case_text: RPS [2000] HCA 3 ; 199 CLR 620 , Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 and Dyers [2002] HCA 45 ; 210 CLR 285 , the High Court considered the applicability of the rule in Jones v Dunkel to criminal proceedings. It decided that the rule is of very limited application to defendants in criminal cases, its reasoning based on the accusatorial nature of criminal proceedings. As an illustration of the Court's approach, in Dyers , Gaudron and Hayne JJ stated at [9]: As was pointed out in RPS... , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in ... Jones v Dunkel (26) ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. In Azzopardi [2001] HCA 25 ; 205 CLR 50 , in their joint majority judgment Gaudron, Gummow, Kirby and Hayne JJ referred to Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 where the High Court held it was appropriate for the trial judge to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence, and their Honours stated at [61] that what was important in Weissensteiner and what warranted the remarks to the jury in that case was that, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused, and thus could not be the subject of evidence from any other person or source. At [68], their Honours emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional and will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. Their Honours said a comment will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case. Further authority for the availability of the rule in Jones v Dunkel in civil penalty proceedings is found in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 , where Hill J stated at [33]: Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences. After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty. However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily: see Azzopardi v R [2001] HCA 25 ; (2001) 179 ALR 349 , affirming Weissensteiner v R [1993] HCA 65 ; (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers. In Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451 at [21] , a proceeding seeking removal of a legal practitioner from the Roll, Hodgson JA, with whom Beazley and McColl JJA agreed, referred to the High Court's conclusion in Azzopardi [2001] HCA 25 ; 205 CLR 50 that it was open to a trial judge in a criminal case to make a comment relating to the absence of evidence of additional facts peculiarly within the knowledge of the accused. Hodgson JA went on to say at [22] concerning the case before him that: If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800 ; (2001) 201 ALR 502 at [33] .


case_outcome: cited

case_title: Bateman v Slayter (1987) 71 ALR 553

case_text: reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.


case_outcome: considered

case_text: fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category. The use of such expressions supports a finding of an intention to contract. In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd 40 NSWLR 622 , McLelland J, in finding that by an exchange of letters the parties to an alleged agreement mutually communicated their respective assents to be legally bound by terms capable of having contractual effect, afforded the expression "legally binding" primacy despite the expression "agreement in principle" also found in the relevant agreement (628). His Honour thought that the case fell into the fourth category as recognised in Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 (629F) . The appeal from McLelland J's judgment G R Securities v Baulkham Hills Private Hospital 40 NSWLR 631 was dismissed. McHugh JA accepted in line with Sinclair, Scott & Co [1929] HCA 34 ; 43 CLR 310 , that it was possible for the parties to be bound immediately and agree to substitute for the first contract a further contract containing additional terms (634G). Further, McHugh JA applied the general rule applicable to every contract explained by Mason J in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 that each party was obliged to do all that was necessary on his part to enable the other party to have the benefit of the contract.


case_text: submits that one important aspect of this matter is the application of the principles found in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 to himself. He points to the seriousness of the allegations made by ASIC and the severity of the penalties it seeks in the form of large financial penalties and his disqualification from managing a corporation. He submits that these are more severe than many criminal punishments and would cause enormous harm to him and FMG. He says that, in these circumstances, the level of satisfaction that the Court requires to reach before accepting any of ASIC's contentions is as close to the criminal standard as could be in any civil proceeding. FMG also cited Briginshaw [1938] HCA 34 ; 60 CLR 336 , saying that, because these are civil penalty proceedings, the Court should not lightly make findings of contraventions, even applying the balance of probabilities standard, given the seriousness of the causes of action and the gravity of the matters alleged and their consequences. FMG and Forrest are relying on the principle emerging from Dixon J's judgment in Briginshaw 60 CLR at 361-362 that in considering whether an allegation is made out to its "reasonable satisfaction", a tribunal should take into account the seriousness of the allegation and the gravity of the consequences that would follow if the allegation were to be accepted. In Qantas Airways Limited v Gama [2008] FCAFC 69 ; (2008) 167 FCR 537 , French and Jacobson JJ stated at [110] that the "so-called Briginshaw test" does not create any third standard of proof between the civil and the criminal. Their Honours said the standard of proof remains the same, that is proof on the balance of probabilities, and that the degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. Section 140(1) of the Evidence Act 1995 (Cth) (the Evidence Act ) prescribes the standard of proof in a civil proceeding as the balance of probabilities, and s 140(2) provides that the Court may take into account, in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 the Full Court noted at [31] that Dixon J's classic discussion in Briginshaw appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Section 1332 of the Act differs from s 140 of the Evidence Act in that it does not contain the 'Briginshaw' considerations found in s 140(2) of the Evidence Act . However this does not require s 140(2) of the Evidence Act to be read down. In any event given that s 1317L requires the Court to apply the rules of evidence and procedure for civil matters when hearing proceedings for a declaration of contravention or a pecuniary penalty order, the considerations expressed in Dixon J's Briginshaw discussion are nevertheless relevant. In conclusion, the standard of proof that I must apply is the balance of probabilities as prescribed by s 1332, and I accept that in deciding whether ASIC's allegations are made out on the balance of probabilities I am required to take into account the causes of action and the gravity of the matters alleged and their consequences: s 140(2) Evidence Act ; Briginshaw [1938] HCA 34 ; 60 CLR 336. If inferences are to be drawn, ASIC has to establish that the circumstances appearing from the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 ; (2009) 256 ALR 199 at [186] ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; 162 FCR 466 at [38] .


case_title: Buckland v Buckland [1900] 2 Ch 534

case_text: supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate.


case_text: where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.


case_outcome: referred to

case_text: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court set out a number of principles in relation to s 52 of the TPA. In National Exchange v Australian Securities and Investments Commission [2004] FCAFC 90 ; (2004) 22 ACLC 609 , Dowsett J, with whom Jacobson and Bennett JJ agreed with generally, compiled at [18] a helpful summary of the propositions relevant to the application of s 52 emerging from the High Court's judgment in Campomar Sociedad. Dowsett J's summary, to which I have added references to the paragraphs of the High Court's judgment applicable to each proposition, is as follows. His Honour accepted that these observations are of general application in proceedings alleging contravention of s 1041H(1) of the Act, [19]. Conduct will only be misleading or deceptive, or likely to mislead or deceive if there is a nexus between such conduct and any actual or anticipated misconception or deception. [98] In identifying such nexus regard must be had to the circumstances of the particular case, including the remedies sought. Section 52 of the TP Act does not confer any entitlement to a remedy for breach or anticipated breach. One must look elsewhere in the TP Act for such entitlement and construe the act as a whole. [99] In some cases, a representation may be made to identified individuals; in other cases the representation may be to the public at large or to a section thereof. In the former case the process of deciding whether or not the representation is misleading or deceptive or likely to be so may be 'direct and uncomplicated'. In the latter case 'the issue with respect to the sufficiency of the nexus between the conduct or the apprehended conduct and the misleading or deception or likely misleading or deception of prospective purchasers is to be approached at a level of abstraction not present where the case is one involving an express untrue representation allegedly made only to identified individuals'. (I infer that the word "representation" in [100] of Nike should be "misrepresentation", relying upon the relevant passage in Taco Bell to which the High Court was referring.) [100] When the representation is made to the public or to a section thereof, one must consider its effect upon an ordinary or reasonable member of the class in question. Although such class may include a wide range of persons, the ordinary or reasonable member will objectively be identified as having certain characteristics. In particular he or she can be expected to take reasonable care for his or her own interests and otherwise to behave reasonably. [101]-[102] It is necessary to inquire as to how a particular or anticipated misconception has arisen or may arise. In so doing, the Court will consider 'the effect of the relevant conduct on reasonable members of the class'. [103] Conduct will only be misleading or deceptive or likely to mislead or deceive if the representee 'labours under some erroneous assumption' or may be expected so to labour. Such an assumption or anticipated assumption may be obvious, predictable or fanciful. [104] In assessing the reactions or likely reactions of the ordinary or reasonable member of the class, the Court may decline to treat as reasonable, assumptions which are extreme or fanciful. The initial question which must be determined is whether the misconception or deception, alleged or anticipated, is properly attributable to an ordinary or reasonable member of the class. [105] The 'question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52.' [106] However, where there is a finding of intention to deceive, the court may more readily infer that the intention has been or in all probability will be effective: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 at 861; S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd [1999] FCA 316 ; (1998) 88 FCR 354 at 362; Campomar Sociedad [2000] HCA 12 ; 202 CLR 45 at [33] and National Exchange [2004] FCAFC 90 ; 22 ACLC 609 at [63] per Jacobson and Bennett JJ.


