial container terminal to compete with Port Botany.
17 Mayfield commenced this proceeding in May 2019, approximately six months after commencement of the ACCC Proceeding. It made similar allegations about contravention of the CCA by entering and giving effect to the Port Commitment Deeds, the compensation provisions and the reimbursement provisions which hindered or prevented it from supplying container services at the Port of Newcastle, causing it substantial damage.
18 On 15 July 2019, the respondents applied for orders that this proceeding be stayed until determination of the ACCC Proceeding. The application was resolved by consent when, on 19 August 2019, Jagot J stayed this proceeding. A notation to the orders reads:
The parties have agreed to stay the Mayfield proceeding on the basis that the ACCC proceeding involves several issues for determination that are threshold issues with respect to the Mayfield proceedings, with significant overlap in the factual allegations.
19 The State was not a party to the proceeding at that time (it was not joined until orders were made on 22 June 2023).
20 On 3 February 2020, Mayfield by interlocutory application applied for the stay to be lifted. In an affidavit in support, made by its solicitor Mr Farnsworth, putting aside issues about security for costs and steps taken to secure a litigation funder, he said in substance that Mayfield considered it appropriate to lift the stay for this proceeding to be case managed concurrently with the ACCC Proceeding for reasons including that each proceeding alleges the same contraventions, raises the same questions with the risk of inconsistent findings. Mr Farnsworth further stated:
I am instructed by [Mayfield] that:
(i) [it] does not presently intend to agree to be bound by the outcome of the ACCC Proceeding, or of any common issues of fact and law in the ACCC Proceeding;
(ii) [Mayfield] presently intends to cross-examine any witnesses called by the respondents in the [Mayfield] Proceeding, and
…
The ACCC Proceeding may not address all issues that arise in the [Mayfield] Proceeding. The allegations concerning the likely effect of the impugned provisions on competition in the ACCC Proceeding and the [Mayfield] Proceeding (particularly, the alleged counterfactuals) do not overlap entirely…
21 An annexure to the affidavit is a letter dated 29 January 2020 from Mr Farnsworth to the solicitors for the respondents. Inter alia, Mr Farnsworth stated:
Since the stay our client’s position has materially changed. You will recall the context of the stay was an unresolved request for security for costs by your clients.
22 On 5 March 2020, Jagot J dismissed the application to lift the stay. The agreed fact is that her Honour determined that the existing timetable for the ACCC Proceeding could not be maintained if this proceeding were to be heard concurrently with it and that the parties to the ACCC Proceeding should not be prejudiced by having the hearing date vacated where Mayfield had commenced this proceeding without funding in place and did not obtain funding until many months thereafter.
23 Greater insight is provided in her Honour’s published reasons: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 260 (SJ). The respondents opposed the application. Her Honour records that when Mayfield agreed to the stay in July 2019 it contended that it did so, not because it accepted the respondents’ contentions, but rather it did not have funding in place and thus was unable to provide security for costs. Inter alia, Mayfield submitted that the ACCC Proceeding may not resolve all common issues in this proceeding, s 83 of the CCA (findings of fact and admissions in the ACCC Proceeding may be relied on as prima facie evidence) is likely to be of limited utility as each party may be expected to adduce evidence to rebut the presumption, there is no precise identity of issues and lifting the stay opens the possibility that the proceedings may be heard together which avoids the risk of inconsistent findings: SJ [10].
24 In contrast the respondents submitted that the overarching purpose would be best achieved by maintaining the stay until determination of the ACCC Proceeding. Inter alia they submitted that delay in the Mayfield proceeding was not a weighty consideration, s 83 of the CCA is intended to operate in precisely this type of case and facilitates a parasitic claim for damages, Mayfield did not identify any additional assistance that it could provide in the ACCC Proceeding on the common issues of market definition, the purpose and effect of the impugned provisions and whether derivative Crown immunity operates: SJ [16]. Of particular relevance to the abuse of process case are the submissions that her Honour summarised at SJ [16] (5) and (8):
[I]t is unfair to the respondents to have to progress the [Mayfield] proceeding while simultaneously conducting the ACCC proceeding on a different but overlapping timetable. Absent a cogent proposal that would satisfy the Court that the [Mayfield] proceeding can be fairly brought into line with the ACCC Proceeding, the stay should not be lifted;
[T]he respondents have a legitimate interest in the expeditious disposition of the ACCC proceeding in which civil penalties are sought, but if the stay is lifted the respondent would be unduly burdened by having to defend two concurrent proceedings with different legal teams advancing parallel damages and civil penalty claims. Further, resources would need to be diverted away from the ACCC proceeding to the prejudice of the proper conduct of that proceeding, noting that the timetable in the ACCC proceeding was agreed at a time before there was any suggestion that [Mayfield] might seek to lift the stay;
25 At SJ [17] her Honour records the submission of the ACCC that it was unrealistic to expect that if the stay were to be lifted, that the Mayfield proceeding could proceed concurrently with the trial then scheduled to begin in October 2020.
26 Her Honour accepted the respondents’ submissions that it would be contrary to the interests of justice to lift the stay (SJ [21]) essentially for two reasons. One, Mayfield consented to the stay because there were overlapping issues and the prejudice to the respondents and to the parties in the ACCC Proceeding outweighed the prejudice to Mayfield: SJ [21]-[22]. The other, the risk of inconsistent findings is ameliorated by s 83 of the CCA which “is directed to precisely the current circumstances and evinces a statutory expectation that damages claims which are essentially parasitic on civil penalty proceedings, may be heard and determined after the civil penalty proceedings”: SJ [23].
27 At the time, s 83 of the CCA provided:
In a proceeding against a person under section 82 or in an application under subsection 51ADB(1) or 87(1A) for an order against a person, a finding of any fact by a court made in proceedings under section 77, 80, 81, 86C, 86D, or 86E, or for an offence against section 44ZZRF or 44ZZRG, in which a person has been found to have contravened, or to have been involved in a contravention of, a provision of Part IV or IVB is prima facie evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.
28 On 18 May 2020, Mayfield filed an interlocutory application to lift the stay of proceedings for the limited purpose that it be granted leave to file and serve an amended originating application and amended statement of claim together with non-party discovery. The application was partly successful in that on 22 May 2020, Jagot J ordered by consent that leave be granted to amend, but otherwise dismissed the application: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd (No 2) [2020] FCA 745. Mayfield unsuccessfully sought leave to appeal the dismissal of the non-party discovery application: Mayfield Development Corporation Pty Ltd v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1334, Yates J.
29 The trial of the ACCC Proceeding commenced before Jagot J in October 2020, was heard on various days in that month and in December 2020, with further submissions in March and April 2021. For reasons published on 29 June 2021, the proceeding was dismissed. In short, her Honour held that the impugned conduct of NSW Ports did not have the purpose, effect, or likely effect of substantially lessening competition and, in any event, the provisions of the CCA did not apply to the conduct because NSW Ports had the benefit of derivative Crown immunity: PJ [423], [1582] – [1611].
30 On 27 July 2021, the ACCC filed a notice of appeal, which included grounds that Jagot J erred in her findings on Crown immunity and derivative Crown immunity and as to the purpose and likely effect of the impugned conduct.
31 On 25 October 2021, Mayfield filed an interlocutory application in the Full Court appeal. It sought an order that:
Leave be granted to the applicant to intervene in the appeal, on conditions determined by the Court, pursuant to rule 36.32 of the Federal Court Rules 2011 (Cth).
32 Its solicitor at that time, Ms Banton, in her affidavit in support set out relevant parts of the background to the proceeding, drew comparisons of similarity between the allegations made by Mayfield and those in the ACCC Proceeding and then stated:
21. 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.
22. Given the overlap of legal and factual issues as between the [Mayfield] proceedings and the Appeal and Cross Appeal, [Mayfield] has a significant interest in the outcome of the Appeal and Cross Appeal.
23. Based on my review of the Reasons and Notice of Appeal, I have formed the view that [Mayfield] can make useful and different contributions at the appeal hearing…
33 Ms Banton then set out her analysis of those matters, being whether derivative Crown immunity is available to NSW Ports, whether the State was carrying on a business and in consequence was subject to the provisions of the CCA, the relevance of the State’s purpose and whether the purpose of a contract must reflect the subjective purpose of each of the parties. Ms Banton attached a draft of the submissions of Mayfield in support of the application for leave to intervene which included its substantive submissions on the appeal, if leave were to be granted. She further deposed that if leave were granted:
25. …[Mayfield] intends to make written submissions in relation to the above-mentioned issues and to make oral submissions at the hearing of the appeal. [Mayfield’s] intervention will not limit or impact on the submissions of the parties.
26. [Mayfield] does not intend to repeat in substance oral submissions made on behalf of the ACCC…
34 On 28 October 2021, during a case management hearing for the appeal, counsel for Mayfield stated that the application for leave to intervene could be dealt with on the papers. A procedural order was made on 5 November 2021, for Mayfield to file and serve any written submissions it would propose to make in the appeal and cross-appeal, should the application for leave to intervene be granted. Mayfield filed those submissions on 9 December 2021. In addressing whether Mayfield had an interest likely to be substantially affected by the outcome of the appeal, the submission was:
9. …Its pleading in the [Mayfield proceedings] largely reflects the Statement of Claim of the ACCC in this matter and was designed to engage s 83 of the CCA. Its case is affected by the primary judge’s findings that:
a. the State’s agreement to the Compensation Provisions was not within the State carrying on any business so that, by virtue of s 2B(1), s 45 CCA did not apply to the State and, as a consequence, NSW Ports has “derivative Crown immunity”; and
b. the Compensation Provisions did not have the purpose, and were not likely to have the effect, of substantially lessening competition for the Ports of Botany and Kembla from development of specialised containers services at the Port of Newcastle.
35 The submission then addressed the “useful and different” contribution that Mayfield proposed to make in the appeal, being submissions that:
a. there is no valid doctrine of derivative Crown immunity;
b. the State is deemed to carry on whatever business its state-owned corporation (SOC) carries on;
c. the Compensation Provisions did have a relevant “purpose” of substantially lessening competition; and
d. that s 4L of the CCA does not permit but requires severance which operates prospectively from the date of the Court’s ruling, not ab initio ([Mayfield] does not otherwise apply to be heard on the issue of the likely effect of the [Port Commitment Deeds] on competition).
36 Those submissions were then addressed in detail over the balance 14 pages of the document. On 9 December 2021, Mayfield requested that it be granted access to the opening and closing submissions of the parties in the ACCC Proceeding for the purpose of preparing for the hearing of the intervention application. The request was granted on 10 December 2021.
37 On 10 February 2022, Mayfield’s solicitor, Mr Garland, sent correspondence to the solicitors for the parties in the ACCC Appeal. He commenced by referencing the application for leave to intervene, noted that the appeal had been listed for hearing from 17 to 23 February 2022, noted that no party substantively opposed a grant of leave to intervene and continued:
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.
38 Consent orders were attached for the purpose of giving effect to that proposal, together with a draft email to the associate to the presiding judge. Some joint position must have been reached in that on 15 February 2022, the foreshadowed correspondence was sent to the Court. In it Mr Garland stated, inter alia:
The interested party respectfully seeks leave to intervene in the appeal pursuant to rule 36.32 of the Federal Court Rules 2011 (Cth) on condition that such intervention be limited to written submissions already filed by the interested party on 9 December 2021.
Please see attached orders proposed by the interested party to that effect…
39 On 16 February 2022, Allsop CJ, Yates and Beach JJ ordered that leave be granted to Mayfield to intervene on those terms.
40 On 23 February 2023, the Full Court dismissed the ACCC Appeal. It is important to understand what the Full Court decided by reference to the appeal grounds. The appeal grounds (as ultimately refined and amended) were:
Crown Immunity and Derivative Crown Immunity
1. The primary judge erred in concluding that the State did not enter into the compensation provisions in the Port Botany and Port Kembla Port Commitment Deeds (Compensation Provisions) in the course of carrying on a business within the meaning of s 2B of the Competition and Consumer Act 2010 (Cth) (CCA): J[348], [350], [354].
2. The primary judge erred in:
2.1 construing the Port Assets (Authorised Transactions) Act 2012 (NSW) as conferring a power on the Treasurer to require the counterparty to an authorised transaction to engage in conduct that would otherwise contravene the CCA: J[402], [405]-[406]; and
2.2 concluding that the divestment of that power was a divestment of legal rights sufficient to engage the principle of crown and derivative crown immunity: J[406].
