Re Murray Publishers Pty Limited v Mt Blue Cow Skibowl Pty Limited and the Honourable Timothy Moore Mla [1991] FCA 279 (26 June 1991)

FEDERAL COURT OF AUSTRALIA

Re: MURRAY PUBLISHERS PTY LIMITED
And: MT. BLUE COW SKIBOWL PTY LIMITED and THE HONOURABLE TIMOTHY MOORE MLA
No. G265 of 1991
FED No. 350
Contract - Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Contract - applicant and first respondent lessees of ski resort areas - applicant required by lease to provide car park for day users of its skifield and areas adjacent thereto - whether day users of first respondent's area entitled to use applicant's car park - meaning of adjacent - aids to construction - applicant's lease entered into in 1987 but deemed to operate from 1979 - whether extrinsic evidence between 1979 and 1987 admissible in construing terms of contract

Trade Practices - brochure advertising first respondent's skifield showing cost of travelling from applicant's area - whether representation that customers of respondent entitled to use car park of applicant - whether misleading or deceptive conduct

Trade Practices Act 1974 (Cth): ss.52, 80

National Parks and Wildlife Act 1967 (NSW): s.29

National Parks and Wildlife Act 1974 (NSW): ss.72-82

HEARING

SYDNEY
26:6:1991

Counsel and Solicitors B.S. Oslington QC and
for Applicant: P.F. Esler instructed by Phillips Fox

Counsel and Solicitors P.D. McClellan QC and

for First Respondent: B. Preston instructed by Clayton Utz

Counsel and Solicitors J.S. Wheelhouse instructed by

for Second Respondent: the National Parks and Wildlife Service

ORDER

The application be dismissed.

The applicant pay the costs of the first and second respondents.

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

DECISION

The applicant, Murray Publishers Pty Limited, seeks an injunction, pursuant to s.80 of the Trade Practices Act 1974 (Cth) ("the Act"), restraining the first respondent, Mt. Blue Cow Skibowl Pty Limited ("Blue Cow") from representing that members of the public are entitled to use a car park at Perisher Valley where those persons do not seek to use the ski resorts at Perisher Valley and/or Smiggin Holes in the Kosciusko National Park operated by the applicant. It seeks also a declaration against the Honourable Mr Timothy Moore MLA, the second respondent, ("the Minister"), that pursuant to the provisions of a lease between the Minister and the applicant, the applicant is not obliged to permit any person not seeking to visit its ski resorts at Perisher Valley and/or Smiggin Holes to park in that car park. The Minister sought, and was granted, leave to be excused from attendance during the hearing and thus did not participate in it.

2. The present application was precipitated by the publication by Blue Cow of an advertising brochure headed "Ski Where No Two Days are the Same". That brochure was concerned to attract members of the public to the Mt Blue Cow Ski Resort operated by Blue Cow. The brochure makes no direct reference at all to parking at the Perisher car park. However, it lists prices of travel, inter alia, from Perisher Valley. Nevertheless it is said that the brochure contains an implied representation to members of the public that they are entitled to, and the applicant is obliged to, permit them to park their vehicles in the car park should they wish to travel on the railway from Perisher Valley to the Mt Blue Cow Ski Resort.

3. To understand the issues between the parties it is necessary both to consider the history of the applicant's operations at Perisher Valley and also the geographical location of the Perisher Valley skiing area to the skiing resort operated by Blue Cow.
History of the applicant's tenure at Perisher Valley

4. The applicant has operated the Perisher Valley Ski Resort since approximately 1954. It has also operated a ski resort at Smiggin Holes, nearby, since 1973. These two resorts are located in the precincts of the Kosciusko National Park which is controlled and administered by the National Parks and Wildlife Service under the provisions of the National Parks and Wildlife Act 1974 (NSW). The authority to grant leases of and licences over lands within the Kosciusko National Park is vested pursuant to s.151 of that Act in the Minister.

