case_text: I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_outcome: referred to

case_text: This immediately exposes the difficulty of the different and contradictory assumptions entertained by those directors who gave evidence. There were other directors who did not testify. It must be inferred that their evidence would not have assisted: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (" Jones v Dunkel "). 675 What emerges is that Mr Graham's assumptions were quite different from those of the other directors and there were differences between the beliefs and assumptions of Messrs Butcher, Moore-Wilton and Stanko and Mrs Yeoh. 676 Mr Graham and Mr Stanko (and perhaps Mrs Yeoh) were the only directors who were aware that one of the options available to the State of Queensland was the grant of access rights. But Mr Graham and Mr Stanko differed in their beliefs. Mr Graham accepted that the State's minimum obligation was to provide access rights, although he believed in effect that the rights would be perpetual, and on terms that ensured NRC's commercial viability. 774 The proposition that there might have been encouragement of the type mentioned by Mr George was not put to Mr O'Rourke. There is nothing in the document which gives rise to a Jones v Dunkel inference by reason of QR's failure to call Mr George. The present case is in no way analogous to the position in Bond Brewing (NSW) Pty Limited v Reffell Party Ice Supplies Pty Limited (unreported, Supreme Court of NSW, Waddell CJ in Eq, 17 August 1987), where the tenant of a hotel acted upon an assumption that the landlord would not terminate a lease without paying to the tenant a reasonable sum for the value of the goodwill. His Honour found that the landlord knew this to be so, and that detriment was clearly established. None of these elements are demonstrated in these proceedings: see also Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Limited [2003] HCA 18 ; (2003) 214 CLR 51 (" Berbatis ") at [57] per Gummow and Hayne JJ. 1190 It follows that I am not satisfied that the statements made in the relevant letters were incorrect. Moreover, I am not satisfied that the statements were made otherwise than honestly in good faith. It is true that Mr Smith was not called to give evidence, although a belated attempt was made to re-open to rely on his affidavit. But it is unnecessary for me to make a finding that his evidence would not have assisted; cf Sebben v Partridge (unreported Supreme of South Australia, Lander J, 20 December 1994). In that case, Lander J was of the view that a Jones v Dunkel inference was available where a defendant was not called, an unsuccessful attempt having been made to reopen after close of the defendant's case.


case_title: Generation Pty Limited v Power and Water Authority [2004] HCA 48 ; (2004) 210 ALR 312

case_text: It would be a false dichotomy to suggest that there is a distinction between taking advantage of market power and taking advantage of property rights: see NT Power Generation Pty Limited v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 (" NT Power ") at [125]. Property rights can be a source of market power attracting liability under s 46 of the Act .


case_text: In the Verwayen at 409, Mason CJ described estoppel as a label which covers a complex array of rules spanning various categories. I do not need to set out all of the rules because PN confined its case to three categories. In doing so, PN recognised that the question of whether there is a "single overarching doctrine" or "a general doctrine of estoppel by conduct" was left open by the High Court in Giumelli v Giumelli [1999] HCA 10 ; (1999) 196 CLR 101 (" Giumelli ") at [7]. 668 I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_text: I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA. 837 First, the party asserting an estoppel must prove it would suffer a detriment if the "estopped" party is permitted to resile from the assumption. This is an essential element of an estoppel claim whether in common law or equity: Grundt at 674.


case_text: Failure to disabuse may, in some circumstances, create or encourage an expectation: Crabb at 188 189. But this head of equity usually depends upon proof that the owner of the property seeks to take unconscionable advantage of another by allowing the other to spend money on the property in the belief, known to the owner, that the person expending the money will enjoy a benefit over the property: Holiday Inns Inc v Broadhead [1974] 232 EG 951 (" Holiday Inns ") discussed by Priestley JA in Austotel at 607 608 and 610. 825 The position is effectively captured in the following passage from the judgment of Mance LJ in Baird Textiles Holdings Limited v Marks & Spencer Plc [2001] All ER (D) 352 (Feb) at [94]:- "As I have already said, the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can here objectively be taken to have intended to make any legally binding commitment of a long-term nature, and the law should not be ready to seek to fetter business relationships with its own view of what might represent appropriate business conduct, when parties have not chosen, or have not been willing or able, to do so in any identifiable legal terms themselves. These considerations, in my judgment, also make it wrong to afford relief based on estoppel, including relief limited to reliance loss, in the present context." As Mance LJ observed at [95] [96], even if the recognised principles of estoppel are "fertilised" by a broader approach exemplified in cases such as Holiday Inns , those cases are explained on the basis that the parties envisaged that rights already existed or they intended them to be created by contract.


case_text: The first assumption is that QR would grant a lease or access "for so long as NRC carried on the business of interstate rail freight operations in Queensland" on a commercial basis, or for at least 30 years. The extent of any such business and the degree of repetition or continuity of the requisite activity are not spelled out: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 8 and United Dominions Corporation Limited v Brian Pty Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 15. Although the period of the lease or access was said to be for 30 years, the terms were to be on a commercial basis. That expression cannot have the requisite degree of certainty absent the agreement of the parties as to the content of the terms.