3. The primary judge erred in:
3.1 failing to find that s 45 of the CCA applied to the conduct of the State in making the Compensation Provisions; and
3.2 construing s 45 of the CCA as not applying to NSW Ports when it made and/or to the extent it may give effect to the Compensation Provisions in the future: J[423].
Purpose
4. The primary judge erred in concluding that it was not a substantial purpose of the Compensation Provisions to prevent or hinder the establishment and operation of a container terminal at the Port of Newcastle (J[930], [937], [939], [940], [969], [973]).
5. In circumstances where the primary judge found that:
5.1 a substantial purpose of the State in including the Compensation Provisions in the Port Botany and Port Kembla Port Commitment Deeds was to ensure that the State could get full value for the sale of the existing monopoly of Port Botany by agreeing to indemnify the successful bidder for the risk that the extent of the existing monopoly might be reduced because of a container terminal at the Port of Newcastle (J[927], [933], [957], [965], [971]); and
5.2 a substantial purpose of NSW Ports in agreeing to the inclusion of the Compensation Provisions was to ensure that NSW Ports retained the full extent of the existing monopoly of Port Botany in respect of container port services in NSW (J[928], [933], [957]);
the primary judge erred in concluding that the Compensation Provisions did not have the purpose of substantially lessening competition (J[927]-[930], [933], [937], [939], [957], [961]-[962], [971]-[973], [979]-[980]).
6. In circumstances where the primary judge found that, at the time the Compensation Provisions were made, the State intended to make the successful bidder for the Port of Newcastle liable for any payments required under the Compensation Provisions (J[278]-[280], [940], [1099]), and that the imposition of such an obligation on the successful bidder for the Port of Newcastle was an obvious and highly probable consequence of the Compensation Provisions that reflected commercial common sense (J[1011], [1013], [1049]), the primary judge:
6.1 erred in analysing the State’s purpose as to the ends sought to be achieved by the Compensation Provisions without regard to the State’s intention to impose any payment obligation arising under those provisions on the successful bidder for the Port of Newcastle (J[927], [932], [971]); and
6.2 should have found that, in assessing the State’s purpose in including the Compensation Provisions, the ends sought to be achieved by the State included the imposition of any payment obligation arising under the Compensation Provisions on the successful bidder for the Port of Newcastle.
7.1 each of NSW Ports and the State contended below that a substantial, subjective purpose of the State in including the Compensation Provisions was to “codify” the State’s policy (J[963]);
7.2 there was contemporaneous documentary evidence consistent with the proposition that the subjective purpose of the State in including the Compensation Provisions was to “codify” the State’s policy;
7.3 the State called no witnesses to give evidence as to its subjective purpose in including the Compensation Provisions; and
7.4 the primary judge found that the relevant State policy was to prevent the development of a container terminal at the Port of Newcastle until container capacity is used at Port Botany and Port Kembla (J[963]);
7.5 finding that the subjective purpose of the State in including the Compensation Provisions was not to codify the State policy of preventing the development of a container terminal at the Port of Newcastle (J[964]); and
7.6 concluding that the Compensation Provisions did not have the purpose of substantially lessening competition.
Likely effect
8.1.1. placing weight on the fact that the prospect of a future change in State policy was unknowable or “speculative” at the time the Compensation Provisions were made (J[1003]), notwithstanding the primary judge’s earlier finding that such a change in policy was a realistic possibility at that time (J[976]); and
8.1.2. reasoning that, because any possible future change in State Government and State policy was uncertain or unknowable at the time the Compensation Provisions were made, that was a matter that tended against the conclusion that the likely effect of the Compensation Provisions was substantially to lessen competition; and
8.2 should have found that, at the time the Compensation Provisions were made, there was a meaningful prospect that State policy would change in the future to favour the development of a container terminal at the Port of Newcastle (consistently with the primary judge’s finding at J[976]).
9.1 erred in finding that the cost impost of the Compensation Provisions and the reimbursement provisions in the Port of Newcastle Port Commitment Deed (Reimbursement provisions) would not deter, dissuade or act as a disincentive to the successful bidder for the Port of Newcastle developing a container terminal at that port because that bidder would have taken the operation of those provisions into account in the price paid to the State to acquire the long term lease over the Port of Newcastle (J[1138]-[1139]); and
9.2 should have found that the Compensation Provisions and Reimbursement provisions would be likely to have the effect of substantially lessening competition in circumstances where the Compensation Provisions and Reimbursement provision:
9.2.1. raised barriers to entry by:
9.2.1.1. creating an additional cost burden, or the significant risk of an additional cost burden, on the operator of the Port of Newcastle in developing a container terminal at the Port of Newcastle and a commensurate revenue advantage to the operator of Port Botany and/or Port Kembla; and/or
9.2.1.2. deterring, dissuading, or preventing the operator of the Port of Newcastle from incurring some or all of the substantial costs of developing the detailed design and business plans necessary to develop a container terminal at the Port of Newcastle; and/or
9.2.1.3. deterring, dissuading or preventing the operator of the Port of Newcastle from developing a container terminal in the future at a time when Port Botany was at, or nearing capacity or Port Kembla was not at full capacity;
9.2.2. thereby hindered or prevented the development of a container terminal at the Port of Newcastle.
10.1 erred in concluding that the development of a container terminal at the Port of Newcastle was only a “speculative possibility” as at May 2013 and that the 50 year term of the Port Commitment Deeds was not relevant to the assessment of the likely effect of the Compensation Provisions (J[1599]):
10.2.1. there was a meaningful possibility at May 2013 that, at some time over the next 50 years, a container terminal would be developed at the Port of Newcastle in the future without the Compensation Provisions;
10.2.2. 
that possibility could not be dismissed as far-fetched or fanciful as at May 2013, including because of the 50 year time horizon;
10.2.3. the Compensation Provisions hinder or prevent that possibility from coming to pass by increasing the barriers to the development of such a terminal; and
10.2.4. in those circumstances, the Compensation Provisions would be likely to have the effect of substantially lessening competition.
11. For the reasons identified in paragraphs 1 to 10 above, the primary judge should have found that the First to Third Respondents:
11.2. contravened s 45(2)(a)(ii) of the CCA in or about May 2013 by making the Port Botany and Port Kembla Port Commitment Deeds; and
11.2. would contravene s 45(1)(b) of the Competition and Consumer Act 2010 (Cth) if they were, in the future, to give effect to the Compensation Provisions.
41 In summary the Full Court rejected these grounds, reasoning that:
(1) the carrying on business ground (1) failed in that, accepting that the State was carrying on three businesses (one at each of the ports), the decision to privatise the ports, and its implementation including entry into the Port Commitment Deeds was not in the course of the conduct of each business: FC [334] – [343];
(2) the derivative Crown immunity grounds (2) and (3) failed in that properly construed the provisions of the CCA did not operate to divest the State of part of its rights and interests which extended to prevent s 45 from applying to NSW Ports in that, if it did apply, the State would be divested of proprietary, legal, equitable or other interests: FC [386] – [415].
(3) The purpose grounds (4) – (7) failed in that the primary judge did not misstate the guiding legal principles (FC [187]), the subjective purpose of the State was to “ensure that bidders did not discount their bids because of the risk of a future change of government policy”: (FC [192]), the impugned provisions did not have the intended purpose of lessening competition in the market for the supply of port services for container cargo in NSW: (FC [196] – [210]); and
(4) the competitive effect grounds (8) – (11) failed (some were abandoned) because: the ACCC failed to discharge its onus of proof on the prospect of a future change in government policy (FC [205]) and that there was any real prospect of a container terminal being developed at the Port of Newcastle whilst the Port Botany had capacity (FC [289] – [295]); the hypothesis for ground 10 had not been established (FC [296] – [297]); and the prospect, in the counterfactual, that there would be or would be perceived to be a threat of entry from a container terminal at the Port of Newcastle was entirely speculative there being no evidence that NSW Ports perceived there to be a real chance that the State would in the future develop the Port of Newcastle as a container terminal whilst capacity existed at the Port Botany (FC [298] – [302]);
42 Allsop CJ dealt with the submissions of Mayfield at FC [416] – [421] as not requiring substantive additional consideration. Justice Beach did not separately address Mayfield’s submissions. He did not need to because he accepted the ACCC contention that derivative Crown immunity was not engaged and otherwise agreed with the majority on the balance of the grounds. Later in these reasons I return to how the Full Court addressed the arguments of Mayfield.
A late amendment application
43 Before me, Mayfield made an oral application to amend the relief claimed in its originating application by deleting each claim for declaratory relief, thereby confining the claim to damages pursuant to s 82 of the CCA against NSW Ports. The application was made by counsel for Mayfield, Mr B Walker SC, in response to a submission made by counsel for the State, Mr I Ahmed SC, that declaratory relief was sought against the State despite the terms of the Deed of Settlement. Mr Walker explained the basis for the application: to make it clear that no claim is made against the State. I granted leave to amend.
44 Against this background, I turn to the separate questions.
QUESTION 1
45 I separately address the estoppel and abuse of process contentions. It should be noted that the facts relied on, and the inferences urged therefrom, do not materially differ.
Estoppel
Submissions
46 Counsel for NSW Ports, Dr Higgins SC, accepted in oral argument that this is a case about issue estoppel, not merger or res judicata estoppel, cause of action estoppel or Anshun estoppel each as categorised by Edelman J in Clayton v Bant (2020) 272 CLR 1 at [65]-[70].
47 Despite that the State pleads that Mayfield is precluded by estoppel from contending that the CCA applied to NSW Ports in respect of the alleged contraventions (which alternatives were essayed in its written submissions), Mr Ahmed in oral submissions adopted those of Dr Higgins.
48 In summary, Dr Higgins submits that, focusing her argument on the derivative Crown immunity point, there is no doubt that the issue that Mayfield seeks to litigate is the same as that decided in the ACCC Proceeding. At trial, Jagot J determined that the State was not carrying on a business and therefore not subject to s 2B of the CCA, the application of s 45 to NSW Ports would divest the State of legal rights and the CCA did not manifest an intention to apply to the State in that manner. The Full Court upheld these findings by majority at FC [152], [408] – [415], Allsop CJ; Yates J concurring at FC [427]. These conclusions of the Full Court were fundamental to the disposition of the appeal. Mayfield seeks in this proceeding to impugn the same conduct. To succeed on that claim, Mayfield must establish that s 45 of the CCA applies to the entry by NSW Ports into the Port Commitment Deeds. The further contention by Mayfield that NSW Ports and the State entered into an understanding contrary to s 45DA of the CCA does not raise a different issue.
49 The submission continued that Mayfield intervened in the ACCC Appeal pursuant to r 36.32 of the Rules. Accepting that Mayfield, as the intervener, did not thereby acquire the definitional status of a party, it does not follow that Mayfield did not have certain rights and liabilities akin to those of a party to the appeal. To obtain leave to intervene, Mayfield was required to satisfy the Court that its “contribution will be useful and different” from that of the parties to the appeal and that intervention “would not unreasonably interfere with the ability of the parties to conduct the appeal as they wish.” In addressing those criteria, Mayfield stated that the appeal would have a “conclusive impact” on this proceeding. Mayfield framed its intervention application on the basis that it was necessarily affected by the resolution of certain issues in the appeal. Without that impact, there could not have been utility in a grant of leave.
50 Further, issue estoppel is not confined to parties in the strict sense but extends to interveners: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 505.
51 In oral submissions, Dr Higgins emphasised that it is “the degree and nature of a person’s participation in prior proceedings” that engages the issue estoppel principle. It would be wrong to conclude that Mayfield was simply a frustrated agitator, lacking full participatory rights in the appeal. Mayfield consented to a stay of this proceeding, recognising that threshold issues affecting it would be determined in the ACCC Proceeding. It is Mayfield that initiated its participation in the ACCC Appeal, having made an advised decision to limit the scope of intervention to written submissions. That was a calculated decision on its part, not one encouraged or determined by the parties to the appeal. Mayfield must now accept full responsibility for the consequences of its unilateral decision-making. Mayfield does not contend that there are any other facts which bear upon the Full Court’s answer to the derivative Crown immunity defence. Mayfield had a full opportunity to participate more broadly in the ACCC Appeal but chose to limit that participation in the terms of the order made by the Full Court, which it proposed.