case_text: relies upon the following authorities in support of its submission that the framework agreements are bare agreements to negotiate the scope and terms, in each case, of a further agreement to build transfer and finance the relevant Project infrastructure and that such agreements are not enforceable: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ; Jobern Pty Ltd v Breakfree Resorts (Victoria) Pty Ltd [2007] FCA 1066 ; Walford v Miles [1992] 2 AC 128. Coal Cliff Collieries 24 NSWLR 1 concerned the enforceability of an agreement to negotiate a complex coal mining joint venture. The parties had agreed on a heads of agreement document for the proposed joint venture which included the statement: "...The parties will forthwith proceed in good faith to consult together upon the formulation of a more comprehensive and detailed Joint Venture Agreement...". The Court of Appeal (Kirby P, Handley JA and Waddell A-JA) held that the statement was not binding as a contractual promise. Kirby P, with whom Waddell A-JA agreed, held at p 27 that the promise, having regard to the context in which it was made, should be classified as too illusory or too vague and uncertain to be enforceable. Handley JA held at pp 42-43 that a promise to negotiate in good faith is illusory and therefore cannot be binding because there are no identifiable criteria by which the content of the obligation to negotiate in good faith can be determined. Jobern [2007] FCA 1066 involved a contractual dispute where the parties had executed a document entitled 'Heads of Agreement' (HofA), clause 3.3 of which stated: "Each party will conduct all such negotiations in good faith to ensure that the terms set out in these Heads of Agreement are given full effect". It was not in dispute in Jobern that the parties were bound by the HoFA, which Gordon J stated to be a final agreement within the first category described in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 at [106] . However Gordon J considered that cl 3.3 was uncertain because it suffered from the same problems referred to by Kirby J in Coal Cliff Collieries 24 NSWLR 1 at [130]. In my view Coal Cliff Collieries 24 NSWLR 1, Jobern [2007] FCA 1066 and Walford [1992] 2 AC 128 do not assist ASIC. I do not take Coal Cliff Collieries as authority for the proposition that a bare agreement to negotiate in good faith is not enforceable, as submitted by ASIC. In my view, that case is authority for the proposition that a promise to negotiate in good faith may, in particular circumstances, be enforceable, depending on the precise terms as construed from the contract. In Jobern [2007] FCA 1066 , it was not in dispute that the heads of agreement document was binding only the negotiation clause was held to be uncertain. In Walford [1992] 2 AC 128 , the agreement that was found to be uncertain was a 'lock-in' agreement committing the parties to negotiate with each other, which is to be distinguished from the types of obligations found in the framework agreements under consideration in the present case.


case_text: 140(1) of the Evidence Act 1995 (Cth) (the Evidence Act ) prescribes the standard of proof in a civil proceeding as the balance of probabilities, and s 140(2) provides that the Court may take into account, in deciding whether it is so satisfied, the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 the Full Court noted at [31] that Dixon J's classic discussion in Briginshaw appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. In conclusion, the standard of proof that I must apply is the balance of probabilities as prescribed by s 1332, and I accept that in deciding whether ASIC's allegations are made out on the balance of probabilities I am required to take into account the causes of action and the gravity of the matters alleged and their consequences: s 140(2) Evidence Act ; Briginshaw [1938] HCA 34 ; 60 CLR 336. If inferences are to be drawn, ASIC has to establish that the circumstances appearing from the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 ; (2009) 256 ALR 199 at [186] ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; 162 FCR 466 at [38] . In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 , the Court discussed the Adler and Rich cases and concluded at [76] that there is no reason in civil proceedings for pecuniary penalties to deny the applicability of the principles in Jones v Dunkel provided that in doing so the court proceeds in accordance with the principles in relation to s 140 of the Evidence Act , which prescribes he civil standard as the applicable standard of proof. I have discussed the standard of proof earlier.


case_text: Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451 at [21] , a proceeding seeking removal of a legal practitioner from the Roll, Hodgson JA, with whom Beazley and McColl JJA agreed, referred to the High Court's conclusion in Azzopardi [2001] HCA 25 ; 205 CLR 50 that it was open to a trial judge in a criminal case to make a comment relating to the absence of evidence of additional facts peculiarly within the knowledge of the accused. Hodgson JA went on to say at [22] concerning the case before him that: If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800 ; (2001) 201 ALR 502 at [33] .


case_text: made no submissions on whether Jones v Dunkel had any application. Citing Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 , Forrest submitted in written closing submissions that a Jones v Dunkel inference may not be drawn against an accused in a criminal case because the application of the rule in Jones v Dunkel is incompatible with the presumption of innocence and the rights of the accused; further, this reasoning applies with equal force to the accused calling other persons to give evidence. Forrest then submitted that the point of principle that, when an accused exercises the right not to give evidence the jury is directed that no adverse inference should be drawn, applies to a civil proceeding as against an individual defendant. He referred to the statement of Gleeson CJ, Gummow, Hayne, and Heydon JJ in Rich v Australian Securities and Investment Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [24] that the privilege against exposure to penalty serves the purpose of ensuring that those who allege criminality or other (illegal) conduct should prove it, and said there is no expectation that a defendant will give evidence on matters for which the plaintiff bears the onus of proof. He said there is no authority that supports the proposition that a Jones v Dunkel inference is available against an individual defendant in a civil penalty proceeding, though, he said, the position may be different for a company. Finally, Forrest submitted that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and a Jones v Dunkel inference is not be used in determining what inference ought to be drawn from the documents, citing Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . In RPS [2000] HCA 3 ; 199 CLR 620 , Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 and Dyers [2002] HCA 45 ; 210 CLR 285 , the High Court considered the applicability of the rule in Jones v Dunkel to criminal proceedings. It decided that the rule is of very limited application to defendants in criminal cases, its reasoning based on the accusatorial nature of criminal proceedings. As an illustration of the Court's approach, in Dyers , Gaudron and Hayne JJ stated at [9]: As was pointed out in RPS... , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in ... Jones v Dunkel (26) ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. Further, in my view, nothing that has been said by the High Court in Dyers [2002] HCA 45 ; 210 CLR 285 and the other authorities discussed above supports the proposition that the general rule proscribing the making of inferences from a defendant's failure to give evidence in criminal proceedings should be extended to civil penalty proceedings in the form of a prohibition against applying the rule in Jones v Dunkel , notwithstanding that pursuant to Rich s 1317L also obliges the court to apply the body of law which has developed in relation to the privileges against penalties and forfeitures when deciding whether an order for discovery should be made.


case_title: Ex parte Dawes; in re Moon (1886) 17 QBD 275


case_text: Fame Decorator Agencies Pty Limited v Jeffries Industries Ltd [1998] HCA 30 ; (1998) 16 ACLC 1 ,235 at 1,240-1,241, a case also dealing with s 995, Gleeson CJ with whom Powell JA agreed stated that the parliament regarded is as desirable that, although s 52 of the TPA may have applied to some cases of dealing in securities, there should be a similar provision having as its focus conduct in relation to securities. His Honour added that much of the case law which has developed around s 52 will apply also to s 995.


