Southern Cross Pipelines Australia Pty Ltd & Ors v WMC Resources Ltd & Ors [2005] HCATrans 10 (4 February 2005)

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Southern Cross Pipelines Australia Pty Ltd & Ors v WMC Resources Ltd & Ors [2005] HCATrans 10 (4 February 2005)

Last Updated: 17 February 2005

[2005] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P28 of 2004

B e t w e e n -

SOUTHERN CROSS PIPELINES AUSTRALIA PTY LTD

First Applicant

SOUTHERN CROSS PIPELINES (NPL) AUSTRALIA PTY LTD

Second Applicant

DUKE ENERGY WA POWER PTY LTD

Third Applicant

and

WMC RESOURCES LIMITED

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

THE HONOURABLE CLIVE MORRIS BROWN, MINISTER FOR STATE DEVELOPMENT, TOURISM, SMALL BUSINESS

Third Respondent

THE HONOURABLE ERIC STEPHEN RIPPER, MINISTER FOR ENERGY

Fourth Respondent

NEWMONT WILUNA GOLD PTY LTD

Fifth Respondent

ECONOMIC REGULATION AUTHORITY

Sixth Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 11.51 AM

Copyright in the High Court of Australia

MR M.J. BUSS, QC: May it please your Honours, with my learned friend, MR A.G. CASTLEDINE, I appear for the applicants. (instructed by Minter Ellison)

MR C.L. ZELESTIS, QC: May it please your Honours, I appear with MR J.A. THOMSON for the first respondent. (instructed by Clayton Utz)

MR G.T.W. TANNIN, SC: May it please your Honours, I appear with MS J.C. PRITCHARD for the second, third and fourth respondents. (instructed by State Solicitor’s Office (Western Australia))

MR C.W. LOCKHART: May it please your Honours, I appear for the fifth respondent. (instructed by Maxim Litigation Consultants)

GLEESON CJ: There is a certificate from the Deputy Registrar certifying that the solicitors for the sixth respondent have advised that the sixth respondent will abide by the orders of the Court save as to costs. Yes, Mr Buss.

MR BUSS: Thank you, your Honour. Your Honours, there is our notice of motion for leave to amend the name of one of the applicants.

GLEESON CJ: Is that opposed?

MR BUSS: No, it is not, your Honour. Each of my learned friends has indicated they agree.

GLEESON CJ: You have that leave.

MR BUSS: Thank you, your Honour. Your Honours, we propose to commence our submissions by addressing briefly the first special leave question. In our submission, clause 21(3) on its proper construction contains a promise by the Premier, on behalf of the State for the joint venturers that the contemplated uniform laws and subsidiary legislation upon enactment would not have effect to the extent set out in the subclause.

GLEESON CJ: Let that be so, is it the role of the regulator to set about enforcing that promise?

MR BUSS: No, it is not the role of the regulator to set about enforcing the promise. Whether the promise was breached or not in a particular case would be determined by the ordinary courts of justice, in particular the Supreme Court of Western Australia.

GLEESON CJ: In what, in an action for damages?

MR BUSS: In an action possibly for declaratory relief in the context of the proceedings that came before the Full Court, for example - - -

GLEESON CJ: What would be the point of making a declaration that the Premier had broken a contract if it was not to obtain damages?

MR BUSS: It depends on the circumstances in which the issue arises, your Honour. It may be that it is in the context of an action for damages by the joint venturers against the State. Alternatively, it could arise in the course of the regulator purporting to exceed his jurisdiction under the Code in determining whether or not to approve a proposed access arrangement to the pipeline submitted by the joint venturers.

GLEESON CJ: That is what I am having difficulty understanding at the moment. What is the relationship between a promise made by the State to the interests you represent and the jurisdiction or activities of the regulator in performing his functions? He is not setting about enforcing the contractual obligations of the State, is he?

MR BUSS: No, he is not but in the context of section 97 of the Access Code, which is the issue that we raise in the context of our second special leave question, it is necessary for a judgment to be formed of whether or not the terms of a proposed access arrangement, whether submitted by the owners of the pipeline or ultimately an access arrangement written by the regulator himself, would have the effect referred to in clause 21(3) of the agreement.

GLEESON CJ: You mean would put the State in breach of its contractual obligations?