5. On 14 January 1980, the applicant entered into a deed with the then Minister for Planning and Environment consequent upon the submission by the applicant to the Minister of proposals for the construction and operation of new tourist facilities and amenities at Perisher Valley. The 1980 Agreement provided that the applicant would construct and complete a ski centre complex at Perisher Valley to certain specifications, erect new ski lifts and related facilities, and provided also that the applicant would, at its own expense, provide, maintain and, if required by the Director, seal with bitumen, car parking spaces in Perisher Valley for 1,500 cars. No charge was to be made for the car parking area. In return, the Minister agreed to grant to the applicant new leases over the site, each lease to be for a term commencing on 1 July 1979 and ending on 31 December 2025. Additional rental was to be payable for the new leases.

6. A considerable time passed before the leases contemplated by the 1980 Agreement were entered into. In the meantime, the applicant constructed the ski centre complex at Perisher Valley during the summer months of 1979/80 and 1981/82 at an approximate cost of between $8-10 million. In that same period it installed a number of new ski lifts in the Perisher Valley and Smiggin Holes area for an approximate cost of $2.5 million. From 1982/3, to date, the applicant has spent an additional $6 million in upgrading existing ski lifts or installing new ones.

7. The agreed leases were entered into over a period from January 1985 when a ski lift lease was entered into until March of 1990. Relevant for the purposes of the present case is a deed of lease relating to the car park which was entered into on 23 February 1987, between the then Minister for Planning and Environment and the applicant.

8. The car park lease provided for a rent of $250 or one and a half percent of the audited gross receipts of the lessee during the financial year ending 30 June 1979, such gross receipts representing moneys received or brought to account by the lessee from the demised land, for the first year of the term and for no rent thereafter. It contained a covenant on the part of the applicant at its own expense to construct, complete, maintain and manage a car parking area upon the demised premises, having 1,500 motor car spaces, the car park to be completed by 30 April 1983. The significance of the 1983 date, a date well prior to the actual execution of the lease on 23 February 1987, is to be found in the cl.11.10 which provides as follows:

"This Lease for the purpose of determining the rights and
obligations of the parties shall be construed as if it had been
executed on the date from which the term is expressed to run."

9. The term is expressed to run from 1 July 1979 and to continue for 46 1/2 years thereafter ending on 31 December 2025.

10. Clause 4.1 of the lease, which is at the centre of the controversy between the parties, provides as follows:

"4.1 The Lessee will not use or permit the use of the demised
premises for any purpose other than the provision maintenance and
conduct of a day use public car park comprising a maximum of one
thousand five hundred (1,500) motor car spaces for use by motor cars
and buses transporting day visitors to Perisher Valley and areas
adjacent thereto and for purposes reasonably incidental thereto
including the provision of parking spaces for authorised motor
vehicles and for no other purpose whatsoever..."
The applicant is required (cl.4.24.2) to:
"Keep the demised premises open to the public during such hours
daily as shall be approved by the Superintendent from time to time
for the purpose only of parking motor vehicles;"

11. The applicant may not grant permission for overnight car parking without the prior written consent of the superintendent. It is to permit the orderly flow of vehicular traffic and pedestrians within the area leased and is to provide a certain number of parking spaces for police, ambulance and officers of the National Parks and Wildlife Service. The applicant is prohibited from levying or collecting charges or fees for the use of the car parking area without the consent of the director. In conducting the car park the applicant is to conform with the Plan of Management prepared and adopted for the Kosciusko National Park as from time to time amended pursuant to the National Parks and Wildlife Act 1974 and regulations or by-laws from to time in force thereunder.

12. The car park was constructed by the applicant over the summers of 1979/80 and 1980/81 at a cost to the applicant of not more than $1 million. The annual cost to the applicant of discharging its financial obligations under the car park lease for the last three seasons have included:

(a) General maintenance approximately $10,000
(b) Snow clearing approximately $220,000
(c) Attendant's wages approximately $10,500.

