Re Murray Publishers Pty Limited v Mount Blue Cow Skibowl Pty Limited and the Honourable Timothy Moore Mla [1992] FCA 9; (1992) 14 Atpr 41-182 (10 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: MURRAY PUBLISHERS PTY. LIMITED
And: MOUNT BLUE COW SKIBOWL PTY. LIMITED and THE HONOURABLE TIMOTHY MOORE MLA
No. N G379 of 1991
FED No. 5
Contract - Trade Practices
[1992] FCA 9; (1992) 14 ATPR 41-182

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont(1), Burchett(2) and Foster(3) JJ.

CATCHWORDS

Contract - meaning of adjacent - admissibility of extrinsic material in construing terms of contract - whether breach of clause of contract - whether case for declaratory relief.

Trade Practices - whether advertising likely to mislead or deceive.

Trade Practices Act 1974, s. 52

Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337

Mayor, Councillors, and Citizens of the City of Wellington v Mayor, Councillors, and Burgesses of the Borough of Lower Hutt (1904) AC 773

Federal Commissioner of Taxation v B.H.P. Minerals Limited [1983] FCA 142; (1983) 68 FLR 132

English Clays Lovering Pochin and Co Ltd v Plymouth Corporation (1974) 1 WLR 742

HEARING

SYDNEY
10:1:1992

Counsel for the Appellant: Mr D.M.J. Bennett QC with Mr P.F. Esler

Instructed by: Phillips Fox

Counsel for first Respondent: Mr P.D. McClellan with Mr B.J. Preston

Instructed by: Clayton Utz

Counsel for second Respondent: Miss E. Wilkins

Instructed by: National Parks and Wildlife Service

ORDER

The appeal be dismissed.

The appellant pay the costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The appellant, Murray Publishers Pty. Limited ("Murray"), has operated the Perisher Valley Ski Resort in the Kosciusko National Park since 1954 and the Smiggin Holes resort, which is nearby, since 1973. Murray now appeals from the dismissal by a judge of the Court (Hill J.) of its application for injunctive and declaratory relief sought in respect of the use of certain car park premises at Perisher Valley. In order to understand the questions which arise on the appeal, it is first necessary to refer to the case pleaded by Murray at first instance and then to mention the background facts before coming to his Honour's conclusions.
The case pleaded by Murray

2. By its application, filed in May 1991, Murray applied for an injunction under the Trade Practices Act 1974 restraining the first respondent, Mt. Blue Cow Skibowl Pty. Ltd. ("Blue Cow") from "representing in any way to members of the public or to any other persons that they are entitled to and that (Murray) is obliged to permit persons not seeking to use its ski resorts at Perisher Valley and Smiggin Holes to park their vehicles in (its( car park (at Perisher Valley)." Murray also sought, as against the second respondent, Mr Moore, the Minister for the Environment for the State of New South Wales, but who took no part in the proceedings or in this appeal, a declaration that "pursuant to the provisions of the car park lease (granted by the Minister to Murray) properly construed (Murray) is not obliged to permit any persons not seeking to visit its ski resorts at Perisher Valley and/or Smiggin Holes to park in the car park." By its statement of claim for this relief, Murray alleged, in essence, the following: (1) the Minister and his predecessors administered the National Parks and Wildlife Act, 1974 (N.S.W.) and were empowered under that Act to exercise, inter alia, the power to grant leases in national parks including the Kosciusko National Park. (This is common ground.) (2) Murray is the lessee from the Minister of land at Perisher Valley and Smiggin Holes on which it operates ski resorts. (This is common ground.) (3) On 14 January 1980, Murray entered into a Deed of Agreement with the Minister for Planning and Environment by which the Minister agreed to enter into fresh leases and certain franchise arrangements with Murray in return for an agreement by Murray to construct additional tourist facilities and amenities at Perisher Valley and to pay an increased rent. (This is common ground.) (4) Pursuant to the Deed of Agreement, on 23 February 1987, the Minister granted Murray a lease of land in Perisher Valley for use as a car park ("the car park") for 1,500 cars for a term commencing on 1 July 1979 and terminating on 31 December 2025. (5) By cl.4.1 of the lease, Murray "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 and will conduct and manage the activities carried on thereon or therefrom in a proper quiet and orderly lawful manner in all respects to the satisfaction of the lessor and subject to such conditions as may be imposed by the lessor." (This is common ground.) (6) Apart from 60 or 70 car parking spaces authorised for local residents, the car park is the only space available for members of the public to park their vehicles in Perisher Valley. (This is common ground.) (7) In May 1991, Blue Cow acquired a leasehold interest in land on which is erected the Guthega Ski Resort, also within the Kosciusko National Park, a boundary of which resort lies approximately one kilometre from one of the boundaries of Perisher Valley. (This is common ground.) (8) Blue Cow (a) promotes the Mt. Blue Cow and Guthega ski resorts with joint ticketing for their facilities and (b) offers tickets for the use of (i) the railway from Bullocks Flat through Perisher Valley upwards to Mt. Blue Cow and (ii) the ski lifts at Blue Cow. (This is common ground.) (9) The fare offered to Blue Cow for a combined railway and ski lift ticket from Perisher Valley is less than the fare from Bullocks Flat. (This is common ground.) (10) By a booklet published by Blue Cow, it is, by implication, represented "to members of the public that they are entitled to and that (Murray) 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." (This is denied.) (11) The representation is false and is thus misleading and deceptive conduct within the meaning of s.52 of the Trade Practices Act because, pursuant to the provisions of the car park lease, Murray is not obliged to provide parking in the car park to (a) any person seeking to visit the Blue Cow ski resort; or (b) any person not seeking to visit its ski resorts at Perisher Valley and Smiggin Holes.
(This is denied.)
The background facts

