Canberra Bushrangers Baseball Team Pty Limited v Earl Byrne [1994] ACTSC 136 (21 December 1994)

SUPREME COURT OF THE ACT

CANBERRA BUSHRANGERS BASEBALL TEAM PTY LIMITED v EARL BYRNE
No. SC707 of 1994
Number of pages -18
Contract - Equity - Estoppel - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Contract - effect of failure to sign - what amounts to implied assent to terms - whether a party can be required to sign a contract by the court - injunction - whether an option to renew amounts to restraint of trade - unconscionableness - unjust enrichment.

Equity - injunctive relief - equitable remedies.

Estoppel - principles - equitable estoppel - promissory estoppel - common law estoppel.

Evidence - credibility and weight.

Browne v Dunn (1893) 6 R 67

Freeman v Cook (1848) 2 Ex 654; 154 ER 652
Greenwood v Martins Bank (1933) AC 51
Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305
Newbon v City Mutual Life Assurance Society Ltd [1935] HCA 33; (1935) 52 CLR 723
Waltons Stores v Maher [1988] HCA 7; (1988) 164 CLR 387
Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406
Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
David Securities Pty Ltd v Commonwealth of Australia [1992] HCA 48; (1992) 175 CLR 353
Buckenara v Hawthorn Football Club Ltd (1988) VR 39
Curro v Beyond Productions Pty Limited (1993) 30 NSWLR 337

HEARING

CANBERRA, 17-18 November 1994
21:12:1994

Counsel for the plaintiff: Mr R Crowe

Instructing solicitors: Gary Robb and Associates

Counsel for the defendant: Mr G Lunney

Instructing solicitors: Pamela Coward and Associates

ORDER

THE COURT ORDERS THAT:

1. There be judgment for the defendant.
2. The plaintiff's claim be dismissed.

DECISION

HIGGINS J This is an application for an injunction to restrain the defendant from playing baseball for any other team in the Australian Baseball League (ABL).

2. The plaintiff is the owner of a baseball team known as the Canberra Bushrangers (the Bushrangers). Part of its function is to enter into contracts with players in order to enable it to field a team in competition conducted by the ABL. It is a national competition. The players are paid. They are also exposed to the opportunity to play professional baseball at various levels in the United States of America.

3. It is the plaintiff's case that in or about June 1993 in Victoria or in or about August 1993 at Canberra there was an agreement between the plaintiff and the defendant that the defendant would play exclusively for the Bushrangers during the 1993/94 National baseball season in the ABL competition. There is no dispute as to the fact that the defendant did play baseball exclusively for the Bushrangers during the 1993/94 season and that the plaintiff paid the fees and expenses previously agreed between them. The season usually runs from October to February the following year. The 1994 season concluded on 5 February 1994.

4. The issue is as to whether the agreement, by virtue of which the defendant played for the plaintiff during the 1993/94 season, included a term that either during that season or within 120 days of its conclusion, the plaintiff was entitled to exercise an option to renew the agreement for the 1994/95 season. There is then an issue as to whether, if that term forms or should in equity be regarded as forming part of the agreement, the Court should make the order sought.

5. In addition to the restraining order referred to, the plaintiff also seeks an order directing the defendant to sign a "Standard Player Contract". That order may be regarded as ancillary to the injunction sought.

6. Evidence was given both by affidavit and orally by Mr David White. He is the Director of Player Personnel for the Bushrangers. He had, before June 1993, been pitching coach for the defendant. Mr White believed that the defendant had considerable potential as a pitcher. He also had the advantage, so far as Mr White was concerned, of being left-handed.

7. In May or June 1993 he spoke to the defendant and asked him to consider coming to Canberra to play for the Bushrangers. That team was relocating from Melbourne and the defendant had been a player for the Melbourne Bushrangers as the team had then been called.

8. The terms offered to him were that he would be paid $225.00 per fortnight during the season plus bonuses for games played and won varying between $25.00 and $50.00 per game according to whether the game was at home or away. The plaintiff agreed to meet travelling costs and to arrange accommodation for the defendant in Canberra. However, it was left to the defendant to find a job to supplement his income from playing baseball. Unlike the United States, baseball in Australia is, it seems, a part-time job for the professional players.

