case_title: Council of the City of Sydney v Goldspar Pty Limited [2004] FCA 568 ; (2004) 62 IPR 274

case_text: On 7 May 2004 I delivered reasons for judgment which dealt with all outstanding claims by the Council against Goldspar and Douglas Rawson-Harris (Rawson-Harris), the second respondent ( Council of the City of Sydney v Goldspar Pty Limited [2004] FCA 568 , (2004) 62 IPR 274). That decision led to orders being made on 18 June 2004. 4 This hearing relates to a cross-claim by Goldspar against the Council arising out of the termination of the contract. These reasons for judgment are to be read with the previous reasons for judgment and assume knowledge of those reasons and the orders that have been made. This, in effect, is a continuation of the previous hearings. The previous history of the proceeding is a necessary backdrop to this segment of the matter. However, a body of evidence has been led that relates to the cross-claim alone and involves a different focus from that in the previous hearings. The evidence needs to be evaluated with that in mind. 5 The contract documents were identified by an expert determination agreed to by the parties (Expert Determination). I rejected a claim by the Council for rectification of the contract. It will be necessary to go to the contractual documents in some detail, but, in order to sketch the issues in the case, it suffices to say that the contract provided the framework within which Goldspar would provide poles and accessories to the Council over a period of years. Part of the backdrop was an intention to beautify some of Sydney's streets prior to the Olympic Games to be held in the latter half of 2000. In respect of each of the three years ended 30 June 1999, 30 June 2000 and 30 June 2001, the contract provided that the Council would take and Goldspar would supply a minimum of 300 poles and accessories. The contract was formally entered into on 29 May 1998, although the manufacture of poles had commenced earlier. A number of poles were supplied in the year ended 30 June 1999, although there is a dispute as to whether the number fell short of 300. No poles were ever supplied in relation to the year ended 30 June 2000. On 10 March 2000 the Council forwarded a notice of termination of contract to Goldspar. By notice of 22 March 2000 Goldspar, in turn, gave notice of termination of contract to the Council, relying upon the Council's alleged wrongful repudiation of the contract by virtue of the purported termination by it. On any view, the contract had by then come to an end. Goldspar's cross-claim to be determined is for damages for repudiation of the contract by the Council and for certain associated claims. The Council contends that its termination was effective and not a repudiation of contract. It asserts that, even if this is incorrect, Goldspar was not in a position to itself terminate the contract and sue for damages because it was not then ready, willing and able to complete the contract. 180 Another important aspect of the matter is the role of Streetscape. Something of the background appears in an earlier judgment ( Council of the City of Sydney v Goldspar Pty Limited [2004] FCA 568 , (2004) 62 IPR 274 at [97] [98] and [112]). 'On 13 May 1998 Matchett introduced Rawson-Harris to Paul Obeid and Moses Obeid and on 15 May 1998 the Obeids made Rawson-Harris an offer effectively to purchase the benefit of the Council contract, which was refused. In July 1998 Streetscape Pty Ltd (Streetscape) was formed with the directors being Matchett and Peter Harrison from KWA and Moses Obeid. Matchett was the Managing Director. From then on Streetscape sought to obtain pole business from the Council. It supplied some pole accessories in late 1998. ... In December 2000 Project Architecture Pty Ltd was formed by Tsakalos and Proctor. Proctor left the employ of the Council at that time. Tsakalos resigned from the employ of the Council in June 2001. In the second half of 2001 Project Architecture was engaged by Streetscape to assist in negotiations with Adelaide City Council for the supply of poles. Tsakalos attended presentations with Matchett and Obeid. Goldspar was a competitor for the Adelaide Council business.' 181 It is also to be noted that Newman had worked with Matchett at KWA previously. This background was fleshed out in evidence given by Rawson-Harris when being cross-examined as to allegations that he made, after receiving the 'order' of 19 October 1999, of collusion between Mr Obeid (by then a Minster in the New South Wales Government) and the City of Sydney to the disadvantage of Goldspar. That evidence was as follows: 'MR ELLICOTT: ... How did Mr O'Bede [sic] get into the act, did he have some relationship with Streetscape or KJW, is that right?---He got into the act, his sons and Mr Matchett from KWA approached us, I think it was in May '98, to buy the contract or do a joint deal with a contract with us. And he came into it through - - - HIS HONOUR: I am not sure the witness is finished?---And then we had designed some new items for parts for the council for banner arms and those banner arms, the council came to see the last design and then a week later the O'Bede's supplied those parts to the council without asking us to supply. Now then we received parts of the bracket arms which were the brackets which were the angle brackets for holding the stop signs and the no standing signs and we hadn't made tooling for them and we hadn't been asked to supply them although I had designed them and they appeared at the council sites with Streetscape's name on them. We also received a translation of an El Telegraph article which was an interview with Mr O'Bede and it stated that the council wanted to get rid of us in that article. What was the paper - - -?---El Telegraph, which is Eddie O'Bede's own newspaper. I see?---We couldn't believe the article when we read it because - - - Don't worry, you have been asked the O'Bedes --- ?---Anyway, that's fine. Then, when we were told that the council were retendering our tender Mr Alec Osborne, who is as friend of mine, was having dealings with Dunhills at the time and their liaison with the council, their solicitor, said to Mr Osborne, not knowing he was a friend of mine, that council were going to fix Goldspar and retender the tender. My recollection may be wrong but it is implicit in what you say and I seem to recall it from the last hearing that it was your belief that the O'Bedes had an interest in Streetscape, is that the point or not?---I did. I think that's where the O'Bedes came in, if I may say so?---They were, Streetscapes was formed about two or three months after they had the meeting with us because we didn't want to deal with them. They had offered the pole contract for the Olympics. they said, if we did a deal with them they could guarantee the pole contract for the Olympics, the flagpole contract, that is.' Whilst much of this evidence is hearsay, it was prescient insofar as Goldspar's fate was concerned. 182 In late 1988 the Council was sourcing accessories for poles outside the Goldspar contract from Streetscape with the Council exploring the possibility of increasing those items. It will be seen that Rawson-Harris alleges that Streetscape was given access to and used Goldspar's designs in relation to the supply of the accessories. 183 The evidence does not give any detail about La Mer, the other successful tenderer in 9912, or as to the number of poles each tenderer was to supply. It is common ground that all of the poles required pre-Olympics (at least 600) were supplied pursuant to Tender 9912. The objective facts were that, once Streetscape came into the picture, Goldspar only received an order for seven more poles in total instead of at least another 600 and was cut out from some of the accessories in relation to the then current period in favour of Streetscape. It was hardly evidence of paranoia on the part of Rawson-Harris that he should feel that Streetscape had the inside running with the Council and that Goldspar was being excluded accordingly. 184 It can be safely concluded that by late 1998 the responsible officers of the Council probably Tsakalos and Daly had decided that Goldspar would not be permitted to carry out the contract beyond the year then current. Thereafter, Council officers conducted themselves on that basis but with the aim of being able to dispense with the services of Goldspar without being in breach of contract. The extent to which Khreich was a party to the machinations of Council officers is uncertain. A person of his experience and knowledge could hardly have failed to suspect what was afoot but he appears to have taken the position of seeking instructions from Daly, acting upon those instructions and then loyally defending them. I am particularly troubled by the role that Khreich played at the meeting on 29 September 1999 and its immediate aftermath. If he knew what was coming, then he participated in a dishonest and cynical piece of play acting. If he did not, then he must have been shocked by the instruction he received via Newman which led to the 'order' of 19 October 1999. Nonetheless, he executed the instruction, defended it and then placed two subsequent orders which were no more reasonable and proceeded to defend them, both at the time and in evidence. Giving him the benefit of the doubt, I am inclined to think that his participation in the meeting of 29 September 1999 was an endeavour to get the supply of poles from Goldspar moving but that objective was quickly and firmly countermanded by Council officers.