3. Although there is no dispute about the primary facts, the proper inferences to be drawn from some of the primary facts are contentious.
(a) The Deed of Agreement

4. In the Deed of Agreement, dated 14 January 1980, made between the Minister for Planning and Environment and Murray, it was recited that (a) Murray was the holder of leasehold interests at Perisher Valley pursuant to leases granted by the Minister; (b) Murray had submitted, and the Minister had approved, proposals for the construction of new tourist facilities at Perisher Valley and increased rentals; (c) the Minister had agreed to new lease and franchise arrangements. In the "development provisions" of the deed, Murray gave the following covenants: (i) to construct a ski centre complex at Perisher Valley; (ii) to erect and operate new ski lifts: (a) adjacent to the Mount Perisher chair lift (b) in Happy Valley on the south side of Back Perisher Mountain (c) near the Pretty Valley chair lift; (iii) to provide (at its own expense and without charging for the use of any car parking area without the prior approval of the director of National Parks and Wildlife) car parking spaces in Perisher Valley for 1,500 cars and to seal certain car parking areas by April 1980 and to seal other areas by April 1983.

5. In the covenants given by the Minister in the Deed, the Minister agreed to grant to Murray new leases over the premises described in an annexure, including, under the sub-heading "New Lifts", "Mt Perisher Chairlift No. 2" ("Site 200"), "Happy Valley T-bar" ("site 201"), "Pretty Valley Chair Lift No. 2" ("site 202") and, under the sub-heading "Car Park" the following: "Previously surveyed as Portion 174, Parish of Guthega, but amended survey required." Each lease was to be for a term commencing on 1 July 1979 and ending on 31 December 2025. The Minister agreed to grant to Murray exclusive franchise rights for the provision and operation of resort facilities within the area, described as the "Perisher Valley Franchise Area", shown on an annexure to the Deed. As has been noted, under the Deed, Murray agreed to construct a ski complex at Perisher Valley; the site designated for this purpose was indicated on an architect's drawing annexed to the Deed. The drawing, which is also annexed to these Reasons, described as "Plan of the Smiggin Holes Perisher Valley and Guthega areas within the Kosciusko National Park", shows the Perisher Valley site as a hatched area. Smiggin Holes and Guthega are also shown, the former partly, the latter wholly, outside the hatched area. The Blue Cow mountains are also shown as outside the hatched area.