case_text: The short answer to the status of documents such as the Task Force Report and the Heads of Government Agreement is that they were superseded by the EA. In an estoppel case, it is possible to put forward an understanding based on communications which preceded the execution of a written agreement: cf Hoyts' Pty Limited v Spencer [1919] HCA 64 ; (1919) 27 CLR 133; see Waltons at 399 403. But it seems to me that here any understandings or assumptions based on pre-contractual reports or heads could not be reasonable.


case_outcome: cited

case_text: The categories of unconscionable conduct may not be closed but the authorities give some guidance as to the type of conduct which must be demonstrated so as to fall within the "unconscionable" label. What is required is "serious misconduct or something clearly unfair or unreasonable". The term "unconscionable" imports "a pejorative moral judgment": Hurley v McDonald's Australia Limited (2000) ATPR 41-741 (" Hurley ") at [22] per Heerey, Drummond and Emmett JJ, and Australian Competition and Consumer Commission v Oceana Commercial Pty Limited [2003] FCA 1516 at [336] per Kiefel J. 930 There is nothing to suggest serious misconduct of the type described by the Full Court in Hurley . There is no suggestion of unreasonable or bullying behaviour or any attempt to apply illegitimate pressure of the kind referred to by Sundberg J in No-Knead . This is hardly surprising given the identity of the parties.


case_title: Inwards v Baker [1965] 2 QB 29


case_text: However, difficulties arise in ascertaining the state of mind of large corporations: Brambles at 275. Different board members may hold different beliefs and it is sometimes possible to look beyond the resolutions of the board to the deliberations of individual board members as well as those of senior management: Ishac v David Securities Pty Limited (No 6) (1992) 7 ACSR 199 at 200-201 per Young J and the authorities there cited.


case_title: Kellow-Falkiner Motors Pty Limited v Nimorakiotakis [2001] ANZ Conv R 230 referred to Krakowski v Eurolynx Properties Limited [1994] HCA 22 ; (1995) 183 CLR 563

case_text: In Krakowski v Eurolynx Properties Limited [1994] HCA 22 ; (1995) 183 CLR 563 at 582-3, the High Court approved the following statement of principle of Bright J in Brambles Holdings Limited v Carey (1976) 15 SASR 270 (" Brambles ") at 279:- "Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company." 823 This approach to the question of whether negotiations between parties gave rise to a tenancy by estoppel was adopted by the Victorian Court of Appeal in Kellow-Falkiner Motors Pty Limited v Nimorakiotakis [2001] ANZ Conv R 230 at 233 234. 824 NRC, as a well resourced, commercially sophisticated rail operator, advised by competent and experienced solicitors, must have know that it could not reasonably rely upon rights under a lease, or rights of access or management or control of the terminal in the absence of a written agreement. That is precisely what the last sentence of clause 5(6)(a) contemplated.


case_text: Negotiations commenced with the delivery by Mrs Fontaine of a draft lease to Mr Jenner on 20 May 1996. The correspondence between the parties shows that they were proceeding on the ordinary assumption that the parties were not bound until a formal contract had been drawn up and executed, the subject matter of the proposed agreement being a substantial lease of land: Australian Broadcasting Corporation v XIVth Commonwealth Games Limited (1988) 18 NSWLR 540 (" Commonwealth Games Case ") at 548, Long v Piper [2001] NSWCA 342 at [48] [55], Landsmiths Pty Limited v Hall (1999) 9 BPR 17,057 at [9]; see also Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424 at [365] and the authorities there cited.


case_text: PN relied on the words of Mason and Deane JJ in Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 (" Legione ") at 430 to support the formulation of the third category. In the passage to which PN referred, their Honours said that estoppel in pais includes common law estoppel comprising conventional estoppel and estoppel by representation. They also said that it includes "the overlapping equitable doctrines of proprietary estoppel and estoppel by acquiescence or encouragement". 666 It follows from the description of estoppel in pais in Legione at 430 and from the three categories propounded by PN, that each of the categories put forward is a species of estoppel in pais. 667 Without endeavouring to discuss the many and varying observations that have been made in the cases, I will attempt to state the essential propositions which flow from the cases and which underlie the determination of the present proceedings. 668 I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_title: Long v Piper [2001] NSWCA 342


case_title: Low v Bouverie [1891] 3 Ch 82

case_text: The principle may be traced to a decision of the English Court of Appeal in Low v Bouverie [1891] 3 Ch 82. Bowen LJ explained it as follows at 106:- "Now, an estoppel, that is to say, the language upon which the estoppel is founded, must be precise and unambiguous. That does not necessarily mean that the language must be such that it cannot possibly be open to different constructions, but that it must be such as will be reasonably understood in a particular sense by the person to whom it is addressed." 738 It seems to me to follow that, whatever species of estoppel falls for consideration, the assumption which is said to have been engendered must be clear and unambiguous. 739 I have drawn attention to the different assumptions held by Mr Graham and the other directors because, at very least, this must negate the requisite elements of clarity and certainty.