52 In these circumstances, it should be concluded that the object of Mayfield’s participation in the appeal was not simply to provide some form of assistance to the Court, but rather to ensure that its interests were fully ventilated and protected.
53 During her submissions, Dr Higgins accepted that the central question is the degree of participation in a proceeding by an intervener. If there was active participation, the label that is applied matters not. The analysis proceeds according to substance and not form. The assessment requires an evaluative analysis.
54 In reply to a submission of Mr Walker, that it would not have been open to Mayfield to apply for special leave to appeal to the High Court from the decision of the Full Court, Dr Higgins draws attention to Cuthbertson v Hobart Corporation (1921) 30 CLR 16 at 25 to the effect that an intervener is not precluded from seeking special leave to appeal. That is relevant to arguments about finality, but is not ultimately dispositive.
55 In contrast, Mr Walker commences by emphasising that an intervener pursuant to r 36.32 of the Rules is not a party: Forestry Tasmania v Brown (No 2) (2007) 159 FCR 467 at [8] – [12], Black CJ and Casson Investments Pty Ltd v International Litigation Partners (No. 3) Pty Ltd (2018) 265 FCR 487 at [53]. The distinction is a matter of substance, not definition. Mayfield did not enjoy the rights of a party to the ACCC Appeal and did not enjoy a right to seek special leave to appeal to the High Court. It matters not that the solicitors for Mayfield accepted the “obviously correct” conclusive effect of any prospective determination by the Full Court. Issue estoppel turns on the role played by Mayfield in the Full Court.
56 Mr Walker’s submissions emphasise that there should not be any doubt that the overt strategy of Mayfield was to establish before the Full Court that derivative Crown immunity could not be relied upon by NSW Ports, thereby concluding that issue as a matter of precedent before a trial judge in this proceeding.
57 It matters not that Mayfield chose to limit its participation as an intervener in the appeal, which deflects attention from the issue. Mayfield could not have been heard in the Full Court on matters relating to factual disputes between the parties. With the limited status of an intervener, Mayfield could not control the conduct of the appeal. It should be understood that in Marlborough Gold distinctions between being a party and an intervener were not before the High Court for decision. The Commission was neither: an officer appeared simply to provide information to the Court.
58 In this case, Mayfield did not have the status of a party to the appeal with all the material that had been exchanged between the parties. It was only granted access to the opening and closing submissions of the parties. The submission is not that the limited status conferred by the Rules is dispositive, in that an intervener can never be the subject of an issue estoppel, rather that the nature and extent of Mayfield’s participation is to be evaluatively assessed.
59 On the finality/special leave issue, Mr Walker submits the obstacle for Mayfield is that special leave may only be granted for an appeal against orders. Mayfield could not have had standing to seek to overturn the orders made by the Full Court based on its factual determinations flowing from the primary proceeding that Mayfield was not a party to. The High Court would not ever have granted special leave to appeal to determine hypothetically the differing conclusions between the majority and minority opinions in the Full Court on the derivative Crown immunity issue. Moreover, the ACCC did not apply for special leave, and it is absurd to suggest in that circumstance that it would have been open to Mayfield to advance a case that the losing party had decided not to.
Decision
60 Estoppel in its application is “informed by considerations of finality and fairness”: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21], French CJ, Bell, Gageler and Keane JJ. In that case the Court held that an injured worker, in a claim for damages for personal injury suffered at a workplace, was not precluded by issue estoppel from contending that his employer was Tempus Holdings Pty Ltd, despite a finding by this Court in civil penalty proceedings that Ramsay was the employer, that Tempus Holdings acted on its behalf and that the interposition of Tempus Holdings was a sham. The plurality at [22] expressed the principle as:
…Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies”…
Footnotes omitted.
61 The last sentence is a reference to Blair v Curran (1939) 62 CLR 464 at 531 (Dixon J) which decision was emphasised in submissions before me by Dr Higgins as establishing that in this proceeding the Full Court’s determination of the derivative Crown immunity issue was “necessarily established as the legal foundation or justification” for its conclusion: Blair at 531. Further emphasis is placed on the reasoning of Dixon J at 532:
The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
Footnotes omitted.
62 Mayfield does not seek to differently characterise the centrality of the derivative Crown immunity issue before the Full Court. Nor is this a case about whether Mayfield is a privy and it was not submitted that it would be open to me to reason in line with certain Canadian authorities that active participants may be regarded as parties: for example, Banque Nationale de Paris (Canada) v Canadian Imperial Bank of commerce (2001) 195 DLR (4th) 308 and Minott v O’Shanter Development Co (1999) 168 DLR (4th) 270, each decisions of the Ontario Court of Appeal.
63 Rather, the answer to the first question turns on whether Mayfield’s participation as intervener in the ACCC Appeal now binds it to the outcome. The commencing point for the analysis is the grant of leave to intervene. Rules 36.31 and 36.32 of the Rules should be read together. The first provides for parties to an appeal. By r 36.31(1) the parties to the primary proceeding who may be affected by the relief sought “or who may be interested in maintaining the judgment under appeal, must be joined as an appellant or respondent to the appeal.” A person not a party to an appeal but mentioned in that rule may apply to be joined as a party: r 36.31(4). Rule 36.32 then provides:
(1) A person who was not a party to the proceeding in the court appealed from may apply to the Court for leave to intervene in an appeal.
(2) The person must satisfy the Court:
(a) that the intervener's contribution will be useful and different from the contribution of the parties to the appeal; and
(b) that the intervention would not unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and
(c) of any other matter that the Court considers relevant.
Note 1: The role of the intervener is solely to assist the Court in resolving the issues raised by the parties.
Note 2: The Court may give leave to the intervener to intervene on conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.
Note 3: When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener and, in particular:
(a) the matters that the intervener may raise; and
(b) whether the intervener's submissions are to be oral, in writing, or both.
64 The Dictionary at Schedule 1 to the Rules defines party as meaning a person who is a party to a proceeding. There is no definition of intervener. There is authority that an intervener acquires the privileges of a party with full participation rights, as discussed by Black CJ in Forestry Tasmania at [5] – [6]. An example is Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391; (1974) 24 FLR 44, a case where the Commonwealth was granted leave to intervene at trial. On appeal Hutley JA, at 396, expressed the role and function of an intervener at trial as:
A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party.
Thus, he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae.
65 In Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 leave was granted to media companies, an industrial organisation, and the Australian Press Council to intervene for some and for others to be heard as amicus. Chief Justice Brennan expressed the justification for a grant of leave to intervene, in a case involving constitutional questions and absent statutory authority (s 78A of the Judiciary Act 1903 (Cth)), relevantly at 601 – 602:
If there be jurisdiction apart from s 78A to allow non-party intervention, it must be an incident of the jurisdiction to hear and determine the matters prescribed by the several constitutional and statutory provisions which confer this Court's jurisdiction. It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore, a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervener and a party are privies in estate or interest.
But the legal interests of a person may be affected in more indirect ways than by being bound by a decision. They may be affected by operation of precedent - especially a precedent of this Court - or by the doctrine of stare decisis. Apart from the obsolete exception contained in s 74 of the Constitution, an exercise of the jurisdiction conferred on this Court is not subject to appeal nor to review by any other court. As this Court's appellate jurisdiction extends to appeals, whether directly or indirectly, from all Australian courts, a decision by this Court in any case determines the law to be applied by those courts in cases that are not distinguishable. A declaration of a legal principle or rule by this Court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extra-curial operation or in future litigation. Ordinarily, such an indirect and contingent affection of legal interests would not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied. Nothing short of such an affection of legal interests will suffice.
Footnotes omitted.
66 At 603 His Honour expressed that “an indirect affectation of legal interests enlivens no absolute right to intervene” for the straightforward reason that to permit intervention on that basis would “virtually paralyse the exercise” of the Court’s jurisdiction. He continued:
However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.
Footnote omitted.
67 Returning to Forestry Tasmania, the immediate predecessor to r 36.32 of the Rules, was O 52 r 14AA of the Federal Court Rules 1979 (Cth) which provided:
Interveners
(1) The Court may give leave to a person (the intervener) to intervene in the appeal, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.
(2) In deciding whether to give leave, the Court must have regard to:
(a) whether the intervener’s contribution will be useful and different from the contribution of the parties to the appeal; and
(b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the appeal as they wish; and
(c) any other matter that the Court considers relevant.
(3) The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties.
(5) When giving leave, the Court must specify the form of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify:
(a) the matters that the intervener may raise; and
(b) whether the intervener’s submissions are to be oral, in writing, or both.
68 There was no subrule (4).
69 Something should be said of the change in drafting between that provision and r 36.32 of the Rules. The style has been somewhat altered. The former subrules (1), (3) and (5) are now respectively notes (2), (1) and (3). The Explanatory Statement to the 2011 Rules (SLI 134/2011) includes this statement about the drafting style:
The new Rules do not substantially alter existing practice and procedure but rather explain it in a way that it can be more easily followed and applied.
70 The notes appended to the present rule serve as an aid to interpretation: Clement v Comcare [2011] FCA 404; (2011) 194 FCR 24. I accept that it was not the purpose of the changes to alter the practice of the Court and that regard may be had to s 15AC of the Acts Interpretation Act 1901 (Cth) (use of a different form of words is not to be taken as departing from the former expression of an idea): Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 4) [2017] FCA 436 at [24]-[28], Perram J. However, approaching the question through that lens does not directly confront the issue. Provisions of the former rule that determined the role of an intervener and obliged the Court to specify the form of assistance and the manner of participation are now expressed as notes and there is no obligation to specify (and by implication limit) the role of the intervener.
71 In any event, I need not consider the implications of these changes further because the fact is that the Full Court’s order limited Mayfield’s form of assistance and the manner of its participation to its written submission. No other rights or privileges were conferred. No liabilities were attached, save that the costs of intervention were reserved.
72 Returning to Forestry Tasmania, as Black CJ further explained (addressing rule 14AA) distinction is now drawn between interveners and parties: a person granted leave to intervene is not a party: [8] – [12]. Of particular relevance to this case is his Honour’s reasoning at [8]-[9]:
These rules demand a departure from the previous practice. As well as providing for the grant of leave on terms and conditions, they specify matters to which the Court must have regard in deciding whether to give leave, they define and limit the role of the intervener and they require the Court to specify the matters that the intervener may raise. In deciding whether to give leave, the Court is required to have regard to, inter alia, whether the intervener's contribution will be useful and different from the contribution of the parties to the proceedings. In this way the rules draw an express distinction between interveners and parties.
The new rules provide that the role of an intervener is solely to assist the Court in its task of resolving the issues raised by the parties. Again, the distinction is expressly drawn between interveners and parties. Further, when giving leave the Court is required to specify the form of assistance to be given by the intervener and the manner of the participation of the intervener.
73 The Full Court endorsed that reasoning in Casson at [53].
74 Relevant to derivative Crown immunity, Mayfield’s written submissions contended that upon a proper construction the CCA applies to the Crown, the expressions Crown immunity and derivative Crown immunity are outdated and apt to mislead and that s 51(1)(b) of the CCA covers the field in that anything done in a State, if specified in and specifically authorised by an Act of that State, is to be disregarded in determining contraventions of the restrictive trade practices provisions thereby excluding any residual principle of derivative Crown immunity. Mayfield further submitted that the State was carrying on a business within the meaning of s 2B(1) of the CCA.
75 An important, but by no means determinative consideration, is that Mayfield could not have successfully applied for special leave to appeal from the decision of the Full Court to the High Court, and I reject the submissions of NSW Ports to the contrary. The question is not whether Mayfield as a non-party may have been entitled to seek special leave (Cuthbertson at 25), rather that it could not have successfully obtained it where it had no standing to overturn findings of fact (which it did not dispute when it sought and was granted conditional leave to intervene). Absent overturning those findings, Mayfield could not argue that the orders made should be set aside, a position fatal to a grant of special leave. Put another way, an application for special leave to appeal by Mayfield could rise no higher than an invitation to determine a hypothetical question. The arguments of NSW Ports do not engage with that aspect of finality and fairness: Tomlinson at [21].