13. Apart from the 1,500 car parking spaces referred to in the lease, there is no parking available to members of the public at Perisher Valley, except that there are approximately 60-70 authorised car parking spaces for local residents. Cars left overnight are liable to be towed away.

14. The Kosciusko National Park Plan of Management, referred to in the lease, was authorised under s.29 of the National Parks and Wildlife Act 1967 which requires the director to prepare, in respect of national parks, inter alia, a Plan of Management containing a detailed written scheme of the operations which it is proposed to undertake in or in relation to the park in order to carry out the purpose and objects of that Act (s.29(2)). Operations in the park may not be undertaken unless in accordance with the Plan of Management which may, from time to time, be altered: s.29(5)(g). The Plans of Management promulgated after 1974 were authorised by the National Parks and Wildlife Act 1974 which replaced the 1967 Act. Provisions similar to s.29 of the 1967 Act are contained in Part 5 of the 1974 Act. The Plan of Management promulgated in August 1974 dealt, inter alia, with what it referred to as the "Smiggins/Perisher/Guthega Development Area". Under this heading it provided as follows:

"When expansion of the existing centres within the development area
approaches the designed optimum, the following further centres will
be opened up within the overall development zoning as shown on Sheet
5 of Map No. NP.KOS.2028.
Blue Cow - the Blue Cow will be for day-use only, as it will form
part of the overall concept of a Ski Circus. (A series of lifts and
ski runs which will permit skiers to join any lift close to
transport or parking, and to transfer by downhill runs to other
lifts in the series). Access would be available from the sealed
road to Guthega. However the extent of restaurants, buildings,
services and parking facilities would depend on an overall
feasibility survey of the location. No developments can be provided
without the question of sewerage and other services being
satisfactorily resolved."

15. So far as the evidence shows, no concept of a "Ski Circus" ever emerged in fact.

16. In 1978, a special task force was established to report to the National Parks and Wildlife Service on ski resort development and management. Its report, dated October 1978, was received in evidence. The report anticipates that its amendments would, in some respects, modify the 1974 Plan of Management, and in part form the basis for a revised Plan of Management to be prepared by 1980. It forecast a rate of growth of demand for skiing in New South Wales in the order of twelve per cent per annum to 1985, and on this basis a growth in the number of skiers was expected from 12,000 in 1978 on a busy weekend day to approximately 26,500 in 1985. Of these, some 15,500, it was said, would want to ski in the Perisher Range.

17. It considered ski slope capacity at the various developed slopes giving figures for Perisher, which include Guthega and Smiggin Holes.

18. In dealing with the development of the snow fields in the Perisher Range, the report recommended that ski lift systems sufficient to support additional ski numbers in Perisher Valley (1,250), Pretty Valley, Piper (2,600) and Guthega (600) be permitted. It also referred to a recommended additional number of skiers at Mt Blue Cow of 3,700, there being at the date of the report no skiing in that area. The report concluded that:

". further capacity exists on the western side of The Blue Cow
which is accessible from Guthega.
. considerable potential exists on the south and east faces of
The Blue Cow for advanced and intermediate skiers."
The report noted prophetically:
"It will be noted that a potential exists to link the ski lifts and
slopes of the four `resorts' in the range into one system. If this
should occur, it will provide a new dimension to skiing in the area
and a unique experience in Australia."

19. Reference was made to common lift tickets (which did not eventuate) and a recommendation was made that the service advertise its intention to call tenders for the development of the Mt Blue Cow area as defined on a plan in that report and for tenders to be called in October 1980. Reference is made to the need to expand the car park at Perisher Valley. Dealing with Mt Blue Cow, the report recommended:

"that in the near future the service advertise its intention to call
tenders for development of The Blue Cow ... and that tenders be
called in October 1980. Tenders should call for the development of
a lift system, parking area and necessary facilities to serve day
skiers. Staging should be directed towards providing an early
connection between Guthega and North Perisher. A common lift ticket
with Guthega and Perisher should be a condition."