case_outcome: applied

case_text: In Melway Publishing Pty Limited v Robert Hicks Pty Limited [2001] HCA 13 ; (2001) 205 CLR 1 (" Melway ") at [43] the majority justices observed that the notion of market power as the capacity to act in a manner unconstrained by the conduct of competitors is reflected in s 46(3). The absence of constraint from customers is also a relevant matter. Matters of degree are involved: Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 (" Boral ") at [121] per Gleeson CJ and Callinan J. 979 Alternatively, any power arising from QR's ownership of the AR terminal was constrained by the grant of exclusive possession to NRC: Melway at [43], Boral at [121], and Pioneer Concrete at 172-173 and 176. 1020 Mr Ergas' opinion is that QR has market power by reason of its ownership of the track but that the declaration and the undertaking go to the question of whether it has taken advantage of the power. However, that view seems to me to be contrary to the authorities referred to above, in particular Melway at [43], Boral at [121], and Pioneer Concrete at 172 -173 and 176. 1022 Section 46 requires the co-existence of market power, taking advantage and proscribed purpose: Melway at [44] and Boral at [120]. 1024 The following ten principles emerge from Queensland Wire and the trilogy of cases which have explained the proper approach to construction:- (1) what is involved in answering the question of whether a firm has taken advantage of market power is the sufficiency of the connection between the market power and the conduct complained of: Melway at [44] and [67]; Boral [120] and [170]; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press ") at [51]. McHugh J has said that a causal connection is required: Boral at [279]. (2) if the impugned conduct has a rational business explanation, that is a factor which points against the existence of a relevant connection between the market power and the conduct: Melway at [67]; Boral at [170]. (3) the words "take advantage" do not encompass conduct which has the purpose of protecting market power but no other connection: Rural Press at [51]. (4) in deciding whether a firm has taken advantage, is it relevant to ask how it would have behaved if it lacked power and whether it could have behaved in the way it did in a competitive market: Melway at [52] and [61]; Rural Press at [52]. (5) it may be proper to conclude that a firm is taking advantage of market power where it does something that is materially facilitated by the existence of the power: Melway at [51]; Rural Press at [53]. (6) McHugh J has said that the conduct must have given the firm an advantage it would not have had in the absence of market power: Boral at [279]. (7) the test may be whether the conduct was necessarily an exercise of market power: Melway at [68]. (8) one of the difficulties in determining what constitutes taking advantage stems from the need to distinguish between monopolistic practices and vigorous competition: Queensland Wire at 202. (9) the purpose of s 46 is the promotion of competition; it is concerned with the protection of competition, not competitors: Queensland Wire at 191 and 194; Boral at [87], [160], [164] and [260]; Melway at [17]. (10) it is dangerous to proceed from a finding of proscribed purpose to a conclusion of the existence of a substantial degree of market power, which can be taken advantage of; to do so will ordinarily be to invert the reasoning process: Boral at [123], [194]. 1092 Moreover, the suggestion that QR took advantage of market power is at odds with three further principles which emerge from the authorities. First, I do not see how it can be said that to obtain possession with a view to converting the AR terminal to a common user facility as was sought in 1997-98 or a multi-user facility in 2003, was facilitated by the existence of the power: Melway at [51] and Rural Press at [53]. 1094 Third, QR's conduct cannot be said to have been "necessarily" an exercise of market power: Melway at [68]. 1095 I will deal briefly with Mr Ergas' contention that a number of the clauses of QR's open offer in the Draft Terminal Services Agreement, as amended on 6 July 2005, constituted a misuse of market power. Mr Ergas argued that only a firm with market power could make such an offer. He argued that in a competitive market, confronted by such an offer, the firm would go elsewhere. 1096 Mr Ergas' attack focussed upon three clauses of the draft document (as amended) which I have set out above. They are: first, the provision dealing with late trains contained in cl 6.7; second, the provision for PN to be able to increase the monthly throughput in the capacity of the AR terminal, in addition to the right to a 10% increase in the allocated monthly TEU provided for in cl 1(a)(ii) of Schedule 2. The provision for additional throughput is found in cl 7.5, which includes in cl 7.5(d) the notion of a deemed permanent increase with resulting increased costs for PN. 1111 Purpose involves the notion of an intention to achieve the result spoken of in one or other of ss 46(1)(a) , (b) or (c): Queensland Wire at 214 and Melway at [31]. In the present case, PN contended that QR's purpose was to damage NRC or to deter it from engaging in competitive conduct in the East Coast Rail Linehaul Market: s 46(1)(a) and/or (c), or to prevent NRC or Toll from entering the North Coast Rail Linehaul Market or from engaging in competitive conduct in that market: s 46(1)(b) and/or (c). 1158 I do not consider that this constitutes a sufficient connection to amount to taking advantage within the principle stated by the High Court in Melway and Boral .