case_outcome: applied

case_text: An important aspect to be considered on the question of the showing of reasonable cause is the application made by Goldspar for an extension of time pursuant to cl 18 of the General Conditions of Contract. I need not set out the relevant correspondence again. There are difficulties of construction of cl 18. It seems that the first two paragraphs apply across the board. The third, fourth and fifth paragraphs relate to what is described as an 'entitlement' to an extension. The sixth paragraph, including the handwritten amendment, relates to an overriding general discretion to grant an extension coupled with an obligation to not unreasonably deny a claim where the event causing the delay is beyond the control of Goldspar. The remainder of the paragraph is general. Leaving aside all other difficulties, I cannot see how Goldspar could have established an 'entitlement' to an extension in the face of the terms of paragraph (v) of the third paragraph. However, the general discretion to extend is a horse of a different colour. The second paragraph describes a wide set of circumstances which would justify notification, which must then be considered with a view to exercising the general discretion coupled with the obligation. In considering that issue Khreich was obliged to do more than merely pursue the interests of the Council he was required to give genuine and bona fide consideration to the factors advanced by Goldspar. (Amann Aviation Pty Ltd v Commonwealth (1990) 22 FCR 527 per Davies J at 532; Sheppard J at 542 4, see also Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64 per Mason CJ and Dawson J at 96 and Gaudron J at 150; and Jenkins v NZI Securities Australia Ltd (1994) 124 ALR 605 discussed below). 193 Clause 25.4 gave to the Council a discretion to terminate. It follows from the findings that have been made that the necessary preconditions to exercise that discretion did not occur. It is also argued that the exercise of that discretion is subject to an implied term as to reasonableness and good faith. This arises in a different context to the similar questions discussed earlier. In Jenkins v NZI Securities Australia Ltd the Full Court considered the following clause: '5.08 On the third anniversary of the first Drawdown Date, the Financier will review the Facility with a view to extending the Repayment Date by a further period of 12 months. If the Financier is prepared to so extend the Repayment Date, it will notify the Company accordingly and request the Company to advise whether it so wishes the Repayment Date to be so extended. Upon receipt of such notice from the Financier, the Company shall advise the Company [sic] within seven (7) days as to whether it wishes the Repayment Date to be extended. If the Company so advises the Financier, the Repayment Date will be extended for a further period of 12 months and otherwise the Repayment Date will remain unaltered.' Beaumont, Gummow and Carr JJ said (at 619): 'We would add that the law would oblige the financier to conduct the review in good faith and, perhaps, also reasonably, in the sense of paying regard to the interests of both parties: Amann Aviation Pty Ltd v Commonwealth (1990) 92 ALR 601; 22 FCR 527 at 532, 542 4, affd [1991] HCA 54 ; (1991) 174 CLR 64 at 96, 150; 104 ALR 1; Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 280; cf Hughes Bros Pty Ltd v Trustees of Roman Catholic Church for Archdiocese of Sydney (1993) 31 NSWLR 91.' I should follow that guidance and imply a term accordingly. There is an air of unreality in considering breach of that term because, for it to arise, the show cause notice must be taken to have been valid and Goldspar would not have shown reasonable cause. However, I have no doubt that in purporting to rescind the contract the Council was acting pursuant to the determination which had been formed to remove the work from Goldspar and give it to others and so was in breach of the implied term, no matter how it is precisely framed.


case_text: I am inclined to the view that the first part of the pleaded implied term (b) (annual notification) whilst sensible, is not a necessary implication in the requisite sense. However, I am persuaded that the second part of that term should be implied. Clause 17 must be construed in a manner that could apply to the supply and install option if chosen. It is clear enough that the clause cannot operate, literally construed, in isolation from the other provisions in relation to that option for reasons already explained. It is obvious that reasonable advance notice must be given of the precise locations, types of pole and accessories in order to make the contract effective. The pleaded term is a sensible application of the general Mackay v Dick obligation of cooperation and, if it be necessary, meets the requirements for implication of a term set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283. Such a term would also have appropriate application to a supply contract. Clause 17 applies across the board and I have pointed out the absurdities involved in the literal construction of it proposed on behalf of the Council, even in the case of a supply only contract.


case_outcome: followed

case_text: There were some faint suggestions in the course of submissions that Orders No 1 and No 2 may have been regarded as variations pursuant to the contract. This was not fully developed nor appropriately pleaded. It was not the way that the Superintendent or the Superintendent's Representative expressed matters at the time. In any event, any such contention would meet a formidable barrier in the passage from the judgment of Fullagar J in Carr v JA Berriman Pty Ltd [1953] HCA 31 ; (1953) 89 CLR 327 at 346 348 (agreed in by the other members of the Court). 150 It is also submitted on behalf of Goldspar that Order No 1 lacked important information and detail, namely: (i) No information was provided in relation to the location of holes required to be drilled into the poles to accommodate the specified accessories. (ii) No information was provided in relation to the specifications or positioning of the luminaires required to be provided for the poles. 151 That was correct. Whilst this would normally be the kind of detailed information which might be provided informally, and whilst Rawson-Harris and Barnes may have been able to make educated guesses about some of the information, an order having the draconian consequences contended for by the Council must be complete and self-contained. In my opinion, this notice was not. 169 The closest analogy is Carr v JA Berriman Pty Ltd . In that case a clause in a building contract provided: 'The Architect may in his absolute discretion and from time to time issue ... written instructions, written directions ... in regard to: (a) The ... omission ... of any work. ... The Builder shall forthwith comply with all Architect's Instructions...' The contract was for the erection of a factory building in accordance with drawings and specifications prepared by the architect. A clause of the specification provided that all steel should be supplied by the building owner and that all structural steel should be delivered to the contractor or sub-contractor's yard. The builder was to allow for the fabricating and erecting of all structural steel work. Fabrication was part of the work of the contractor. The contractor obtained a tender from a sub-contractor for fabrication prior to the entry into the contract which was accepted after the contract was entered into and the architect advised accordingly. Some weeks later, the architect wrote to the builder in the following terms: 'I have been instructed to inform you that my clients, ... have made arrangements with Arcos Products Pty. Ltd. of Parramatta Road, Lidcombe, to supply and fabricate the structural steel work for the above job, and that the respective order has been placed with this firm. In explanation I would like to add that this arrangement was made necessary by the peculiar steel supply position of to-day. I shall be glad if you would kindly inform me at the earliest of your allowance for the fabrication of the steel, which thus becomes a deduction post (sic) from your contract.' The fabrication of the structural steel represented a substantial part of the contract. It was held that the making of the contract with Arcos Products Pty Ltd constituted a serious breach of the building contract and that the architect's letter was not the valid exercise of a discretion to omit works. Fullagar J (who gave the leading judgment) said (at 347): 'Clause 1 is part of a printed form, and the powers conferred upon the architect extend to the giving of directions on a great variety of matters in addition to the "omission of any work". The clause is a common and useful clause, the obvious purpose of which--so far as it is relevant to the present case--is to enable the architect to direct additions to, or substitutions in, or omissions from, the building as planned, which may turn out, in his opinion, to be desirable in the course of the performance of the contract. The words quoted from it would authorize the architect (doubtless within certain limits, which were discussed in R. v. Peto ((1826) 1 Y. & J. 37 [48 E.R. 577]) to direct that particular items of work included in the plans and specifications shall not be carried out. But they do not, in my opinion, authorize him to say that particular items so included shall be carried out not by the builder with whom the contract is made but by some other builder or contractor. The words used do not, in their natural meaning, extend so far, and a power in the architect to hand over at will any part of the contract to another contractor would be a most unreasonable power, which very clear words would be required to confer.'


case_outcome: distinguished

case_text: The proposed implication is consistent with and supported by, but does not depend upon, the conduct of the parties in the performance of the contract. There has been considerable debate about the use that can be made of post-contractual conduct (eg Charles, 'Interpretation of Ambiguous Contracts by Reference to Subsequent Conduct', (1991) 4 Journal of Contract Law 16). The current received wisdom is that it may not be used for purposes of construction of the contract ( Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541 ; Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221 ; Collins Hill Group Pty Ltd v Trollope Silverwood & Beck Pty Ltd [2002] VSCA 205) . However, Charles QC (as he then was) referred with approval to the view of Greig and Davis ( The Law of Contract (1987) 436 438) that subsequent conduct could provide a basis for implying an additional term into an existing contract. A similar view is expressed by the authors of Carter and Harland, Contract Law in Australia, 4 th ed, 2002 at [719]. I can see no difficulty in regarding subsequent conduct as relevant to the question as to whether a term is necessary to give business efficacy to the contract. Indeed, if a contract has been performed without adhering to, or without inconsistency with, the claimed term, without complaint or commercial difficulty, that would be powerful evidence that the term is not necessary. The law prefers facts to prophecies ( HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640 at [39] ). It would be odd to imply a term as necessary where such a conclusion would be contrary to the facts as they later appeared. If conduct may be relevant to negative the implication of a term as being necessary then it should also be relevant to support the implication of a term on the same basis. Here, the contract was always administered on the basis that advance notice of particular requirements was required to be given by the Council. Indeed, even Orders No 1 and No 2 illustrate that. It is a short, and appropriate, step to say that such notice must be reasonable, as had been the case in practice until 19 October 1999.


case_text: That principle was applied by the High Court in Commissioner for Main Roads v Reed & Stuart Pty Ltd [1974] HCA 53 ; (1974) 131 CLR 378 in circumstances relevantly not dissimilar from the present facts.