case_title: Faulkner v Thomas [2000] TASSC 159

case_text: will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. Faulkner v Thomas [2000] TASSC 159 concerned a partnership agreement which included a clause containing an elaborate mechanism for the determination of the purchase price of the assets and goodwill of a deceased partner, with the price to be fixed by a valuer. Underwood J held at [34] that the rule imposed on the valuers for the ascertainment of the value of the goodwill was completely meaningless by virtue of the omission of a dollar figure from a particular subparagraph of the clause. Underwood J stated that the rule that had to be applied for the ascertainment of the value of the goodwill was incomplete in just the same way as if a contract specified that "the purchase price of the goods sold is $____". Accordingly, the uncertainty created by this omission rendered the whole contract void for uncertainty. Underwood J went on in that paragraph to state: "It is not for the Court to supply the omission upon some notions of general fairness" and cited Hall v Busst as authority for that proposition. In the present matter, my view is that the pricing mechanism in the framework agreements is arguably certain for reasons I will explain below.


case_text: have concluded, for reasons which I explain later in this Part that, in the case of each of the framework agreements, there was an intention to contract. This, as a starting point considerably strengthens the case for the defendants because in such circumstances a Court will always strive to give effect to that intention: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 ; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11 ; G R Securities 40 NSWLR 631; Fletcher Challenge Energy [2002] NZLR 433 . In the same vein in Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd [2002] 2 NZLR 433 at 445, Blanchard J observed: The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the Court's attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities. At 448, Blanchard J referred to the statement of the English Court of Appeal in Pagnan SpA v Feed Products [1987] 2 Lloyd's Rep 601: Merely because an important term is deferred to be settled on a future occasion that does not mean that there is no intention to be bound.


case_text: Foley v Classique Coaches Limited [1934] 2 KB 1 , the sale of land under a written contract was subject to the buyer entering into a supplemental agreement to purchase petrol and/or oil from the seller, the terms of which had been agreed between them. The supplemental agreement stated that petrol would be purchased "at a price to be agreed by the parties in writing and from time to time", and provided for arbitration in the event of any dispute or difference arising on the subject matter or construction of the agreement. Scrutton LJ agreed at p 10 that there was an effective and enforceable contract, although as to the future no definite price had been agreed with regard to the petrol. Greer LJ held at p 12 that it was appropriate to imply a term in the contract that the price of the petrol supplied shall be reasonable and in no way inconsistent with the agreement. Maugham LJ held that the contract was enforceable, inter alia, because implied in the obligation to sell and purchase the petrol at an agreed price was words to the effect that, in the absence of agreement, the arbitration clause provided a means for the determination of a reasonable price for the petrol.


case_text: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 , the Court (Bowen CJ, Lockhart and Fitzgerald JJ) stated at 88: An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is a basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing. A reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.


case_text: Glorie v WA Chip and Pulp Co Pty Ltd [1981] FCA 224 ; (1981) 55 FLR 310 at 328, Morling J stated: I do not think that a statement is necessarily misleading or deceptive if it cannot be demonstrated to be correct beyond any doubt. Nor is it necessarily misleading or deceptive merely if it is not accompanied by words indicating that a contrary view is held by others. If it were otherwise, public discussion and the free expression of opinions would be greatly inhibited. This would especially be the case where the statement is one of opinion or of mixed fact and opinion. When such a statement is made, the person to whom it is addressed will, in most cases, understand that there may be room for another opinion on the same matter. Where that is the case, I find it difficult to characterize the statement as being misleading or deceptive. The position would be different, of course, when a statement of opinion is made by a person who does not, in fact, hold that opinion. It might be thought that the disclosures, to the effect that FMG had executed binding build and transfer agreements with each of the Chinese Contractors, ought be characterised as statements of fact rather than opinion. Certainly, they were assertive in nature and were not expressly said to be expressions of opinion. However, I consider that they constitute mixed fact and law. As an objective matter, an assertion as to the meaning and legal effect of an agreement is necessarily the product of an opinion formulated to that effect. However the disclosures are characterised, a question as to the reasonableness of the underlying opinion and, in this case, whether or not it was honestly held, arises.


case_text: v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 involved an agreement for the sale of land which contained a provision that, if required, a further agreement would be executed containing the agreed terms and such other terms as the seller's solicitors may 'reasonably require'. Despite this provision, it was held that there was a binding contract. Walsh J, with whom Mason J agreed, stated at 642: ' It is clearly established that a binding agreement may be made which leaves some important matter, e.g. the price, to be settled by the decision of a third party'. Gibbs J concurred but cast the principles slightly more narrowly in some respects (646-8). He stated at 648 that the fact that the further agreement contemplated in the case before him would contain additional covenants and conditions if the vendor's solicitors reasonably required them did not mean that the parties had not reached complete agreement. This case was decided after Hall v Busst (1960) 104 CLR 207, an authority relied on by ASIC . In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , a recent judgment of the Supreme Court of Western Australia (Court of Appeal), the Court stated at [127]: There is some overlap between the requirements of intention to create legal relations and certainty. If a contract is legally uncertain, this might indicate that the parties did not intend to create legal relations. A contract can be uncertain in various ways, one of these being incompleteness, in the sense that essential terms are lacking: Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 , 603 (Kitto J); Godecke v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 , 646 - 647 (Gibbs J). The overlap between intention and uncertainty is at its greatest in cases in which agreement on some matters is deliberately postponed. If what is postponed is essential to the agreement (itself a question that largely depends upon the intention of the parties) , the agreement, to the extent that it has been reached, will be void. Also, the fact that essential terms have been left over for later agreement will militate against a finding that the parties intended to create contractual relations. (Emphasis added)


case_text: fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category.