case_text: There are a number of reasons for this. First, any suggestion that a sitting government would act, or be likely to act, in a particular way based upon expressions of a particular point of view must usually be rejected. Although his Honour was dealing with principles of administrative law, it seems to me that what Gummow J said in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207 211 applies equally in the present context. A discretion conferred by statute is to be exercised on a proper understanding of what the statute requires and, ordinarily, is not to be confined by a statement or decision which forecloses the discretion. 862 It seems to me to follow from this that any suggestion of a lost opportunity to obtain the benefit of Mr Hamill's support cannot be an opportunity which the law would recognise. 863 Second, there is nothing to suggest that a long lease would have been negotiated in the available time. It took nearly three years for the parties to agree the final terms of the three year lease that was the subject of the 4 April 1993 Heads. The good faith negotiations for a new lease which commenced in May 1996 had not culminated in an agreement after about 10 months of negotiations.


case_text: The terms of the EA could, if supported by necessary evidence from the relevant minds on behalf of NRC, give rise to a "legitimate expectation" that the State of Queensland and QR would act conformably with the terms of the EA: see, in a different context, Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273. 699 However, any evidence given by the directors of NRC as to their expectations based upon reading the EA would have to be tested against the proper and ordinary construction of the EA. This is because of the principle stated in [668-(16)] that the adoption of any assumption by the party asserting the estoppel must be reasonable.


case_text: Second, the detriment which is to be established must be of a real or serious nature. If the alleged detriment is a lost opportunity, it must be one which is real and not theoretical: Minister for Immigration and Multicultural Affairs v McDade [2001] FCA 457 ; (2001) 109 FCR 137 at [28] , per Carr, Lindgren and Katz JJ; Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1994) 8 ANZ Ins Cas 61-235 at 75,644 per Kirby P and at 75,654 per Handley JA.


case_text: I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA. 775 It may be that under the broader view of estoppel explained by Priestly JA in Austotel it is not necessary that the interest to be secured has been expressly indicated. I do not need to consider this question although I would observe that the Full Court in Mobil Oil was of the view that it is a necessary element of the principle that the person sought to be estopped has created or encouraged an assumption that "a particular legal relationship" or "an interest" would be granted: see at 513. 839 Third, the principles of equitable estoppel are concerned with satisfaction of the minimum equity necessary to do justice. Equitable estoppel is intended to relieve against the detriment suffered and not to make good an expectation: see the Full Court's discussion of the principles stated in Verwayen in Mobil Oil at 516 517.


case_outcome: distinguished

case_text: It would be a false dichotomy to suggest that there is a distinction between taking advantage of market power and taking advantage of property rights: see NT Power Generation Pty Limited v Power and Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 (" NT Power ") at [125]. Property rights can be a source of market power attracting liability under s 46 of the Act . 981 The position in the present case is quite different from that which existed in NT Power . There, the owner of electricity and distribution infrastructure which refused access to a competitor was held to have a substantial degree of power in the market for transmission and distribution of electricity. The owner was held to have taken advantage of its power for a proscribed purpose. 982 However, by contrast with the present case, the market power of the infrastructure owner in NT Power derived from its ownership and control of the infrastructure. The majority justices said at [63] that the critical fact underlying the owner's market power was its control of the infrastructure; see also at [114]. 983 Mr Ergas sought to overcome this difficulty in PN's case by arguing that QR had market power by reason of its ability as owner to refuse to grant a lease and to thereby undermine PN's security of tenure. This, he said, could increase PN's costs by reducing its ability to invest in improvements to the AR terminal which would increase PN's costs on the East Coast Line, thereby giving exclusionary market power to QR. 984 Mr Ergas added to this that if PN does not have secure long term leasing arrangements the effect is to threaten investment security and impede it from operating efficiently, forcing it to have higher costs and, in turn, raising rival's costs. 1004 QR also submitted that it was not a supplier of the relevant service, namely access. It pointed to the statement in NT Power at [115] that s 46(4)(c) provides that the relevant power is supplier power or acquirer power. It submitted that QR was not a supplier of access, that service being supplied by PN through its existing control of the AR terminal. 1005 In NT Power at [115] the majority justices were merely identifying "the character or capacity in which the corporation has whatever market power it has". They distinguished this from other forms of power such as that of a financial institution. 1006 This leaves open the possibility that in certain circumstances an owner whose market power derives from its capacity as owner may have "supplier power" in the sense referred to by McHugh ACJ, Gummow, Callinan and Heydon JJ in NT Power . However, in the present case, it seems to me that without any right of possession, and in circumstances in which QR's own requests for access has been refused, it cannot be said that it has the requisite capacity. 1007 A further question arises on the pleadings. It is whether QR has market power in the SG Rail Infrastructure Market by reason of its control of the track from the AR terminal to the NSW border. However, I accept QR's submission that this is a false issue because there is no complaint that QR has sought to injure NRC as a competitor by denying or restricting its access to the track. 1008 Accordingly, I do not need to consider QR's submission that there are various constraints on the power. Nevertheless, I would observe that there is considerable force in Mr Ergas' argument that a self imposed constraint is no constraint at all. This seems to me to answer QR's submission that the East Coast Line is administered by QR's NAG in the same way as the infrastructure on the North Coast Line which is the subject of a statutory undertaking. I doubt that the NAG is truly ringfenced as contended by QR. 1128 Third, in my view, QR's longstanding offer to grant access rights to NRC and its desire to establish a common user or multi-user facility at the AR terminal are inconsistent with the purposes for which NRC contends. This distinguishes the case from NT Power, where the infrastructure owner appreciated the existence of its market power and of the capacity to exercise that power to deliver access to the infrastructure: see NT Power at [150]. 1129 Fourth, although they post date the impugned conduct, the General Freight Agreement of 10 November 2003 for access to the East Coast Line, and the North Coast Access Agreement of 1 October 2004 for access to the North Coast Line, are inconsistent with the suggestion of proscribed purposes. 1130 In cross-examination of Mr Merrigan it was suggested that certain observations in his report of March 2000 revealed a purpose of eliminating NRC as a competitor. He was taken to his remarks that NRC would not be a player in the long term and that this would be to QR's competitive advantage; see [422] [423]. Mr Merrigan said that this was a reference to NRC ceasing to exist as such after privatisation. There is force in Mr Walker's proposition that this was "meritless fencing". But I do not see that the comments of a consultant to QR, without more, are sufficient to give rise to an inference of proscribed purpose.