case_title: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 ; (1991) 174 CLR 64


case_text: The requirements to be proved by a party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract and seeks damages, was considered in Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385, although that was not the precise point of the case. Such a party must establish that it was ready and willing to carry out the contract on its part at the time of acceptance of the repudiation and readiness and willingness includes capacity. However, in a situation in which the wrongdoer relieves the other party from actual performance in the future, that task is not particularly demanding. In Psaltis v Schultz [1948] HCA 31 ; (1948) 76 CLR 547 Dixon J said (at 560): 'It is enough that he is not presently incapacitated from future performance and is not indisposed to do, when the time comes, what the contract requires.' 202 In Foran v Wight Mason CJ said (at 408 409): '... in the case of termination for anticipatory breach the plaintiff will generally be able to show at the time of termination that he would have been able to perform at the time for performance by demonstrating that he was not then disabled or incapacitated from such performance.' [emphasis added] Brennan J said (at 425): 'To speak of an incapacity which is "substantial" and of a resolve or decision which is "definitive" is to import a test of degree. A test of degree inevitably gives rise to differences in the evaluation of facts and produces some uncertainty in the resolution of concrete cases. Yet, in the great variety of circumstances to which the test might be applied, it is impossible to posit terms of greater precision. Lord Sumner's phrase "wholly and finally disabled" is too demanding a test of incapacity to accord with reasonable commercial practice but it is indicative of the range which the test of substantiality connotes. The test of incapacity, ... as an element in readiness and willingness, is an exacting test though it must be expressed as a matter of degree.' Deane J said (at 437): ' ... I do not accept the proposition that a party must incur the expense necessary to put himself in a position where he can positively demonstrate actual or potential readiness and willingness to perform a contract before he can accept the repudiation of the other party and thereby rescind. In my view, that proposition is unjustified by either principle or common sense. Absence of actual or potential readiness or willingness to perform a contract will prima facie preclude a successful action against the other party for specific enforcement of the contract or for the recovery of damages for its breach. It does not, of itself, preclude rescission of the contract by acceptance of the other party's repudiation. Were it otherwise, the law would require the useless and futile expenditure by an innocent party of whatever time, effort or money was necessary to place himself in a position where he could positively demonstrate actual or potential ability to perform a contract in order to be able to bring it to an end on the ground that it had already been repudiated by the other party.' Dawson J said (at 452 453): 'Even where a party has been absolved by the repudiating party from performing his future obligations under the contract he must show that at the time of the repudiation he was ready and willing to complete the contract had it not been repudiated. But in proving his readiness and willingness where he has been absolved from tendering performance he may not have to prove a great deal. For example, in Cort v. Ambergate Rly Co. ((1851) 17 Q.B. 127 [117 E.R. 1229]) the plaintiffs could and did prove that they were ready and willing to manufacture railway chairs in accordance with their contract at the time it was repudiated by the defendants. But they were not required to prove that they had taken steps to manufacture the chairs in order to be able to tender them.' Later his Honour said (in the context of the conveyancing case) (at 454): 'All that the purchasers were required to show was that at the time of the repudiation, that is, at the time they were absolved from future performance, there was not a "substantial incapacity" on their part or a "definitive resolve or decision" against the performance of their obligations. ... They merely had to prove that, at the time of the defendants' repudiation, two days before the settlement date, they were not incapacitated from raising that amount and had not resolved or decided against doing so. That was a relatively light burden to discharge and, upon the evidence, I think that the plaintiffs did discharge it. There is nothing in the trial judge's findings which requires a contrary conclusion.' Both Deane J and Dawson J point out that, in establishing the quantum of damages, the innocent party may have to go further. 203 I am satisfied that Goldspar had the ability to carry out the contract properly construed. There is no reason of substance to doubt the technical competence of Goldspar. It had already delivered hundreds of poles and those concerned, particularly Rawson-Harris, had a considerable amount of expertise in the field. An attack was made upon the financial ability of Goldspar to carry out the contract. It can be concluded that the company was in a somewhat precarious financial position. However, a proprietary company of this kind, in essence, depends upon the situation of those backing it. The critical point is that Goldspar had met all reasonable requirements up to the time of termination, including the payment of the deposit to Capral. Furthermore, the position of Goldspar would have been quite different if the Council had scheduled for deliveries in a proper sequence from the commencement of the year 1999 2000 with the consequent cash flow. Goldspar had a backer, apart from Rawson-Harris, who had assisted as required and who had taken a role in the commercial negotiations with the Council. 204 There was also a substantial attack upon the readiness and willingness of Rawson-Harris to carry out the contract as properly construed. The cross-examination of Rawson-Harris provides support for the view that he was fed up with, and highly suspicious of, Khreich and the relevant Council officers, at least by 5 October 1999 and did not change his attitude thereafter. He was also reluctant to accept the results of the Expert Determination as far as the amounts due to Goldspar were concerned and held a view about intellectual property which was inconsistent with that of the Council and with the finding ultimately made in this case. Those views influenced the positions he took as events developed following the first 'order' of 19 October 1999. The cross-examination also gave support to the conclusion that Rawson-Harris was inclined to hold firm to his own position and not lightly give ground. I should say that I regard Rawson-Harris as essentially an honest witness although tending to be unnecessarily argumentative. 205 A good deal of the impact of the cross-examination is removed, however, when the context is understood. As I have already said, by October 1999 Rawson-Harris had every reason to be deeply suspicious of Council officers and Khreich, who had been the mouthpiece of the Council in relation to this contract. I am not concerned about the fact that Rawson-Harris was not convinced by the Expert Determination, notwithstanding that it was subsequently upheld in the Supreme Court of New South Wales. It is not unreasonable that a losing party might not be convinced by the result of a lay determination. I would say the same concerning the question of intellectual property. Although I found that issue substantially against the interests of Rawson-Harris, I can understand that his position was honestly and firmly held. In my opinion, the critical matter to understand is that Goldspar was on sound ground both legally and, more particularly, commercially in having sought advance notice of firm requirements prior to or within a reasonable period after the commencement of the relevant period on 1 July 1999 but which still had not been provided by 5 October 1999. Furthermore, the requirements, when given on 19 October 1999, were both legally and commercially, indefensible. As I have already said, Orders No 1 and No 2 did nothing to alleviate the substance of the problem. Thus, Rawson-Harris was faced with the position that was quite unreasonable from a legal and commercial viewpoint, tenaciously defended by Khreich on behalf of the Council. 206 It was, no doubt, possible that, faced with this situation, Rawson-Harris might have been tempted to play a cat and mouse game and simply await the inevitable termination of contract which was so clearly flagged. He did not take that course. Goldspar undertook a substantial contractual commitment to Capral backed by payment of a substantial sum of cash and made arrangements with anodisers and others in order to actually commence the delivery of poles in early April. That is not consistent with Goldspar not being ready and willing to carry out the contract. I am unimpressed by arguments concerning the position that Rawson-Harris was taking as to the terms upon which delivery would take place. At the time of termination the Council was persisting in conduct which, in my opinion, was in breach of its contractual obligations and in bad faith. It does not lie in its mouth to complain about steps Rawson-Harris took to seek to protect Goldspar's financial position which could not help but have been badly affected by the manner in which the Council had conducted itself in relation to this contract. I have already referred to the tendency of parties to take negotiating positions. The premature repudiation by the Council meant that Rawson-Harris was never called upon to take a final position on any debatable issue.


case_outcome: cited

case_text: One of those authorities was Gardiner v Orchard [1910] HCA 18 ; (1910) 10 CLR 722, particularly the passage from Isaacs J, including the following, concerning a clause similar to cl 14 (at 739 740): 'In considering whether such a clause justifies a vendor in any given case in cancelling his contract, the Court must bear in mind three things: First, the purpose of every such condition, which is a matter of law, and is stated in the passage quoted from Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647]); next, the necessity for bona fides on the part of the vendor in using his power for that purpose: see also Woolcott v. Peggie ((1889) 15 App. Cas. 42). This is a question of fact, and is admitted here. The third essential is that the cancellation must be reasonable. Reasonableness is a question of fact, dependent on the whole of the circumstances, though one of those circumstances consists always of the wording of the contract itself.' The reference to Greaves v Wilson was explained by Stephen J as follows (at 552): 'His Honour's reference to Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647] is to a passage in which Sir John Romilly M.R. said ((1858) 25 Beav., at p. 293 [53 E.R., at p.649]) that such conditions were introduced to meet the case where a vendor finds that he is to be put to: " ... so much expense and trouble as to make it unreasonable that he should be called upon to do it." The learned Master of the Rolls emphasized that it was always "a question of the reasonableness of the thing required". As early as 1841 Lord Langdale M.R. had used reasonableness as a test of the validity of the vendor's rescission in his judgment in Page v. Adam ((1841) 4 Beav. 269, at p. 285 [49 E.R., 342, at p. 348]).'