6. (It is convenient to note here that, although the formal lease of the car park was not executed until 1987 (see below), Murray constructed the car park between 1979 and 1981 at a substantial cost. Also, the periodic cost to Murray of maintaining and operating the car park, is not insignificant. The car park is situated within the Perisher Valley site, approximately 1,700 metres from Smiggin Holes. Blue Cow lies to the north-west of the car park, approximately two kilometres away "as the crow flies". The Perisher Valley and Blue Cow ski fields are separated by a steep ridge running off Back Perisher Mountain. Hill J. found that "(t)o 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".)
(b) The development of the Blue Cow ski resort

7. Under the provisions of the National Parks and Wildlife Act, 1967 (N.S.W.), the Director was required to prepare in respect of National Parks a detailed written scheme of the operations which are proposed to be undertaken in or in relation to the park in order to carry out the purpose and object of the Act. Operations in the park may not be undertaken unless in accordance with the Plan of Management (s.29(5)(g)). Similar provisions were enacted in the National Parks and Wildlife Act, 1974 (N.S.W.). The Plan of Management prepared in August 1974 referred to Blue Cow, in the context of the "Smiggins/Perisher/Guthega Development Area", 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.
"...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."

8. Hill J. found that the "Ski Circus" concept has not been implemented to date.

9. In October 1978, a special task force reported to the National Parks and Wildlife Service on ski resort development and management with a view to the preparation of a revised Plan of Management by 1980. The development of ski facilities at Blue Cow was mentioned.

10. In 1982, a further Plan of Management was prepared. The Plan stated that the ski resorts of Perisher Valley and Smiggin Holes "have many aspects in common and have been placed in one management unit." In respect of the ski resort at Smiggin Holes, it was stated that no additional parking will be constructed there. In respect of proposed new skiing areas, Blue Cow was one of the areas mentioned. The Plan 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. Considerable
research has been carried out including a request for
proposals from interested parties. Investigations are
continuing and an area boundary has been defined following
investigations to date."

11. The Plan went on to say that tender specifications for the area would prescribe an assessment of several planning considerations including "the best location for day parking".

12. In 1982, a transport system ("the Skitube access system") was proposed to the National Parks and Wildlife Service as a solution to the "Perisher range access issue". The proposal contemplated the construction of an alpine railway in a three stage development, the first stage being between Bullock's terminal and Perisher. The second stage was an extension of the system to the proposed Blue Cow ski field. In 1984, the proposed system was approved. In March 1985, the National Parks and Wildlife Service published an environmental impact statement in respect of "The Proposed Blue Cow Ski Resort." The statement dealt with "Visitor Access...via the Skitube" as follows:

"The main form of visitor access proposed is via the Skitube
from Perisher. Most visitors are expected to leave their
cars at Bullocks Terminal and travel directly from there to
Blue Cow. Skiers staying at Perisher could board the
Skitube at Perisher station and travel to Blue Cow.
Special Blue Cow trains would operate direct from Bullocks
Terminal to minimise delays caused by passengers
disembarking at Perisher, although the trains would still
stop to allow persons at Perisher to board. The trip from
Bullock's Terminal to Blue Cow would take 15.5 minutes,
compared with 9.5 minutes from Bullock's Terminal to Perisher."

13. By deed dated 18 June 1985, the Minister for Planning and Environment granted to Blue Cow a lease of part of the Blue Cow area for a term of 45 years from that date. The resort was opened in 1987. In April 1991, Blue Cow took over the operations of the Guthega Ski Resort as well.
(c) Deed of Lease of the Perisher Valley Car Park

14. In February 1987, the Minister and Murray executed formal leases of both the "Ski Centre Complex" and the "Car Park", Perisher Valley. The latter instrument ("the Deed of Lease"), dated 23 February 1987, provided for a term of 46-1/2 years from 1 July 1979. Clause 4 of the Deed of Lease dealt with use of the premises by the lessee. Clause 4.1, which is of central importance for present purposes, has already been set out. Control of car parking is dealt with by cl.4.24 whereby the lessee agrees that it will, in accordance with the requirements of the National Parks and Wildlife Service Superintendent, "supervise, control and direct the entry and parking of vehicles to and upon the car parks within the demised premises" and will, inter alia, "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". By cl.4.28, the lessee agrees that it shall not use or permit the use of the demised premises in any manner contrary to the Plan of Management (as amended from time to time).