MR BUSS: That is true and it would also involve potentially a breach by the regulator of his jurisdiction under the Access Act and the Code under which various matters are to be taken into account in determining whether to approve an access arrangement or not. It is our submission that on a proper construction of clause 21(3) and also section 97(4) of the Access Act, it is apparent that the Parliament intended that the Code would not apply to the pipeline in the same manner as it applies to all other pipelines. In other words, the application of the Code to the pipeline is circumscribed as contemplated by section 97 of the Access Act so as not to affect or impact upon the rights of the joint venturers under clause 21(3), so it has a dual aspect. It may give rise to an action for damages for the joint venturers against the State if clause 21(3) were to be breached.

Alternatively, if section 97(4) has the construction that we contend for, there would not be a breach by the State of clause 21(3) because the State has in essence procured, or the Parliament has enacted, the uniform laws in a manner which is consistent with clause 21(3). In other words, if our submission, on the proper construction of clause 21(3) and section 97(4) is correct, there will not have been a breach by the State of clause 21(3) because section 97(4) of the Access Act in terms makes the Code applicable to my client’s pipeline subject to clause 21(3). In other words, subject to the first and second riders of the clause.

GLEESON CJ: Where do we find the error in the reasoning of Justice Parker?

MR BUSS: We find the error in his Honour’s construction of clause 21(3) and, in particular, the error appears in paragraph 45 on page 32 of the application book where his Honour held that the parties to the State agreement:

cannot have intended these two subclauses to have binding contractual force and effect. Further, whatever the intention of the parties, cl 21(2) and (3) cannot be enforced by the courts as binding contractual provisions.

Clause 21(3):

can only be seen as expressions of comfort as between the parties to the contract, as to what they each then expected or hoped would be the course of future events . . . in no sense can it be accepted that a legally binding obligation to give effect to what is contemplated –

by clause 21(3) –

was intended, or achieved as a matter of contract.

The other errors that we point to appear in paragraph 48 on page 33 where his Honour held that section 4(3) of the State Agreement Act really has no work to do in respect of clause 21(3). Also, in paragraph 53 on page 34 where it was held that clause 21(3), in combination with section 97(4) of the Access Act, had no force or effect to circumscribe the application of the gas pipeline’s Access Law, including the Code, to my client’s pipeline. And in paragraph 60 on pages 36 to 37, where his Honour held that there is no basis on which section 97(4) of the Access Act:

may properly be read and applied so as to circumscribe the application of the Code to the pipeline, whether in the circumstances contemplated by cl 21(3) of the State Agreement, or otherwise.

GLEESON CJ: Come to the top of page 34 of the application book.

MR BUSS: Yes.

GLEESON CJ: Is your case based on the words quoted in the first two lines of page 34?

MR BUSS: It is in part but it is also, we say, based first on a proper construction of clause 21(3) and when one construes that subclause so that it constitutes a promise and not merely some expression of intention or comfort, one then has to look at the proper construction of section 97. The error in the Full Court was to simply dismiss clause 21(3) as being merely as expression of comfort, then go to section 97(4), which says in essence nothing in the Act is intended to affect the operation of clause 21(3) and because - - -

GLEESON CJ: But your case is, is it not, that the operation of clause 21(3) has a major effect on the access law because it circumscribes the functions of the regulator?

MR BUSS: That is correct, Your Honour, that it has that effect and it had that effect when the agreement was entered into and ratified and became a government agreement but also, importantly, that the Parliament, when it some years later enacted the Access Act, plainly had clause 21(3) in mind and made specific provision to the effect of section 97(4). The error - - -

KIRBY J: So you say that is the answer to the so-called fundamental principle that you cannot bind future Parliaments to observe any particular previous law and that parties cannot agree amongst themselves, in effect, to bind Parliament. You say Parliament, by section 97, has acknowledged and exempted that provision in the agreement?

MR BUSS: That is right, your Honour. It has manifested an intention not to override the provisions of clause 21(3) and the status that those provisions were given under the Government Agreements Act, and - - -

KIRBY J: Is that enough not to override? You say, do you, that they had their authority from the previous legislation and that was not overridden by the subsequent legislation and therefore it remains legally sustained by the earlier legislation?

MR BUSS: That is right, your Honour. The later legislation would have to manifest an intention to override so it is not looked at as to whether the later intention does not manifest an intention to override. There would need to be something positive in the later statute which would have the effect that the status of clause 21(3) under the Government Agreements Act was intended to be undone by the later piece of legislation.