9. It was put to the defendant by Mr White that he would be given the opportunity to play with the team, to see how he liked it and to see whether he was good enough to be included in the team to be fielded.

10. Pursuant to that arrangement, Mr White claims to have handed the defendant a "letter of intent". It was said to have set out the arrangements just mentioned and to have advised the defendant that, if he was found suitable he would be asked to sign a "Standard Player Contract". Neither the letter, a copy or even a proforma of such a letter was produced in evidence. Its existence was in dispute. Mr White said the letter was signed by the defendant and returned to him but it had been lost in an "office move". Indeed, he claimed that he had destroyed it believing that it was no longer relevant.

11. No "Standard Player Contract" was produced until about September 1993. There was some dispute as to the circumstances of its production but the form of the document presented to the defendant was not in dispute.

12. In his affidavit, Mr White claimed to have had the following conversation at that time with the defendant:

Earl Byrne: Do you have my contract to sign?
Myself: Yes, here are two copies of the contract, read it, sign

it,

and send a copy to Bruce Portner's Sydney Office.
Earl Byrne quickly glanced through the contract in my presence and

said

words to the following effect, "That's okay, I'll sign it".
He then put the contracts in his baseball bag.

The document Mr White identified as being a copy of "the contract" was entitled "Canberra Bushrangers Player Agreement" (the Agreement).

13. In his oral evidence, Mr White said that the Agreement was not negotiable. If the defendant had refused to sign, then he would have been told that he would not be able to play for the Bushrangers. At that stage, it would probably not have been practicable for the defendant to obtain a position with another ABL side. The Agreement was a similar form to that previously used by the Melbourne Bushrangers. It was eight pages long, including a Schedule, and would have taken 15 minutes or so to read properly.

14. During cross-examination, a number of questions were asked concerning this conversation. I asked Mr White some questions. The following exchanges occurred:

... But what is being suggested to you is that he (the defendant)
did not use the express words, "That's okay, I'll sign it" when he

was

handed the agreement? - - - When I handed him the agreement I said,

"You

need to sign a copy of this. Send it to Bruce's office in Sydney",

and

he said, "Okay, that's fine".
"Okay that's fine". So those were the words he used - - - Yes,

"Okay,

that's fine".

15. That response was completely at variance with the version attested to in the affidavit. Mr White's demeanour persuaded me that his recollection had never been that the defendant had said expressly "That's okay, I'll sign it". It is of some disquiet to me that a version not representative of the truth appears in an affidavit. It seems that whoever formulated the version of the conversation for the purposes of the affidavit was stating what the plaintiff would have liked the conversation to have been rather than what it was.

16. The significance of the difference is obvious. It is the plaintiff's case that the defendant had by his conduct assented to the agreement. The version recorded in the affidavit supported that view. However, an objective bystander would not take the same view of the words Mr White conceded were used when he gave his evidence. I have no doubt that the version given in the affidavit was concocted for the purpose of supporting the plaintiff's case.

17. The next conversation alleged by Mr White and of relevance to the matter at issue occurred, he said, in June 1994. Mr White had been told that no signed contract had been lodged with the ABL. He said in his affidavit that he contacted the defendant and was told by him, "It was a simple mistake. I forgot to sign it".

18. Again, Mr White's oral evidence gives a different account. The following exchange occurred in relation to this conversation:

What alerted you to the fact that the contract had not been signed?
- - - Bruce Portner called me. He was apparently notified by the

League

that the Melbourne Monarchs (another ABL team) had - or Earl Byrne -
somebody had attempted to check the status on his contract. And

Bruce

told me to call Earl and tell him that he has to sign his contract.

19. He was then asked about the terms of this conversation:

And in that conversation Mr Byrne said, "I'm talking to the
Melbourne Monarchs", didn't he? - - - He said he was going to be

talking

with both teams in Melbourne. The Waverley Reds and the Melbourne
Monarchs.