15. Clause 11 deals with "Procedural Matters". By cl.11.10, it is provided:

"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."

16. "Specific Development Obligations" are dealt with by cl.12 whereby the lessee agrees, at its own expense, to construct and maintain a car parking area upon the demised premises comprising a maximum of 1,500 motor car spaces. By cl.12.2, unless the Director otherwise directs, and unless prevented by force majeure, the lessee is to complete the works by 30 April 1983.

17. The reasoning at first instance.
(a) The admissibility of extrinsic material coming into existence after 14 January 1980

18. Murray objected to the reception into evidence of extrinsic material (e.g., the Plans of Management and other planning proposals) which came into existence after 14 January 1980 (being the date of the Deed of Agreement) having regard, in particular, it was said, to the provisions of cl.11.10 of the Deed of Lease. But Hill J. held that the material was admissible as evidence of the surrounding circumstances as an aid in the interpretation of the Deed of Lease. His Honour noted that the Deed of Agreement made no reference to the terms of user of the car park. In his Honour's opinion, cl.11.10 was not inserted for any purpose involving the use of extrinsic circumstances to construe the lease. Rather, it was inserted "to endeavour to overcome...(the) strangeness (of referring to events in the past, as if they were yet to happen) and to achieve...the result that the lease as executed was to take effect back in the past and to be so construed." Hill J. said:

"...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."

(b) The construction of cl.4.1 of the Deed of Lease, and, in particular, the meaning of "areas adjacent" to Perisher Valley

19. It will be recalled that cl.4.1 of the Deed of Lease provided that the car park was to be provided for use by motor cars and buses transporting day visitors "to Perisher Valley and areas adjacent thereto". The question arose whether, in this context, Blue Cow was an "area adjacent" to Perisher Valley. Hill J. said that, to decide this question, regard should be had to "the circumstances to determine whether the necessary proximity, or nearness, exists between Perisher Valley on the one hand, and Mount Blue Cow on the other." His Honour concluded that Blue Cow was "adjacent" to Perisher Valley for the relevant purposes. He said:

"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."

(c) Was Blue Cow's advertising likely to mislead or deceive?

20. The conduct complained of by Murray was the publication by Blue Cow of an advertisement entitled "Ski Where No Two Days are the Same". A copy of the advertisement is annexed to these reasons. It will be noted that, in setting out ticket prices, the advertisement quotes prices to Blue Cow from Perisher Valley and from Bullocks Flat. The price for the package for taking the Skitube from Perisher Valley is cheaper than the package from Bullocks Flat. As has been noted, Murray claimed that the advertisement contained an implied representation to members of the public that they are entitled, and that Murray is obliged to allow them, to park their vehicles in the car park, should they wish to travel on the Skitube from Perisher Valley to Blue Cow.

21. Having decided that Blue Cow was "adjacent" to Perisher Valley for the purposes of the proper interpretation of cl.4.1, it followed, in the opinion of Hill J., that, even if the implication alleged by Murray should be made, it was not misleading. However, although it was not strictly necessary for him to do so, Hill J. went on to find that there was no basis for making the implication in any event. His Honour said:

"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."

The grounds of appeal relied on by Murray

22. Murray has challenged each of the conclusions of the learned judge. It is convenient to consider the grounds of appeal separately. The first question on the appeal: The proper construction of cl.4.1 of the Deed of Lease

23. As has been noted, a question arose at the trial with respect to the admissibility of certain extrinsic material. Hill J. referred to the well known statement of the principles in this area made by Mason J. in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 352 as follows:

"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."

24. The first enquiry then is whether the language of cl.4.1 has a plain meaning. In my opinion, for the reasons which follow, its meaning is plain.