KIRBY J: So your contention is that, far from being a departure from the fundamental constitutional principle, this is an observance of the fundamental constitutional principle with Parliament giving its authority to the provisions of the Agreement and doing so, in effect, expressly.

MR BUSS: That is exactly so, yes. And if one needs to go beyond the terms of the Government Agreements Act and beyond section 97 and look at the second reading speeches of the Ministers, we say that the second reading speeches of the Ministers are instructive on this occasion but when one looks at the circumstances in which the Government Agreements Act was enacted in 1979, it was against the background of the decision of this Court in Sankey v Whitlam and an unreported decision of the Full Court which cast some doubt about the status in law of provisions of State agreements. When one looks at the - - -

KIRBY J: What is at stake in this case?

MR BUSS: What is at stake is - - -

KIRBY J: Apart from legal principle, in dollars and cents.

MR BUSS: It is very difficult to quantify that but - - -

KIRBY J: Give us a hint.

MR BUSS: I can say this, your Honour, that, as we said in our summary of argument, the State agreement relating to this pipeline does not expire until the year 2037. There has been very substantial investment in the pipeline of the order of hundreds of millions of dollars and the key point is - - -

KIRBY J: You would have negotiated on the basis of the fundamental constitutional principle and that is that the Parliament of Western Australia can override section 97 and the provisions of the legislation if it chooses to do so. Maybe that is what Justice Parker was getting at in talking of the fundamental constitutional principle.

MR BUSS: We would submit that that is to be inferred in relation to the original joint venturers. My clients, the applicants, were not the original joint venturers but in fact acquired the pipeline from the original joint venturers, one of whom is now the first respondent or a related company of the first respondent. We certainly would submit that we relied upon the terms of clause 21(3) in acquiring our interest. But, more importantly, the fundamental issue is that the terms of clause 21(3) are likely to have a significant impact on the amount of the reference tariffs which are set out in
the access arrangement which has to be approved under the Code and which set the amount which may be charged by my clients for access to this pipeline.

GLEESON CJ: Thank you, Mr Buss. We will hear what Mr Zelestis has to say. Yes, Mr Zelestis.

MR ZELESTIS: May it please your Honours, in our submission, the proposed special leave questions do not relate to the central issue that was raised below, which concerns the role of the regulator. It is very important to appreciate that these were prerogative proceedings directed to what the regulator was setting out to do. In our submission, the applicants’ issues are issues that they really have with the State which they did seek to litigate in a former action which they started and then abandoned after the regulator embarked upon the course which the Full Court found he should not have. Can I just demonstrate briefly why we say the applicants’ arguments do not affect the regulator.

The first special leave question concerns whether a promise made by a State might be enforceable by damages. Well, manifestly, that has nothing to do with the role of the regulator. The second special leave question seeks to advance a construction of statutory provisions and of clause 21(3). I will come to the detail in a moment, but it is important to appreciate what it is trying to do.

The second special leave question seeks to reach the result that clause 21(3), with the aid of statutory provisions, to use my learned friend’s language, circumscribes the application of the Code. Now, it is important to appreciate the language he used. In our submission, it obscures a real problem. He does not say that the effect of clause 21(3), if it has the benefit of some statutory force, is to raise a jurisdictional fact that the regulator must consider and reach a view upon before proceeding. He cannot say that because the highest he can put his effect of clause 21(3) is that it circumscribes the very application of the gas law itself.

Now, the regulator is an official who is given functions under section 36 of the Access Act, and those functions are the functions he has under the Code which is the uniform national legislation, which is in Schedule 2, and there are a lot of - - -

GLEESON CJ: I presume the functions of the regulator are to ensure that there is reasonably available access to people who want to use the pipeline and to fix the terms and conditions on which they can use it.

MR ZELESTIS: He does not directly fix them. He determines, if you like, the terms of what you might call a model access arrangement which can then be applied in one of two ways. There is a statutory official called the arbitrator, who resolves disputes between access seekers and pipeline owners and will apply the access arrangement terms as principles. Secondly, and this reflects the interests of two of the respondents, private contracts can of course adopt the presently unknown outcome out of regulatory processes, the benchmark for setting tariffs under them.

GLEESON CJ: I was rather puzzled about the procedure that has been adopted in this case. The regulator has not yet exercised his regulatory function in any relevant respect, has he?

MR ZELESTIS: He started, and indeed this is an issue - - -

GLEESON CJ: Well, what is he doing? What is he up to?