case_title: Hall v Busst (1960) 104 CLR 207

case_text: v Kirwan [1973] HCA 38 ; (1973) 129 CLR 629 involved an agreement for the sale of land which contained a provision that, if required, a further agreement would be executed containing the agreed terms and such other terms as the seller's solicitors may 'reasonably require'. Despite this provision, it was held that there was a binding contract. Walsh J, with whom Mason J agreed, stated at 642: ' It is clearly established that a binding agreement may be made which leaves some important matter, e.g. the price, to be settled by the decision of a third party'. Gibbs J concurred but cast the principles slightly more narrowly in some respects (646-8). He stated at 648 that the fact that the further agreement contemplated in the case before him would contain additional covenants and conditions if the vendor's solicitors reasonably required them did not mean that the parties had not reached complete agreement. This case was decided after Hall v Busst (1960) 104 CLR 207, an authority relied on by ASIC . I will now turn to the cases cited by ASIC in support of its submission that the framework agreements were unenforceable because they were uncertain due to a lack of essential terms such as price: Hall v Busst 104 CLR 207; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd (1994) 2 VR 106 at 168-177 per Tadgell J; Faulkner v Thomas [2000] TASSC 159 at [34] ; and Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [36], [44]. The judgment of the High Court in Hall v Busst 104 CLR 207, illustrates how judges have disagreed as to the enforceability of a contractual clause dealing with the issue of price, where the clause leaves an aspect of the price for determination at a later time. This judgment is in relative terms an old decision, but the High Court was divided 3-2 which underscores the difficulty in construing such clauses and in a case such as the present case the unfairness which would attach to fixing on one opinion over others where those others were reasonably based and honestly held. The dispute involved a contract of sale in relation to an island off the coast of Queensland. The contract included an indenture which included an option which was in effect (in the words of Dixon CJ at 212) an option for the buyer of the land to take the land back with a refund of the sale price payment for the additions and improvements at their value less deficiences and depreciation. The clause referred to "the value of all additions and improvements to the said property" and "the value of all deficiences of chattel property and a reasonable sum to cover depreciation of all buildings and other property". The appeal to the High Court was brought on the ground that the price payable on the exercise of the option under the indenture was prescribed or expressed in terms which left it uncertain so that the option was unenforceable. Dixon CJ held at 217 that the price described in the relevant clause was unascertained and was too uncertain to be the basis of an enforceable contract. His Honour said: There could be no external standard of value of additions and improvements to the island: no standard yielding a figure reasonable fixed or ascertainable. Still less would it be possible to find an external standard for the reasonable sum to cover depreciation even if one knew what 'other property' is referred to. Fullagar J also held that the clause was uncertain because the price was not fixed with certainty. However, his Honour stated (222) that it would be sufficient if the sale was expressed to be for a price or value to be fixed by a named or described person. It was not sufficient for the sale to be expressed to be "for the value of the land" or "for the fair value of the land" or "for a reasonable price". Menzies J took a similar view, stating that no means of authoritative determination was provided by the agreement, and the necessity for further agreement revealed that there was no binding contract (231). Kitto J dissented stating that the meaning of the clause providing for additions and subtractions to the price did not seem to be uncertain, and that the value of the additions, improvements and deficiencies were capable of being ascertained when the time arrived. The provision as to "a reasonable sum to cover depreciation" appeared to his Honour to be definite in meaning and capable of being rendered certain in application, and he referred to a number of authorities. Windeyer J also dissented, saying that the parties expressed their intention in language that was sufficiently certain to create legal obligations. His Honour stated, following reference to a range of authorities (245): When parties agree to sell for a reasonable price or at a fair valuation they do not leave an essential term of their bargain for further agreement, so that their agreement is incomplete. It is complete. They have fixed the price by a measure that the law knows. If they disagree as to what sum of money fills that measure, a court will determine it, at common law by a jury. Faulkner v Thomas [2000] TASSC 159 concerned a partnership agreement which included a clause containing an elaborate mechanism for the determination of the purchase price of the assets and goodwill of a deceased partner, with the price to be fixed by a valuer. Underwood J held at [34] that the rule imposed on the valuers for the ascertainment of the value of the goodwill was completely meaningless by virtue of the omission of a dollar figure from a particular subparagraph of the clause. Underwood J stated that the rule that had to be applied for the ascertainment of the value of the goodwill was incomplete in just the same way as if a contract specified that "the purchase price of the goods sold is $____". Accordingly, the uncertainty created by this omission rendered the whole contract void for uncertainty. Underwood J went on in that paragraph to state: "It is not for the Court to supply the omission upon some notions of general fairness" and cited Hall v Busst as authority for that proposition. In the present matter, my view is that the pricing mechanism in the framework agreements is arguably certain for reasons I will explain below. In Southern Cross Financial Group 66 IPR 166 , Young CJ in Eq stated at [36] that in a contract for the sale of any article there are at least three basic requirements: precise identification of the parties to the contract; the property to be sold; and the price at which it is to be sold. In connection with the price requirement, his Honour referred to the analysis of Fullagar J in Hall v Busst 104 CLR at 222, and stated at [44] that this analysis made it quite clear that with "very, very, very few" exceptions, a contract to sell property at fair value is not binding and is incomplete. The exceptions included 'an industry which has a measure of what a fair value is or there is some other criteria'. I would add that Fullagar J stated at 222 that it would be sufficient if the sale was expressed to be for a price or value to be fixed by a named or described person. The CREC Framework Agreement did not simply state that the infrastructure items would be transferred at fair value or in like terms. Rather, the agreement expressly provided a pricing mechanism. Further, Southern Cross Financial Group 66 IPR 166 is distinguishable from the present matter because Young CJ found that the case was one where the parties intended there not to be a concluded contract unless and until a formal document had been executed .


case_text: breadth of managerial powers delegated to the chief executive officer by the board is ultimately contingent on the terms of appointment of the CEO: Harold Holdsworth & Co (Wakefield) Ltd v Caddies [1955] 1 WLR 352 as cited in Randall v Aristocrat Leisure [2004] NSWSC 411 at [382] . There is no evidence to demonstrate that Forrest's powers and authority as Chief Executive Officer were limited in any relevant way. I find that he was intimately and directly involved in the execution of the framework agreements, the formulation of FMG's notifications to the ASX and other disclosures, as well as the ongoing discussions with the NDRC and CMCC seeking Chinese government approval. Likewise, Forrest was intimately and directly involved in discussions with the NDRC and CMCC concerning the NDRC precondition to approval that FMG must provide one or more nominated Chinese companies with minority equity participation in FMG or the Project.


case_title: Heydon v NRMA [2000] NSWCA 374 ; (2000) 51 NSWLR 1


case_text: have concluded, for reasons which I explain later in this Part that, in the case of each of the framework agreements, there was an intention to contract. This, as a starting point considerably strengthens the case for the defendants because in such circumstances a Court will always strive to give effect to that intention: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 ; York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth [1949] HCA 23 ; (1949) 80 CLR 11 ; G R Securities 40 NSWLR 631; Fletcher Challenge Energy [2002] NZLR 433 . Kirby P did not state that an agreement to negotiate would never be enforceable. His Honour approved Lord Wright's speech in Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2 ; [1932] All ER Rep 494 such that, provided there was consideration for the promise, in some circumstances a promise to negotiate in good faith will be enforceable, depending on its precise terms. The proper approach to be taken in each case depends on the construction of the particular contract. His Honour stated: "In many contracts it will be plain that the promise to negotiate is intended to be a binding legal obligation to which the parties should then be held".


case_text: further relevant principle concerns the intention of the representor. Intention is not a necessary element of the contravention of s 52. The section involves no questions of intent upon the part of the corporation whose conduct is in question: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228 per Stephen J; Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 216 per Brennan J.


case_text: makes the following submission which I accept as a correct statement of the law. The proper construction of an agreement should be determined by what reasonable people in the position of the parties would have understood by the relevant clauses by considering not only their text, but also the surrounding circumstances and the purpose and object of the transaction: e.g. Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] ; International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 ; (2008) 234 CLR 151 at [8] and [53]. The whole of the document should be considered and its provisions given harmonious effect: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36 ; (1973) 129 CLR 99 at 109 (Gibbs J, in dissent, but not on the applicable principle).


case_text: reasonable reader of the disclosures made by FMG and Forrest on FMG's behalf would have expected FMG to have a genuine and reasonable basis for making those statements: Global Sportsman v Mirror Newspapers [1984] FCA 180 ; 2 FCR 82 at 88; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 372 per Toohey J; Wright v Wheeler Grace & Pierucci Pty Ltd (1988) ATPR 40-865 at 49,375-49,376 per French J (affirmed in Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 16 IPR 189) ; Bateman v Slayter (1987) 71 ALR 553 at 559 per Burchett J.


case_text: relies upon the following authorities in support of its submission that the framework agreements are bare agreements to negotiate the scope and terms, in each case, of a further agreement to build transfer and finance the relevant Project infrastructure and that such agreements are not enforceable: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 ; Jobern Pty Ltd v Breakfree Resorts (Victoria) Pty Ltd [2007] FCA 1066 ; Walford v Miles [1992] 2 AC 128. Jobern [2007] FCA 1066 involved a contractual dispute where the parties had executed a document entitled 'Heads of Agreement' (HofA), clause 3.3 of which stated: "Each party will conduct all such negotiations in good faith to ensure that the terms set out in these Heads of Agreement are given full effect". It was not in dispute in Jobern that the parties were bound by the HoFA, which Gordon J stated to be a final agreement within the first category described in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 at [106] . However Gordon J considered that cl 3.3 was uncertain because it suffered from the same problems referred to by Kirby J in Coal Cliff Collieries 24 NSWLR 1 at [130]. In my view Coal Cliff Collieries 24 NSWLR 1, Jobern [2007] FCA 1066 and Walford [1992] 2 AC 128 do not assist ASIC. I do not take Coal Cliff Collieries as authority for the proposition that a bare agreement to negotiate in good faith is not enforceable, as submitted by ASIC. In my view, that case is authority for the proposition that a promise to negotiate in good faith may, in particular circumstances, be enforceable, depending on the precise terms as construed from the contract. In Jobern [2007] FCA 1066 , it was not in dispute that the heads of agreement document was binding only the negotiation clause was held to be uncertain. In Walford [1992] 2 AC 128 , the agreement that was found to be uncertain was a 'lock-in' agreement committing the parties to negotiate with each other, which is to be distinguished from the types of obligations found in the framework agreements under consideration in the present case.