25. It will be recalled that, in essence, cl.4.1 provides that: Murray will not (i) use or (ii) permit the use of, the premises for any purpose other than the provision etc. of a day use public car park for use by vehicles transporting visitors to (a) Perisher Valley and (b) areas "adjacent" thereto. No real question arises as to the meaning of the words "use" or "permit the use" in the context of the purposes for which the premises may be used by Murray. (As to the ordinary meaning of "use", see, e.g., Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 139 CLR 633; Attorney-General (ACT) v Commonwealth of Australia [1990] FCA 339; (1990) 95 ALR 739; as to the ordinary meaning of "permit", see Broad v Parish [1941] HCA 25; (1941) 64 CLR 588.) There is, however, a question as to the purposes for which Murray provides the premises for use by others. Although cl.4.1 operates as a restriction on the user of the premises by Murray, the matter in contention in these proceedings is the purposes for which Murray provides the car park with a view to its use by members of the public. Thus, provided that Murray made available the area for a legitimate purpose, there was no breach of Murray's covenant in cl.4.1 if, for instance, a member of the public, without Murray's knowledge, used the premises to park there for an illegitimate purpose, e.g., visiting an area other than Perisher Valley and areas adjacent thereto. The relevant inquiry, a broad one, is directed towards the ascertainment of the purpose or purposes for which Murray provides the premises. It is true that, in carrying out this enquiry, it is necessary to bear in mind what is meant by the phrase "areas adjacent (to Perisher Valley)" in cl.4.1. But as Hill J. pointed out, the word "adjacent" is an ordinary English word, even if the degree of proximity it contemplates, which cannot be described in precise and uniform terms, will depend upon the circumstances and will thus ultimately be a question of fact (see Mayor, etc., of the City of Wellington v Mayor, etc., of the Burrough of Lower Hutt, (1904) AC 773; Stanward Corporation v Denison Mines Ltd. 67 DLR (2d) 743; Claney v Bland (1958) NZLR 760 per North J. at 763; Co-operative Bulk Handling Ltd. v Waterside Workers Federation of Australia (1980) Industrial Arbitration Services Current Review 284 per Toohey J. at 288; Federal Commissioner of Taxation v B.H.P. Minerals Limited [1983] FCA 142; (1983) 68 FLR 132 per Fox J. at 134 and per Toohey and Lockhart JJ. at 138-9). The popular or dictionary meaning of "adjacent" is "lying near, close, or contiguous; adjoining; neighbouring..." (Macquarie). The expression is not here used as a term of art. Its meaning in the present context is, in my opinion, not doubtful, but clear and a question of fact.

26. It must follow, in my view, that it is not necessary to have resort to extrinsic facts such as the various planning proposals referred to in the evidence in order to illuminate the meaning of "adjacent" in cl.4.1.

27. On the other hand, it is permissible, I think, to refer to the Deed of Agreement in construing the lease since this Deed was the origin of the lease transaction now in question. In truth, the Deed of Agreement was not extrinsic material so far as concerns the Deed of Lease. If necessary or otherwise appropriate, it would be permissible to refer to the Deed of Agreement in interpreting the Deed of Lease. However, it appears that the provisions of the Deed of Agreement throw no light on the meaning of "adjacent areas" in cl.4.1.

28. In these circumstances, it is not necessary for me to consider whether cl.11.10 of the Deed of Lease has a relevant operation in this connection.
The second question on the appeal: Was there a breach of cl.4.1?

29. There were no findings made by the learned judge and, it appears, no evidence to indicate, that Murray was in breach of its covenant in cl.4.1. It was common ground that Murray provided and maintained the car park. In the absence of specific evidence to the contrary, it would be reasonable to infer that a public day car park located in Perisher Valley would be used by the public as a car park for the purpose of visiting local (to use a neutral word) areas. On the basis, as I think, that such an inference is reasonably open, it follows, in my view, that no breach of cl.4.1 on the part of Murray has been established. Whether looked at literally or as a matter of substantial performance, Murray has, within the meaning of cl.4.1 provided a car park for a legitimate purpose, viz. the use by the public of the car park with a view to the public visiting the locality, (i.e., to reduce the matter to practical terms, Perisher Valley and adjacent areas). Again, I think that this description of the areas in question in cl.4.1 was intended to receive a broad interpretation. It would be an absurd, and thus unintended, result if, the lease were to be so construed that Murray were to be held to be in breach of cl.4.1 because some members of the public, having parked their cars in the car park, visited an area beyond what might properly be regarded as an area "adjacent" to Perisher Valley. By the choice of a vague and general expression such as "adjacent", it is plain that no precise boundary or limit was intended by the parties to the lease to be drawn in this regard.