MR ZELESTIS: We will not speak for the regulator, but to answer seriously, he received an access arrangement or proposal from the applicants in I think December 1999 and has been considering it. There was a parallel application he was considering in the Epic Energy Case, and his draft decision there was effectively found to be fundamentally flawed in a Full Court decision, and that had implications for his proposed draft decision in this matter, so that slowed him down. Since the reasons in the Full Court he has now published a draft decision and there have been other steps taken, but he has not reached the stage of finalising an access arrangement, although he has been going now for more than four years - - -

GLEESON CJ: Can I ask you exactly what is he setting about deciding, and what is thought to be the potential relevance to his decision of this agreement with the State?

MR ZELESTIS: He will apply the provisions of the Code, which contain detailed economic and other principles, and determine what he considers to be what is called a reference tariff or a reference service; that is, what tariff he considers to be appropriate for a basic or standard kind of service. As I say, that tariff may then be applicable because parties to contracts have themselves decided to apply the tariff when it is finally published and effective, although it does not have any legal standing.

So the real issue in the case, in response to Justice Kirby’s question of my learned friend, concerns a tariff which the regulator is going to approve. As I say, that is not directly binding - - -

GLEESON CJ: But we are not being invited to give some advisory opinion to the regulator about how he should fix the tariff, are we?

MR ZELESTIS: In effect, with respect, you are because the applicants’ case is that when the regulator comes to set the tariff he has to pause and consider whether the tariff that he would set would produce the material adverse effect of which clause 21(3) speaks, and that he should - - -

GLEESON CJ: That is what prompted me to suggest to your opponent that his argument seems to be that the regulator should enforce this contract between the State and the parties.

MR ZELESTIS: In our submission, that is a fair comment. Can I just try to complete what I am not expressing very well, and that is why the second argument does not have any connection with the regulator. If one goes to 21(3) one can see that on any view it requires a person to make at least two decisions. 21(3) speaks of something being demonstrated and of a law not having effect to the extent that the something is demonstrated. That requires a mind to be satisfied firstly, that material adverse effect upon legitimate business interest is demonstrated and, secondly, that mind to decide what the consequence is. For example, the consequence might be, if this was the Energy Minister seeking to persuade his Cabinet colleagues to promote an amending Act, the extent or the effect question might be, “We will pass a law to the effect that the Code doesn’t apply to the pipeline for two years or doesn’t apply to a particular tranche of capacity of the pipeline or modify detailed provisions of the Code.”

Now, immediately when you see that a number of other questions arise because if you look in the detail of this legislation in Schedule 1 in sections 3, 6 and 7 you will see that Western Australia is one of a number of participants nationally in a scheme which require the participants to adopt the Code without change. Any attempt to change the Code in its application to the pipeline would require in effect the consent of the Ministers of the other participating States and Territories. So there is a real issue there.

In our submission, the fundamental point here is that the applicant recognises that the highest it can get 21(3) is to say that it circumscribes the application of the law. Now, the regulator is not concerned with whether there is something that may be done by someone else, not him, which might affect the application of the law. He has his charter, the Code is self-contained, he has everything he needs to do there.

There is a further point beneath that that we should make, and that is it should not be thought that Justice Parker’s decision suggests that clause 21(3) is a straw in the wind entirely. The parties to the State agreement plainly had in view that clause 21(3) could operate quite efficaciously in one particular way, and it is this. Section 5 of the ratifying Act specifically conferred power for the making of by-laws which would be for the purposes of and in accordance with the agreement.

Now, if I can take your Honours to clause 21(3) as it is set out in the papers at page 25, one can see that clause 21(3) in its context is set as the third provision in a clause dealing with by-laws. The first subclause gives the Energy Minister the power to make recommendations to the Governor for by-laws containing, if you like, access terms and conditions for third parties. You will see that buried in 21(1) at line 15 on page 25 there are some considerations the Energy Minister must bear in mind, and they include “the legitimate business interests of the Joint Venturers”. Then, very importantly, 21(3) is first mentioned in clause 21(2), which provides that if uniform laws come along, “then, subject to subclause (3) any by-laws made under subclause (1) shall cease and determine on the expiry of two years”.