20. This material obviously created a significantly different impression from the version given in the affidavit. It was pursued by counsel as follows:

And he didn't say to you, "I'll sign the contract" or words to that
effect, did he? - - - In the initial conversation, yes, he did. He

said

- I said to him, "Earl, you need to sign your contract and to send it
in", and he says - he said he would do it.
...
Mr Lunney: I am suggesting to you that he said "I'm interested in
playing for another team and I'm not going to sign the contract at

the

moment"? - - - No, he didn't say he was interested in playing for
another team at that point. He simply said he would go ahead and do
that, sign the contract, send it.
His Honour: Well, Mr White, do I understand that he said to you
these things: Initially, he said, "I forgot to sign it"? - - -

That's

right.
"I'll sign it and send it back to you", or words to that effect? - -
- Yes.
But then he said, "I've been approached by another team", in effect
that he was considering that approach? - - - That's right.
And obviously that'd be inconsistent with him signing the contract,
wouldn't it? - - - I see where that would be inconsistent, yes.
Yes. And he then told you that he was going to wait and resolve
that question before sending the contract back to you. Is that the
effect of his conversation with you? - - - Yes.

21. The account extracted in cross-examination and resulting from my questions of Mr White again persuaded me that Mr White's affidavit was false and misleading as to that event. It seems to me that, whilst the defendant may have offered some excuse for not acting earlier to return the contract, he made it clear to Mr White that he had not made up his mind to sign and return the contract.

22. The next event, about which there is no dispute, is that a document headed "Right of First Refusal" was received by the plaintiff on 28 July 1994. This clearly indicated to the plaintiff that the defendant had agreed with Melbourne Monarchs to play with them for, at least, the 1994/95 season provided that the plaintiff was not prepared to match their offer. The notice of 14 April 1994, which had been sent by Mr Portner to the defendant purporting to exercise an option to retain the latter's services for 1994/95 was clearly being defied.

23. The rules of the ABL, by which both parties were bound, provided that the "prior team", that is the Bushrangers, could, within 15 days of the receipt of the "Right of First Refusal", send a notice matching the new team's offer. If that was done, the player was deemed to be contracted on those terms with the prior team.

24. The plaintiff did not respond to the notice. This permitted both the defendant and the Melbourne Monarchs to believe that, in the absence of an existing agreement which, by virtue of the valid exercise of an option or otherwise had yet to expire, the plaintiff was free to entertain offers. Mr White indicated that the decision not to respond was a deliberate one on the part of the plaintiff.

25. It was not until 2 September 1994, according to Mr White, that the defendant and he next conversed about the subject of the agreement between the plaintiff and the defendant. It was on a conference phone. Mr Portner was present with Mr White and participated in that conversation.

26. As recorded in Mr White's affidavit, the conversation progressed as follows:

Earl Byrne: I am going to play for the Melbourne Monarchs. I have
signed a contract with them. I haven't signed a contract with you

and

you can't stop me playing for the Monarchs.
Mr White: You do have a valid contract, you have played for us all

last

season and we paid you according to the contract.

27. Mr Portner's affidavit did not address the conversation at all. The conversation, as Mr White recalled it in cross-examination was, once again, materially different from the version given in his affidavit. The following was his evidence (omitting irrelevant exchanges):

Well, did you start the conversation by asking Mr Byrne why he
hadn't signed the contract? - - - No, I believe I asked him why he
signed a contract with the Monarchs.
Yes, and he said, "I want to stay in Melbourne because my family and

job

are here"? - - - He said something to that effect, yes.
And he also said that he wanted to play for the Monarchs? - - -

That's

right.
You said that his action had given you some difficulty with the club

and

with Mr Portner and you had to ask for your job back? - - - That's
right.