case_text: Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 dealt with cl 14 of the then standard contract for the sale of land in New South Wales, which was in the following terms: '14. If the Vendor shall be unable or unwilling to comply with or remove any objection or requisition which the Purchaser has made and shall not waive within fourteen days after the Vendor has given him notice of intention to rescind this Agreement, the Vendor, whether he has or has not attempted to remove or comply with such objection or requisition, and notwithstanding any negotiation or litigation in respect thereof, and whether the Purchaser has or has not taken possession shall be entitled by notice in writing to rescind this Agreement.' Barwick CJ held that there had been no requisitions within the meaning of the clause but said (at 538): 'If the matter be approached, as in my opinion it should not, by assuming that what the appellant had said in his "requisitions" 2 and 33 were requisitions within the meaning of cl. 14 of the contract, it ought, in my opinion, to be held that it would be unconscionable for the respondent to have attempted to exercise his powers under cl. 14, in the circumstances. I would have thought clearly it was so, because what he would be doing would be to deny to the purchaser the performance of an essential obligation which he had undertaken when entering into the contract with knowledge of the existence of the caveat. In this connexion I find no need to refer to decisions on the use of this type of clause in connexion with land under common law title. The title to this land is under the Real Property Act. The caveat was lodged and presumably notified before the sale was made. To allow the vendor to rescind in the circumstances would be to afford him the right, in substance, to say that the sale was in reality no sale at all: only a transaction conditional on his own willingness to perform.' McTiernan J agreed with the Chief Justice. Walsh J said (at 543): 'The principles by which limitations have been imposed upon the right of a vendor to exercise the power conferred by such a clause as cl. 14 are well known and they were of course recognized by the learned primary judge, who referred in his judgment to some of the authorities on this subject. But with due respect to his Honour I am of opinion that he did not give sufficient weight, in deciding whether the respondent did attempt to use the power arbitrarily or unreasonably, to some features of the case to which I shall now refer.' His Honour dealt with matters particular to the case and then said (at 546): 'I am of opinion that what the respondent could not do, if acting reasonably, was to exercise the power under cl. 14 to get rid of its contract with the appellant whilst the litigation with Doris Parkinson was still pending. The respondent was not engaged in that litigation because it had made the contract with the appellant. The case is not one in which the existence of that contract involved, or might involve, the respondent in expensive litigation of which otherwise it would have been free and which it was reasonable for it to avoid by exercising its power of rescission.' Gibbs J said (at 547): 'In my opinion, it was unreasonable for the respondent on 7th April 1971 to attempt to exercise the power of rescission given by cl. 14 of the contracts and the attempt was accordingly ineffectual. I concur with what my brother Walsh has said in his judgment in relation to this aspect of the case.' Stephen J said (at 549): 'Courts have approached the task of confining the operation of such clauses within what are regarded as proper limits in one or other of two ways; the vendor has been denied the right to rescind either upon the basis that, as a matter of construction, the circumstances of the particular case do not fall squarely within the terms of the clause or else because, although, on its proper construction, the clause applied, nevertheless, the vendor having attempted to use the rights conferred upon him for an improper purpose, he could not be permitted to rely upon its terms. In Webster's Conditions of Sale, 3rd ed., p. 356, the learned author concludes that: "It is not really a question of construction --the court interferes with the contract to prevent a fraud being committed." It perhaps matters little which of these two approaches be preferred; there may, on analysis, be no very clear distinction between them. I do not propose in this judgment to adhere to any clear distinction between the two approaches.' After reviewing the authorities, his Honour said (at 554 555): 'It cannot be, consistently with the authorities to which I have already referred, that a vendor may, in such circumstances, take advantage of what it believes to be only a passing cloud which the purchaser has pointed out must be, and which both parties believe will be, removed and, while proceeding in fact to have it removed, declare that it constitutes such an obstacle in fulfilling its contractual obligations as to entitle it to have recourse to cl. 14. To do so is to employ the clause for a purpose quite foreign to that which the courts have regarded as its true function.' 173 There was further discussion of cl 14 in Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575. Barwick J, after referring to the decision in Godfrey Constructions , said (at 587): 'Broadly it may be said that the vendor will not be allowed to use his contractual right if it would be unconscionable in the circumstances to do so.' Later he said (at 588): 'According to my view of the contract between the parties, the obligation to transfer to the appellant the fee simple in the land was central and fundamental to their bargain. It must be a relatively rare case, in my opinion, in which cl. 14 can conscionably be used to avoid performance of such an obligation.' Gibbs J cited with approval the following passage from Viscount Radcliffe in Selkirk v Romar Investments Ltd ([1963] 1 WLR 1415 at 1422 1423) (at 590): 'Thus, it has been said that a vendor, in seeking to rescind, must not act arbitrarily, or capriciously, or unreasonably. Much less can he act in bad faith. He may not use the power of rescission to get out of a sale 'brevi manu', since by doing so he makes a nullity of the whole elaborate and protracted transaction. Above all, perhaps, he must not be guilty of 'recklessness' in entering into his contract, a term frequently resorted to in discussions of the legal principle and which their Lordships understand to connote an unacceptable indifference to the situation of a purchaser who is allowed to enter into a contract with the expectation of obtaining a title which the vendor has no reasonable anticipation of being able to deliver.'


case_title: Greaves v Wilson Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575

case_text: One of those authorities was Gardiner v Orchard [1910] HCA 18 ; (1910) 10 CLR 722, particularly the passage from Isaacs J, including the following, concerning a clause similar to cl 14 (at 739 740): 'In considering whether such a clause justifies a vendor in any given case in cancelling his contract, the Court must bear in mind three things: First, the purpose of every such condition, which is a matter of law, and is stated in the passage quoted from Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647]); next, the necessity for bona fides on the part of the vendor in using his power for that purpose: see also Woolcott v. Peggie ((1889) 15 App. Cas. 42). This is a question of fact, and is admitted here. The third essential is that the cancellation must be reasonable. Reasonableness is a question of fact, dependent on the whole of the circumstances, though one of those circumstances consists always of the wording of the contract itself.' The reference to Greaves v Wilson was explained by Stephen J as follows (at 552): 'His Honour's reference to Greaves v. Wilson ((1858) 25 Beav. 290 [53 E.R. 647] is to a passage in which Sir John Romilly M.R. said ((1858) 25 Beav., at p. 293 [53 E.R., at p.649]) that such conditions were introduced to meet the case where a vendor finds that he is to be put to: " ... so much expense and trouble as to make it unreasonable that he should be called upon to do it." The learned Master of the Rolls emphasized that it was always "a question of the reasonableness of the thing required". As early as 1841 Lord Langdale M.R. had used reasonableness as a test of the validity of the vendor's rescission in his judgment in Page v. Adam ((1841) 4 Beav. 269, at p. 285 [49 E.R., 342, at p. 348]).' 173 There was further discussion of cl 14 in Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575. Barwick J, after referring to the decision in Godfrey Constructions , said (at 587): 'Broadly it may be said that the vendor will not be allowed to use his contractual right if it would be unconscionable in the circumstances to do so.' Later he said (at 588): 'According to my view of the contract between the parties, the obligation to transfer to the appellant the fee simple in the land was central and fundamental to their bargain. It must be a relatively rare case, in my opinion, in which cl. 14 can conscionably be used to avoid performance of such an obligation.' Gibbs J cited with approval the following passage from Viscount Radcliffe in Selkirk v Romar Investments Ltd ([1963] 1 WLR 1415 at 1422 1423) (at 590): 'Thus, it has been said that a vendor, in seeking to rescind, must not act arbitrarily, or capriciously, or unreasonably. Much less can he act in bad faith. He may not use the power of rescission to get out of a sale 'brevi manu', since by doing so he makes a nullity of the whole elaborate and protracted transaction. Above all, perhaps, he must not be guilty of 'recklessness' in entering into his contract, a term frequently resorted to in discussions of the legal principle and which their Lordships understand to connote an unacceptable indifference to the situation of a purchaser who is allowed to enter into a contract with the expectation of obtaining a title which the vendor has no reasonable anticipation of being able to deliver.'


case_title: HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54 ; (2004) 217 CLR 640


case_text: The next thing to note about cl 25 is that, pursuant to cl 25.4, the Council may, by notice in writing, terminate the contract if 'the Supplier fails to show reasonable cause why the Council should not exercise that right' (emphasis added). In other words, there must be an objective failure by the supplier to show reasonable cause. The clause is not conditioned upon the satisfaction of the Council or any other party (cf Renard Constructions (ME) Pty Ltd v Minister for Public Works; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91). Even if both orders were valid and effective so that there was a substantial breach of contract to support each show cause notice, Goldspar did not fail to show reasonable cause when called upon to do so. In my opinion, the response to the notices showed reasonable cause why the Council should not terminate the contract by reason of failure to comply with each order on the terms ordered. Bearing in mind the time of year and the availability of components, compliance with the orders was quite impractical. 193 Clause 25.4 gave to the Council a discretion to terminate. It follows from the findings that have been made that the necessary preconditions to exercise that discretion did not occur. It is also argued that the exercise of that discretion is subject to an implied term as to reasonableness and good faith. This arises in a different context to the similar questions discussed earlier. In Jenkins v NZI Securities Australia Ltd the Full Court considered the following clause: '5.08 On the third anniversary of the first Drawdown Date, the Financier will review the Facility with a view to extending the Repayment Date by a further period of 12 months. If the Financier is prepared to so extend the Repayment Date, it will notify the Company accordingly and request the Company to advise whether it so wishes the Repayment Date to be so extended. Upon receipt of such notice from the Financier, the Company shall advise the Company [sic] within seven (7) days as to whether it wishes the Repayment Date to be extended. If the Company so advises the Financier, the Repayment Date will be extended for a further period of 12 months and otherwise the Repayment Date will remain unaltered.' Beaumont, Gummow and Carr JJ said (at 619): 'We would add that the law would oblige the financier to conduct the review in good faith and, perhaps, also reasonably, in the sense of paying regard to the interests of both parties: Amann Aviation Pty Ltd v Commonwealth (1990) 92 ALR 601; 22 FCR 527 at 532, 542 4, affd [1991] HCA 54 ; (1991) 174 CLR 64 at 96, 150; 104 ALR 1; Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 280; cf Hughes Bros Pty Ltd v Trustees of Roman Catholic Church for Archdiocese of Sydney (1993) 31 NSWLR 91.' I should follow that guidance and imply a term accordingly. There is an air of unreality in considering breach of that term because, for it to arise, the show cause notice must be taken to have been valid and Goldspar would not have shown reasonable cause. However, I have no doubt that in purporting to rescind the contract the Council was acting pursuant to the determination which had been formed to remove the work from Goldspar and give it to others and so was in breach of the implied term, no matter how it is precisely framed.