What the parties contemplated was that there could be a regime of by-laws governing third party access to the pipeline before uniform laws were adopted, and when those uniform laws were adopted the by-laws would apply onwards for two years. There would have to be some resolution of potential inconsistency with the later Act if it did not recognise this, but the by-laws would run on for another two years but, importantly, that running on for two years was open to be qualified by clause 21(3). In other words, subclause (3) had a proper contractual role in the context of by-laws. The Energy Minister could be approached and asked to recommend by-laws which would further extend the two year grandfathering, if you like, of the old by-laws. So it should not be thought – and this was put to his Honour below – that in saying that clause 21(3) was a matter of comfort his Honour was not recognising that it had a proper contractual role in a certain way which the parties obviously contemplated could result in it having effect.

So our submission is that it is clear that no one yet seized of authority has made a decision under clause 21(3). My learned friend does not say it is the regulator who can decide that material adverse effect has been demonstrated for the purposes of the State agreement and he does not contend that it is the regulator who then decides what is essentially a political policy judgment of the extent to which a law will not apply. What he is really suggesting is that the regulator should speculate as to the outcome of the process of decision-making by someone else.

Although not articulated in the papers before the Court, the submission that was put to the Full Court below by the applicants was that the person to whom 21(3) would be demonstrated would be a court. In other words, my learned friend ends up with the proposition that this extraordinary power to decide the extent to which a law will or will not apply will be the subject of some declaration by a court. Now, immediately you see that is where he ends up. You see firstly how distant it is from the
regulator and, second, you see how unlikely a construction it is that you would attribute to the parties to the State agreement that intention to confer such a power on a court when, as I have tried to demonstrate, on any view of the matter the Energy Minister had a role to play in relation to clause 21(3) if by-laws had been made. So my learned friend - - -

GLEESON CJ: Thank you, Mr Zelestis. We will hear what Mr Buss has got to say in answer to what you have been putting. Yes, Mr Buss.

MR BUSS: Thank you, your Honours.

GLEESON CJ: Mr Buss, because we foreshortened your submissions in-chief, you will not be subject to the same limits in terms of time as you would ordinarily in reply.

MR BUSS: Thank you, your Honours. Your Honours, can I direct your attention, please, to page 19 of the application book. The key issue before the Full Court in the proceedings, in the prerogative relief proceedings and declaratory proceedings brought by the first respondent, can be seen in paragraphs 16 and 17 on page 19. In other words, there was an announcement by the regulator stating that in the course of considering a proposed access arrangement lodged by my clients, he was going to consider the effect of clause 21(3) on the application of the Code to the pipeline.

GLEESON CJ: What was that announcement all about? Was this really an application to the Western Australian Supreme Court for an advisory opinion to the regulator?

MR BUSS: No, not in our submission. It was not. The matter before - - -

GLEESON CJ: Why does the regulator make these announcements?

MR BUSS: Well, the announcements were made for the benefit of parties who had an interest in my clients’ draft access arrangement. In essence, my clients prepare a draft access arrangement, submit it to the regulator for approval, and the access arrangement sets out the terms and conditions, including the tariffs, for third parties to obtain access to the pipeline for their gas. Now, the draft access arrangement is then the subject of comment from interested parties, including the first respondent, and after the draft access arrangement has been submitted, the regulator considers it and determines whether it accords with the Code.

Now, the issue that was raised by the regulator on 6 November 2002 was whether clause 21(3) had any application, whether he needed to be alert to it and consider its terms in deciding whether to approve my clients’ proposed access arrangement or to require amendments. Upon the regulator having made that announcement, that this was something he was going to do in the course of considering a draft decision he had published, the first respondent commenced these proceedings in the Full Court, having obtained an order nisi from a single judge, and sought prerogative relief, alternatively, declarations, to the effect that what the regulator was proposing to do was beyond the statutory power and function of the regulator.

It was in this context that the first respondent sought to argue, in effect, that clause 21(3) did not contain a contractual promise by the State, but was merely an expression of intention as to what the parties to the contract hoped might occur in the future.

In that context, my clients advanced the opposite viewpoint and said in relation to the regulator, “Although the regulator doesn’t have authority to determine the meaning and application of clause 21(3), nonetheless he needs to give that clause some consideration in order to ensure - - -

GLEESON CJ: I am sorry, I would like to understand that a little better. If it is not the function of the regulator to consider the meaning and application of clause 21(3), by what process of reasoning does he give it “some consideration”?