case_text: I accept that ASIC's allegations against FMG and Forrest are serious. In addition, I accept that the penalties sought against both would have severe consequences. Any monetary penalties against FMG and Forrest would likely have been very substantial. Section 1317(G)(1) allows the court to impose a pecuniary penalty of up to $200,000 for each contravention of s 180(1). ASIC alleges a total of 22 contraventions of that subsection by Forrest, ASC [177]. ASIC sought orders for Forrest to compensate FMG for the full amount of any damage which FMG suffered by reason of being liable to pay a pecuniary penalty for each contravention of s 674(2). The relevant maximum penalty for each contravention by FMG is $1 million. ASIC also sought orders for Forrest to be disqualified from managing corporations. Jones v Dunkel FMG foreshadowed that it would call evidence from its executives, such as Rowley, David Liu and Alan Watling but it did not do so. ASIC submits that, where an inference is open from facts proved, the unexplained failure of a party to call a witness or tender a document may be taken into account as a circumstance in favour of the drawing inference: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308, 312 and 320-321; RPS v The Queen [2000] HCA 3 ; (2000) 199 CLR 620 at [26] . ASIC submits that it should be inferred that Rowley, Liu and Watling were available to be called, but FMG chose not to call them for strategic reasons. As a result, ASIC says, if there are inferences to be drawn from documents in evidence, which could have been explained by these executives, or by Forrest who also elected not to give evidence, the inference should be drawn against FMG that the evidence of these executives would have been of no assistance to their case, and that the documents should bear the meaning contended for by ASIC. FMG made no submissions on whether Jones v Dunkel had any application. Citing Dyers v The Queen [2002] HCA 45 ; (2002) 210 CLR 285 , Forrest submitted in written closing submissions that a Jones v Dunkel inference may not be drawn against an accused in a criminal case because the application of the rule in Jones v Dunkel is incompatible with the presumption of innocence and the rights of the accused; further, this reasoning applies with equal force to the accused calling other persons to give evidence. Forrest then submitted that the point of principle that, when an accused exercises the right not to give evidence the jury is directed that no adverse inference should be drawn, applies to a civil proceeding as against an individual defendant. He referred to the statement of Gleeson CJ, Gummow, Hayne, and Heydon JJ in Rich v Australian Securities and Investment Commission [2004] HCA 42 ; (2004) 220 CLR 129 at [24] that the privilege against exposure to penalty serves the purpose of ensuring that those who allege criminality or other (illegal) conduct should prove it, and said there is no expectation that a defendant will give evidence on matters for which the plaintiff bears the onus of proof. He said there is no authority that supports the proposition that a Jones v Dunkel inference is available against an individual defendant in a civil penalty proceeding, though, he said, the position may be different for a company. Finally, Forrest submitted that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and a Jones v Dunkel inference is not be used in determining what inference ought to be drawn from the documents, citing Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . In RPS [2000] HCA 3 ; 199 CLR 620 , Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 and Dyers [2002] HCA 45 ; 210 CLR 285 , the High Court considered the applicability of the rule in Jones v Dunkel to criminal proceedings. It decided that the rule is of very limited application to defendants in criminal cases, its reasoning based on the accusatorial nature of criminal proceedings. As an illustration of the Court's approach, in Dyers , Gaudron and Hayne JJ stated at [9]: As was pointed out in RPS... , it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in ... Jones v Dunkel (26) ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject-matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi , that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. In RPS [2000] HCA 3 ; 199 CLR 620 , at [26]-[27] Gaudron A-CJ, Gummow, Kirby and Hayne JJ contrasted the reasonable expectation that a party in a civil trial would give or call relevant evidence in the circumstances described in Jones v Dunkel with the conclusion that it would seldom, if ever, be reasonable to expect an accused in a criminal trial to give evidence. Weissensteiner provides an example of where the latter would be reasonable. The Rich cases therefore turned on the issue of whether a disqualification order was a penalty. It was not in dispute that the privilege against exposure to penalty protected a defendant in civil proceedings not only from being obliged to give discovery, but also from being subject to any direction that affidavits or witness statements be provided to the plaintiff prior to the hearing or at any time prior to the conclusion of the plaintiff's case: see e.g. Austin J at first instance: [2003] NSWSC 328 ; (2003) 21 ACLC 920 , at [19]-[30]. In their judgments, neither the High Court nor the Court of Appeal considered the application of the rule in Jones v Dunkel ; Austin J mentioned it briefly in passing at [58]. The rule in Jones v Dunkel was discussed however in Adler v Australian Securities & Investments Commission [2003] NSWCA 131 ; (2003) 179 FLR 1 , Williams v Australian Securities & Investments Commission [2003] NSWCA 131 ; (2003) 46 ACSR 504 , a judgment handed down before the High Court's Rich ruling, where the New South Wales Court of Appeal ruled that the trial judge, Santow J ((2002) [2002] NSWSC 171 ; 41 ACSR 72) , made no error in so far as his findings against Mr Adler, his company and Mr Williams were aided by Jones v Dunkel inferences against both those individuals and the company. In that proceeding ASIC had sought, inter alia , disqualification orders as well as pecuniary penalties. Giles JA, with whom Mason P and Beazley JA agreed, considered the High Court criminal cases discussed above and noted at [658] that proceedings for civil penalties do not share the same fundamental features of a criminal trial. His Honour stated that civil penalty proceedings are expressly to be maintained by civil law processes, not by a criminal trial with its fundamental features, [659]. He concluded that it was open for Jones v Dunkel inferences to be drawn against Mr Adler, his company, and Mr Williams in the proceedings, [661]. The rulings in Adler were therefore made on the footing that the privilege against exposure to penalty was attracted through ASIC's seeking of pecuniary penalties, but this did not prevent the trial judge from applying the rule in Jones v Dunkel, the rule and privilege both falling within the rules of evidence and procedure for civil matters that the court was bound to apply pursuant to s 1317L of the act when hearing proceedings for a declaration of contravention or a pecuniary penalty order. The High Court refused an application for special leave to appeal from the Court of Appeal's decision in Adler : [2004] HCATrans 182 , 28 May 2004. The transcript reveals that the special leave point argued was the issue of procedural fairness in dealing with the imposition of pecuniary penalties and disqualification under the civil penalties regime of the Act; there was no discussion of the rule in Jones v Dunkel . Further, in my view, nothing that has been said by the High Court in Dyers [2002] HCA 45 ; 210 CLR 285 and the other authorities discussed above supports the proposition that the general rule proscribing the making of inferences from a defendant's failure to give evidence in criminal proceedings should be extended to civil penalty proceedings in the form of a prohibition against applying the rule in Jones v Dunkel , notwithstanding that pursuant to Rich s 1317L also obliges the court to apply the body of law which has developed in relation to the privileges against penalties and forfeitures when deciding whether an order for discovery should be made. Further authority for the availability of the rule in Jones v Dunkel in civil penalty proceedings is found in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 , where Hill J stated at [33]: Where the proceedings are criminal (and the present proceedings are not; they are proceedings, inter alia, for the recovery of a civil penalty) it might be thought that the failure of the accused to go into evidence should not lead to the drawing of Jones v Dunkel inferences. After all it is clear that a witness can not be compelled to give evidence which is likely to incriminate the witness or expose the witness to a penalty. However, even in criminal cases it has been held that the failure of the accused, who is in a position to deny, explain or answer the evidence adduced by the prosecution, to give evidence will permit the jury to draw inferences adverse to the