30. Nor, in my view, was any limit intended to be imposed by the language of cl.4.1 in terms of the method of access used by a member of the public visiting Perisher Valley, whether it be road access or other access such as a railway. Clause 4.1 does contemplate that the car park will be used by day visitors but no other relevant restriction is there expressed; and, in my opinion, no basis exists for making an implication to the effect that persons using the Skitube, or other similar transport, were to be excluded from the car park.

31. It follows, in my view, that there is no evidence of any breach by cl.4.1 on the part of Murray. However, I do not propose that any declaration should be made on the point. Murray does not seek such a declaration. Moreover, there are discretionary reasons for declining that relief. In the absence of the Minister, there is no proper contradictor. It is thus inappropriate, on this ground alone, for the Court to grant declaratory relief (see, e.g., BMI Ltd. v Federated Clerks Union of Australia (1983) 51 ALR 401, 412-4).
The third question on the appeal: Should the declaration of right sought by Murray against the Minister have been made?

32. It will be recalled that Murray sought a declaration that it was not obliged, under the provisions of the lease, to permit any persons not seeking to visit its resorts to use the car park. But it follows from the foregoing reasons that there are, in my view, serious objections, substantive and procedural, to the grant of this relief. For one thing, in respect of the car park, in form at least, the lease imposes restrictions and obligations on Murray, rather than confers specific rights on Murray. It may be accepted that, if it were disputed, Murray would be entitled to assert the right, as against the Minister, to provide the land in question for use by the public to visit Perisher Valley and adjacent areas. But the Minister, by his absence from the proceedings, apparently disputes none of this. In particular, the Minister has not suggested that Murray has any obligation to supervise the activities of visitors using the car park, by for instance establishing procedures by which the destinations of those visitors could be checked or verified. There is no provision in the lease to this effect and the implication of such a provision, given especially the practical difficulties involved in implementing any such procedure, is not, in my view, warranted. Even if there were such a provision, express or implied, there would remain significant difficulties for Murray to overcome, in terms of discretion, in obtaining an order which called for its continuous supervision by the Court.

33. In the absence of a contradictor and in the absence of evidence that the car park is being used by Murray for a purpose proscribed by cl.4.1, and in the absence of evidence that members of the public are using the car park to visit areas which, as a matter of fact, are areas other than Perisher Valley and adjacent areas, no case for the declaratory relief sought by Murray has, in my opinion, been demonstrated.
The final question on the appeal: Was Blue Cow's advertising misleading?

34. It further follows, in my view, that the advertising by Blue Cow which is now challenged, was not misleading. Taken literally, the statements made by Blue Cow are an accurate description of the comparative pricing structures. Moreover, this is not a case of a statement which is literally true but capable of misleading others because it is, in substance if not in form, inaccurate, e.g. a "half-truth" or deception by selective quotation from a document. No mention is made of the car park, expressly or by implication, in the language used. I agree with Hill J. that there is no warrant for finding in the words of the brochure an implied representation with respect to the use of the car park.
Result of the appeal

35. In the result, in my view, the appeal should be dismissed, with costs.

I agree, subject to what follows, with the reasons for judgment of Beaumont J. I shall confine my remarks to the question of the proper construction of that part of cl. 4.1 of the lease which refers to "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".

2. Ever since the decision of the Privy Council in Mayor, Councillors, and Citizens of the City of Wellington v Mayor, Councillors, and Burgesses of the Borough of Lower Hutt (1904) AC 773, courts which have had to construe documents containing the word "adjacent" have turned to the opinion in that appeal of their Lordships. The question concerned the application of a section of the New Zealand Municipal Corporations Act 1900, which provided for the sharing of the cost of construction of a bridge affording advantages to the inhabitants of "an adjacent borough or county or other district" as well as to the inhabitants of the area of a council carrying out the construction. For the purposes of that section, the city of Wellington was held to be "adjacent" to the borough of Lower Hutt, although the city did not immediately adjoin the borough, there being a distance of over six miles between their boundaries, with other areas intervening. The Privy Council explained its understanding of the key word in the case as follows:

"`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."