MR BUSS: In this way. The proper construction of clause 21(3) is a question of law which, in the event of dispute between the parties, has to be determined by the ordinary course. However, once the proper construction of clause 21(3) has been determined by a court in the event of dispute between the parties, the clause properly construed then requires some application, because the first limb of clause 21(3) provides that the Code does not have effect in relation to the pipeline to the extent that my clients can demonstrate that its application has, or is likely to have, a material adverse effect on its legitimate business interests.

Now, the question of whether or not the proposed application of the law would or would not have a material adverse effect on my clients’ legitimate business interests may arise at two levels. First, it may arise simply by virtue of the terms of the uniform laws – that is, the Code - themselves. Secondly, it might arise by virtue of the application of the uniform laws in terms of the regulator’s task of approving an access arrangement. The Code sets out a variety of matters which must be addressed in an access arrangement and gives the regulator a variety of discretions and powers in relation to approving or not approving a proposed access arrangement and requiring amendments.

Now, it is in the context of the regulator undertaking that task under the Code that he must at least give some consideration to clause 21(3) to ensure that he does not in any sense exceed his jurisdiction. That is what I meant in saying to your Honours that it was a consideration for the regulator, a consideration in the sense that he has to apply the Code to the pipeline, but he has to apply the Code subject to the protection given to my clients under clause 21(3). Therefore, in doing that it is necessary that in order not to exceed his jurisdiction he give that issue some consideration.

So in no sense are your Honours being asked to give an advisory opinion to the regulator in any sense. It is plain from the decision of this Court in Hot Holdings v Creasy [No 1] that in circumstances where an administrative entity has the capacity to affect rights prior to making a final decision that certiorari may lie, the key issue which arises is whether, as my clients contend - and the Full Court was against us on this - that clause 21(3) contains a contractual promise; if so, whether in any sense that provision purported to fetter the sovereignty of Parliament, which we say it did not, and if clause 21(3) does contain a contractual promise, the sovereignty of Parliament has not been fettered, does section 97(4) have the construction that we contend for, which is to manifest an intention that clause 21(3) is – that its provisions have not in any way been affected by the enactment of the access Code and the law. Those are the issues. We are not seeking and have never sought any form of advisory opinion for the regulator.

The other point my learned friend, Mr Zelestis, has made in relation to the application of clause 21(3), the proper construction of that clause is ultimately a matter for the Court in the event of a dispute between the parties, but necessarily the regulator must have regard to its terms to ensure that in carrying out his function on the Code he does not exceed his jurisdiction by in effect ignoring the provisions of clause 21(3) and simply drafting and approving an access arrangement in terms of the Code and in total disregard of clause 21(3).

So the issues that we are, with respect, seeking a grant of leave on involve a question of law, namely the proper construction of clause 21(3) where we submit the Full Court, with respect, was in error. The proper construction and application of section 97 of the Access Act, which plainly will be affected by the proper construction of clause 21(3), and in terms of construing clause 21(3) there will necessarily be some consideration as to whether this is a contractual promise by which the Crown may be bound, and that gives rise to questions of the kind considered by the Supreme Court of the United States in the Winstar litigation.

In our submission, these in no sense raise questions which are speculative or advisory but raise serious questions of law which have an
impact substantially beyond the terms of this State agreement. In the statutory materials that we lodged with the Court we have referred to a variety of other State agreements in this State and elsewhere containing provisions which are similar to or analogous to clause 21(3).

GLEESON CJ: Yes, we have seen those.

MR BUSS: In this sense it does, in our submission, raise questions of general public importance, certainly questions which go beyond clause 21(3), and would involve a consideration and any judgment the Court would have, implications for other State agreements which purport to exclude or modify existing and future legislation in relation to projects and the like which are undertaken as part of the economic life of this State.

Plainly also a consideration of the Winstar principle and whether it has application in Australia would go beyond State agreements, that is, project infrastructure agreements, and deal with any contract whereby the Crown had purported to bind itself to an ordinary citizen in a way that was contingent upon the enactment of future legislation or the amendment of existing legislation or the like. Those are our submissions, your Honours.

GLEESON CJ: Thank you, Mr Buss. We do not need to hear counsel for the remaining respondents.

Having regard to the procedural background and context, this case does not raise an issue suitable for the consideration of this Court and we are not persuaded that the interests of justice require a grant of special leave to appeal.

The application is dismissed with costs.

AT 12.29 PM THE MATTER WAS CONCLUDED