case_title: Jenkins v NZI Securities Australia Ltd (1994) 124 ALR 605


case_title: Mackay v Dick (1881) 6 App Cas 251

case_text: In the Annexure, beside the words 'Date for Delivery: (Clause 17)' are the words 'See Dates for Staged Delivery'. The amended Annexure, under the heading 'Stage of the Product (Clause 17.3)' includes (so far as is relevant) the following: ' Stage Two Future CBD Projects Pole Type Minimum Quantity per financial year starting July 1998 for 3 years A 100 B 100 C 60 D 40' 130 A related clause is cl 13 'Progress and Suspension', the relevant parts of which were as follows: ' 13.1 Rate of Progress The Supplier shall proceed with the work under the Supply Contract with due expedition and without delay. The Supplier shall not suspend the progress of the whole or any part of the work under the Supply Contract, except where the suspension is under Clause 25 or is directed or approved by the Council under Clause 13. The Supplier shall give the Council reasonable advance notice of any information documents or instructions required by the Supplier. The Council shall not be obliged to furnish information, documents or instructions earlier than the Council should reasonably have anticipated at the Date of Acceptance of Tender. 13.2 Contract Program For the purposes of Clause 13 a 'contract program' is a statement in writing showing the dates by which or the times within which the various stages or parts of the work under the Supply Contract are to be executed or completed. A contract program shall not affect rights or obligations in Clause 13.1. The Supplier will furnish to the Council a manufacturing program, including details of manufacture of the Production Sample in a form approved by the Council. The Supplier shall not, without reasonable cause, depart from: (a) a contract program included in the Supply Contract; or (b) a contract program furnished to the Council. The furnishing of a contract program or of a further contract program shall not relieve the Supplier of any obligations under the Supply Contract including the obligation to not, without reasonable cause, depart from an earlier contract program.' 131 Clause 16 deals with variations. Clause 16.1 is as follows: ' 16. VARIATIONS 16.1 Variations to the Product The Supplier shall not vary the work under the Supply Contract except as directed or approved by the Council under Clause 16. The Council may direct the Supplier to alter, add to or omit work under the Supply Contract. If the Supplier requests the Council to approve a variation, the Council may do so in writing. A direction or approval by the Council of a variation may be conditional. The conditions may include a condition that the Supplier shall not be entitled to any extension of time for delivery or for completion, or extra remuneration in respect of the variation or anything arising out of the variation which would not have arisen, had the variation not been approved. The Council shall not be obliged to direct or approve a variation to assist the Supplier. Unless the Council and the Supplier agree upon the price for a variation directed or approved under Clause 16, the variation shall be valued under Clause 16.2. Any Additional Product directed by the Council to be supplied by the Supplier under this Supply Contract will be valued in accordance with clause 16.2.' Clause 16.2 provides a method of valuation. 163 I am inclined to the view that the first part of the pleaded implied term (b) (annual notification) whilst sensible, is not a necessary implication in the requisite sense. However, I am persuaded that the second part of that term should be implied. Clause 17 must be construed in a manner that could apply to the supply and install option if chosen. It is clear enough that the clause cannot operate, literally construed, in isolation from the other provisions in relation to that option for reasons already explained. It is obvious that reasonable advance notice must be given of the precise locations, types of pole and accessories in order to make the contract effective. The pleaded term is a sensible application of the general Mackay v Dick obligation of cooperation and, if it be necessary, meets the requirements for implication of a term set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 283. Such a term would also have appropriate application to a supply contract. Clause 17 applies across the board and I have pointed out the absurdities involved in the literal construction of it proposed on behalf of the Council, even in the case of a supply only contract.


case_title: Magill v National Australia Bank Ltd (2001) Aust Contract R 90 131, [2001] NSWCA 221


case_text: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 concerned a special condition in a contract for the sale of land on which an oil refinery had been built as follows: 'This contract is executed by the parties subject to the following:- (a) the purchaser or his nominee entering into a satisfactory agreement or arrangement with Ampol Petroleum Limited for the supply of a satisfactory quantity of crude oil ... (b) the purchaser or his nominee receiving approval for finance on satisfactory terms and conditions in an amount sufficient to complete the purchase hereunder.' Gibbs CJ said (at 580 581): 'The intention of such a clause in my opinion is to leave it to the purchaser himself to decide whether the terms and conditions on which finance is available are satisfactory. The condition prevents a purchaser from being obliged to go through with a sale when he does not believe that he can raise the necessary funds. Such a condition is generally entirely for the protection of the purchaser, and it is the satisfaction of the purchaser, not that of some hypothetical reasonable man, that will satisfy the condition. No doubt it may be implied that the purchaser will act honestly in deciding whether or not he is satisfied. However, it does not seem to me necessary, in order to give business efficacy to a contract, that a condition should be implied that the purchaser will make reasonable efforts to obtain finance. The parties may expect that he will, but he does not contract to so do.' Mason J said (at 589): 'To say that a "subject to finance" or "subject to finance on satisfactory terms and conditions" clause denotes finance which is satisfactory to the purchaser is not to say that he has an absolute or unfettered right to decide what is satisfactory. To concede such a right would certainly serve the object of the clause in protecting him. But it would do so at the expense of the legitimate expectations of the vendor by enabling the purchaser to escape from the contract on a mere declaration that he could not obtain suitable finance. With some justification the vendor can claim that the agreement made by the parties is not an option but a binding contract which relieves the purchaser from performance only in the event that, acting honestly, or honestly and reasonably, he is unable to obtain suitable finance.' After referring to authority, his Honour said (at 590 591): 'In this case it is not necessary to decide whether the purchaser, in deciding whether finance is on satisfactory terms, is bound to act honestly or whether he is also bound to act reasonably. The cases already mentioned appear to support the first rather than the second alternative. And there is some ground for thinking that the parties contemplated that the question was to be left to the honest judgment of the purchaser rather than to the judgment of a court as to whether the purchaser acted reasonably in the circumstances. On the other hand, it has been said that a condition of this type imports an obligation or promise on the part of the purchaser to act honestly and reasonably ( Barber v. Crickett ([1958] N.Z.L.R. 1057); Scott v. Rania ([1966] N.Z.L.R., at p. 539), per Hardie Boys J.; Gardner v. Gould ([1974] 1 N.Z.L.R. 426)). McCarthy J., who in Scott v. Rania ([1966] N.Z.L.R., at p. 534) preferred to base his reasoning on the principle that a party to a contract cannot be permitted to rely on his own wrong, later in Gardner v. Gould ([1974] 1 N.Z.L.R., at p. 428) adopted the implied promise theory. The reasoning which underlies the decisions of this Court upholding the implication of an obligation on the part of a party to a contract to do all that was reasonable on his part to obtain a statutory consent applies with equal force here. In Butts v. O'Dwyer ((1952) [1952] HCA 74 ; 87 C.L.R. 267, at p. 280), Dixon C.J., Williams, Webb and Kitto JJ. said: "It has been held in cases too numerous to mention both before and after the classic statement of Bowen L.J. in the case of The Moorcock ((1889) 14 P.D. 64, at p. 68) that the law raises an implication from the presumed intention of the parties where it is necessary to do so in order to give to the transaction such efficacy as both parties must have intended that it should have." Here the expressed intention of the parties was that the purchaser would obtain finance; his obtaining of finance on satisfactory terms was necessary to give the transaction its intended efficacy. The consequence would be that he had an obligation to do all that was reasonable on his part to obtain that finance. It would make for greater consistency to say that, if the purchaser is bound to act reasonably in seeking to obtain finance, he is bound to act reasonably as well as honestly in deciding whether the finance was satisfactory. So understood the special condition would preserve an even balance between the vendors and the purchaser. However, I have no need to decide the question. Here it makes no difference whether the purchaser was under an obligation to act honestly or honestly and reasonably in deciding whether the terms of an offer of finance were satisfactory.' Wilson J agreed with Mason J and was inclined to believe that an honest judgment was all that was required although there was necessity to express a concluded view as to that (at 597). Murphy J took the view that no implication was necessary (at 596 597). 175 I shall return to these authorities having examined the purpose of the Council in purporting to utilise cl 17 as it did. The most significant indicia of the true purpose of the Council was the so called order of 19 October 1999. Out of the blue it purported to make time of the essence for delivering nearly one half of the annual requirement in the space of eight weeks. There had been no hint of that requirement at the meeting of 29 September 1999, as a result of which it would have been reasonably anticipated that an order would be received promptly for a true staged delivery of the required poles for the balance of the current annual period with a small number of poles to be delivered by Christmas. Goldspar had been pressing for forward scheduling since late 1998 and had received no response. The Council had, by then, acquired the only stock of extrusions in existence and was about to let a tender which, in addition to utilising those columns, would be competing with Goldspar for all relevant supplies. The 'order' was given on opaque terms which would obviously be regarded as unacceptable by Goldspar. There was the reference to time being of the essence, correctly described by counsel for Goldspar as menacing as it flagged termination of the contract if the impossible demand was not met.