accused more readily: see Azzopardi v R [2001] HCA 25 ; (2001) 179 ALR 349 , affirming Weissensteiner v R [1993] HCA 65 ; (1993) 178 CLR 217. A fortiori, therefore, the failure of a respondent to proceedings for recovery of a pecuniary penalty to give evidence on a matter relevant to an issue in the proceeding and deny, explain or answer the evidence adduced against the respondent will permit the Court more readily to draw the inferences to which the decision in Jones v Dunkel refers. In Council of the New South Wales Bar Association v Power [2008] NSWCA 135 ; (2008) 71 NSWLR 451 at [21] , a proceeding seeking removal of a legal practitioner from the Roll, Hodgson JA, with whom Beazley and McColl JJA agreed, referred to the High Court's conclusion in Azzopardi [2001] HCA 25 ; 205 CLR 50 that it was open to a trial judge in a criminal case to make a comment relating to the absence of evidence of additional facts peculiarly within the knowledge of the accused. Hodgson JA went on to say at [22] concerning the case before him that: If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd [2001] FCA 1800 ; (2001) 201 ALR 502 at [33] . In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 , the Court discussed the Adler and Rich cases and concluded at [76] that there is no reason in civil proceedings for pecuniary penalties to deny the applicability of the principles in Jones v Dunkel provided that in doing so the court proceeds in accordance with the principles in relation to s 140 of the Evidence Act , which prescribes he civil standard as the applicable standard of proof. I have discussed the standard of proof earlier. Finally, in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, Austin J concluded at [458] that, having considered the reasoning in Dyers and Adler , the principle in Jones v Dunkel is applicable against either party to civil penalty proceedings. ASIC seeks to draw Jones v Dunkel inferences against FMG by reason of the failure of Forrest and the other executives to give evidence. ASIC does not seek to draw the inferences against Forrest himself. Forrest has relied on the privilege against self-incrimination and the privilege against exposure to penalty, privileges which are are not available to corporations: Trade Practices Commission v Abbco Ice Works Pty Ltd [1994] FCA 1279 ; (1994) 52 FCR 96. However, even if ASIC had sought to draw inferences against Forrest as well as the corporate entity, on my review of the authorities it would not have been precluded from doing so. There is no reason therefore, in these circumstances, why the inferences cannot, as a matter of law, be drawn against FMG in the present proceedings. The question which then arises is whether I should draw such an inference in the manner urged by ASIC The authorities state that two inferences are involved in the rule in Jones v Dunkel . First, a court might infer that the evidence of the absent witness would not have assisted the party that failed to call that witness; secondly, a court might draw, with greater confidence, any inference unfavourable to the party that failed to call that witness, if that witness appears to be in a position to cast light on whether the inference should be drawn: Manly Council v Byrne and Anor [2004] NSWCA 123 at [51] ; ASIC v Macdonald [2009] NSWSC 287 ; 256 ALR 199 per Gzell J at [1137]. In Manly Council , the Court of Appeal stated that there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences. This was confirmed by the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 at [97] - [98], where Campbell JA said, with the agreement of Spigelman CJ and Bell JA (as her Honour then was): In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. Further, the Court of Appeal in Manly Council referred to the principles concerning the application of Jones v Dunkel set out by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 which have been widely regarded as correct although Glass JA was in dissent as to the application of the principles to the facts: per Campbell JA with whom Beazley JA and Pearlman AJA agreed, at [53]. In Payne [1976] 1 NSWLR 191 , Glass JA said that whether Jones v Dunkel should be applied depends on establishing three conditions: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained. Before stating my conclusion on whether I ought to make any Jones v Dunkel inferences, I will deal with the final authority cited by Forrest, Singh v Minister for Immigration [2001] FCA 389 ; (2001) 109 FCR 152 , from which he submits the following propositions emerge: that inferences are to be drawn from the documents before considering any question of Jones v Dunkel ; and that a Jones v Dunkel inference is not to be used in determining what inference ought to be drawn from the documents. In Singh , the applicant sought judicial review of a Ministerial decision to refuse to grant a spouse visa on character grounds. The Minister's reasons for decision were given in two documents: a decision record and a statement of reasons. The applicant argued that the Minister erred in making his decision by failing to have regard to the character references in support of the applicant which were annexed to a letter attached to the decision record. The Minister did not give evidence at trial, but Sackville J found that the statement of reasons provided affirmative evidence that the Minister gave consideration to the contents of the character references. The inferences that the applicant sought to draw by the Minister's failure to give evidence were contradicted by the Minister's statement of reasons. In my view, what Sackville J said in Singh concerning the application of the Jones v Dunkel principle to the case before him is merely an application of the second condition given by Glass JA in Payne at p 201 as to whether the principle can or should be applied, namely whether the evidence of the missing witness would elucidate a particular matter. There was no occasion to draw an inference from the Minister's failure to give evidence because in his Honour's view, the question of whether he took into account the character references was adequately addressed by the statement of reasons. As ASIC's senior counsel put it, in ASIC's closing written submissions, generally, the evidence upon which ASIC relies to establish all of the alleged contraventions is documentary, and founded upon FMG's own business records. This evidence is supplemented by certain alleged admissions by Watling and Rowley, derived from transcripts of examinations conducted by ASIC pursuant to s 19 of the ASIC Act : ASIC's closing submissions [47]-[48]. ASIC withdrew from tender alleged admissions made by Forrest during his s 19 examination. This was so despite the fact that Forrest who had not claimed privilege, as he might have done during his examination sought to have additional parts of his transcript admitted which he said would put in context and explained what ASIC contended amounted to admissions against Forrest's interest. The additional evidence, I infer, would have been favourable to Forrest. If ASIC considered that, despite this additional evidence, the transcript nonetheless disclosed relevant admissions then it would, no doubt, have persisted with its tender. However, I was denied the benefit of any of this evidence. ASIC has not identified any particular matters that the evidence of the executives, including Forrest, would elucidate. For these reasons, I decline to make any Jones v Dunkel inference against FMG from the failure of Forrest and the other executives to give evidence. Browne v Dunn ASIC submits there is also a small amount of direct evidence from witnesses it called which mostly went unchallenged. For example, Catherine Li, a former FMG engineer, was not cross-examined about her evidence concerning a meeting on 6 November in which Forrest offered a 30% equity interest in the Project to a Chinese investor. Likewise, Wei Fisher, a former FMG executive assistant, was not cross-examined about her evidence of a letter from CMCC on about 3 February 2005, in which she recalls that CMCC claimed that the "deal" with the Chinese contractors was off. FMG's honesty in this respect depends on that of Forrest and other members of its board. That FMG's opinion was genuine may be inferred from other facts. For reasons contained under Part 3 I draw no Jones v Dunkel inference against Forrest by reason of him not giving evidence. It is instructive to consider the following: (a) legal oversight and advice; (b) the position adopted by the Chinese Contractors; (c) FMG's internal records; (d) FMG's external communications; (e) the position adopted by FMG executives; (f) Advanced framework agreements; (g) comparison with other FMG documents. Legal oversight and advice ASIC, in respect to its case under s 674, pleads at ASC [136(3)] amongst other things, that FMG by its board, including Forrest, ought to have come into possession of the parts of the Informations concerning, on ASIC's case, the legal effect of the framework agreements by first obtaining competent legal advice as to the legal effect of the framework agreements.