28. Counsel also enquired about Mr Portner's part in the conversation:

And he (Mr Portner) said to Mr Byrne, "You're going to come back and
play with us", didn't he? - - - Yes.
And Mr Byrne said, "No, I'm not"? - - - That's right.
Well, Mr Portner said, "If you don't come back to Canberra I'll take

it

to court and I'll win? - - - Yes, he said that.
And he said, "Then when you come back to Canberra we don't have to

play

you? - - - That's right, we don't have to play anybody who's under
contract.
And he also said, "We will sit you on the bench"? - - - Yes, I think

he

said, "We can sit you on the bench", rather than "we will".
And Mr Byrne said, "I don't care. I still have my baseball in

America"?

- - - That's right.
Mr Portner said, "We'll see about that. I'm going to ruin your

career

here and in America"? - - - I don't recall what was said there. I
remember he said, "We can ruin your career in America if we choose",

or

something to - something similar to that.
He said "If you don't sign a contract I'm going to take all this to
court. Tad Powers (scout for the Chicago Cubs for whom the defendant
played in America) is not happy about this." ... I believe he said
that, yes.
...
Mr Byrne said, "That's not true. I spoke to Tad two days ago and he
is happy with what I am doing"? - - - I believe Earl said that.

29. Had this conversation been deposed to in its entirety in Mr White's affidavit, it would have raised a serious question as to whether injunctive relief, even if otherwise appropriate, should be granted on discretionary grounds.

30. The question of that conversation was raised with Mr Portner. He admitted that he told the defendant that if he did not come back to Canberra and "honour the terms of our contract", he would enforce it in court. He denied that he said "and I'll win".

31. He conceded that he had told the defendant that as team owner he had the option of not playing a contracted team member, but he denied that he had threatened to do so in the case of the plaintiff. He also denied threatening to ruin the defendant's career but he did concede that he said:

I'm quite sure the Chicago Cubs would not be happy over the

conduct

that he had with the affiliate club that he had here in

Australia.
He denied referring to Mr Tad Powers.

32. I have to say that whilst neither Mr White nor Mr Portner were persuasive witnesses, I believe that Mr White occasionally allowed the light of truth sometimes to peek through the fog of deception raised by his affidavit. Mr Portner, I believe, kept that light well and truly hidden.

33. I therefore accept that this particular conversation happened much as Mr White conceded it occurred. I reject Mr Portner's account insofar as it differs from those concessions.

34. Mr Portner also gave evidence, both orally and on affidavit, as to his correspondence with the ABL over the defendant's registration as a Monarch's player.

35. The first written evidence of this was in a document dated 3 August 1994. That document contained a number of statements which I find to be false. The first is:

This contract (the Player Agreement) was delivered to E Byrne by
Dave White in person in approximately August 1993 at which time
D White was verbally notified by E Byrne, after he had read his
contract, of his acceptance of this contract.

36. The contract was not then read through and, whilst there was no rejection of the agreement, there was no acceptance of it either.

I immediately contacted E Byrne in June. He advised me that this
was a simple mistake ... He promised he would forward his signed
contract to the office a.s.a.p..

37. Mr White spoke to the defendant. The version of the conversation here given is consistent with Mr White's affidavit but misleading if compared with the latter's oral evidence which I find to be closer to the truth than that affidavit.

38. There is an erroneous assumption in the memorandum also, namely, that the existence of an agreement by the defendant to play for the Bushrangers during the 1993/94 season implies an obligation to submit to an option exercisable by the defendant to play for the Bushrangers for the 1994/95 season on the same terms as for the 1993/94 season.

39. Mr Portner attempted to obtain a ruling from the ABL as to the status of the defendant. Effectively, he was seeking a declaration from the ABL that the defendant should be regarded as registered with the Bushrangers for the 1994/95 season. He failed.

40. I do not consider it necessary to decide whether the plaintiff should have proceeded differently in appealing as it did to the ABL. The defendant contended that an appeal direct to the Board was inappropriate. There was an appeal process under the rules of the ABL.

41. The position of the ABL was, I think, secondary to the primary question. That is, whether there was an agreement which included an option vested in the plaintiff to secure the defendant's services for the 1994/95 season.