case_text: The next live question is whether a term that the Council would act reasonably and in good faith when issuing directions and notices under cl 17 of the General Conditions of Contract is to be implied. The answer to that question will be of particular importance if I am wrong in implying the term just discussed. There is a bewildering variety of opinions in the authorities and commentaries as to the implication of terms as to reasonableness and good faith in commercial contracts. For example, in this Court compare the more adventurous approach of Finkelstein J in Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] [65] (although see Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] ) with the more cautious approach of Gummow J in Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 and the Full Court in Wenzel v Australian Stock Exchange Ltd [2002] FCAFC 400 ; (2002) 125 FCR 570 at [80] [81]. All of the relevant authorities, save perhaps for the recent Victorian Court of Appeal judgment in Esso Australia Resources v Southern Pacific Petroleum NL [2005] VSCA 228 (which took a conservative line) have been discussed at length recently in numerous articles and a book (eg TM Carlin, 'The Rise (and Fall?) of Implied Duties of Good Faith in Contractual Performance in Australia, (2002) 25 University of New South Wales Law Journal 99; JW Carter and A Stewart, 'Interpretation, Good Faith and the "True Meaning" of Contracts: The Royal Botanic Decision', (2002) 18 Journal of Contract Law 182; A Wallwork, 'A Requirement of Good Faith in Construction Contracts?', (2004) 20 Building and Construction Law Journal 257; B Zeller, 'Good Faith Is it a Contractual Obligation?', (2003) 15 Bond Law Review 215; JW Carter and E Peden, 'Good Faith in Australian Contract Law' , (2003) 19 Journal of Contract Law 155; PD Finn, 'Good Faith and Fair Dealing: Australia', (Speech delivered at Commercial Good Faith Conference, Auckland New Zealand, 2 September 2005); E Peden, Good Faith in the Performance of Contracts , (2 nd ed, 2003)). 167 In 2002 Carter and Stewart (supra, p 190) said 'perhaps the most important unresolved issue in Australian contract law today is the extent to which the law recognises an implied requirement of good faith in performance and enforcement.' Nothing that has occurred since has resolved the issue in a manner binding upon me. Even Finn J, one of the principal proponents of such an obligation has recently said extra-judicially that ' ... one cannot, for the moment, be assured that the regulation of contractual behaviour under the good faith rule will take root in Australia at all, or other than limply.' (supra) 168 The best way for a single judge to travel through this thicket is to concentrate upon the particular contractual provision in question, in the particular contract, in the particular circumstances of the case. When this is done, in my opinion, an instruction or direction could not validly be given pursuant to cl 17 for the purpose of causing Goldspar to default in order that the Council would thereby have a pretext for terminating its contract with Goldspar so that the works the subject of that contract could be done by others. That conclusion follows from the application of principles enunciated in a series of High Court decisions. 194 It is argued for Goldspar that cl 25 constitutes an exclusive method of terminating the contract. Whatever may be the position in relation to breach as such, I am not persuaded that cl 25 would exclude termination at common law by acceptance of repudiation. In my opinion, however, the facts fall well short of establishing repudiation on the part of Goldspar at the time of termination. The principles concerning repudiation have recently been restated by Finn and Sundberg JJ in Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 as follows (at [102]): 'The principles governing repudiation of a contract are, as we understand it, not in issue and for present purposes can be stated shortly. (i) A party will have repudiated a contract if, by words or conduct, it evinces an intention no longer to be bound by it or if that party shows it intends to fulfil the contract only in a manner substantially inconsistent with its obligations and not in any other way: Shevill v Builders Licensing Board [1982] HCA 47 ; (1982) 149 CLR 620 at 625-626; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 ; (1989) 166 CLR 623. (ii) The party's conduct is to be judged objectively by reference to the effect it would be reasonably calculated to have upon a reasonable person: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd , above, at 658; Satellite Estate Pty Ltd v Jacquet (1968) 71 SR (NSW) 126 at 150. (iii) A party that acts on a genuine but erroneous view of its obligations under the contract will not for that reason alone have repudiated it. That party may still be willing to perform the contract according to its tenor: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 431-432; Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] UKHL 11 ; [1980] 1 WLR 277. But persistence in an untenable construction will ordinarily be regarded as repudiatory: Summers v Commonwealth [1918] HCA 33 ; (1918) 25 CLR 144 at 152; and see Chitty on Contracts, above, par 25-018.'


case_text: The requirements to be proved by a party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract and seeks damages, was considered in Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385, although that was not the precise point of the case. Such a party must establish that it was ready and willing to carry out the contract on its part at the time of acceptance of the repudiation and readiness and willingness includes capacity. However, in a situation in which the wrongdoer relieves the other party from actual performance in the future, that task is not particularly demanding. In Psaltis v Schultz [1948] HCA 31 ; (1948) 76 CLR 547 Dixon J said (at 560): 'It is enough that he is not presently incapacitated from future performance and is not indisposed to do, when the time comes, what the contract requires.'


case_text: In Rawson v Hobbs [1961] HCA 72 ; (1961) 107 CLR 466 Dixon CJ said (at 481): 'One must be very careful to see that nothing but a substantial incapacity or definitive resolve or decision against doing in the future what the contract requires is counted as an absence of readiness and willingness.'


case_text: Clause 25.2 gives the Council a discretion to give a written notice to show cause. It is further argued for Goldspar that this discretion is also conditioned upon the implied term of reasonableness and good faith. That is a difficult argument because it must assume a substantial breach of contract and the clause only relates to a notice to show cause the substantive discretion to terminate comes into play at a later point of time, although Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 provides support at least for reasonableness as a criterion to be satisfied. If so, the term would be breached as I regard the whole exercise as designed to effect the anterior purpose of preventing Goldspar from completing the contract. 188 The next thing to note about cl 25 is that, pursuant to cl 25.4, the Council may, by notice in writing, terminate the contract if 'the Supplier fails to show reasonable cause why the Council should not exercise that right' (emphasis added). In other words, there must be an objective failure by the supplier to show reasonable cause. The clause is not conditioned upon the satisfaction of the Council or any other party (cf Renard Constructions (ME) Pty Ltd v Minister for Public Works; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91). Even if both orders were valid and effective so that there was a substantial breach of contract to support each show cause notice, Goldspar did not fail to show reasonable cause when called upon to do so. In my opinion, the response to the notices showed reasonable cause why the Council should not terminate the contract by reason of failure to comply with each order on the terms ordered. Bearing in mind the time of year and the availability of components, compliance with the orders was quite impractical. 193 Clause 25.4 gave to the Council a discretion to terminate. It follows from the findings that have been made that the necessary preconditions to exercise that discretion did not occur. It is also argued that the exercise of that discretion is subject to an implied term as to reasonableness and good faith. This arises in a different context to the similar questions discussed earlier. In Jenkins v NZI Securities Australia Ltd the Full Court considered the following clause: '5.08 On the third anniversary of the first Drawdown Date, the Financier will review the Facility with a view to extending the Repayment Date by a further period of 12 months. If the Financier is prepared to so extend the Repayment Date, it will notify the Company accordingly and request the Company to advise whether it so wishes the Repayment Date to be so extended. Upon receipt of such notice from the Financier, the Company shall advise the Company [sic] within seven (7) days as to whether it wishes the Repayment Date to be extended. If the Company so advises the Financier, the Repayment Date will be extended for a further period of 12 months and otherwise the Repayment Date will remain unaltered.' Beaumont, Gummow and Carr JJ said (at 619): 'We would add that the law would oblige the financier to conduct the review in good faith and, perhaps, also reasonably, in the sense of paying regard to the interests of both parties: Amann Aviation Pty Ltd v Commonwealth (1990) 92 ALR 601; 22 FCR 527 at 532, 542 4, affd [1991] HCA 54 ; (1991) 174 CLR 64 at 96, 150; 104 ALR 1; Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 280; cf Hughes Bros Pty Ltd v Trustees of Roman Catholic Church for Archdiocese of Sydney (1993) 31 NSWLR 91.' I should follow that guidance and imply a term accordingly. There is an air of unreality in considering breach of that term because, for it to arise, the show cause notice must be taken to have been valid and Goldspar would not have shown reasonable cause. However, I have no doubt that in purporting to rescind the contract the Council was acting pursuant to the determination which had been formed to remove the work from Goldspar and give it to others and so was in breach of the implied term, no matter how it is precisely framed.