20. The report, however, indicated that it had not been possible to examine a potential car park in the Mt Blue Cow area in any detail. It was suggested that there would be an area of suitable terrain in a particular location.

21. A further Plan of Management was adopted in 1982 (it may well be that an intermediate plan had been adopted in 1980 but this was not in evidence). It recognises that Perisher Valley-Smiggin Holes had many aspects in common and refers to those areas being placed under the supervision of a particular management unit. Dealing with proposed new skiing areas, the plan indicates that Mt Blue Cow, inter alia, has been given a high priority for investigation. It states:

"The Blue Cow Management Unit has been given the highest priority by
the Service for investigation because of previous reported
investigations, proximity to existing access road, the possibility
of linking resorts in the Perisher Range by ski lift, the
availability of municipal services and the relatively short time
needed for investigation in comparison to other areas."

22. Among the matters to be considered at the time tender specifications came to be prepared was said to be the best location of day parking for Mt Blue Cow.

23. Some time in 1982 a feasibility study was commenced by a private company into the construction of a ski fields access system within the National Park. That proposed system, which involved, inter alia, a public access road from an interchange on the Alpine Way to a lower terminal, was for an alpine railway to be constructed partly on the surface and partly in a tunnel. The proposal envisaged a three stage development with the first stage being a single track system between the Bullock's terminal and Perisher. The second stage, being an extension of the system to the proposed Mt Blue Cow ski field, and a third stage which is not presently relevant. That proposal was reported upon by the National Parks and Wildlife Service on 6 June 1984, when approval was granted for the construction and operation of the Perisher ski tube ski fields access system as proposed. Correspondence between the solicitors for the applicant and the National Parks and Wildlife Service in June and July 1985 make it clear that by that time the ski tube had been constructed and the Mt Blue Cow ski resort was in the course of development. An environmental impact statement in respect of what is referred to in it as the proposed Mt Blue Cow ski resort, was published in March 1985. A deed of lease for the operation of the Mt Blue Cow ski field was executed on 18 June 1985. The Mt Blue Cow Ski resort was opened in 1987. More recently, Blue Cow has, since 18 April 1991, also operated the Guthega ski resort following the assignment of the lease of that resort from a previous lessor to Blue Cow.
Geographical relationship of Perisher, Smiggin Holes, Mt Blue Cow and Guthega

24. The car park in question fronts onto a road which runs in a south-westerly direction from the junction of a road from Jindabyne through Smiggin Holes, Perisher Valley, Charlottes Pass to Mt Kosciusko. The distance between Smiggin Holes and the car park along the road is approximately 1,700 metres. Mt Blue Cow lies north-west of the car park, the distance between that car park and the ski centre at Mt Blue Cow being approximately 2 kilometres as the crow flies. However, the Perisher Valley and Mt Blue Cow ski fields are separated by a steep ridge running off Back Perisher Mountain. To traverse the area between the car park and the Mt Blue Cow ski centre on foot would be extremely difficult, and in winter potentially dangerous. It is, however, possible to walk to the Mt Blue Cow ski field by following an access road from the car park along North Perisher Valley, a difficult walk of approximately 4.5 kilometres.

25. Guthega lies further to the north-west, as the crow flies approximately 1,750 metres from the Mt Blue Cow ski area. The ski fields at Guthega are accessible to the public via the Guthega dam road.

26. Skiers wishing to ski at the Mt Blue Cow ski fields may leave their cars at Bullocks Flat which is below the snow line. From there they can proceed via the ski tube terminal entering at Bullocks Flat. Access to the Mt Blue Cow ski area may also of course be obtained via the ski tube from Perisher Valley. The journey from Bullocks Flat to Perisher Valley via the ski tube is approximately two thirds of the total distance between Bullocks Flat and Mt Blue Cow. Bullocks Flat lies south/south east from Perisher, approximately four and a half kilometres from the car park.