case_text: The amendment adding Schedule 4, provides as follows:- Month Allocated Monthly TEU January 17624 February 20444 March 21431 April 21446 May 22054 June 19665 July 21166 August 21583 September 21895 October 22472 November 24005 December 21795 578 As with Schedule 2 in the March draft, the maximum TEU may be increased by 10% if the Rail Operator provides written notice, however a critical difference is contained in the amendments to subsection (ii) of Schedule 2(a), which I shall set out:- "(ii) The aggregate Allocated Monthly TEU of 20,830 referred to in paragraph (i) above Schedule 4 as at the date of this agreement may be permanently increased by up to 10% in any particular month by the Rail Operator by giving the Terminal Manager written notice at least 2 months prior to seeking that increase. Once the Rail Operator has given such a notice, the increased figure will be deemed to be the figure for the aggregate Allocated m Monthly TEU in the relevant month for the purposes of paragraph (i) above, and will also be deemed to be the figure for the aggregate Allocated m Monthly TEU referred to in paragraph (b) (i) below. However, the Allocated Monthly TEU for each month may only be increased under this paragraph (ii) by a maximum of 10% above the TEU for that month listed in Schedule 4 as at the date of this agreement . Any other increase will be dealt with under clauses 7.5 and 7.6 of this agreement ." 579 Reference is also made in Schedule 2(a)(i) to cl 7.5 and 7.6, which have been added to the July draft. Clause 7.5 relates to additional monthly throughput, and provide as follows:- "7.5 Additional Monthly Throughput (a) Upon written request by the Rail Operator given prior to 1 July each year during the Term (but not more than once in each calendar year), the Rail Operator may request the Terminal Manager provide Terminal Services for Additional Monthly Throughput for the remaining months of the Term commencing 1 January of the following year or such later date nominated by the Rail Operator. For the avoidance of doubt , a written request by the Rail Operator may not seek to reduce the Allocated Monthly TEU . The rights under this clause 7.5 are in addition to the rights to increase the Allocated Monthly TEU in paragraph 1(a)(ii) of Schedule 2. (b) If, in the Terminal Manager's reasonable opinion when having regard to: (i) the existing capacity of the Terminal; (ii) the Terminal Manager's existing or likely future commitments to other users of the Terminal (including Queensland Rail and its Related Bodies Corporate); (iii) the Additional Monthly Throughput requested by the Rail Operator; and (iv) the extent to which the Terminal Services and the Terminal Manager's other operations in the Terminal can be carried out efficiently; an Expansion is required in order to enable the Terminal Manage to provide Terminal Services for the Additional Monthly Throughput, clause 7.6 shall apply . (c) If, in the Terminal Manager's reasonable opinion having regard to: (i) the existing capacity of the Terminal; (ii) the Terminal Manager's existing or likely future commitments to other users of the Terminal (including Queensland Rail and its Related Bodies Corporate); (iii) the Additional Monthly Throughput requested by the Rail Operator; and (iv) the extent to which the Terminal Services and the Terminal Manager's other operations in the Terminal can be carried out efficiently, an Expansion is not required in order to enable the Terminal Manage to provide Terminal Services for the Additional Monthly Throughput requested, the Terminal Manager will agree to provide Terminal Services for the Additional Monthly Throughput . (d) If the Terminal Manager does agree to provide Terminal Services for Additional Monthly Throughput pursuant to clause 7.5I the Allocated Monthly TEU for the remaining months of the Term will be deemed to be permanently increased by the relevant Additional Monthly Throughput for the purpose of this agreement, including paragraphs 1(a)(i) and 1(b)(i) of Schedule 2. However, paragraph 1(a)(ii) of Schedule 2 will no longer apply to any Allocated Monthly TEU that has been increased under clause 7.5(c)." (emphasis added) 668 I will enumerate the