case_text: is an apparent distinction between Listing Rule 3.1 which requires that the information be expected to have a "material" effect on the price or value of the securities and the deeming provision in s 677 of the Act which requires only that the information would or would be likely to "influence" common investors. This was considered by the Court of Appeal of Western Australia in Jubilee Mines NL v Riley (2009) 253 ALR 673 in respect of equivalent provisions in the continuous disclosure provisions in the Corporations Law and the ASX Listing Rules. In Jubilee Mines 253 ALR 673 the provisions of the Act relating to continuous disclosure were at that time located in Chapter 7, Part 7.11, Div 2. They were relocated to Chapter 6CA by the Financial Services Reform Act 2001 . The relevant continuous disclosure Listing Rule was Rule 3A(1) the equivalent of that Rule is now Rule 3.1. The equivalent of s 674, s 675 and s 677 that were considered are s 1001A, s 1001B and s 1001D respectively. In Jubilee Mines 253 ALR 673 the issue was whether Jubilee, a small listed gold exploration company that wanted to transition into a gold producing company had to disclose information that it received, in 1994, of drilling results about the nickel development potential of its tenements, on receiving that information from a neighbouring tenement holder Western Mining Corporation Ltd, which had inadvertently conducted drilling on Jubilee's tenements. When such information was released in 1996, there was a resultant increase in Jubilee's share price. But, in 1994, Jubilee was focussed on gold and was short of cash, without the necessary ability to develop any nickel assets. The Court of Appeal allowed the appeal from a judgment of a master of the Supreme Court, and held that there had been no contravention of s 1001A essentially because the information was held to be not material in 1994. Martin CJ delivered the main judgment with which Le Miere AJA agreed. McLure JA delivered a separate judgment. Martin CJ rejected the argument that the Listing Rule can only be contravened if a reasonable person would expect the information to have a material effect on the price or value of a company's securities quite independently of the question posed by s 1001D. His Honour said the better view is that s 1001D applies to the Listing Rule, with the consequence that if information has the characteristic defined in that section, it should be taken to be information falling within the scope of the Listing Rule: [34], [54]-[62]. This was for the reason that acceptance of the argument would create an inconsistency between the Listing Rule on the one hand and ss 1001A and 1001D on the other, which would not have been intended by Parliament. The inconsistency would be that the Listing Rule would require notification only when there was a reasonably expected material impact on share price or value, whilst ss 1001A and 1001D would require notification whenever the information would, or would be likely to influence common investors: [60]-[61]. In a separate judgment, McLure JA considered whether s 1001D supplants the third element of the Listing Rule, namely materiality and concluded that because s 1001D was stated to apply for the purposes of s 1001A and s 1001B but not the Listing Rule; and because s 1001A and s 1001B apply only if information is not generally available, unlike the Listing Rule, which applies regardless, s 1001D did not describe materiality for the purposes of the Listing Rule: [149]-[150]. At [165] McLure JA also referred to the "obvious terminological differences" between the tests in s 1001D and the Listing Rule. Her Honour stated that the test in s 1001D does not rely on a hypothetical reasonable person and does not require a material effect on the price of securities. However, in the circumstances of the case, her Honour held it was unnecessary to determine whether the differences are capable of producing different outcomes, because the concession of the parties that the price of shares in the relevant company were determined by the conduct and motivations of share traders would apply to both tests and the outcome would have been the same. On 31 July 2009, the High Court refused application for special leave to appeal the Court of Appeal's decision. In my opinion, in substance, the approach adopted by the majority is correct. It is a matter of the proper construction of Listing Rule 3.1. I would construe "information" which "would, or would be likely to influence" common investors in deciding whether to acquire or dispose of securities as information, for the purposes of Listing Rule 3.1, that a reasonable person would expect to have a material effect on the price or value of the securities. This is merely an approach to the construction of the words "material effect on the price or value of the entity's securities" in Listing Rule 3.1 which provides harmony with the provisions of ss 674 and 677 of the Act. Paragraph 20 of Guidance Note 8 to Listing Rule 3.1, which refers to s 674 and s 677, supports this construction. The relevant requirements of Listing Rule 3.1 and s 674(2)(c), as applicable to FMG at the time it made the notifications to the ASX in August and November 2004 were as follows: (a) there must have existed "information" within the meaning of Listing Rule 3.1 and s 674(2); (b) FMG must have been aware of that information: s 674(2)(b), Listing Rule 3.1; (c) that information must not have been generally available: s 674(2)(c)(i), cf Listing Rule 3.1A.1; and (d) a reasonable person would have expected that information to have had a material effect on the price or value of FMG's shares, if it had been generally available: s 674(2)(c)(ii), Listing Rule 3.1. The meaning and operation of the last two requirements is governed by ss 676 and s 677 respectively. I find support, in my approach to the issue of opinion, in the context of Listing Rule 3.1, from the judgment of McLure JA in Jubilee Mines 253 ALR 673. This case involved competing opinions as to the significance of geological information (the WMC information) supplied to Jubilee. Jubilee had obtained an expert opinion from a geologist, Mr Cooke, who was also an executive of Jubilee. In light of his opinion, Jubilee's managing director decided there was no need to disclose the information to the ASX. The respondent's expert opinion given at trial was to the contrary. McLure JA observed at [160] that expert opinions held in good faith on reasonable grounds may differ. Her Honour also stated at [185]: However, the fact that there are competing expert opinions on the level of significance of the WMC information does not justify a conclusion that the appellant ought to have been aware that the WMC information was highly significant. No doubt if Mr Cooke's assessment was negligent (not based on reasonable grounds) there may be room for such a finding. However, I see no basis in the evidence for a finding that Mr Cooke's opinion was other than honestly held on reasonable grounds. Subsequent drilling results do not support a finding that Mr Cooke's 1994 assessment was unreasonable. Were ASIC's opinions as to the legal effect of the framework agreements self evident having regard to their terms? ASIC's case is that the opinions, in effect, expressed in the Informations were obvious and the only opinions reasonably open objectively. I say opinions, because even on ASIC's case there are competing opinions. First ASIC submits that the framework agreements have no legal effect and are therefore unenforceable. Second ASIC submits that if they are enforceable they are merely agreements to enter into negotiations. It follows that ASIC's contention necessarily extends to a submission that FMG's opinion as to the meaning and legal effect of the framework agreement, in effect contained in the disclosures opinion was not reasonably open. I accept however that evidence of the actual effect of the information actually disclosed on FMG's share price may be relevant to assist the Court in its determination of whether s 674(2) has been contravened: Rivkin Financial Services Ltd v Sofcom Ltd (2004) 51 ACSR 486 by analogy at [113]-[116]; Jubilee Mines NL v Riley (2009) 253 ALR 673 at [33], [130] and [134]. This involves an ex post inquiry . Such evidence may constitute a relevant cross-check as to the reasonableness of an ex ante judgment about a different hypothetical disclosure. Gzell J in ASIC v Macdonald (No 11) 256 ALR at [1067] said: Where likelihood of the occurrence of an event is in issue and relevant facts are available, they are to be preferred to prophecies.