76 I turn next to the submission of NSW Ports that the doctrine of issue estoppel is not confined to parties in the strict sense but extends to interveners, and on that basis attaches to Mayfield: Marlborough Gold at 503. That case concerned a scheme of arrangement pursuant to Corporations Law. The company proposed a scheme to change its status from a company limited by shares to a no liability company. At the time, the company believed that a scheme of that type was capable of being approved pursuant to s 411 of the Corporations Law. In May 1992, the company filed an originating summons to effect the alteration. It gave notice to the Australian Securities Commission, which informed the company that it would not make submissions in opposition to the proposed scheme. The summons was returnable before Commissioner Ng of the Supreme Court of Western Australia. On the return date (at which the Commission appeared) orders were made that a meeting be convened to consider the scheme. On 25 June 1992, the members resolved to approve the scheme. Thereafter the Commission advised the company that it would oppose approval of the scheme, as contrary to the decision of the Full Court of this Court in Windsor v National Mutual Life Association of Australasia Limited (1992) 34 FCR 580 in which it was held that s 411 could not be employed for that purpose. The Commission appeared at the second hearing before Commissioner Ng and opposed approval of the scheme. Despite those submissions, Commissioner Ng did not follow Windsor, as he considered that the attention of the Full Court had not been drawn to a distinction between certain provisions, and in any event determined that he would follow other single judge decisions.
77 The order approving the scheme was made on 20 October 1992. On 21 October 1992, the Commission exercised its right to intervene pursuant to s 1330(2) of the Corporations Law and then filed a notice of appeal. The Full Court of the Supreme Court of Western Australia dismissed the appeal. The Commission successfully appealed to the High Court. In the High Court, the company by notice of contention asserted that the Commission was estopped from contending that the scheme could not be validly approved which was put as an issue estoppel or in reliance upon The Commonwealth v Verwayen (1990) 170 CLR 394.
78 In the joint reasons of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, their Honours rejected the notice of contention. The issue estoppel point was rejected for three reasons. First, the orders made authorising the convening of the meeting of the company did not amount to a final determination of whether the scheme was capable of being approved pursuant to s 411 of the Corporations Law. That order was made in an interlocutory proceeding: 504-505.
79 Second, that order did not decide whether s 411 could be utilised, because “s 411(1) does not require the judge to make a final determination of the question whether the arrangement is one which falls within the scope of the section.”: 505.
80 Third, the issue estoppel doctrine “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”: 505. The explanation why (at 505-506) is central to the arguments in this case:
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 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. Spencer Bower and Turner's The Doctrine of Res Judicata states ((41) 2nd ed. (1969), p 200.):
"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."
The Commission may exercise a right to intervene in a proceeding relating to a matter arising under the Law ((42) s.1330(1).) and, if it does so, it is deemed to be a party ((43) s.1330(2).). The Commission did intervene but that was after Ng C. had given his decision under s.411.
Footnotes omitted
81 Their Honours then turned to the Verwayen point and rejected it for two reasons. Relevantly, that the application of s 411 to the scheme was not decided on the first return of the summons, and it was neither unjust nor unconscionable for the Commission to depart from the position that it had taken at the first hearing: 506.
82 Mr Walker is correct to submit that the Court’s reference to an intervener was in the context of s 1330 of the Corporations Law where, upon exercise of the statutory right, the Commission was deemed to be a party with full participation rights, which is in contrast to the present case.
83 NSW Ports submit the concept of an intervener in Marlborough Gold is not limited to one who by force of a statutory provision has the same status as a party. So much may be accepted, but that does not directly answer the issue in this case. Dr Higgins accepted as much in oral submissions. The focus of attention in this case must be upon the degree and nature of participation by Mayfield which is a matter of evaluative assessment.
84 In this case, Mayfield did not press to be heard orally on the appeal and ultimately limited the application for leave to intervene to the terms of the written submission. The order granting leave did not confer rights or privileges of participation beyond the matters set out in the written submission. Although there is merit in the argument that Marlborough Gold is distinguishable because the reference to interveners was confined to those deemed to be a party with full rights of participation, it is not necessary to decide this case on that basis as there is a narrower pathway which focuses on the nature and degree of participation by Mayfield.
85 One may put to one side, the procedural steps before Jagot J, together with the solicitors’ explanations and justifications for those steps. An issue estoppel arises if at all from what occurred in the Full Court, even where, as here, an appeal is dismissed: see the discussion by Giles J in Bankstown Football Club Ltd v CIC Insurance Ltd (1998) 10, ANZ Insurance Cases 61-406 at 74,458- 74-459 and Spencer Bower and Handley: Res Judicata (6th ed, 2024, LexisNexis) at [2.33].
86 The reference to Spencer Bower in Marlborough Gold at 505 is to the second edition published in 1969. The passage referenced is [229] for which no supporting authority is cited. In Spencer Bower and Handley, the corresponding passage is [9.11] where the principle is relevantly stated as:
The parties to proceedings in personam include a person who intervenes and takes an active part[1]. A public authority, notified pursuant to statute, which appeared and merely announced its attitude did not become a party[2]. Whether an intervener becomes a party depends on the extent to which it participates[3]. Under a rule which originated in the probate jurisdiction any person claiming an interest in the estate could intervene and if he stood by and allowed the litigation to be conducted by others in the same interest he was bound by the result[4]. The Privy Council and the High Court of Australia have applied this principle to land disputes[5] and it was then applied to joint tortfeasors. Stuart-Smith LJ said that although the rule may have originated in the probate jurisdiction 'justice and common sense [did not] require it to be so confined’.
87 Footnote (1) references Tebbutt v Haynes [1981] 2 All ER 238 and Cheesman v Walters (1997) 77 FCR 221 at 227 and states that the point was overlooked in Iberian UK Ltd v BPB Industries Plc [1997] ICR 164.
88 Tebbutt is a divorce and property settlement case where the spouses lived at the home of the husband’s mother. An informal family arrangement was agreed to the effect that the husband would undertake alterations and improvements to the home and, following completion, it would then be sold to facilitate the purchase of a larger home to accommodate all parties. The husband undertook the renovations, the home was sold and a new one was purchased solely in the name of the husband. The husband and wife did not occupy the property for long. The husband’s mother and his aunt continued in occupation. The husband and wife separated, and the wife obtained a divorce. She applied to a Family Division judge for an order that the home be transferred to her as the legal and beneficial owner. The husband’s mother and his aunt were given leave to intervene in the wife’s application. It was ordered that the home be transferred to the wife.
89 The husband’s mother appealed to a single judge (Hollings J) who determined that the mother was entitled to an equitable interest in the home and further found that the husband had contributed to the purchase of the home and therefore the wife did not have a claim to an equitable or legal interest except to the extent that the husband had contributed to the purchase of the property. Separately, the mother commenced her own proceedings in the Chancery Division, prior to the publication of judgment by Hollings J, against the wife and the husband and claimed an interest in the property. In that proceeding the wife counterclaimed for a declaration that she was entitled to a 90% beneficial interest, or such other interest as the court may determine. On the trial of a separate question, whether the wife was estopped from asserting that she was entitled to an equitable interest, Vinelott J determined that the findings of Hollings J did not give rise to an estoppel, because there was no jurisdiction to determine property rights as between the wife and the mother. The mother appealed.
90 In the Court of Appeal, it was held that the Family Division did have jurisdiction to determine property rights as between parties to a marriage and a third party and that the wife was estopped. Lord Denning MR delivered the principal reasons with whom Brightman and Griffith LJJ agreed. In his inimitable style, Lord Denning at 242 resolved the estoppel question as follows:
The next point is whether there is an issue estoppel. These matters were decided by Hollings J after full inquiry and evidence. Can they be reopened again in subsequent Chancery proceedings? The case was decided by Hollings J in 1975. If it is to be fought out again in Chancery proceedings, goodness knows when the action will come for trial. It is not anywhere near trial at the moment. And just think of the expense, all on legal aid.
We considered the question of issue estoppel recently in McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227, [1980] QB 283. I ventured to suggest this principle: if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity of dealing with the whole case, then that issue must be taken as being finally and conclusively decided against him. He is not at liberty to reopen it unless the circumstances are such as to make it fair and just that it should be reopened.
Counsel for the wife has sought before us this morning to say that there are circumstances here in which it would be fair and just for it to be reopened. But I must say that none of them is of any weight. This case was fully tried out in 1975. It should not be reopened in 1980 on the suggestion of fresh evidence or the like. The issues as to the rights and interests of the parties in the house at Hoppers Road were decided by Hollings J in 1975. That decision is conclusive between them.
91 In short concurring reasons, Brightman LJ at 244 said:
The principle involved is that of issue estoppel. A person should not have to fight all over again the self-same issue that has been decided before, provided that the party against whom the estoppel is raised has had a fair and full opportunity to contest the issue, so that it would not be just to allow him to reopen the matter in subsequent proceedings.
92 Griffiths LJ agreed with Lord Denning MR and Brightman LJ.
93 The emphasis in each judgment of a “full and fair opportunity” to deal with the whole case or the issue is presently of note, though the obvious distinction with the present case is that the Full Court did not have jurisdiction to make any order affecting the rights of Mayfield in the ACCC Proceeding.
94 Cheeseman was a bankruptcy case where one issue concerned the status of the Attorney-General who had intervened before a primary judge in proceedings where it was contended that the delegation of powers to registrars was beyond the legislative power of the Commonwealth and that s 31A(1)(n) of the Bankruptcy Act 1966 (Cth) was invalid. The Attorney-General intervened in support of the validity of the provision. The primary judge held the provision valid. The bankrupts appealed to the Full Court, which dismissed the appeal. Upon the hearing of the appeal, the bankrupts were given leave to amend the notice of appeal, including deletion of a claim for damages against the Attorney-General, who then applied to be removed as a party. That motion was dismissed, for the reason that the Full Court determined that the Attorney-General was not a party to the appeal, although he was by force of s 78A of the Judiciary Act 1903, a party to the primary proceedings.
95 At the time, s 78A(3) provided:
Where the Attorney-General of the Commonwealth or of the State intervenes in proceedings in a court under this section, then, for the purpose of the institution and prosecution of an appeal from a judgment given in the proceedings, the Attorney-General of the Commonwealth or of the State, as the case may be, shall be taken to be a party to the proceedings.
96 The Full Court in joint reasons (Hill, Heerey and Sundberg JJ) held that this provision, having been inserted to remove doubts as to the right of the Attorney-General to appeal, did not operate to make the Attorney-General party to an appeal brought by someone else: 227. In reasoning to that conclusion, by reference to Order 52 r 14 of the Federal Court Rules 1979, the Court proceeded on the basis that: “an intervener becomes a party to the proceedings and has all the benefits and burdens of a party, including the right to appeal”: 227. As I have explained, the position in this case is now determined by r 36.32 of the Rules and Cheeseman is distinguishable for the reasons given by Black CJ in Forestry Tasmania at [5]-[9]. Further, Cheeseman is not a case about when the degree of participation by an intervener, who is not a party, engages the issue estoppel doctrine.
97 In Iberian, the plaintiff commenced an action for damages against several defendants for abuse of market power. That question had been determined adversely to the defendants in proceedings before the European Commission and, on appeal, to the Court of First Instance and on further appeal to the European Court of Justice.
98 In the English proceeding, the defendants denied that they had abused their market power. The plaintiff wished to rely on the European decisions as conclusively determining that question. The plaintiff formulated four separate questions, designed to elicit answers that the European proceedings were conclusive of the abuse of market power issue and were admissible for that purpose in the English proceeding. The plaintiff argued that the defendants were bound by an issue estoppel or that otherwise their denial of abuse of their market power was of itself an abuse of process.
99 The plaintiff was not a party to the European proceedings, but did participate therein to the extent recorded in a submission made, which Laddie J accepted, that it “took a full part in the proceedings before each of those courts, was represented by lawyers and was able to put forward submissions on all the material before the court, but also to the fact that in both of the Court of First Instance and the Court of Justice and order for costs was made in the plaintiff’s favour”: 177.