27. Within the area leased by the applicant, there are a number of chairlifts and T bars. One is known as the Happy Valley T Bar, taking its name from the valley from whence it commences, which is about one and a quarter to one and a half kilometres from the car park. Another is the Pretty Valley chair lift which runs from close to the car park towards Back Perisher Mountain. Thus Pretty Valley and Happy Valley are two popular skiing areas in addition to the Perisher Valley itself.
The admissibility of evidence of reports and correspondence between 14 January 1980 and 23 February 1987

28. The applicant objected to the tender of any evidence, including Plans of Management, environmental impact studies and the like, which came into existence after 14 January 1980, on the grounds that such evidence was irrelevant to the construction of the car park lease having regard to the provisions of cl.11.10, which I have already set out and the terms of the 1980 agreement.

29. It is now well accepted that evidence of surrounding circumstances will be admissible in aid of the construction of a contract. As Mason J said in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1981-2) 149 CLR 337 at 352:

"The true rule is that evidence of surrounding circumstances is
admissible to assist in the interpretation of the contract if the
language is ambiguous or susceptible of more than one meaning. But
it is not admissible to contradict the language of the contract when
it has a plain meaning. Generally speaking facts existing when the
contract was made will not be receivable as part of the surrounding
circumstances as an aid to construction, unless they were known to
both parties, although, as we have seen, if the facts are notorious
knowledge of them will be presumed."

30. Thus extrinsic evidence may be admitted where to do so exposes the setting in which the parties entered into their contract. On the other hand, a difficulty arises, as Codelfa points out, with the admissibility of evidence of prior negotiations. As Mason J. said (at the same page):

"Obviously the prior negotiations will tend to establish objective
background facts which were known to both parties and the subject
matter of the contract. To the extent to which they have this
tendency they are admissible. But in so far as they consist of
statements and actions of the parties which are reflective of their
actual intentions and expectations they are not receivable. The
point is that such statements and actions reveal the terms of the
contract which the parties intended or hoped to make. They are
superseded by, and merged in, the contract itself. The object of
the parol evidence rule is to exclude them, the prior oral agreement
of the parties being inadmissible in aid of construction, though
admissible in an action for rectification."

31. In accordance with what was there said by Mason J, I admitted certain parts of the correspondence between the parties to the extent that they tended to establish objective facts concerning the ski tube construction and the knowledge of the applicant of those facts, but rejected the balance of the correspondence on the basis that it showed no more than the terms which the applicant intended to be bound by or hoped to achieve but did not assist in the construction of the contract itself.

32. The question in controversy, however, is whether the provisions of cl.11.10 of the car park lease requires the conclusion that extrinsic evidence should be admitted only up until the time when the term was expressed to run in the lease and not thereafter. In this connection the applicant called in aid the fact that the lease was granted pursuant to the agreement for lease in 1980. It was said that when the entry into the contract was agreed to in 1980, albeit that the car park lease was not executed until 1987, a doubt might exist in the absence of cl.11.10 as to whether regard could be had to the circumstances existing in 1987 or whether consideration should be confined to those circumstances existing up until the middle of 1979 or early 1980. Clause 11.10, so it was submitted, expresses the intention of the parties that in so far as surrounding or background circumstances could be available to construe the lease, regard could be had only to those surrounding or background circumstances which exist and in mid-1979 to early 1980.

