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Federal Court of Australia FEDERAL COURT OF AUSTRALIA South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 1541 TRADE PRACTICES – exclusionary provision – rival sporting competition organisers making and giving effect to understanding or arrangement to form a single competition – fundamental term of arrangement that new competition involve fourteen teams achieved through mergers, joint ventures or an admission criteria process – whether a substantial purpose of parties in making or giving effect to arrangement was to prevent, restrict or limit supply or acquisition of various services to or from particular persons or classes of person for purposes of sections 45(2) and 4D of Trade Practices Act 1974 (Cth) – whether in competition in relation to services – whether services were “services” for purposes of section 4 of Trade Practices Act – time at which parties are required to be in competition in relation to services subject of arrangement – consideration of nature of exclusionary provisions – whether fourteen team term aimed at “particular classes of persons” – whether relevant class constituted in the circumstances – statutory defences – whether available in circumstances. TRADE PRACTICES – exclusionary provisions – relief – appropriate relief in circumstances – considerations. AGENCY – existence of relationship – whether relationship with independent contractor was that of principal and agent – significance of control – effect of express disclaimer of agency – weight to disclaimer in circumstances. PARTNERSHIP – formation – whether conduct of parties was carrying on business of partnership or acts in anticipation of partnership – later formal formation of partnership – retrospective commencement date in formal partnership agreement – effect – evidential value for purposes of actual commencement date. CONTRACT – implication of terms – informal contract – test for implication – distinction between implication in fact and in law – whether terms necessary for reasonable or effective operation of contract in circumstances – implied duty of good faith and fair dealing – whether a legal incident of contract or particular classes of contract – whether qualifies conduct reasonably taken to promote legitimate business interests – content of alleged terms – whether possible to imply objective standard of fairness in circumstances. CONTRACT – relief – whether breach of contract would found relief in circumstances – considerations. TRADE PRACTICES – misleading and deceptive conduct – representations – express and implied – as to future matter – sections 52 and 51A of Trade Practices Act 1974 (Cth) – whether properly characterised as aims – whether reasonable grounds for making representations. TRADE PRACTICES – misleading and deceptive conduct – relief – whether injunctive relief appropriate in circumstances – factors 1 Trade Practices Act 1974 (Cth), ss 2, 4D, 4F, 45, 47, 51A, 52, 84 Uniform Partnership Act 1997 (US), §308 Partnership Act 1892 (NSW), s 1 Corporations Law (1996 Reprint), s 183 Sale of Goods (Vienna Convention) Act 1986 (NSW) South Sydney District Rugby League Football Club Ltd v News Ltd (1999) 169 ALR 120 considered News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 applied International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 referred to Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 referred to Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552 referred to Board of Trade v Hammond Elevator Co 198 US 424 (1905) referred to Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 referred to Australian Mutual Provident Society v Chaplin (1978) 18 ALR 385 referred to Ex parte Delhasse; In re Megevand (1878) 7 Ch D 511 referred to Salomon v Salomon & Co [1897] AC 22 referred to Gramophone and Typewriter Ltd v Stanley [1908] 2 KB 89 referred to Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549 referred to CFTO-TV Ltd v Mr Submarine Ltd (1994) 108 DLR (4th) 517 referred to Lower Hutt City v Attorney-General [1965] 2 NZLR 65 referred to Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 referred to Northern v McGraw-Edison Co 542 F 2d 1336 (1976) referred to Condus v Howard Savings Bank 986 F Supp 914 (1997) referred to Royal Securities Corp Ltd v Montreal Trust Co (1966) 59 DLR (2d) 666 referred to Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 referred to Roberts v Murlar Pty Ltd (1986) 68 ALR 62 referred to Queensland Aggregates Pty Ltd v Trade Practices Commission (1981) 57 FLR 314 referred to Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1 referred to Eastern Express Pty Ltd v General Newspapers Pty Ltd (1991) 30 FCR 385 referred to ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 applied Dowling v Dalgety Australia Ltd (1992) 34 FCR 109 referred to Trade Practices Commission v Garden City Cabs Co-Operative Ltd (1995) ATPR §41-410 referred to Jewel Food Stores Pty Ltd v Amalgamated Milk Vendors Association Inc (1989) 24 FCR 127 referred to SA Brewing Holdings Ltd v Baxt (1989) 87 ALR 134 referred to Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 referred to Health Services for Men Pty Ltd v D'Souza (2000) 48 NSWLR 448 referred to Waddington v O'Callaghan (1931) 16 TC 187 referred to Saywell v Pope [1979] STC 824 referred to BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 referred to Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 referred to Byrne v Australian Airlines Ltd (1995) 185 CLR 410 applied Breen v Williams (1996) 186 CLR 71 applied Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 referred to Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 referred to Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 referred to Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 referred to Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 referred to Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 referred to Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR §41-703 referred to Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 referred to Asia Television Ltd v Tau's Entertainment Pty Ltd [2000] FCA 254 referred to Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 referred to Far Horizons Pty Ltd v McDonald's Australia Ltd [2000] VSC 310 referred to Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 referred to NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 referred to MJB Enterprises Ltd v Defence Construction (1951) Ltd (1999) 170 DLR (4th) 577 referred to Tymshare Inc v Covell 727 F2d 1145 (1984) referred to Willow Grange Pty Ltd v Yarra City Council, (SC of Vic, Byrne J, 1 December 1997, unreported) referred to Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86 referred to Sykes v Reserve Bank of Australia (1998) 88 FCR 511 referred to Bowler v Hilda (1998) 80 FCR 191 referred to Wheeler Grace & Pierucci Pty Ltd v Wright (1989) ATPR §40-940 referred to Ting v Blanche (1993) 118 ALR 543 referred to Miba Pty Ltd v Nescor Industries Group Pty Ltd (1996) 141 ALR 525 referred to James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 referred to Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 referred to Marks v GIO Holdings Ltd (1998) 196 CLR 494 referred to ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 referred to Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 referred to Bowstead & Reynolds on Agency, (16th Ed, 1996) Restatement, Third, Agency, Tentative Draft No 1 3 Am Jur 2d, "Agency" Restatement, Second, Agency 2A Corpus Iuris Secundum "Agency" Fisher, Agency Law, (2000) 10 Halsbury's Laws of England, 1st Ed, (1909) Norton on Deeds, (2nd Ed, 1928) Clarke & Corones, Competition Law & Policy, (1999) Lindley & Banks on Partnership, (17th Ed, 1995) 59A Am Jur 2d "Partnership" Cheshire & Fifoot, Law of Contract (7th Aust Ed, 1997) Restatement, Second, Contracts Finn (ed), Essays on Contract, (1987) Fried, Contract as Promise, (1981) Farnsworth, Contracts, (2nd Ed, 1990) SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED v NEWS LIMITED & ORS N 1295 of 1999 FINN J 3 NOVEMBER 2000 SYDNEY GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 1999 BETWEEN: SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED (ACN 002 487 390) APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) SECOND RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED THIRD RESPONDENT (ACN 003 107 292) NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTH RESPONDENT AND the Fifth to Twenty-third Respondents set out in the Schedule JUDGE: FINN J DATE OF ORDER: 3 NOVEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The matter be set down for further directions on the issue of costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. 1 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1295 OF 1999 BETWEEN: SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB LIMITED (ACN 002 487 390) APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) SECOND RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED THIRD RESPONDENT (ACN 003 107 292) NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTH RESPONDENT AND the Fifth to Twenty-third Respondents set out in the Schedule JUDGE: FINN J DATE: 3 NOVEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION .........................................................................................................................
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