case_title: Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596

case_text: In one sense there is no difficulty in implying the pleaded term (a) it reflects the following passage from the judgment of Mason J (Gibbs, Stephen and Aickin JJ agreeing) in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (Secured Income Real Estate) [1979] HCA 51 ; (1979) 144 CLR 596 at 607 608: 'But it is common ground that the contract imposed an implied obligation on each party to do all that was reasonably necessary to secure performance of the contract. As Lord Blackburn said in Mackay v. Dick [(1881) 6 App. Cas. 251, at p.263]: "as a general rule ... where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect." It is not to be thought that this rule of construction is confined to the imposition of an obligation on one contracting party to co-operate in doing all that is necessary to be done for the performance by the other party of his obligations under the contract. As Griffith C.J. said in Butt v. M'Donald [(1896) 7 Q.L.J. 68, at pp.70 71]: "It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract." 162 The difficulty lies in giving content to that obligation. It is not a mechanism for alleviating the consequences of hard, even harsh or unconscionable, contractual provisions. The duty of cooperation does not extend to being nice or even reasonable to the other party. As Mason J said in Secured Income Real Estate (at 607): 'It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself.'


case_title: Winstonu Pty Ltd (t/a Harvey Norman Electrics) v Pitson [2001] FCA 541


case_text: Where an applicant before the tribunal explicitly adopts what he or she put to the Minister in support of the initial application for a protection visa, including adding qualifications or amendments to that claim, the applicant for review can be seen properly to have 'given' the initial material to the tribunal for the purpose of his or her application for review: Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [17] per Heerey, Mansfield and Emmett JJ. I am of opinion that in the circumstances of this case the tribunal was entitled to proceed on the basis that the appellant had given it the information in her protection visa application in the form of the claim which she had earlier made. It was entitled to have regard to that information without serving any notice under s 424A(1). The submission made by RACS in April 2005, in my opinion, expressly republished the original claim in the protection visa application for the purposes of the application for review: see also SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [36] - [51] . 17 The appellant put forward no material to suggest why the tribunal could be seen to have acted in a way that was either biased or gave the appearance of bias. I reject that ground. I have considered the tribunal's reasons for myself and have not seen any basis on which prejudgment either appeared or could be suggested. Rather, the tribunal appears to have considered the appellant's claims on its merits. While s 422B indicates qualification of the natural justice hearing rule, it does not qualify any obligation of the tribunal to identify the claims made by an applicant for review and to determine those claims. 18 I now return to the first two grounds raised by the appeal.


case_text: The reasons of an administrative decision-maker, such as the tribunal, are not to be scrutinised minutely and finely with an eye keenly attuned to perception of error. Rather their function is to express in the decision-maker's own language the findings and reasons which s 430(1) of the Act requires him or her to give: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ. I am of opinion that read in have regard its context, the passage which I have extracted reveals that the tribunal gave consideration to the way in which the appellant had explained her role and found that it was not as significant as her earlier claim had asserted. By saying that she had failed to repeat her earlier claim at the second hearing, the tribunal was doing no more than saying that she had not satisfied it that the claim as originally framed had been made out. 21 The tribunal ultimately was satisfied that although the appellant had had what it described, with justification if not understatement, as 'some unpleasant non-Convention related experiences in the past in her village', she was not a refugee. It found that if for any reason the appellant has subjective fear of returning to her village more than 11 years after she ceased to occupy her position in the women's welfare group, it would be reasonable for her to go elsewhere in the province in which she lived in China, or to some other location in that country, to live, and that in those other places there was no real chance of her experiencing serious harm amounting to persecution for any Convention-related reason. 22 The tribunal did not accept that the appellant would not be able to obtain the protection of the authorities if she needed it. Although that is a factual finding that seems to be in the teeth of the evidence, which it did accept, of the substantial number of instances of harm which had befallen the appellant, nonetheless I am unable to see how the tribunal committed a jurisdictional error in its assessment that the appellant could relocate within China to a place away from any danger that might have been occasioned to her from any activity she had undertaken in her village. 23 While persecution is selective harassment, and in appropriate cases can include single acts of oppression or measures in disregard of human dignity ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 570 per Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ, approving what McHugh J had said in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 at 429-430), the activities of the individuals, which the tribunal accepted had affected the appellant and her family in her village, were not found to be activities which had a real risk of repetition elsewhere in China away from the appellant's home area. 24 Unfortunate and terrifying as the assaults and intimidating behaviour found by the tribunal to have been suffered by the appellant were, I am not able to detect any jurisdictional error in the way in which the tribunal characterised that activity as not having been suffered by her for a Convention reason. 25 In those circumstances I am unable to perceive a basis upon which the tribunal committed a jurisdictional error, or it could be said that his Honour failed to identify one. It follows that the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 4 May 2007 The Appellant: In person Counsel for the Respondent: T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 1 May 2007 Date of Judgment: 1 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/661.html


case_text: The Federal magistrate was satisfied that the present application fell within the principles addressed by Mason CJ, Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12 ; (1983) 177 CLR 378 at 393, and concluded as follows in her reasons for judgment of 17 January 2006: 'I consider that the bringing of the current application can be considered unjustifiably vexatious amounting to an abuse of process, particularly having regard to the underlying public interest in the finality of litigation. I am satisfied that the current proceedings are an abuse of process and ought to be summarily dismissed to avoid further public expense in defending proceedings that have already taken up the resources of the Federal Magistrates Court, the Federal Court and the High Court and have raised no arguable case.' 4 It has been long established that an application for leave to appeal should fail if no arguable ground of appeal is raised by the applicant, or if the judgment below is not attended by sufficient doubt to warrant allowing the application or the appeal to go forward. 5 The applicants have failed to identify any conceivably viable arguable ground of appeal. The draft notice of appeal and purported written submissions make unparticularised allegations of error in the Federal Magistrate's decision and of jurisdictional error in the earlier Refugee Review Tribunal's reasons for decision. The applicants' written submissions also seek in substance and reality impermissible merits review. At least in the absence of any evidence to support those allegations or any particulars in order to render the same meaningful, which is the situation here readily evident, the present purported application must necessarily fail.


case_text: thing which s 44 does not confer upon this Court is jurisdiction to embark upon an appeal by way of a rehearing of the merits or otherwise of conclusions of fact to which the Tribunal came in its assessment of the material before it. A series of decisions of the Full Court of this Court earlier this decade have emphasised the centrality of the need for a question of law for there to be jurisdiction to entertain a proceeding under s 44 of the AAT Act. I refer in that regard to the decisions of the Full Court in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522. When one turns to examine the so-called questions of law in para 2 of the notice of appeal those which appear immediately under the heading "The applicant says that", save perhaps for the first dot point, do not, it seems to me, raise a question of law. Neither, for that matter, do any of the other propositions which appear in the balance of para 2. Rather, they seem to me to have a quality which was described in Etheridge's case at para 29 in these terms: The invitation which is inherent in the above question, to examine the evidence and other material before the Tribunal is sufficient to show that it is not a question of law within the meaning of s 44(1) of the AAT Act (see Birdseye at para 18). It is at best a mixed question of law and fact. Looked at more critically, it is open to be understood as an invitation to the Court to conduct a rehearing with respect to important aspects of the controversy that came before the Tribunal for determination. This is not an invitation that the Court may accept on an appeal under s 44(1) of the AAT Act. The first dot point does not, in terms, pose a question but rather makes a statement: The Tribunal erred in the application of s 17 of the Social Security Act as applying to the facts of the matter as presented and in accordance with the applicable standard of proof.


case_text: what has proved to be an influential decision, a Full Court of this Court, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, set out five general propositions which emerge from the cases as to what can amount to a question of law. The fifth of those propositions was this: The only question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law. Authority is then cited for that proposition. Their Honours then qualify that fifth proposition by reference to remarks that Fullagar J made in Hayes v Federal Commissioner of Taxation [1956] HCA 21 ; (1956) 96 CLR 47 and, at page 288 observe: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do then the question whether they do or not is one of fact. In the way in which the first dot point in para 2 is cast, and having regard to what was said in Pozzolanic in relation to the fifth principle and its qualification, it seems to me that there is not a raised question of law. There was material before the Tribunal which admitted of a conclusion that the payment that came to be made to Mr Borcherdt, pursuant to the order of the court, was one which was made in respect of economic loss. The Tribunal's reasoning in that regard does not seem to me to be in any way illogical, or made unreasonably in the sense of being unsupported by any material before it. Mr Borcherdt's contract arguments depended, in the end, on an acceptance by the Tribunal of the proposition that, irrespective of whether or not he had validly rescinded an agreement struck on 27 November, there had nonetheless been an acceptance of a repudiation by the defendant and its representatives and a payment pursuant to an offer which he had made in that letter. That is not an inference which necessarily arises as the only inference to be drawn. The Tribunal was not, in any way, obliged to accept that as a necessary conclusion of fact on the material at hand. It is to be noted that there is an absence of correspondence between the terms of Mr Borcherdt's letter as to bases of payment and payees and the form in which the order of the court, on 29 February, came to be made. Even then if my conclusion, that there is not raised in the notice of appeal a question of law is incorrect, and that the case is to be viewed as one in which the question propounded is whether the Tribunal was entitled to conclude on the evidence before it that the payment was one within the terms of the statute, it seems to me that the Tribunal was reasonably entitled to reach that conclusion.