33. With respect to the argument, I do not think that is correct. First, it must be said that the 1980 agreement made no reference to the terms of user of the car park, albeit that it did provide for a lease to be granted of the area for the purpose of constructing the car park. Second, cl.11.10 was not, in my opinion, inserted for any purpose concerned with the use of extrinsic circumstances to construe the lease. As has already been noted, the car park lease appears strange having regard to the date of its execution. It refers to events which, looked at from the point of view of the date of execution, are in the past, as if they were yet to happen. In my opinion, cl.11.10 was inserted to endeavour to overcome this strangeness and to achieve, as best parties are able to achieve, the result that the lease as executed was to take effect back in the past and to be so construed. The fact of the matter is that when the parties came to execute the lease they did so with the full advantage of knowledge of circumstances of events, including the ski tube, which had taken place in the intervening period. With the background of that knowledge they chose to frame the lease as they did. To the extent that the surrounding circumstances existing until 1987 throw light upon the words which the parties have used in the lease, they are, in my opinion, relevant to the construction of it, notwithstanding the provisions of cl.11.10, and are, accordingly, admissible.
Is Mt Blue Cow adjacent to Perisher?

34. "Adjacent" is an ordinary English word. It is defined by the Macquarie Dictionary, 2nd Revised edition, as meaning:

"Lying near, close, or contiguous; adjoining; neighbouring ..."

35. The Shorter Oxford English Dictionary, 2nd Ed. expresses the meaning of the word:

"Lying near to, adjoining; bordering (not necessarily touching)"

36. In Mayor of Wellington v Mayor of Lower Hutt (1904) AC 773, a case concerning a section of a New Zealand Act which empowered the construction of bridges by municipal councils and provided, in certain circumstances, that the local authority of an adjacent district should contribute to the cost, Sir Arthur Wilson, delivering the judgment of the Judicial Committee said (at 775-76):

"`Adjacent' is not a word to which a precise and uniform meaning is
attached by ordinary usage. It is not confined to places adjoining,
and it includes places close to or near. What degree of proximity
would justify the application of the word is entirely a question of
circumstances."

37. In the result, two Boroughs six miles apart at their closest, were held to be adjacent. On the other hand, in Stanward Corporation v Denison Mines Limited (1968) 67 DLR (2d) 743, two mining claims, one and a quarter miles apart were held, in the circumstances of that case, not to be adjacent. See too Geneff v Shire of Perth (1967) WAR 124.

38. Thus, it is necessary to examine the circumstances to determine whether the necessary proximity, or nearness, exists between Perisher Valley on the one hand, and Mt Blue Cow on the other.

39. The applicant first submitted that cl.4.1 of the car park lease looked at the purpose or intention of the person arriving at the car park. It was submitted that parking, under cl.4.1, was restricted to those ordinary members of the public who use cars or buses to become day visitors. A person who used the ski tube, having parked his car at the car park to become a day visitor elsewhere, was not, it was submitted, within the category of persons permitted to use the car park.

40. It is, of course, true that the car park is for use by persons who come within the category of "day visitors" and presumably their arrival at the car park must be by way of car or bus otherwise the use of the car park would not be involved at all. However, the normal construction of the words requires a consideration of whether, as day visitors, their visit is one which is to Perisher Valley or one which is to an area adjacent thereto. If the car be left at the car park, a fortiori, some other means of transport will be involved in visiting the adjacent area, even if that be on foot. At the end of the day it must still be decided whether Mr Blue Cow is, as the word is used in the car park agreement, "adjacent" to Perisher Valley.

41. Second, the applicant submitted, that the Mt Blue Cow ski resort was not, in any event, an area adjacent to Perisher Valley, in the sense of being close to, nearby or lying by it.

42. As will be clear from the topographical description earlier set out, the applicant's franchise extends to three valleys, Perisher Valley, Pretty Valley and Happy Valley and includes a number of mountains, Perisher Mountain and Back Perisher Mountain. In 1979, if that be the relevant date, each of these areas were reasonably accessible. One possible interpretation of the clause is that it seeks to regard Pretty Valley and Happy Valley as adjacent to Perisher Valley. However, recourse to a map would suggest that Perisher Valley is regarded as comprising each of Pretty Valley and Happy Valley so that the word "adjacent" could not have been contemplated as merely extending Perisher Valley to the other two valleys within the applicant's franchise. Clearly, Smiggin Holes is one area that is adjacent to Perisher Valley and not part of it. Again, Smiggin Holes is an area which was in 1979 reasonably accessible to Perisher.