100 Justice Laddie held that such participation did not give rise to an issue estoppel but did amount to an abuse of process. His reasoning may be shortly summarised. The proceeding before the European Commission was administrative, not judicial, the appeal proceedings were judicial, but the plaintiff was not a party thereto and therefore no issue estoppel arose. Putting to one side that it is not quite correct that because a tribunal is administrative the doctrine cannot apply (Spencer Bower and Handley at [2.03] and [2.05]), on the party/non-party issue, his Honour when stating the principle only referenced party cases, such as Mills v Cooper [1967] 2 QB 459 at 468-469, Diplock LJ and Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 540, Lord Diplock: 172-173. At 177 his Honour reasoned as follows:
In my view, the mere fact that the plaintiff and the defendants were not parties to a lis before the Commission does not, per se, mean that they were not parties to a lis before the Court of First Instance and Court of Justice. Nevertheless, in relation to those proceedings, on this point also I think [counsel for the defendants] is correct. The fact that an order for costs is made in favour of a person does not mean that, in accordance with English terminology, he is a party to the proceedings. Even under our procedure it is now possible to make an order for costs against a non-party… There is no reason to assume that the award of costs by the court of first instance in the Court of Justice was dependent on the complainant being a party to the appeal, in the English sense. Furthermore, notwithstanding the plaintiff’s close involvement throughout the appeal procedure, it could have stood to one side of the matter would have progressed before the appeal courts in much the same way.
101 That last observation is also descriptive of what happened in this case in the ACCC Appeal. However, I treat this decision with considerable caution because there is no discussion as to when and in what circumstances issue estoppel may operate against an intervener.
102 Returning to paragraph [9.11] of Spencer Bower and Handley, the second footnote is to Marlborough Gold without elaboration. The third, is to Minott, which as I have noted concerns the more expansive view taken in some Canadian jurisdictions as to who is a privy of a party. In Australia, privies are confined to blood, estate or interest: Ramsay v Pigram (1968) 118 CLR 271 at 279, Barwick CJ; Tomlinson at [90]-[98], Nettle J.
103 The fourth footnote, which concerns the practice in probate proceedings, begins with Wytchery v Andrews (1871) LR 2 P&D 327 where Lord Penzance at 328 stated the practice in the Probate Court:
[B]y which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case.
104 Of course, in the probate jurisdiction a grant in common form is revocable for cause upon application by a person whose interests are adversely affected, whereas a grant in solemn form is irrevocable, subject to limited exceptions, such as fraud or discovery of a later will. Probate litigation has an inquisitorial purpose being the due and proper administration of an estate and is not simply inter partes litigation where the principles of res judicata and issue estoppel have unqualified application: Hookway v Hookway [2016] TASSC 28 at [238]-[241], Estcourt J drawing on the encyclopaedic analysis of Lindsay J in the Estate of Kouvakis; Lucas v Konakas [2014] NSWSC 786.
105 The fifth footnote concerns land disputes where one must be careful to understand that in proceedings in rem distinctly different principles apply. A determination as to the status of a person or thing generally binds the world: P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 at 442-443, Hope JA, in which case a determination by the Land and Environment Court to restrain breach of a development consent operated in rem as to the validity of conditions attached to it.
106 The sixth footnote begins with a reference to House of Spring Gardens Ltd v Waite [1991] 1 QB 241 at 243. The plaintiffs obtained judgment in the Republic of Ireland against three defendants for a substantial sum. There were unsuccessful appeals. The judgment sum was not paid. Separately, two of the defendants commenced a new proceeding in the Republic of Ireland and contended that the original judgment had been entered in favour of the plaintiffs in consequence of fraudulent conduct. That claim, the subject of a further contested trial, was dismissed. The judgment remained unpaid. Another proceeding was commenced by the plaintiffs against the three defendants in the United Kingdom to enforce the original judgment obtained in the Republic of Ireland. The primary judge held that each of the defendants were estopped from alleging that the judgment in the Republic of Ireland was obtained in consequence of fraud. Each unsuccessfully appealed to the Court of Appeal. The point of present relevance is whether the defendant who was not a party to the second proceeding (McLeod) in the Republic of Ireland to set aside the original judgment for fraud, was nonetheless estopped. The Court of Appeal concluded that he was by analogy with the practice in probate, of which Stuart-Smith LJ said at 253: “the rule may have originated in the special position in probate that I cannot see that justice and common sense require it to be so confined”. What is notable for present purposes is why the rule was applied as explained at 253 – 254:
Mr McLeod was well aware of those proceedings. He could have applied to be joined in them, and no one could have opposed his application. He chose not to do so and he has vouchsafed no explanation as to why he did not. Mr Swift [counsel for McLeod] says he was not obliged to do so; he was not obliged to go to a foreign jurisdiction; he could still wait till he was sued here. He speaks as if Mr McLeod was required to go half-way round the world to some primitive system of justice. That is not so. He had to go to Dublin, whose courts, as the judge said, a perfectly competent to deal with this matter. Moreover, it was a process that was good enough for [the other defendants]. Instead, he was content to sit back and leave others to fight his battle, at no expense to himself. In my judgment that is sufficient to make him privy to the estoppel; it is just to hold that he is bound by the decision of Egan J [the judge of the Republic of Ireland who dismissed the fraud proceeding].
107 Two presently important points that should be made about this case. One, is that it was decided by application of the privity of interest as between McLeod and the other two defendants. See the reasons of Stuart-Smith LJ at 252-253. That may be so where the claim against the defendants in the proceeding in the Republic of Ireland was for having acted as joint tortfeasors in breach of a duty of confidence and where judgment was entered against them jointly and severally: 253. That is not the present case.
108 The other is that the reasoning, at least in part at 252, rests on what Megarry VC had said in Gleeson v J Wippell & Co Ltd [1977] 1WLR 510 at 515:
“[B]ut it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just hold that the decision to which one was party should be binding in proceedings to which the other is a party. It is in that sense that I would regard the phrase “privity of interest”.
109 As explained by Nettle J in Tomlinson at [97] in Australia: “that formulation has been judicially criticised for its evident circularity… and, in any event, it is subject to the limitations of any category of indeterminate reference.” To the same effect see the plurality in Tomlinson at [17].
110 Drawing the threads of this excursion together, I proceed on the basis that the issue estoppel principle extends to an intervener in an appeal proceeding who is either by rule or order a party or where the extent and degree of involvement amounts to active participation. Stating the principle in that way does not draw a bright line which is capable of distinguishing cases which do not engage the principle from those which do. What other matters, then, are relevantly considered?
111 Earlier in these reasons, I noted the plurality’s reference in Tomlinson at [21] that res judicata estoppels are informed by finality and fairness. Lord Diplock in Thoday v Thoday [1964] P 181 at 198 referred to the rule of public policy expressed in Latin: Nemo debet bis vexari pro una et eadem causa (a person ought not be twice vexed for one and the same cause). In Burrell v The Queen (2008) 238 CLR 218 at [15] the plurality (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ) observed:
Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system...
Footnotes omitted.
112 As stated in Spencer Bower and Handley at [1.11] there is tension between “achieving finality in litigation on principled and predictable grounds while allowing some flexibility in special cases. The tension between these competing policies continues to be worked out.” One case then referred to is Arnold v National Westminster Bank Plc [1991] 2 AC 93, where Lord Keith at 107-109 reasoned that there may be special circumstances which operate as an exception to the principle. I accept the submission of NSW Ports that no Australia court has recognised the exception, and its existence is doubtful: Charafeddine v Morgan [2014] NSWCA 74 at [22]-[27].
113 Mayfield’s participation in the ACCC Appeal commenced with the application of 25 October 2021 for leave to intervene. The supporting affidavit of Ms Banton identified the obvious interest of Mayfield in the outcome of the ACCC Appeal. Her statement, that resolution of identified issues of fact and law will have a “conclusive impact” on the Mayfield proceeding, is no more than an expression of her subjective belief. It is material in support of a grant of leave but no more. It neither engages the issue estoppel nor insulates Mayfield from it. The same observation applies to her various statements made for the purpose of satisfying the Full Court as to the required matters; useful and different contribution and no unreasonable interference with the conduct of the appeal and to the submissions of counsel for Mayfield as put to Besanko J on 28 October 2021.
114 The orders made by Besanko J on 5 November 2022 provided for the filing of the written submissions by Mayfield that it would propose to make on the ACCC Appeal should leave be granted. Mayfield filed those submissions on 9 December 2021. Ultimately, they marked out the territory and defined the degree of participation of Mayfield as determined by the orders of the Full Court made on 16 February 2022. The anterior decisions of Mayfield to seek access to the opening and closing submissions of the parties in the trial before Jagot J (which was granted) and upon review of those submissions to determine that its position on the appeal was that it did not seek to be heard orally (in that its arguments were fully ventilated in writing) whilst tactical and considered can hardly be described as active participation as an intervener. Those steps were taken for the purpose of limiting the participation of Mayfield.
115 Turning then to the manner of participation, the written submissions comprise 65 paragraphs and are divided as follows:
(i) [1]-[5] comprise the introduction and uncontroversial background matters;
(ii) [6] – [8] summarise the relevant principles that inform the exercise of the discretion at r 36.32 of the Rules;
(iii) [9] states the substantial interest of Mayfield being the correspondence between the principal matters alleged in its proceeding and the ACCC Proceeding;
(iv) [10] – [11] in summary states why the submissions proposed by Mayfield differ from those in the ACCC Appeal being: (1) there is no valid doctrine of derivative Crown immunity; (2) the State is deemed to carry on whatever business it’s state-owned corporation carries on; (3) the compensation provisions did have a relevant purpose of substantially lessening competition; and (4) s 4L of the CCA does not permit but requires severance which operates prospectively and not ab initio;
(v) [12] – [15] summarise Mayfield’s contention that there is no doctrine of Crown immunity or derivative Crown immunity, each of which is “outdated and apt to mislead”. Rather, the question is exclusively a matter of statutory interpretation which is answered by ss 2A and 2B of the CCA which determine when the provisions apply to the Crown;
(vi) [16] – [18] address the reasoning of Jagot J and assert error in not reflecting an interpretive choice but rather of imposing an extra-statutory gloss on the purpose of the CCA;
(vii) [19] – [23] contain submissions that Jagot J erred by departing from the statutory text at ss 45(2) and 75B of the CCA;
(viii) [24] – [28] contended that s 51 of the CCA covers the field as to when a person may be exempted from liability for anything done in a State that is specified in and specifically authorised by State legislation;
(ix) [29] – [30] summarise Mayfield’s preferable construction of the statutory scheme;
(x) [31] addresses why the submissions of Mayfield differ from those of the ACCC;
(xi) [32] – [36] frame in summary submissions that the State was conducting a business;
(xii) [37] – [40] address the submission that the State was engaged in regular and systematic conduct in the operation of each of the ports in issue and in the leasing arrangements entered into for those ports;
(xiii) [41] is a submission that the making of a State policy does not step the State outside of the conduct of a business;
(xiv) [42] – [46] express submissions that the compensation provisions of the Port Commitment Deeds, contrary to the conclusion of Jagot J, do not in fact support the State policy for the development of the ports in issue;
(xv) [47] explains why the submissions at [32] – [46] differ from those of the ACCC;
(xvi) [48] – [59] address the purpose of lessening competition grounds in the ACCC Appeal and [60] explain why those submissions differ from those of the ACCC;
(xvii) [61] – [63] submit that Jagot J erred in her interpretation of s 4L of the CCA by overlooking the significance of the fact that it requires rather than allows severance of an offending provision; and
(xviii) [64] – [65] address why intervention by Mayfield would likely add approximately 1.5 hours to the hearing of the appeal and will not interfere with the ability of the parties to conduct the appeal as they see fit.
116 Allsop CJ addressed the submissions of Mayfield at FC [416] – [421] as follows:
Leave was given on 16 February 2022, for Mayfield Development Corporation Pty Ltd (MDC), previously known as NSC to intervene by written submissions only, subject to any question of costs. Those submissions require little additional consideration.
MDC’s submissions raised hypotheses said to come from the possible operation of ss 45(2) and 75B of the Act. They were, as submitted by NSW Ports, vague, unclear and unhelpful hypothetical scenarios that failed to direct themselves to the primary judge’s expression and application of principle.
MDC submitted that the primary judge misconstrued s 2B of the Act and the operation of so-called derivative Crown immunity. Essentially, it submitted that s 2B(1) had no operation with respect to so-called derivative Crown immunity because of the place and operation of s 51 which was said to cover the field of operation of the subject of the application of the Act beyond the application of s 2B to the State alone or directly when not carrying on a business. I reject this construction of the Act and ss 2B, 45 and 51. Her Honour correctly applied Baxter and earlier cases and identified the relevant right which was or would be divested were s 45 to apply to NSW Ports.