42. The defendant also gave evidence. I was not particularly impressed with his veracity either. I do not believe that he simply said, when first given the contract (the place where he was when that happened does not matter), "I will look over it and get back to you". Nor do I believe him when he says that Mr White asked him to send the Agreement back to him. It was to Mr Portner the agreement was to go. The latter had the responsibility to the plaintiff of following up any failures in that respect. It is inherently unlikely that Mr White would have made any such statement.

43. The defendant claims to have expressed reservations to Mr John White (David White's brother - also an employee of the plaintiff), concerning the renewal option. Mr John White is overseas. The defendant was aware of that when he chose to make that allegation. I believe his claim to be a fabrication.

44. I do not believe the defendant had any intention of signing the Agreement. He knew he was expected to do so or leave the team. He had no other team in the ABL then prepared to engage him. He decided to "keep his options open". He did not draw attention to his failure to sign. Neither did Mr Portner or Mr David White until after the season was over.

45. The defendant deposed to a conversation with Mr White in June 1994. It differs from that to which Mr White deposed in his oral evidence. In my view the latter version is closer to the truth. I do not believe Mr White would have offered the advice "make sure they are firm offers in writing".

46. The conversation the defendant alleged that he had with Mr Portner in June 1994, as with the previous conversation, was not put to the relevant witnesses in cross-examination. Browne v Dunn (1893) 6 R 67 is not an issue as the affidavits setting out those conversations had been served. I do, however, draw the inference that the defendant's case would not have been improved by putting those conversations to the witnesses in question. It may be, for example, that at some stage Mr Portner did explore with the defendant an ex post facto discovery of a previously "executed" agreement as the defendant alleged. However, I do not believe that would have occurred in June 1994. It may have been mentioned during the three-way conversation in September 1994, but I have no sufficient confidence in the defendant's veracity to be persuaded that it did.

47. The conversation of September 1994 is otherwise the subject of substantial agreement between Mr White and the defendant but, insofar as there is a difference, I prefer Mr White's concessions in cross-examination as the more accurate account.

48. The truth of the matter, in my view, is that the plaintiff intended to make no commitment to the defendant after persuading him to move to Canberra other than to give him a trial with the Bushrangers. That was clearly understood by the defendant. By September 1993, the defendant's performance was rated sufficiently highly for the plaintiff to want to secure his services. As a result Mr White, on Mr Portner's instructions, delivered a Player Agreement form, executed by the plaintiff, to the defendant. It contained the terms as to remuneration previously agreed between the parties save for the $225.00 per fortnight. It also contained an option clause in favour of the plaintiff. The defendant at no time verbally or otherwise assented to the terms of the Agreement.

49. Thereafter, the defendant decided to do nothing about signing the agreement unless he was obliged to. He expressed neither agreement nor disagreement with it or any of its stated terms. Mr Portner, whose function it was to ensure that players were followed up if agreements were not returned duly signed or otherwise, simply forgot to pursue the matter. He, in turn, was not pursued by the ABL to produce a copy for registration with it. It only became a matter demanding the plaintiff's attention when it was clear that the defendant was interested in playing for another team. It was only then that the defendant revealed that he was not in agreement with the terms of the contract submitted to him. He refused to express any such agreement notwithstanding the threats uttered to him by Mr Portner in an endeavour to persuade him to sign the Agreement.

50. The first question is whether notwithstanding his lack of express agreement thereto, the defendant should, nevertheless, be regarded as bound by the terms of the Player Agreement.

Was there an implied assent?
51. The plaintiff points to the following factors:

(i) The defendant at no time, before the purported exercise of the
option in clause 17, expressed any lack of agreement with the terms

of

the Agreement.
(ii) The defendant played the 1993/94 season, knowing that if he had
expressly refused to sign the Agreement he would probably have been
denied that opportunity.
(iii) The defendant had represented at a press conference on 21

January

1994 that he would play for the Bushrangers during the 1994/95

season,

"if Bruce will have me".
(iv) The defendant did not respond to the letter of 12 April 1994
purporting to exercise the option for his services for the 1994/95
season.
(v) During April/May 1994, the defendant continued to hold himself

out

as a Bushranger team member and to attend promotional functions.
(vi) During June 1994, the defendant took advantage of Mr Portner's
services to secure for him a visa to travel to the United States to

play

baseball for the Chicago Cubs in the Australian off-season. The
representations made by Mr Portner were made under the impression

that

the defendant would play for the plaintiff during the 1994/95 season.