In Federal Commissioner of Taxation v B.H.P. Minerals Limited [1983] FCA 142; (1983) 68 FLR 132 at 139, Toohey and Lockhart JJ. applied this view to the construction of s. 122 of the Income Tax Assessment Act 1936, which referred to "residential accommodation ... at, or at a place adjacent to, the site of prescribed mining operations". Their Honours held that

"to be provided at a place adjacent to the site of mining
operations does not require contiguity or abutment. Nor
does it necessarily require very close proximity. It is
sufficient that it is near or close to the site."

They held that, there being no other towns closer to a particular mine, accommodation at towns which were at distances of 50 and 60 kilometres from the mine site came within the statutory expression. In other contexts, "adjacent" may require quite close proximity: Geneff v Shire of Perth (1967) WAR 124.

3. An interesting illustration of the manner in which the content of this word is derived from the ideas which spring from its context is provided by English Clays Lovering Pochin and Co. Ltd. v Plymouth Corporation (1974) 1 WLR 742. There, Russell L.J. (as he then was) delivered the judgment of the Court of Appeal concerning the application, to operations for the winning of china clay, of an order under the Town and Country Planning Act 1962. His Lordship said (at 746):

"The third argument is that the land at Marsh Mills is
`adjacent to and belonging to' the Lee Moor mine. As the
crow flies, between the nearest points of the land belonging
to the plaintiff at Lee Moor and Marsh Mills the distance is
some two miles. `Adjacent' means close to or nearby or
lying by: its significance or application in point of
distance depends on the circumstances in which the word is
used. The particular circumstances here are that the
General Development Order is concerned with planning. It is
easy to understand a general permission to erect buildings
and plant, for purposes connected with operations at the
site of a mine, on that site: or if not on that site (a word
of somewhat loose import) very near to that site so that it
would not appear to be other than a growth of the site: and
this we believe to be the significance of the words
`adjacent to' in this paragraph of the General Development
Order. On that footing, Marsh Mills cannot be regarded as
adjacent to the site of the mine at Lee Moor, separated as
it is by not less than two miles of agricultural country,
woodland, and parkland descending steeply from Lee Moor."

But (at 748) he added express agreement

"with the comments of Goulding J. on the rating case of
English Clays Lovering Pochin and Co. Ltd. v Davis (1966) 12
RRC 307, which simply demonstrates that in the context of
legislation of differing characters or purposes the words
`adjacent to' may have different applications."

The earlier case had been concerned with s. 180 of the Mines and Quarries Act 1954, which contained a reference to

"so much of the surface ... surrounding or adjacent to the
quarry as is occupied together with the quarry for the
purpose of, or in connection with, the working of the
quarry, the treatment, preparation, consumption or use,
storage or removal from the quarry of the minerals or
products thereof gotten from the quarry".

The very same areas the subject of the later decision of the Court of Appeal had, in the earlier decision, been held "adjacent" for the purposes of the Mines and Quarries Act. The comment of Goulding J. referred to by the Court of Appeal is reported in English Clays Lovering Pochin and Co. Ltd. v Plymouth Corporation (1973) 1 WLR 1346 at 1355-1358. It concludes:

"Thus, in the Mines and Quarries Act 1954, the purpose of
the legislature was directed to the management of mines and
quarries and the welfare of the employees working therein,
and it is natural accordingly to do as the Lands Tribunal
did and interpret the word `adjacent' with reference to the
unity of a single mining or quarry-working installation.
Wholly different considerations, in my judgment, are
applicable, for reasons that I have already fully explained,
where the word `adjacent' has to be tested in legislation
relating to town and country planning."

4. The use of the word "adjacent" in the present lease is equally illuminated by the context. The word forms part of the description of the purpose of a car park provided for "day visitors to Perisher Valley and areas adjacent thereto". In that collocation of words, the key expression, in my opinion, is "day visitors". The indefinite word "adjacent" takes colour and meaning from its use to describe the areas where the day visitors will be going. The natural meaning of "adjacent", in that context, is flexible enough to take in the areas in the general vicinity to which a visitor, intending to make a visit for just one day, might decide to wander.