MDC’s submissions as to s 51 should be rejected for the reasons given for rejecting the argument of the ACCC and PON that that section of the Act manifests a contrary intention to the operation of the proposition drawn from Kitto J in Wynyard Investments and applied in Bass, NT Power and Baxter. Section 51 is predicated on contravention, not non-contravention of the Act.
The primary judge did not, as MDC submitted, rely on some semantic distinction between purpose and motive. Her Honour addressed the relevant factual question of subjective purpose.
There was an assertion by MDC that NSW Ports had a purpose to restrict container trade at Newcastle in order to make its bid. No one was cross-examined to that effect. It was not part of the case run; and not for an intervener to raise on appeal.
117 What is clear from this analysis is that Mayfield’s participation in the appeal was limited and confined. It did not frame the appeal grounds and therefore the issues in the appeal. It did not control, direct or influence the manner in which the ACCC prosecuted the appeal. It could not be heard on matters of fact at issue in the appeal. Although Dr Higgins contended that Mayfield could “conceivably” have brought an application to adduce evidence on the appeal, the form of application and the power to entertain it were not identified. In fairness to that submission, an order granting more expansive participation rights may have been made when leave to intervene was granted (as contemplated by notes (2) and (3) of r 36.32 of the Rules), but that possibility was foreclosed when Mayfield chose not to engage more actively and by the form of order made by the Full Court. It is entirely speculative to determine the issue estoppel question by reference to what might have been done: the issue is what was done.
118 Mayfield could not determine or influence the decision by the ACCC not to seek special leave to appeal from the High Court, and there was no realistic possibility that it could have itself embarked on that course with success.
119 It is trite to recall that the ACCC Proceeding was one brought by a regulator in the public interest and for the purpose of enforcing the provisions of the CCA in respect of the impugned conduct. In that public capacity, the ACCC sought declaratory relief that the conduct was unlawful, injunctions to restrain the conduct and the imposition of pecuniary penalties (the latter for the purpose of achieving deterrence, specific and general). In contrast, Mayfield’s proceeding is brought for the purpose of vindicating private rights, being the effect of the impugned conduct on it, and for compensation for the damage it claims to have suffered. There is no public aspect in the Mayfield proceeding, beyond any ultimate determination that conduct was engaged in contrary to a statutory norm.
120 Understood in that way there is a clear, though incomplete, analogy with Tomlinson, albeit a case about privity of interest. The fact that the injured worker complained to the Fair Work Ombudsman that his entitlements had not been paid, gave evidence in the regulatory proceeding commenced by the Ombudsman and received a personal benefit from the outcome of that proceeding by vindication of his rights, did not give rise to an issue estoppel in his subsequent claim for damages for personal injury as there was not a “sufficient connection in interest” between the worker and the Ombudsman: [1].
121 The inability of the worker to exercise control over the regulatory proceeding is central to the conclusion of the Court in Tomlinson as expressed at [35]:
[T]he interest of a privy must in each case be a legal interest” and “absent a legal interest, such interest as [a person] may have had over the conduct of the earlier proceeding is irrelevant even if that influence amounted to control.
122 Those expressions of principle by the plurality were made in the context of privity of interest, but they reflect that finality and fairness are fundamental policy considerations of the res judicata doctrines ([21]) which were addressed more expansively at [36]-[39] in the analysis of cases where a party to a proceeding represents the legal interests of another, such as in industrial cases where the inability of members to appear in or control the conduct of a proceeding was dispositive: Young v Public Service Board [1982] 2 NSWLR 456.
123 Having referenced Young at [36], the plurality in Tomlinson continued at [37]-[38]:
The first strand of the reasoning in Young illustrates that a person does not become bound by an estoppel by reason of a party having represented legal interests of that person in an earlier proceeding merely as a consequence of that party having lawfully asserted a claim which, if accepted, would have resulted in a determination enhancing or enforcing a legal entitlement of the person. In the absence of the person having authorised the assertion of the claim, the representation must at least have been of such nature as to have protected the person from being unjustifiably subjected to an unwanted estoppel.
Why that should be so is not difficult to explain. It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded. There are countervailing considerations, some of which operate to create exceptions to that principle. Finality and fairness, including maintaining the certainty of past adjudicated outcomes and ensuring the predictability of future adjudicated outcomes, are amongst those countervailing considerations, and the estoppels informed by those considerations are amongst the exceptions to the principle. The operation of an estoppel, it must be remembered, is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth.
124 The plurality next emphasised the importance of active participation at [39]:
The justice of binding to an estoppel a person who was a party to an earlier proceeding is readily apparent: the person has already had an opportunity to present evidence and arguments. The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often also be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.
125 In my view this is the coherent thread which runs through each of the res judicata doctrines, and which is not confined to privity of interest. The justice of binding a person by issue estoppel is active participation in the conduct of a proceeding. Where a person is a party or is deemed to have that status, such participation is plainly identifiable. That is not so for an intervener who is not in terms a party nor is granted rights and privileges, including specification of matters that may be raised, when leave is granted to intervene. My view accords with the analysis of each of the cases referred to in Spencer Bower and Handley at [9.11] and is not inconsistent with the reference to the 1968 edition of Spencer Bower by the High Court in Marlborough Gold at 505, once one understands that the Court was speaking in the context of a statutory right of intervention which, if exercised, deemed the intervener to be a party.
126 Mayfield did not enjoy a right of active participation in the ACCC Appeal for the reasons I have given. In summary, it lacked control over the framing of the appeal grounds, was confined to the issues identified in the amended appeal grounds, was not permitted to enlarge the scope of the appeal and the extent of participation was limited to consideration of its written submissions which, in the result, Allsop CJ, did not find necessary to examine at length. The submissions made no difference once the arguments of the ACCC were rejected.
127 It is not to the point that Mayfield’s solicitor, Ms Banton, expressed various views in her affidavit made in support of the intervention application that the resolution of certain issues of fact or law in the appeal will have a conclusive impact on the Mayfield proceeding. That statement is reflective of no more than the binding precedential effect of the Full Court’s determination upon a trial judge in the Mayfield proceeding. For the same reason it matters not that Mr Garland advised the parties and the Court in February 2022 that Mayfield was content to limit its participation in the appeal to the written submission. Whilst it is true that limiting the application for leave to intervene in that way was the forensic decision of Mayfield alone, and that it could have sought leave to intervene on a broader basis, the fact is that intervention was limited. Mayfield did not seek to broaden the issues or to otherwise exert control or influence over the conduct of the appeal.
128 There are other relevant considerations. The twice vexed for the same cause policy consideration is not material in this matter. There were two sets of proceedings where the respondents faced the same contentions. If Mayfield had not sought leave to intervene, no question of issue estoppel could have arisen. It was not the intervention by Mayfield that exposed the respondents to that risk. However, the respondents were and remain able to rely on the binding nature of the legal conclusions reached by the Full Court at a trial of the Mayfield proceeding as an answer to the application of the CCA to the impugned conduct, if established.
129 As noted above, Brennan CJ in Levy, in expressing the justification for a grant of leave to intervene, spoke of a demonstrated substantial effect on a person’s legal interests as a necessary precondition, but even where that is shown, the grant may be limited, which reflects what occurred in this case. Mayfield was afforded a limited right of participation for the purpose of persuading the Full Court to reach conclusions favourable to its case. It failed to achieve its objectives. The legal conclusions of the Full Court must be followed by a trial judge in this proceeding as a matter of stare decisis. The hurdle that now confronts Mayfield is to convince another Full Court that the binding decision on the application of the CCA to the impugned conduct is plainly wrong or, failing that, to succeed upon an application for special leave and then if granted an appeal to the High Court. It is by no means clear on the arguments of NSW Ports why the limited participation in the ACCC Appeal operates to erect the further barrier of issue estoppel to conclusively prevent Mayfield from appealing. It was not the participation of Mayfield in the appeal that produced the binding precedential determinations of the Full Court on the legal issues before it. But on the arguments of NSW Ports, Mayfield is forever estopped from contending that the Full Court wrongly determined the primary legal issue and that the correct answer was that given by Beach J. The justification given by NSW Ports for this surprising outcome rests solely on the fact that Mayfield participated in the Full Court argument in a limited manner. What that overlooks is that Mayfield did not frame the arguments and did not exercise control over the conduct of the appeal and the decision made by the ACCC not to seek special leave to appeal on what is an important question of principle that has implications well beyond this case.
130 The significance of the last point is relevant to finality which operates to inform the application of the issue estoppel doctrine. Mr Walker argues, and I have accepted, that there is no prospect that Mayfield could have successfully applied for a grant of special leave to appeal to the High Court for the reason that Mayfield did not have standing to challenge the order dismissing the appeal on the factual questions of purpose and likely effect and substantially lessening competition as those matters were not in dispute between it and the respondents in the ACCC Proceeding to which it was neither an intervener or a party.
131 For these reasons, I conclude that the limited nature and degree of participation by Mayfield in the ACCC Appeal was not such as to give rise to an issue estoppel.
Abuse of process
Principles
132 The principles are well understood: Tomlinson at [25]-[26] and [35]. By reference to those passages, NSW Ports submits that it may be an abuse of process for a person to seek to relitigate an issue, even if not bound by an issue estoppel, where to do so is oppressive to a party or would bring the administration of justice into disrepute. Abuse of that character may arise: “where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel”: Tomlinson at [26]. The case referenced for that proposition is O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at [99] – [111] which concerned a claim for defamation brought by a magistrate who contended that publications made by the defendants were defamatory of her in that they conveyed the meaning, amongst others, that she was incompetent. The defendants pleaded many defences including truth. In various ways the defendants particularised the truth defence by reference to several of the plaintiff’s decisions, some of which had been appealed, in which they contended the plaintiff had made various errors of fact and law. To establish that proposition, the defendants proposed to tender transcripts of evidence, exhibits and other documents in each of those cases to prove the asserted errors. They pleaded the correctness of the appeal judgments. The plaintiff applied to strike out those particulars on various grounds, including that the truth defence was an abuse of process. The Court of Appeal concluded that it was not.
133 President Beazley, with whom McColl and Basten JJA, Tobias AJA and McCallum J agreed, emphasised that the legal processes of a court may be abused where the intention is to “litigate a new case which has already been disposed of by earlier proceedings” ([99]), where to do so causes manifest unfairness to a party or would otherwise bring the administration of justice into disrepute: [100] – [102]. In dealing with unfairness, her Honour at [102] referenced the expression of principle by Mason CJ in Rogers v The Queen (1994) 181 CLR 251 at 256 that:
[T[here are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.
134 Justice McHugh in Rogers at 286 relevantly expressed the principle as: “the use of the court’s procedures is unjustifiably oppressive to one of the parties”. In State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Rep 81-423, Giles CJ Comm D at 64,089 stated that “an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances” and then set out a list of non-exhaustive matters relevant to that determination:
(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any clear fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings;
(f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
135 Those matters were referred to with approval by the Full Court in Dale v Western Australia (2011) 191 FCR 521 at [70], Moore, North and Mansfield JJ. Not all are of relevance in this case.
Submissions
136 Dr Higgins submits if Mayfield is not bound by an issue estoppel, then: this “is a clear case for applying principles of abuse of process to deny [Mayfield] the opportunity to relitigate vexatiously an issue it has previously lost.” Emphasis is placed on the fact that when this proceeding was stayed by Jagot J it was on the basis that Mayfield then accepted that threshold issues would be decided in the ACCC Proceeding. If Mayfield had been successful in its later attempt to have each proceeding tried at the same time, then it would have failed on the derivative Crown immunity question with the finality consequence that flows from the Full Court decision. Compounding the abuse is the fact that when Mayfield sought leave to intervene in the ACCC Appeal, its solicitor represented that the appeal would have a conclusive effect on this proceeding. Mayfield now seeks to escape the consequences of its decision-making. It would be oppressive to NSW Ports and bring the administration of justice into disrepute if Mayfield is “nakedly” afforded “a second bite at the cherry it picked”.
137 In oral submissions, Dr Higgins emphasised the manifest opportunity that Mayfield had to advance its arguments on the question of the application of the CCA before the Full Court. It did so in the form of the detailed written submission that it relied on. This is not simply a case of unfairness wrought by the duplication of proceedings and the waste of the time of this Court and of the time and money of the parties. Mayfield made a deliberate decision to advance its own interests in the manner that it chose to participate in the appeal to obtain an advantage in this proceeding. The strategy failed. To permit Mayfield to now rely on its lack of participation (and thus to sidestep an issue estoppel) would bring the administration of justice into disrepute. The position in which the applicant finds itself is entirely self-inflicted. Whilst acknowledging that it is a serious step for a court to permanently stay a proceeding and to deprive an applicant of the ability to conduct a case, nonetheless in this matter the balance clearly favours the conclusion that there should be a stay.