propositions as follows:- (1) The object of estoppel in pais is to prevent an unjust or unconscionable departure by one person from an assumption adopted by another as the basis of an act or omission which, unless the assumption is adhered to, would operate to the other's detriment: Thompson v Palmer [1933] HCA 61 ; (1933) 49 CLR 507 (" Thompson ") at 547 per Dixon J; Grundt v Great Boulder Pty Limited (1937) 59 CLR 640 (" Grundt ") at 674 per Dixon J; Legione at 430 431; Waltons at 413 per Brennan J; Verwayen at 409 per Mason CJ and at 500 per McHugh J. (2) Whether a departure from an assumption is unjust depends upon the part taken by the person sought to be estopped in occasioning the adoption by the other party of the assumption: Thompson at 547 per Dixon J; Grundt at 675-676; Legione at 431 432; Waltons at 404 per Mason CJ, Wilson J; Verwayen at 444 per Deane J and at 500 per McHugh J. (3) Accordingly, the reference to an "unjust" departure is not a charter for idiosyncratic concepts of justice and fairness: Legione at 431. That is to say, it requires the party asserting the estoppel to prove that the other party caused him or her to adopt the assumption. (4) The party asserting an estoppel must establish that he or she has relied upon the assumption and that detriment flows from the reliance; that is to say, if the assumption were not adhered to: Grundt at 674 675; Waltons at 413 and Verwayen at 415. (5) It may be possible to divide detriment into the "narrower" and "broader" sense, although this approach, which was stated by Mason CJ in Verwayen at 415, really points to the distinction between reliance and detriment. The narrower sense is reliance on the assumption, whilst the broader sense is the detriment which flows from reliance on the deserted assumption. It is avoidance of the broader or "real detriment" flowing from reliance, from which the law seeks to protect the party who has changed his or her position: Grundt at 674 per Dixon J; Verwayen at 415 per Mason CJ. (6) It is only when the party sought to be estopped wishes to disavow the assumption that an estoppel arises and the question of detriment then falls to be considered: see P Feltham et al (2004) Spencer Bower's Law Relating to Estoppel by Representation (4 th ed) Butterworths, London at [V5.9] and Grundt at 674-675. (7) Although detriment in the broad sense is required to found an estoppel, the remedy the law provides will often be closer in scope to the detriment suffered in the narrower sense, that is to say, reliance: Verwayen at 415 416 per Mason CJ. (8) Avoidance of the detriment may require the party estopped to make good the assumption but this will depend on all the circumstances including the consideration that no more may be required than is necessary to avoid the detriment: see the discussion of Verwayen in Giumelli at [40] [48]. (9) The burden of proof of reliance and detriment lies upon the person asserting an estoppel: Thompson at 549 per Dixon CJ and Verwayen at 416 per Mason CJ. Dixon J's reference in Thompson at 549 to the shift of the burden of proof cannot have been intended to negate the principle stated by his Honour later in that paragraph, ie that the burden lies with the plaintiff. It can only have been intended to be a reference to the shifting evidentiary burden once some evidence of detriment is established: see J D Heydon (2004) Cross on Evidence (7 th ed) LexisNexis Butterworth, Sydney at [7205], [7225]. (10) Estoppel by convention requires proof of an assumption adopted by the parties as the conventional basis of their relationship: Thompson at 547; Con-Stan Industries of Australia Pty Limited v Norwich Winterthur Insurance (Australia) Limited [1986] HCA 14 ; (1986) 160 CLR 226 (" Con-Stan ") at 244. (11) The proposition that the necessary foundation for an estoppel by convention must be an assumed state of facts presently in existence, as stated by the High Court in Con-Stan at 244 245, has been qualified by later authority. The assumed state of affairs may extend to an assumption of law: Eslea Holdings Limited v Butts (1986) 6 NSWLR 175 at 186-189 per Samuels JA; Waltons at 415 and Verwayen at 413 per Dixon J, 445 per Deane J, and at 501 per McHugh J. (12) An