5. If the matter is looked at in this way, I think it is appropriate to have regard to the published development plans and other information that would have been available, at least up to the commencement date nominated in the lease. Perhaps, as the learned trial judge thought, it would also be appropriate to look at such material available up to the date when the lease was executed, but it is unnecessary so to decide. The material which was in existence at the earlier date showed, plainly enough, that the areas within a region wider than Perisher Valley, and extending to Blue Cow, shared characteristics as a ski resort area or potential ski resort area. The development of Blue Cow was plainly likely to bring it within the range of the day tripper coming initially to Perisher Valley. Although Blue Cow had not been developed when the appellant commenced work on the parking area, the appellant knew time would not stop; years of change and development were just beginning. Any reasonable party to the lease must have anticipated that the range of available activities, open to a visitor for a day, would rapidly expand. Areas such as Blue Cow must have been in contemplation as adjacent areas to which such a visitor would be likely to go during the nearly fifty years of the term of the lease. I do not think, in the context of the development of new resorts, the areas adjacent to Perisher Valley could be limited to those areas already linked by easy means of access; areas likely to be linked during the course of such a lengthy term, so as to become suitable day trip destinations, must also have been intended.

6. That no restrictive implication can be drawn from the private nature of the business of the appellant is, of course, clear from the fact that the car park was to be "a public car park". The lease should not be seen as primarily for the benefit of the appellant, but as an integrated part of the leasing authority's plan for the park. Having agreed to take up leases under that plan, the appellant both gained advantages and agreed to provide services.

7. I agree that the orders should be made which are proposed by Beaumont J.

I agree that this appeal should be dismissed.

2. The critical question in this appeal is the correct construction of clause 4.1 of the lease of the carpark granted on 23 February 1987 by the second respondent to the appellant. If that clause does not bear the meaning sought to be attributed to it by the appellant, then its claim for relief against the second respondent and also the first respondent must necessarily fail.

3. Although the lease was executed in 1987, it was for a term commencing on 1 July 1979 and expiring on 31 December 2025. Clause 11.10, under the heading "Procedural Matters" provided that: "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".

4. By clause 12 of the lease the appellant was required to construct and maintain the relevant carparking area, at its own expense, with a maximum of 1500 motor car spaces.

5. I have had the advantage of reading in draft the reasons for judgment of Beaumont and Burchett JJ. Like their Honours, and for the reasons that they express, I am of the view that there is no need to resort to the extrinsic evidence of events and documents coming into existence after 1 July 1979, in order to arrive at a construction of clause 4.1 which is destructive of the appellant's case.

6. I am quite satisfied that clause 4.1 read on 1 July 1979 against the background facts then existing, necessarily conveyed the meaning that the appellant was required to provide a carpark of up to 1500 parking spaces for use by members of the public on day visits to the Perisher Valley area, as defined in the existing plans and to "adjacent" areas. There was no suggestion that the car spaces would be restricted to day visitors coming to the area for the purpose only of using the appellant's facilities constructed or to be constructed.

7. The provision of the carpark was an obligation imposed upon the appellant, in an overall agreement under which it was granted substantial exclusive rights in the area.

8. Although, in 1979, the Blue Cow snowfield was accessible from the Perisher Valley only with difficulty, it was obviously an area, viewed at that time, as highly likely to be developed in the future for the use of the public. The lease from the second respondent to the appellant, seen as at the 1979 date, was one to endure for forty six and a half years. During that time, quite plainly, it would be envisaged that future substantial development of neighbouring snowfields would be most likely to occur. It was also, obviously, in contemplation that overall planned development of the Perisher Valley and other snowfields in the general area would occur.

9. Having regard to these factors, I am firmly of the view that a proper reading of clause 4.1 in 1979 would have indicated that the Blue Cow snowfield was properly to be regarded as an area "adjacent" to Perisher Valley and one to which day visitors using the public carpark might well resort.

10. I am satisfied that the authorities referred to by my brethren, which are set out in their reasons for judgment, amply support this construction. There is no need for me to refer to them in these reasons.

11. I agree that all of the appellant's claims must fail. I agree with the orders proposed.