138 In my exchange with counsel, I invited Dr Higgins to identify what additional matters, if any, tip the scales in favour of the submissions of NSW Ports, should I reject the arguments about issue estoppel. In part, Dr Higgins answered:
…If your Honour’s conclusion was legally the participation was not sufficiently active to engage the doctrine of issue estoppel, about which I have no discretion, then we say one interrogates why was that participation not more actively pursued. Why was the proceeding stayed? Why was the application to lift the stay delayed and then based upon a reason not initially disclosed and identified too late to agitate the proceeding? Why did a party with the benefit of representation of this calibre not appear at the Full Court proceeding, and why did this party not seek special leave?
And the proposition is that the extent of participation, if it is insufficient, as a wholly self-inflicted insufficiency, and it is that that would bring the administration of justice into disrepute, that a party could so carefully cut its cloth to avoid the doctrine of issue estoppel. We say that such a party has engaged in abuse…
139 Mr Ahmed for the State in oral submissions adopted those of Dr Higgins but in writing, emphasises the following as relevant considerations:
(a) The issues of contravention of s 45 and derivative Crown immunity, and the questions of the purpose and effect of the compensation provisions, were central issues in the ACCC Proceeding and the ACCC Appeal;
(b) Mayfield had the opportunity to press an application for oral submissions but did not do so. It cannot be said it does not have an opportunity to fully ventilate those issues, if it chose;
(c) The findings in the ACCC were definitive;
(d) There will be no fresh evidence in this proceeding on the question of derivative Crown immunity, which would be decided based on the SOF;
(e) There would be considerable unfairness to the respondents in allowing this proceeding, given they have already defended a lengthy trial and appeal; and
(f) Mayfield always has been aware of the factual and legal overlap between the proceedings, has been represented by sophisticated practitioners and tactically made the informed choice to intervene in the ACCC Appeal, in an attempt to gain an advantage for itself and with the risk of later being precluded from advancing a position inconsistent with the outcome.
140 In contrast Mr Walker submits that there is no principle of law which precludes a party from bringing a proceeding to challenge the existing state of the law, more so in this case, where that party has the benefit of the dissenting judgment of Beach J in the Full Court. Mayfield makes no secret of the fact that it seeks to persuade a differently constituted Full Court to reach the same conclusion as Beach J or if not, to obtain special leave to appeal to the High Court to agitate a question that is of considerable importance. Proceeding in that way does not amount to an abuse of process. Emphasis is placed on the recent decision of the High Court in GLJ v The Trustees of the Roman Catholic Church for the dioceses of Lismore (2023) 97 ALJR 857 at [3] per Kiefel CJ, Gageler and Jagot JJ:
[T]he grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.
141 Although Mayfield does not rely on different evidence relevant to the CCA application point, if this proceeding is stayed, Mayfield will be shut out of running its case on its evidence on the issues of purpose and effect and substantial lessening of competition. Addressing the six specific matters raised by the State, Mr Walker responds:
(a) The identity of issues is neutral. The respondents faced from the outset two sets of proceedings, one brought by a regulator and the other by a party claiming to have suffered damage by reason of common conduct;
(b) Even if Mayfield had made oral submissions to the Full Court that would not have made a difference to the scope of the argument and the abuse of process falls to be determined by what the Full Court in fact did, not what might have occurred had the matter proceeded differently;
(c) If this means binding on the parties and their privies, that is the case in every judicial proceeding;
(d) This is so, but reflects that Mayfield’s conduct is consistent with the overarching purpose;
(e) This contention is premised solely on the assertion that the ACCC Proceeding was heard first; and
(f) Mayfield’s knowledge is not disputed. If the submission is that Mayfield sought to avoid the need for a further trial and appeal by intervening, it would be corrosive of the administration of justice for it now to be punished because it sought to assist the Full Court by making a “useful and different” contribution in accordance with the requirement of r 36.32 (2) (a) of the Rules.
Decision
142 I am not persuaded that NSW Ports and the State have established that continuation of the proceeding will amount to an abuse of process in that I am not satisfied that a case of unjustifiable oppression to one or more of the respondents has been made out or that otherwise the administration of justice will be brought into disrepute: Tomlinson at [25].
143 Unlike the issue estoppel question, whether Mayfield has abused the Court’s processes requires consideration of the entirety of this proceeding, the steps taken to participate in the ACCC Proceeding and the actual participation in the ACCC Appeal.
144 The starting point is that the ACCC Proceeding was commenced by a regulator on 10 December 2018, in discharge of a statutory function and for the purpose of vindicating public, not private rights. Had that proceeding succeeded, then substantial pecuniary penalties would likely have been imposed to achieve the deterrence objective. Mayfield commenced this proceeding on 31 March 2019. The compensation claim is for damage caused to its private economic interests. NSW Ports was at risk of facing two similar claims for the same conduct and two trials, absent an order that they be heard together (which may not have been made as the proceedings serve different purposes). The consequence of the refusal of Jagot J to lift the stay in March 2020 was that if the ACCC Proceeding had succeeded, Mayfield could have relied on the parasitic operation of s 83 of the CCA as explained by Jagot J in her stay reasons at SJ [23].
145 There is much emphasis on the submissions of NSW Ports and of the State, that Mayfield should not be permitted to relitigate issues that have been lost (the scope of derivative Crown immunity, whether the State was carrying on a business and whether the CCA covers the field so as to displace any derivative Crown immunity) where it had an opportunity to put submissions on each before the Full Court, framed those submissions in writing and ultimately determined not to be heard orally in further support of its arguments. Mayfield accepted that the ACCC Appeal would be determinative of those issues which informed its decision to apply for leave to intervene and on which it relied in support of that application. Having made those deliberate decisions, Mayfield is responsible for the position in which it now finds itself. Mayfield should not now be permitted to sidestep the consequence of issue estoppel and be permitted to put its arguments again. Acting in that way brings the administration of justice into disrepute.
146 Whilst these submissions accurately summarise the effect of the decision-making and conduct of Mayfield, they do not in my opinion establish that its conduct, if it is permitted to continue this proceeding, will cause manifest unfairness, will cause vexation or be oppressive and unfair to NSW Ports or the State or is otherwise of such a character that permitting Mayfield to prosecute its case will bring the administration of justice into disrepute.
147 The consequence of finding an abuse of process is ordinarily that a proceeding is permanently stayed, which is an exceptional step of last resort taken only in the clearest of cases: GLJ at [3]. The structure of the CCA is that a respondent is at risk of relitigation of the same or substantially similar issues where (as here) a regulator brings proceedings for contravening conduct which conduct also causes damage to other persons. Section 83 of the CCA operates on that basis.
148 It will be recalled that when Mayfield applied to lift the stay of this proceeding in March 2020, NSW Ports opposed the application because, amongst other reasons, it contended that it would suffer unfairness in having to simultaneously conduct two separate proceedings with overlapping issues, that they had a legitimate interest in the expeditious determination of the ACCC Proceeding and if the stay were to be listed they would be “unduly burdened” in defending each proceeding in parallel. The submissions do not explain why it is now the case that a consecutive hearing of this proceeding amounts to an abuse of process.
149 The position that NSW Ports now finds itself in is to its advantage in that it has the benefit of the Full Court determinations that the State, in implementing the privatisation scheme was not carrying on a business, that derivative Crown immunity is not displaced by the provisions of the CCA and that, at least on the facts found by Jagot J, the impugned conduct did not have the purpose or effect of substantially lessening competition. The stare decisis doctrine binds a trial judge in this proceeding to hold that derivative Crown immunity is a complete answer to Mayfield’s claims.
150 Although Mayfield does not rely on different evidence relevant to the derivative Crown immunity question, it does seek to make out its own case on the questions of market definition, the purpose and the effect of the compensation provisions of the Port Commitment Deeds and on that question a stay will prevent Mayfield from making out its own case.
151 The threshold issue of derivative Crown immunity, the proper construction of the relevant provisions of the CCA, and whether s 51 operates as a code raise issues of public importance on which the Full Court was divided. Mayfield did not, as intervener in the Full Court, have any realistic prospect of obtaining special leave from the High Court for that issue to be addressed. Although Mayfield provided comprehensive written submissions to the Full Court, as I have explained in addressing the issue estoppel question, it did not frame or control the conduct of the ACCC Appeal. Its participation before the Full Court was limited and it had no opportunity to influence the course of the proceeding before Jagot J.
152 Whilst in pejorative language it may be said that Mayfield is the author of its own misfortune, that its wounds are self-inflicted and that continuation of this proceeding would permit it to sidestep an issue estoppel, none of that is persuasive. The fact that Mayfield by its own conduct ensured that this proceeding was not able to be heard concurrently with the ACCC Proceeding (assuming that Jagot J may have been persuaded to hear each concurrently, despite the position of NSW Ports) is in my view entirely neutral in effect. A private proceeding which follows a successful civil penalty proceeding for damages for the same conduct is the scheme of the CCA. A respondent who unsuccessfully defends a civil penalty proceeding then suffers the likelihood of exposure to parasitic claims for damages. The consequence of the statutory scheme cannot be called in aid of arguments that proceeding in that way is vexatious, oppressive, or unfair to a respondent or otherwise brings the administration of justice into disrepute.
153 For similar reasons it matters not that Mayfield’s solicitors made statements to the effect that the ACCC Appeal would have a conclusive effect on the resolution of certain issues in this appeal or would otherwise determine threshold issues. That was so at the time and remains so now: stare decisis operates. As correctly submitted by Mr Walker, there is no principle of abuse of process which operates to prevent a party from challenging the existing state of the law. The degree of participation by Mayfield in the Full Court did not make a difference to why the arguments of the ACCC were rejected by majority. What Mayfield nakedly (adopting the description of Dr Higgins) seeks to do is to argue that the reasoning of Beach J in the Full Court is correct on an important question of statutory construction and that, on evidence that it wishes to adduce at trial, different conclusions should be reached on the questions of market definition and the purpose and effect of the impugned provisions of the Port Commitment Deeds. That strategy, whilst it exposes NSW Ports to another trial does not amount to vexatious, oppressive or manifestly unfair conduct and there is nothing in my view that otherwise operates to bring the administration of justice into disrepute. It is not per se an abuse of process to litigate a new case on issues disposed of in an earlier proceeding particularly, in the circumstances of this case, when Mayfield’s participation in the earlier proceeding was limited, where it considers that Beach J was correct on matters of principle and where it could not have successfully applied to the High Court for special leave to appeal to argue in favour of the dissenting view.
154 Finally, no evidence has been adduced by NSW Ports to the effect that it lacks the resources to defend this proceeding, that the economic costs of doing so will be oppressive, that witnesses are no longer available or that there is some other practical reason which supports a conclusion that continuation of the proceeding will amount to an abuse of process. The extent of the oppression and unfairness arguments rise no higher than reliance upon the conduct of Mayfield and the fact that the same issues will be required to be litigated again, none of which make out a case of abuse of process.
155 For these reasons I answer question 1: No.
QUESTION 2
156 Mayfield accepts, as it must, that I am bound to answer this question: Yes.
QUESTION 3
157 This question primarily concerns the State. In short, it pleads the Deed of Settlement as operating as a complete release and in bar to the proceeding. The effect of the amendment, that I permitted Mayfield to make, is that no claim for declaratory relief is now sought and, in Mayfield’s submission, that concludes the argument that relief is sought against the State contrary to the Deed of Settlement
Submissions
158 The issue, however, is not so simple. The State pleads that under the Deed of Settlement, Mayfield released it from any claims it had or may have had arising from or in connection with the Release Matters which included any matters arising between Mayfield and the State in respect of the Mayfield site and that the parties agreed that the releases may be pleaded as a complete defence.
159 The releasors are named as Mayfield (MDC), Anglo Ports Pty Ltd and Grup Maratim TCB SL. The releasees are Newcastle Port Corporation (NPC) and the State. The background provides:
A. Since 2009 NPC has been conducting a process to secure a private sector proponent to develop the Mayfield site. MDC has been involved in this process.