43. The applicant accordingly submitted that for an area to be adjacent in the relevant sense it must have been an area which in 1979 was readily accessible. It was common ground that Mt Blue Cow was not an area readily accessible from Perisher Valley in 1979. Of course, by 1987, having regard to the ski tube, it was.

44. Even if one accepts that an adjacent area must be accessible, it hardly seems logical to assume that accessibility should be taken once and for all at the relevant date, be it 1979 or 1987, when developments may occur to make other areas accessible in the future. I must say I doubt the test of accessibility in any event. Some skiers may wish to spend their days skiing cross country or otherwise in areas which, for most people, would be regarded as inaccessible. It would hardly seem likely, provided the area was close or nearby, that the parties would have intended to prevent such a person from parking in the car park.

45. One of the difficulties, of course, inherent in the question of construction, is determining what the parties intended the words "Perisher Valley" to mean. If regard be had merely to the car park lease itself it is clear that the parties intended to refer to a geographical area in respect of which the applicant had rights under various leases for ski lifts and the like. Nevertheless, there is no reason to believe that the language used by the parties suggested that they used the words "Perisher Valley" as relating to the whole of the applicant's franchise areas. In particular, it is not used in a sense which would extend to Smiggin Holes.

46. The 1980 agreement uses both the words "Perisher Valley" and the words "Perisher Valley Franchise Area". That agreement does, however, make clear that the parties to it were of the view that Happy Valley and Pretty Valley were all part of the Perisher Valley area, and that the ski lifts to be constructed there were part of the "operation of ... amenities at Perisher Valley" (see recital 2).

47. The applicant submitted that the parties can hardly have intended that the applicant outlay significant funds, both for the construction of the car park and for its annual maintenance, so as to provide parking for its competitors. Reference was made, as well, to the 1974 plan which, while envisaging the development of a ski resort at Mt Blue Cow, contemplated that it would be supported by its own car park.

48. For the respondents, reliance was first placed upon the agreement between the parties as recorded in the 1980 agreement, that the car park be one which is provided without charge. Reference was made to cl.3.2(2)(b) providing for members of the public to have the right of free movement within the Perisher Valley franchise area as indicative of a desire that the car park be essentially a "public" car park. This concept was, it was submitted, carried forward in the car park lease when it came to be executed. Thus cl.4.1 commences with an emphasis that the car park is to be a day use "public" car park.

49. The respondents then submitted that as the lease in question was for a term of in excess of 46 years, the parties inevitably contemplated that there would be changes in the area the subject of the lease over that period. That this is so is clear from the 1974 plan, but of course is made even more so by plans, environmental impact studies and other reports subsequent to 1979. The submission accordingly was that the word "adjacent" in its context should be read as extending wider than the franchise area and was to be construed having regard to developments as they occurred.

50. It is clear by reference to the extrinsic material, known to the parties in 1979, that the development at Perisher was but part of a development of the overall area which extended beyond Perisher Valley to encompass, inter alia, Mt Blue Cow. Of course in 1979, the question how that development was to proceed, and how Mt Blue Cow was to be made accessible, were matters for the future. By the time 1987 came around, the answer to that question had become obvious, through the ski tube.

51. Particular emphasis was placed upon the integration for management purposes of the Perisher Valley, Smiggin Holes, Mt Blue Cow and Piper's Creek areas, in the reports issued after 1979 and before 1987.

52. Reference was made also to the use of the word "areas" in cl.4.1 of the car park lease agreement. The word was not used in the singular and thus, it was submitted, the clause demonstrates that the parties envisage that there would be more than one area which could properly be described as "adjacent". On this construction, both Mt Blue Cow and Guthega were said to be "adjacent" areas. Emphasis was also placed upon the fact that the parties had used the word "adjacent" rather than "adjoining", thereby making it clear that the areas need not necessarily abut each other.