estoppel by convention, unlike estoppel by representation, depends upon mutual assumptions. It is consensual in nature and is founded upon an agreed or mutually assumed state of facts (or law): Con-Stan at 244. (13) Conventional estoppel does not extend to assumptions concerning future matters. But an assumption as to a future right may found an equitable estoppel, in particular a promissory estoppel: Waltons at 398 399 per Mason CJ and Wilson J and 459 per Gaudron J and Verwayen at 499 500 per McHugh J. (14) The necessary elements of equitable or promissory estoppel are stated in the following passage from the judgment of Brennan J in Waltons at 428 429:- "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise." (15) In order to found an estoppel between parties who are in contractual negotiations, it is necessary for the party asserting the estoppel to prove that the other party induced him or her to believe that the other's freedom to withdraw has gone; that is to say, there must be an expectation that the other party is bound to proceed. This is reflected in the first of the six principles stated by Brennan J above and in the decision of the Privy Council in Attorney-General (Hong Kong) v Humphreys Estate (Queen's Gardens) Limited [1987] 1 AC 114 (" Humphreys "). (16) The adoption of any assumption or expectation by the party asserting the estoppel must be reasonable in all the circumstances: Waltons at 406 per Mason CJ and Wilson J, Verwayen at 414 per Mason CJ and at 445 per Deane J and Standard Chartered Bank Aust Limited v Bank of China (1991) 23 NSWLR 164 at 180 per Giles J. (17) A representation or conduct relied upon as founding an estoppel must be clear and unambiguous: Legione at 435 437, Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 410 411 per Mason J, and Mobil Oil Australia Limited v Wellcome International Pty Limited (1998) 81 FCR 475 (" Mobil Oil ") at 513 per Lockhart, Lindgren and Tamberlin JJ; see also Spencer Bower's Law Relating to Estoppel by Representation at [V111.4.1]. (18) A corollary of the requirement of certainty is that it is a necessary element of the principle that the defendant has created or encouraged an assumption that "a particular legal relationship" or "interest" would arise or be granted: Mobil Oil at 513. (19) A pre-existing contractual relationship is not, under Australian law, a prerequisite to the application of the doctrine of promissory estoppel: Waltons at 399 403 per Mason CJ and Wilson J and 428 429 per Brennan J and Verwayen at 455 per Dawson J. (20) A person who is led to believe that he or she will be granted an interest in land and who acts to his or her detriment in that belief will be entitled to an interest in the land in accordance with the following statement of principle enunciated by Lord Kingsdown in his dissenting judgment in Ramsden v Dyson at 170:- "If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." (21) Lord Kingsdown's statement of principle was approved by the Privy Council in Plimmer v Mayor of Wellington (1884) 9 AC 699 (" Plimmer") at 710 and again in Humphreys at 121: see also the analysis of the authorities by Priestley JA in Austotel Pty Limited v Franklins Selfserve Pty Limited (1989) 16 NSWLR 582 (" Austotel ") at 604 610. Priestley JA's distillation of the principles has been accepted as cogent: Mobil Oil at 512. (22) Subject to a qualification stated below, it is not necessary that the interest to the secured under the Ramsden v Dyson or Plimmer principle be expressly stated or that the terms of the arrangement or understanding to secure that interest be sufficiently certain to be enforceable as a contract. The Court must look at the circumstances of each case to determine the form of relief: Plimmer at 713 714, Inwards v Baker [1965] 2 QB 29 at 37, and Austotel at 607 610 per Priestley JA. (23) The qualification is that where the parties have not reached agreement as to the contractual terms necessary to establish the interest in the land, the Court will exercise caution in coming to a conclusion that it would be unconscionable to prevent a party from insisting upon its strict legal rights: Austotel at 585 586 per Kirby JA and at 620 621 per Rogers AJA.