case_title: MacKenzie v Childers (1889) 43 Ch D 265

case_text: supports an argument that the agreement recorded in the recitals for CREC to build or "execute" the railway should be given effect and should be treated as an agreement between FMG and CREC even where the operative provisions of the framework agreement do not contain such a provision and there is nothing inconsistent with such a construction in the operative provisions: Buckland v Buckland [1900] 2 Ch 534 at 540.3; MacKenzie v Childers (1889) 43 Ch D 265 at 274.7, 275.4-276.1; Ex parte Dawes; in re Moon (1886) 17 QBD 275 , 286.8, 288.2, 289.7; Aspdin v Austin (1844) 5 QB 671 at 683. This is even more so where, as here, the framework agreements were not drawn by lawyers. They were drafted by Heyting, an engineer, who also holds a Masters of Business Administration and who had some training in contract management. In those circumstances, arguably, a distinction between recitals and operational clauses should not be rigorously applied in an attempt to determine the parties' intention, determined objectively. Expressly, the recitals proceed on the basis that there is an agreement for the relevant Chinese contractor to build the infrastructure which is sought to be recorded in the framework agreements. The recitals do not say or imply that what follows is merely an informal arrangement, or a mere agreement to negotiate.


case_text: authorities state that two inferences are involved in the rule in Jones v Dunkel . First, a court might infer that the evidence of the absent witness would not have assisted the party that failed to call that witness; secondly, a court might draw, with greater confidence, any inference unfavourable to the party that failed to call that witness, if that witness appears to be in a position to cast light on whether the inference should be drawn: Manly Council v Byrne and Anor [2004] NSWCA 123 at [51] ; ASIC v Macdonald [2009] NSWSC 287 ; 256 ALR 199 per Gzell J at [1137]. In Manly Council , the Court of Appeal stated that there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences. This was confirmed by the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26 at [97] - [98], where Campbell JA said, with the agreement of Spigelman CJ and Bell JA (as her Honour then was): In other words, in a civil trial by judge alone Jones v Dunkel licences, but does not compel, the drawing of inferences when a witness is not called. Whether either or both of the inferences are actually drawn is part of the trial judge's task of weighing the evidence. Further, the Court of Appeal in Manly Council referred to the principles concerning the application of Jones v Dunkel set out by Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201-202 which have been widely regarded as correct although Glass JA was in dissent as to the application of the principles to the facts: per Campbell JA with whom Beazley JA and Pearlman AJA agreed, at [53]. In Payne [1976] 1 NSWLR 191 , Glass JA said that whether Jones v Dunkel should be applied depends on establishing three conditions: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.


case_title: Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353

case_text: submits that the agreement falls under the first category of agreement identified in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 such that the parties have agreed all terms and intend to be bound immediately but propose 'to have the terms restated in a form which will be fuller or more precise but not different in effect'. Like FMG, Forrest submits that the agreement was a binding first agreement for the build, finance and transfer of the railway, with a further agreement to be executed at a later date. ASIC submits, however, that the most noteworthy aspect of the agreement is the absence of agreement on critical matters, and the complete absence of detail about other matters. ASIC makes the following submissions regarding the terms of the CREC Framework Agreement in support of its contentions that the agreement was a bare agreement to negotiate the scope and terms of a further contract to build, transfer and finance the infrastructure, and that it did not impose any legally enforceable obligations: (a) CREC was not obliged to actually build or transfer the railway; (b) there was no agreed price in the agreement nor any mechanism to achieve or confirm a price; (c) there was no definition of the scope of the works to be performed; (d) there was no provision for choice of contractors or the selection of materials; (e) there was no definition of "practical completion"; (f) there were no specifications for any design elements of the infrastructure. I will deal with each of these in turn. Was CREC arguably obliged to actually build or transfer the railway? In Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR 540 Gleeson CJ, with whom Hope and Mahoney JJA agreed, confirmed at 584E-F the importance in a Masters v Cameron type of dispute of assessing the parties' intention to make a concluded bargain, and stated that the question of intention is distinct from, although it may be closely related to, the question whether the parties have reached agreement upon such terms as are, in the circumstances, legally necessary to constitute a contract. His Honour stated: Nevertheless, in the ordinary case, as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention. Jobern [2007] FCA 1066 involved a contractual dispute where the parties had executed a document entitled 'Heads of Agreement' (HofA), clause 3.3 of which stated: "Each party will conduct all such negotiations in good faith to ensure that the terms set out in these Heads of Agreement are given full effect". It was not in dispute in Jobern that the parties were bound by the HoFA, which Gordon J stated to be a final agreement within the first category described in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 at [106] . However Gordon J considered that cl 3.3 was uncertain because it suffered from the same problems referred to by Kirby J in Coal Cliff Collieries 24 NSWLR 1 at [130]. In Masters v Cameron [1954] HCA 72 ; 91 CLR 353 , Dixon CJ, McTiernan and Kitto JJ explained in a joint judgment that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes, the first two involving binding contracts (360): (1) The parties have agreed all terms and intend to be bound immediately but at the same time propose 'to have the terms restated in a form which will be fuller or more precise but not different in effect'; (2) The parties have agreed all terms but intend to make performance of one or more terms conditional on the execution of a formal document; (3) The intention may be not to make a concluded bargain at all unless and until the parties execute a formal contract. The judgment went on to explain that the question depends upon the intention disclosed by the language the parties have employed (362.5) and that there is no formula, such as "subject to contract" which is so intractable as always and necessarily to produce a result that there is no binding contract (363.6). The courts have also recognised a fourth class of case additional to the three mentioned in Masters v Cameron [1954] HCA 72 ; 91 CLR 353 , a class identified by Knox CJ, Rich J and Dixon J in Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 317 as: ... one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms. This fourth category was recognised by McLelland J in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 and on appeal in G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 where McHugh JA delivered the Court of Appeal's judgment and observed that the magnitude, subject matter or complexities of a transaction may indicate that an agreement was a limited one not intended to have legal effect (634D) but that what was critical was the parties' intention objectively ascertained, and that this intention should prevail (634E-F). In Uranium Equities Ltd [2008] WASCA 33 ; 36 WAR 97 , the Supreme Court of Western Australia (Court of Appeal) stated at [129] that the fourth Masters v Cameron category was a variation of the first category. In Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 , the NSW Court of Appeal emphasised that determining whether parties have come to a concluded agreement is a matter of their objectively ascertained intention in the particular case. Giles JA stated that the Masters v Cameron categories and a possible fourth category are intellectual aids, and that categorisation does not greatly contribute to the decision in the particular case, which is concerned with finding what agreement, if any, the parties came to, [26]. Similarly, in Moffat Property Development Group Pty Ltd [2009] QCA 60 , Keane JA, with whom McMurdo P and Atkinson J agreed, said at [37] in relation to classifying the putative agreement in that case under one of the four Masters v Cameron categories: In my respectful opinion, however, there is little purpose to be served in seeking to resolve the issue of classification. A concern as to classification should not be allowed to obscure or distract from the real task of the court which is to ascertain and give effect to the intentions of the parties. Keane JA referred to Sir Anthony Mason's opening address to the Journal of Contract Law 20 th Anniversary Conference ((2009) 25 Journal of Contract Law 1, 6): ... [T]he categories (or classifications of Masters v Cameron ((1954) [1954] HCA 72 ; 91 CLR 353) , be they three or four, are no more than exemplifications of the general principle that, in the case of written documents, the intention of the parties is to be resolved objectively and as a matter of construction of the relevant documents. The categories are necessarily subject to the general principle. The question therefore, which is of paramount importance here is whether or not the parties to the framework agreements intended them, objectively, to be legally binding. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the issue was whether a binding contract for Anaconda, a company interested in lateritic nickel, to explore and mine for base metals on the tenements of Tarmoola, a company interested mainly in gold, had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement ' constitutes an agreement in itself intended to be replaced by a fuller agreement not different in substance or form' . Tarmoola argued that there was no intention to contract, no agreement on essential terms, and that the agreement was incomplete and uncertain. By majority, the WA Full Court rejected these arguments and held that the heads of agreement was a binding contract. Ipp J (with whom Pidgeon J agreed) found that contractual intention was present. His Honour endorsed the existence of the fourth Masters v Cameron category in stating: It is well recognised that parties may enter into a valid contract containing a limited number of terms comprising those terms essential to the bargain that they wish to conclude, in the expectation that at a later date a further contract will be arrived at containing additional terms that would facilitate and clarify the initial contract. That is to say, a binding contract may be arrived at even though it leaves unresolved many matters which might arise in future. [25] His Honour found that the agreement was neither incomplete nor uncertain such as to render it void or such as to indicate that the parties did not intend to enter into legal relations, and that the agreement contained all the essential terms required for a legally binding agreement. The omission to deal with particular future problems such as water did not make the agreement uncertain or incomplete: these issues could be resolved by processes of construction and implication: [79]. His Honour stated that the parties' failure to enter into a more detailed agreement may have made the exploring and mining operations contemplated by the heads of agreement more expensive, difficult and complex, but he did not accept that it was unworkable in the sense of it being objectively impossible for performance of its terms to be effected: [95]. In dissent, Anderson J noted that the trial judge had found this case to be in the third Masters v Cameron category, that is, a case in which the terms of the heads of agreement were not indtended to have and therefore did not have any binding effect of their own, and he agreed with the trial judge that the parties did not intend the heads of agreement to have binding effect as their concluded bargain ([121]-[124]).