B. In June 2011 the State approved NPC proceeding with formal negotiations with MDC to develop contractual documents for the Mayfield site. Since that date, MDC has been negotiating, initially with NPC and then with NPC with the assistance of the State, regarding development of the Mayfield site.
C. An agreement regarding development of the Mayfield site was unable to be concluded to the satisfaction of NPC and the State, and the State advised MDC on 8 November 2013 that it was unable to approve of MDC and NPC entering into binding agreements in respect of the development of the Mayfield site. On this basis, negotiations between the parties in respect of the development of the Mayfield site ceased.
D. Following cessation of negotiations, MDC made various Claims against NPC and the State.
E. The Parties have agreed to settle various claims between them in accordance with the terms and conditions of this deed.
160 Clause 1 contains definitions, including:
(a) Claim means any action, suit, cause of action, arbitration, debt due, costs, claim, demand, verdict and judgment or Encumbrance either at law or in equity or arising under a statute and whether or not the matters giving rise to those claims are known to any of the Parties at the date of this deed;
(b) Release Matters means:
(i) any negotiations, discussions, agreements or other matters whatsoever arising out of the process conducted by NPC since 2009 to secure a private sector proponent to develop the Mayfield site; and/or
(ii) any negotiations, discussions, agreements or other matters whatsoever arising between the Releasors and the Releasees in respect of the Mayfield site; and/or
(iii) the Terms Sheets and any matter referred to in the Terms Sheets; and/or
(iv) the facts, matters and circumstances referred to in the Background to this deed.
(c) Settlement date means the date of execution and exchange of this deed.
(d) Terms Sheets means the PDA Term Sheet and Lease Term Sheet between NPC and MDC dated 13 September 2013.
161 The term Related Body Corporate is also defined as having the meaning given to it by ss 9 and 50 of the Corporations Act 2001. It is not submitted that this definition applies to NSW Ports, nor that it is or was the agent of the releasees.
162 Clause 4 provides:
4.1 The Releasors releases (sic) the Releasees
With effect from the settlement date, the releasors and their shareholders permanently release the releasees, and any related body corporate of them and any present or future agent or employee of the releasees or any related body corporate of them from any claims which but for their entry into this deed they currently have or may have against the releasees arising from or in connection with the release matters.
4.2 The Releasors to Indemnify the Releasees
With effect from the settlement date, the releasors indemnify each of the releasees, and any related body corporate of them, and any present or former agent or employee of the releasees or any related body corporate of them against all claims arising from or in connection with:
(a) the release matters; and
(b) the entry into this deed or taking any step under or in accordance with its terms.
4.3 The Releasors will provide further releases and indemnity.
The releasees hold the release and indemnity in clauses 4.1 and 4.2 on trust for all related bodies corporate, all present and former agents and employees of the releasees and any related body corporate of them, and the releasors will, at the request of the releasees, execute a separate written release and indemnity in favour of them or any of them, on the same terms as set out in those clauses.
4.4 Plea in bar
The releases in this clause can be pleaded in bar and as a complete defence to any Claim to which they apply.
163 As developed, the State submits that, construing the Deed of Settlement objectively and having regard to its commercial purpose, it operates “to bring an end to any allegations or assertions in respect of the State, ensures that its rights were not otherwise affected by any such allegations or assertions, and to bring finality to the matter”. Contrary to the terms of the deed, this proceeding seeks to impugn the conduct of the State. It asserts contraventions that “closely concern the State and would involve findings as to its conduct”. As is well understood, the terms in the deed “arising from” or “in connection with” the matters released operate widely, requiring merely a relation between one thing and another, not necessarily a causal relationship: Grant v Commissioner of the Australian Federal Police [2006] FCA 1475 at [42] – [44], Collier J.
164 The submissions continue that Mayfield’s case that the Port Commitment Deeds and the understandings “are intricately connected to the ultimate failure to develop the Mayfield site” falls squarely within the definition of Release Matters. Whilst the Amended Originating Application does not in terms seek relief against the State, it is a necessary party as any finding that the provisions are contrary to s 45 results in severance of those provisions pursuant to s 4L, which would operate materially and detrimentally to the interests of the State as the counterparty. Particular reliance is placed on the further decision of Jagot J in Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd (No 2) [2021] FCA 1040 at [9]:
I also consider that the State was a necessary party to the main proceeding. The relief the ACCC sought, if granted, would have changed the contractual rights and duties as between the State and NSW Ports. The ACCC’s submissions about s 4L of the CCA having nothing to do with joinder, not applying to arrangements or understandings, and not operating other than as between the parties to the proceeding are misconceived. If the ACCC had succeeded, the result of the relief to be granted would have been to change the contractual relationship between NSW Ports and the State. The principle that only a party to the proceedings in which a declaration is made is bound by the declaration is not an answer. The declaration would have operated to prevent the State from enforcing the PCDs against NSW Ports, and NSW Ports from enforcing the PCDs against the State because the PCDs would have been declared to be unlawful and that declaration would have been binding on NSW Ports. Further, s 4L of the CCA assumes this to be the consequence of any such declaration. Under s 4L, if the contravening provision is severable, then the balance of the contract remains valid and enforceable. The corollary is that the contravening provision is not valid and enforceable. Section 83 does not suggest to the contrary. It is merely an aid to proof in subsequent proceedings.
165 It is further submitted that a common law release to the benefit of one potential defendant may extend to bar proceedings against another defendant, for example in cases of joint liability, joint tortfeasors, and joint debtors.
166 In oral submissions, Mr Ahmed accepted the issue is not whether the subject matter of this proceeding, or the particular allegations in it, arises out of or is in connection with the Release Matters. Rather it is whether there is a Claim against the Releasees within the meaning of cl 4.1. In his submission the proceeding is caught by the terms of the Deed of Settlement because Mayfield makes allegations of fact about the conduct of the State, it is a party to the proceeding and inevitably findings will be sought by Mayfield about that conduct. Thus, allegations are made against the State amounting to claims or demands within the definition of Claim. If the claims are upheld, s 4L of the CCA will operate to affect the State’s contractual rights and the obligations of the counterparties.
167 Viewed in that way, the Deed of Settlement may be prayed in aid by NSW Ports to prevent Mayfield from pursuing the claim against it because ultimately what is involved is a claim which is made that affects the State’s rights even though relief is not sought against it. Pursued further in oral submissions, the State’s proposition is: A, the applicant, cannot obtain relief against B, a person not party to a release, if the claim of A involves affecting the legal rights of C, the counterparty to the release. In this case the position is made clearer in that if Mayfield succeeds, s 4L of the CCA operates to affect the State’s rights.
168 For Mayfield, Mr Walker submits the fact that the subject matter of this proceeding falls within the scope of the release at cl 4.1 is insufficient to engage the bar at cl 4.4. Mayfield does not make any claim against the State: the relief is expressly confined to a claim for damages against NSW Ports. The fact that the subject matter of the proceeding, and many of the factual allegations pleaded in it, concerned contracts made by the State does not mean that relief is claimed against the State. If any claim is made against the State, it must be dismissed but it does not follow that no relief can be granted against entities that do not have the benefit of the release and the bar. The joinder of the State as a party goes no further than affording it the opportunity, as a matter of practical and natural justice, to be heard about any order which may affect its rights or interests. Specifically, the joinder rules are concerned with procedural fairness, not preclusion: State of Victoria v Sutton (1998) 195 CLR 291 at [76] – [78], McHugh J; Penang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55-56, Lord Diplock and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76].
169 The effect of s 4L of the CCA does not assist the State. The statutory provision operates according to its terms: it is not open to the State or NSW Ports to contract out of its operation. If the consequence of acceptance of Mayfield’s arguments is that the provision operates, then the duty of the Court is to comply with the statute. The making of findings of fact about the conduct of the State, does not render the proceeding a claim against the State. That circumstance is relevant to joinder, but it does not follow that there is a claim against the State. None of this is inconsistent with the self-evident purpose of the Deed of Settlement as set out in the Background to bring an end to allegations, assertions or proceedings against the State as there is no such claim.
170 The surprising conclusion that flows from the State’s submissions is that it precludes arguments and relief in relation to contraventions of the CCA by an entity that is not a party to the Deed of Settlement. The consequence would be to effectively permit NSW Ports to engage in conduct which Mayfield contends is in breach of the CCA. That construction should not be preferred, absent manifestly express language: Butt v Long (1953) 88 CLR 476 at 487, Dixon CJ.
Decision
171 The resolution of this question is not difficult. The Deed of Settlement is to be construed in accordance with the well-established principles, applicable to all contracts: Mount Bruce Mining Pty Ltd v Wright Prospecting (2015) 256 CLR 104 at [46] – [52], French CJ, Nettle and Gordon JJ. The text is to be construed in context and through the lens of what a reasonable businessperson would have understood the terms to mean. This extends to consideration of the commercial purpose and the circumstances addressed by the contract.
172 The commercial purpose and background are each set out in the Background clauses and do not require interrogation of the underlying documents or matters as there is in my view no ambiguity to be resolved about those matters. The State was concerned to put an end to claims by, amongst others, Mayfield concerning the process to secure it as a private-sector proponent to develop the Mayfield site, as developed through formal negotiations, documented in the Terms Sheets, the conclusion of that process in November 2013 and the various claims which were then asserted by Mayfield against Newcastle Port Corporation and the State.
173 It is against that background that the State agreed to pay $1,854,401 to Mayfield in exchange for the releases at clause 4. Those releases, although widely drafted, are not without limitation to the extent of the entities entitled to benefit. The releases are in favour of any Claims which by its terms Mayfield (amongst others) then had or may subsequently have had against Newcastle Port Corporation and the State arising from or in connection with the Release Matters. There is no doubt that the claims made in this proceeding arise from or are in connection with the Release Matters including the process conducted to secure development of the Mayfield site and the facts, matters and circumstances referred to in the Background, but it does not follow that the claims made by Mayfield in this proceeding are against the State.
174 The relevant ordinary meanings of the preposition against given in the Macquarie Dictionary include: 1. In an opposite direction to, so as to meet; towards; upon; 2. In contact with, or in pressure upon; 3. In opposition to; adverse or hostile to; 4. In resistance to or defence from. In my view the contextual meaning in the Deed of Settlement is a Claim by Mayfield in opposition to or opposed to the State (relevantly including any suit, action or demand) arising from or in connection with the Release Matters. No claim of that character is made by Mayfield against the State in this proceeding.
175 This construction is not affected by the broad definition of what is a Claim or the Released Matters. Each only operates where there is a claim by a releasing party against a released party. There is no textual or contextual warrant for construing the terms as operating to the benefit of an entity that is not a party (or within the extended operation of entities related to the releasees) because facts are relied on in a proceeding that concern the conduct of a releasee. Examining and making findings about the conduct of the State in this proceeding does not amount to a claim against it within the meaning of cl 4.1. Objectively construed in the context of the Background matters and the commercial purpose of obtaining releases in favour of the parties (and related body corporates, agents and employees), the text and contextual language of the Settlement Deed cannot be construed as extending to claims and proceedings by Mayfield against entities who are not releasees but which raise facts that are within the Release Matters.
176 On the last point, if it had been the intention of the parties to extend the operation of the releases in that way, then one would have expected the drafting to explicitly do so: such as by an extended operation clause to the effect that the releases prevent the releasors from contending or seeking relief in any proceeding against any entity not party to its terms, arising from the facts or matters set out in the Background or the Release Matters.
177 The argument is not assisted by the operation of s 4L of the CCA in the event that the proceeding succeeds, and the offending provisions of the Port Commitment Deeds must be severed: SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516 at [52]. The contractual rights of the State were always subject to the operation of this provision. It is not claimed as a component of the relief in this proceeding; it is a statutory consequence that follows if Mayfield succeeds in establishing that the impugned provisions contravened the CCA. Self-evidently the operation of the statutory provision in that way will impact upon the contractual entitlements of the State but that is a very different thing to a claim by Mayfield against the State in relation to the matters released.
178 Nor is the argument assisted by the fact that the State is joined as a party. It has a right to be heard in response to Mayfield’s arguments, and doubtless will vigorously seek to protect its interests, but none of that amounts to a claim against the State by Mayfield.
179 For these reasons, I answer question 3: No
Consequential matters
180 I will hear the parties as to any consequential orders, including costs.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:
NSD 862 of 2019 | |
STATE OF NEW SOUTH WALES |