case_title: Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1994) 8 ANZ Ins Cas 61-235


case_title: Payne v Parker (1976) 1 NSWLR 191

case_text: However here, Mr Lawrence was the source of the relevant information in the letters and in any event, QR disavowed any suggestion that the statements were made dishonestly. In these circumstances, I do not consider that Mr Smith's evidence would have elucidated this particular matter: see Payne v Parker (1976) 1 NSWLR 191 at 201 per Glass JA. 1192 I am not satisfied that NRC's consideration of QR's access applications involved anything other than a fair consideration of them on their merits, notwithstanding that NRC's responses were based on an erroneous assumption as to the overall capacity of the terminal. I do not consider that NRC was guilty of undue delay or obfuscation, as was suggested by QR. 1193 Accordingly, I have come to the view that NRC's failure to grant the access applications did not amount to taking advantage of market power. The relevant connection between NRC's market power and the impugned conduct was not, in my opinion, established.


case_text: Market power may be defined as the ability of a firm to raise prices above supply costs without rivals taking away customers: see Queensland Wire Industries Pty Limited v Broken Hill Pty Limited [1989] HCA 6 ; (1989) 167 CLR 177 (" Queensland Wire" ) at 188 and 200. Market power is not confined to the ability to influence prices; it may be manifested in practices directed at excluding competition, such as exclusive dealing or refusal to supply: Queensland Wire at 200. 978 The reason for this is quite straightforward. QR owned the relevant infrastructure, but the terms of NRC's occupation, that is to say as a tenant with the right of exclusive possession and control, was inconsistent with the existence of market power residing in QR. The market is for the supply of access to the infrastructure. QR had no powers in that market. It had no ability to ask, let alone raise, prices for the supply of that service: Queensland Wire at 188 and 200. 1023 Whether a firm has taken advantage of market power is often a difficult question to answer. This may be because the words "take advantage" have been equated with "use": see Queensland Wire at 191, 194, 202 and 213 214; but the word "use" does not capture the full meaning of "take advantage": Boral at [279]. 1024 The following ten principles emerge from Queensland Wire and the trilogy of cases which have explained the proper approach to construction:- (1) what is involved in answering the question of whether a firm has taken advantage of market power is the sufficiency of the connection between the market power and the conduct complained of: Melway at [44] and [67]; Boral [120] and [170]; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 (" Rural Press ") at [51]. McHugh J has said that a causal connection is required: Boral at [279]. (2) if the impugned conduct has a rational business explanation, that is a factor which points against the existence of a relevant connection between the market power and the conduct: Melway at [67]; Boral at [170]. (3) the words "take advantage" do not encompass conduct which has the purpose of protecting market power but no other connection: Rural Press at [51]. (4) in deciding whether a firm has taken advantage, is it relevant to ask how it would have behaved if it lacked power and whether it could have behaved in the way it did in a competitive market: Melway at [52] and [61]; Rural Press at [52]. (5) it may be proper to conclude that a firm is taking advantage of market power where it does something that is materially facilitated by the existence of the power: Melway at [51]; Rural Press at [53]. (6) McHugh J has said that the conduct must have given the firm an advantage it would not have had in the absence of market power: Boral at [279]. (7) the test may be whether the conduct was necessarily an exercise of market power: Melway at [68]. (8) one of the difficulties in determining what constitutes taking advantage stems from the need to distinguish between monopolistic practices and vigorous competition: Queensland Wire at 202. (9) the purpose of s 46 is the promotion of competition; it is concerned with the protection of competition, not competitors: Queensland Wire at 191 and 194; Boral at [87], [160], [164] and [260]; Melway at [17]. (10) it is dangerous to proceed from a finding of proscribed purpose to a conclusion of the existence of a substantial degree of market power, which can be taken advantage of; to do so will ordinarily be to invert the reasoning process: Boral at [123], [194]. 1089 There is a further reason why Mr Ergas' approach must be rejected. It is to be found in the reasons of the High Court in Queensland Wire and the trilogy of cases which explain the full impact of that decision. 1090 As Mason CJ and Wilson J said in Queensland Wire at 191, the operation of s 46 is predicated upon an assumption that competition is the means to protect the interests of consumers. Competition is by its nature deliberate and ruthless. All of the majority justices in Boral pointed out that s 46 is concerned with promoting competition, not protecting competitors: see [87], [160], [164] and [260]. Injuries to rivals are a necessary bi-product of vigorous competition. 1091 PN's approach is fundamentally flawed because it has at its heart the protection of its own position as a competitor of QR, not the interests of competition. It seeks to advance its own private interests over that of the public interest in promoting competition. It fails to distinguish between monopolistic practices which are prohibited and vigorous competition which is not: Queensland Wire at 202 per Dawson J. 1111 Purpose involves the notion of an intention to achieve the result spoken of in one or other of ss 46(1)(a) , (b) or (c): Queensland Wire at 214 and Melway at [31]. In the present case, PN contended that QR's purpose was to damage NRC or to deter it from engaging in competitive conduct in the East Coast Rail Linehaul Market: s 46(1)(a) and/or (c), or to prevent NRC or Toll from entering the North Coast Rail Linehaul Market or from engaging in competitive conduct in that market: s 46(1)(b) and/or (c). 1124 First, there are constant reminders in the authorities that competition is a ruthless process. As Mason CJ and Wilson J said in Queensland Wire at 191, competitors always try to injure each other by taking away sales and these injuries are the inevitable result of the competition that s 46 is designed to promote. In Boral at [88], Gleeson CJ and Callinan J pointed to the danger of confusing aggressive intent with anti-competitive behaviour: see also per Gaudron, Gummow and Hayne JJ at [160] and per McHugh J at [279].


case_text: The fundamental right given by a lease is a right of exclusive possession: Radaich v Smith [1959] HCA 45 ; (1959) 101 CLR 209 at 222. The nature of access contemplated by cl 5(6)(a), in order to distinguish it from a lease, must be a right of non-exclusive possession. But what is plain from the clause is that the grant of access is to be on commercial terms and conditions agreed between the parties. The extent of the rights of access would be a matter of construction of those terms, as agreed: Winter Garden Theatre (London) Limited v Millennium Productions Limited [1948] AC 173.