52. The matter referred to in (iii) was the subject of a factual dispute between Mr Portner and the defendant. Even after being shown a video of the alleged interview, the defendant did not agree that he used the words attributed to him.

53. The video was not tendered in evidence. No journalist present at the time was called to confirm the defendant's use of the words attributed to him by Mr Portner. My view of the credibility of Mr Portner and the defendant is such that I am not prepared to accept the word of either of them as to what was said or not said at this interview in the absence of corroborative evidence. I am not positively persuaded, therefore, that the defendant did use the words attributed to him.

54. I also do not regard (vi) as persuasive. Until the plaintiff failed to respond to the offer of first refusal delivered on 28 July 1994, the defendant was a registered Bushranger's player. Under the ABL rules he was not free to play for the Monarchs or any other ABL team unless the plaintiff failed, as it did, to match the terms offered or to satisfy the ABL that those terms were a sham. That observation also renders factor (v) unpersuasive.

55. In essence, therefore, the question is whether, by playing the 1993/94 season for the Bushrangers and failing to express agreement or disagreement with the Agreement delivered to him, the defendant is to be taken to have accepted its terms or, at least, to be estopped from asserting otherwise.

56. There is a reference in the ABL "Player Rules" to the requirement for players to be registered. Registration is said to depend upon the lodgement of a "Player Registration Application". This was done in the case of the defendant. It was signed by him. The rules also required lodgement, per 2.2(a)(ii)(aa), of "... a Standard Player Contract in duplicate executed by the person seeking registration".

57. That was not done. It follows that the ABL was entitled to have rejected the defendant's application. It did not do so. Whether that gives rise to any legitimate grievance on the part of the plaintiff is not in issue in these proceedings. It was never represented by the defendant that he would sign and forward the Agreement to the ABL. It was something Mr Portner was to do in any event.

58. The "Standard Player Contract" is defined by the ABL Rules as:

... the contract in the form prescribed from time to time by the
Board in respect of the employment of Players by Teams.

59. There was no evidence before me from any credible source as to whether the form so prescribed allows for flexibility in relation to a term such as that contained in clause 17. The General Manager of the ABL, Mr Kamasz, was called to give evidence but was not asked to address that question by either party.

60. Accordingly, whilst the defendant's conduct did indicate that he was contracted to play for the plaintiff's team during the 1993/94 season and to abide by the rules of the ABL and the terms, so far as he was aware of them, of the ABL's "Standard Player Contract", I am not persuaded that such a representation would have included an implication that the defendant was bound at the option of the plaintiff to play for the Bushrangers for 1994/95 and 1995/96 seasons.

61. Indeed, so far as the conduct of the ABL is a guide, Mr Kamasz and his colleagues did not seem to assume that because he had been contracted to play for the Bushrangers for the 1993/94 season, the defendant had thereby agreed to give the plaintiff an option to retain his services on the same terms for the 1994/95 season and that following.

62. Evidence concerning the effect of representation by conduct on third parties is only relevant as a guide to its effect on the party said to have accepted and acted on that representation.

63. A classic example is Freeman v Cook (1848) 2 Ex 654; 154 ER 652. A bankrupt, to avoid a levy of execution on his goods, represented that they were his brother's. Unfortunately for him, the levy was, in fact, against his brother's goods. The goods were seized. He was held to be estopped from asserting they were, in truth, his goods.

64. There may be cases in which silence amounts to a representation. That will be so where a duty to speak or to otherwise disclose the truth arises. Greenwood v Martins Bank (1933) AC 51 is an example of such a case. There had been a failure by a husband to disclose his prior knowledge of forgery by his wife of his signature on cheques. That estopped him from recovering sums debited to his account as a result of the presentation of cheques forged by his wife.