case_text: thing which s 44 does not confer upon this Court is jurisdiction to embark upon an appeal by way of a rehearing of the merits or otherwise of conclusions of fact to which the Tribunal came in its assessment of the material before it. A series of decisions of the Full Court of this Court earlier this decade have emphasised the centrality of the need for a question of law for there to be jurisdiction to entertain a proceeding under s 44 of the AAT Act. I refer in that regard to the decisions of the Full Court in Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 and Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522.


case_text: mischief to which s 1169 and s 1170 , read in conjunction with the definitions of "compensation" and "compensation affected payment" is directed, was stated by reference to an earlier, but nonetheless analogous, regime in social security legislation by von Doussa J in Secretary of the Department of Social Security v A'Beckett [1990] FCA 332 ; (1990) 26 FCR 349 at 359-360 in these terms: In my opinion, the intention of the scheme for preclusion and recovery is to prevent double payments from arising from that part of a payment by way of compensation, which is fairly to be characterised as damages or compensation for an incapacity for work. The intention of the scheme, in my opinion, remains to prevent double payments arising from payments which are to be characterised as compensation affected payments, and in that way, not to burden the revenue, ie, the Australian taxpayer, with the making of payments to an individual who has already received a compensation affected payment from another source. The Tribunal was, in my opinion, well entitled, having regard to the facts that it found, to reach the conclusion that the payment received by Mr Borcherdt was a compensation affected payment. In particular, the Tribunal was, in my opinion, well entitled to reach the conclusion that the payment was one that fell within the terms of s 17(2)(c) , and that it was one which was made wholly or partly "in respect of" lost earnings or lost capacity to earn, resulting from personal injury. Those words, "in respect of," as they appear in s 17(2) , have a role to play. In that regard, reference might usefully be had to earlier decisions of this Court in respect of words used in an analogous way in earlier statutory regimes and, in particular, the observation made by von Doussa J in A'Beckett's case as to the policy which lies behind the statutory regime is instructive. In the absence of very singular evidence as to the construction of a settlement payment and the heads of damage for which it is made, where one sees a payment made in the course of either compensation or personal injuries proceedings, which is made as a result of those proceedings having been brought, it would ordinarily be an unremarkable conclusion, where the proceedings have included a claim in respect of loss of earning capacity or incapacity to undertake work, to reach a conclusion that the payment was one which had been made wholly or partly "in respect" of earnings or lost capacity to earn, resulting from personal injury. However one approaches this case, either on the basis that it is not truly an appeal on the question of law, or even if, perhaps, with respect, charitably, one approaches it on the basis that raised for consideration is whether the Tribunal was entitled on the facts that it found to reach the conclusion that it did, there is no merit in the appeal. It follows, necessarily, that it must be dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 10 February 2009 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondent: Minter Ellison Date of Hearing: 3 February 2009 Date of Judgment: 3 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/62.html


case_text: what has proved to be an influential decision, a Full Court of this Court, in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, set out five general propositions which emerge from the cases as to what can amount to a question of law. The fifth of those propositions was this: The only question whether facts fully found fall within the provisions of a statutory enactment properly construed is generally a question of law. Authority is then cited for that proposition. Their Honours then qualify that fifth proposition by reference to remarks that Fullagar J made in Hayes v Federal Commissioner of Taxation [1956] HCA 21 ; (1956) 96 CLR 47 and, at page 288 observe: This principle is qualified when a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do then the question whether they do or not is one of fact.


case_outcome: referred to

case_text: the time of commencement of the subject proceedings in this Court on 31 March 2005, there was already pending in the Supreme Court of New South Wales a proceedings having a similar purported context brought by the applicant as plaintiff against the College as defendant, and which had commenced in December 2004 ( Yovichevich v Royal Australian and New Zealand College of Radiologists [2005] NSWSC 1208). In relation to those Supreme Court proceedings, as well as in relation to the subject proceedings commenced in the Federal Court, the applicant pleaded causes of action purportedly based upon the absence of the grant to him of a Fellowship from the College. Unlike the Supreme Court proceedings however, no claim for damages was advanced in the subject Federal Court proceedings. The circumstantial context to the Federal Court proceedings at least largely mirrored the factual context the subject of the Supreme Court proceedings. On 30 November 2005, the Supreme Court (Adams J) found that the proceedings in that Court were defective as framed, and leave was granted to the applicant to file and serve an amended statement of claim within 28 days, failing which the Supreme Court proceedings was to stand dismissed. I will later explain in more detail the reasons for his Honour's findings. Apparently the Supreme Court proceedings has been subsequently repleaded. It is necessary to summarise the Supreme Court proceedings in force at the time at least of commencement of the Federal Court proceedings. The cause of action originally pleaded by the applicant in the Supreme Court was for breach of duty of care in relation to its conduct of examinations in radiology and pathology in which the applicant participated as a student. It appears from the reasons for judgment of Adams J that the applicant sat for examinations conducted by the College in May and November 1995 and in November 1997, and passed the examination in pathology on the last of those three occasions but failed the examination in radiology on three successive occasions. Moreover in November 1999, the applicant was examined but failed once more in radiology, and as a consequence, the applicant requested a review and reconsideration of his radiology examination results. On 9 December 1999 he was notified by the College that it was satisfied from the records of that radiology examination that the same was conducted (inclusively of marking) professionally and equitably, and that the examination outcome recorded accurately and fairly reflected the applicant's performance. Consequentially upon the applicant's short-fall in performance seemingly in relation to that examination, he failed to gain admission to the College. The causes of action pleaded by the applicant in the Supreme Court proceedings including the following averments: (i) the College did not properly or at all undertake a review of his examination performance as required by its procedures and has continued to fail to do so; (ii) the College failed to provide the applicant with a copy of examination questions and his answers thereto; (iii) the College breached its duty of care to him to conduct with reasonable care, skill, diligence and competence its relevant qualification examinations and its review and consideration as an examiner of the performance of the applicant; (iv) the College breached its duty of care to inform him of all relevant aspects of those examinations, including the criteria and method of assessment, and to administer the examinations properly and fairly and in such a way as to enable his performance to have been considered and reviewed, and by way of the provision of an effective and fair appeal process; (v) the College breached its duty of care to have proper procedures in place to ensure that the examinations, and any appeal in respect of the results thereof, would be conducted fairly, competently and impartially; (vi) the College also breached its duty of care by failing to inform him beforehand of relevant aspects of the examinations, including the criteria for assessment and the method of marking; (vii) the College failed to administer the examinations appropriately by not keeping proper and adequate notes in respect thereof, and by not having in place a procedure permitting adequate and fair reconsideration and review of his performance by reason in the meantime of its destruction of, or failure to properly safeguard or keep, the questions and answers and other documents and materials that recorded that performance, and by the way in which his performances was assessed; and (viii) in consequence of the foregoing breaches by the College of its duties said to be owed to him, compensatory damages should be awarded for his loss of income sustained from 1997 onwards for [at least] seven years, and an order should be made for his admission to the College as a Fellow.


case_text: College submitted to the Federal Court that the case propounded by the applicant did not disclose any justiciable cause of action, and moreover duplicated the proceedings he had already initiated in the Supreme Court. The College submitted that his case had been brought in reality for a collateral purpose, no declarations or orders as to consequential relief having been framed. Moreover it was emphasised that an order for the applicant to be effectively installed as a Fellow of the College, given that any such order may in theory have been juridically open to be made in the first place, 'might well require supervision from time to time as occasion might require'; reference in that context was made to J C Williamson Limited v Lukey and Mulholland [1931] HCA 15 ; (1931) 45 CLR 282 at 200-300 (Dixon J as he then was). For example, so it was pointed out by the College, the applicant would not be absolved from continuing compliance with the governing rules of or a member's ongoing contractual arrangements with the College.


case_text: the upshot it was submitted by the College that no reasonable cause of action had been demonstrated, and the purported proceedings were manifestly and plainly untenable. The College acknowledged that the burden placed on a respondent in an application to dismiss a pleading is a high one and made reference, inter alia, to the following dicta of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.' Reference was also made by the College to General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 128 (per Barwick CJ): '... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.' It was the contention of the College that in the context of the current proceedings, the above principles had been satisfied and summary dismissal should be ordered.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125