53. In my view, the respondent's submissions are to be preferred. First, even if the construction of the clause is to be confined to circumstances existing in 1979-80, it is clear that in the 46 1/2 years that the lease was to run, skiing areas would be required to be developed, inter alia, at Mt Blue Cow, which areas would likely be connected by some form of transport, even if it be only by ski lifts, with Perisher Valley itself. Second, once a form of connection existed, clearly Mt Blue Cow, and for that matter Guthega, would be accessible from Perisher. Third, as the crow flies, those areas are not far from Perisher itself. Fourth, I think that the parties used the words "Perisher Valley" in a sense which extended to Happy Valley and Pretty Valley, and perhaps even Mt Piper, thus showing that they used the words "Perisher Valley" in a sense wider than the space surrounded by mountains which the word "valley" would ordinarily connote. While it is true that the parties clearly contemplated Smiggin Holes as an area which would be regarded as adjacent to Perisher Valley, once accessibility was obtained, Smiggin Holes is not much further from the car park at Perisher Valley than is Mt Blue Cow.

54. Nevertheless, it is obvious that the parties contemplated that the car park was not being constructed for the benefit of any person who wished to use it as a stepping off point to areas so far distant from Perisher Valley as to be no longer adjacent. It must be born in mind, however, that since the car park was for day use only, persons using it could not, in general, travel far. No doubt the parties contemplated, at least to a large extent, that the car park would be used by persons who would use the facilities that were to be or had been constructed by the applicant in and around the Perisher Valley/Smiggin Holes area. On the other hand, the construction of the car park, viewed from the point of view of the National Parks and Wildlife Service and its responsible Minister, was part of an overall plan of management of parking in the Kosciusko National Park.

55. Although there is no direct evidence to this effect, it may well be inferred that the obligation to construct the car park, like the obligation to construct other facilities such as sewerage works, ski bar and chair lifts and the like, were not merely for the financial advantage of the applicant, but also part of a programme to make skiing in the park more accessible to members of the public. The car park was clearly enough essential from the applicant's point of view, but it was essential also to the overall management of the park.

56. For these reasons, I am of the view that the Mt Blue Cow Ski Centre should be seen to be adjacent to Perisher Valley for the purposes of cl.4.1 of the car park lease.

57. While Guthega is further away than the Mt Blue Cow Ski Resort and for that reason a more marginal proposition, I think that, looking at the matter in 1991, it is correct to say that Guthega is an adjacent area to Perisher Valley for the purposes of cl.4.1.
The case under s.52 of the Act

58. Having regard to my finding as to the proper construction of cl.4.1, the question whether the respondent had engaged in conduct which was misleading or deceptive within the meaning of s.52 of the Act does not arise. However, I should say that in my opinion, even if the construction of cl.4.1 was such that Mt Blue Cow and Guthega were not areas adjacent to Perisher Valley, I do not think that the applicant could succeed against Blue Cow.

59. It has been said, in numerous cases, that for conduct to be misleading or deceptive or likely to mislead or deceive in a case such as the present, there must be a representation: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ. There may be cases as discussed in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 79 ALR 83 at 94-5 per Lockhart J, and Rhone-Poulenc Agrochimie S.A. v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 489-90 per Bowen C.J., where silence may constitute misleading or deceptive conduct at least where there is a duty upon the person, said to be engaged in misleading conduct, to disclose. But the present is not such a case. All that Blue Cow has done in the present case, is to advertise travel prices to its resort from Perisher. How the customer gets to Perisher is a matter for the customer. There is no obligation, in my view, upon Blue Cow to disclose any impediment to parking, nor could it be said that there has been any representation at all as to the situation with parking. Persons desiring to go to Mt Blue Cow may well come by bus to Perisher Valley and thereafter proceed by ski tube and not use the car park at all.

60. It follows in my view that the application must be dismissed with costs.