65. In this case, there was no positive representation made by the defendant that he assented to the terms of the Agreement. He may have assumed that the plaintiff, through its officers, had neglected to obtain a signed Agreement from him. He knew that they might demand the same from him at any time. He would then, probably, be faced with a choice of whether to sign or leave. However, it was Mr Portner's duty to the plaintiff to obtain the signed documents. Nothing the defendant did or said caused him to refrain from asking the defendant, directly or indirectly, to sign the Agreement or face deregistration as a Bushranger's player. He cannot rely on his failure to do anything about it as a representation by the defendant that he need do nothing about it.

66. Even if there could be a representation constituted by the defendant's silence that he had executed the Agreement or was agreeable to its terms, the detriment following is a result of Mr Portner's neglect, not that silence. Reliance on the relevant representation needs to be a cause of detriment for an estoppel to arise: see Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305; Newbon v City Mutual Life Assurance Society Ltd [1935] HCA 33; (1935) 52 CLR 723.

67. There is a further requirement. Namely, that to permit a party who has made or created a false assumption to depart from it would be unjust.

68. In this case, the plaintiff was represented by an astute and forceful business operative, Mr Portner. But for his lack of diligence, which I suspect to be uncharacteristic, this situation would not have occurred. The defendant is a young man taking his first steps in a career in baseball. There seems to me nothing "unjust" in the circumstances in finding that he is entitled to the benefit of his decision to keep his options open and to let the plaintiff suffer the consequences of its erroneous assumption, if there was one, that the defendant had signed the Agreement or had agreed to its terms.

69. In any event, I am not satisfied that there was any such assumption by the plaintiff. The truth is, I think, that the plaintiff confidently assumed that the Agreement would be signed but Mr Portner, its relevant officer, simply did not turn his mind to the question as to whether the Agreement had, in fact, been signed until it was too late.

Is there an equitable estoppel?
70. The plaintiff submits, in the alternative, that, even if the defendant had not represented by his silence that he had signed the agreement, his conduct in avoiding the issue was unconscionable. That conduct is said to have resulted in benefits which the defendant would otherwise not have obtained unless he had agreed to the options clause.

71. This is reliance on a species of "unjust enrichment" as referred to in Waltons Stores v Maher [1988] HCA 7; (1988) 164 CLR 387. Such conduct may embrace promissory estoppel, even in circumstances where common law estoppel by representation is not made out.

72. The essence of it is a representation or the fostering of an assumption that the agreement would be signed on request.

73. Promissory estoppel will extend to future conduct: see Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406. In Waltons Stores (supra), the principle was extended beyond the area of a promise not to enforce existing rights.

74. Mason CJ and Wilson J based their decision in that case on the notion of unconscionability, at 407:

The appellant's inaction, in all the circumstances, constituted
clear encouragement or inducement to the respondents to continue to

act

on the basis of the assumption which they had made. It was
unconscionable for it, knowing that the respondents were exposing
themselves to detriment by acting on the basis of a false assumption,

0 to

adopt a course of inaction which encouraged them in the course they

had

adopted.

75. Brennan J expressed the principle in the following terms, at 419:

The element which both attracts the jurisdiction of a court of
equity and shapes the remedy to be given is unconscionable conduct on
the part of the person bound by the equity, and the remedy required

to

satisfy an equity varies according to the circumstances of the case.

And, at 423:

The unconscionable conduct which it is the object of equity to
prevent is the failure of a party, who has induced the adoption of

the

assumption or expectation and who knew or intended that it would be
relied on, to fulfil the assumption or expectation or otherwise to

avoid

the detriment which that failure would occasion. The object of the
equity is not to compel the party bound to fulfil the assumption or
expectation; it is to avoid the detriment which, if the assumption

or

expectation goes unfulfilled, will be suffered by the party who has

been

induced to act or to abstain from acting thereon.

76. Deane J took the view that, in a fused system, the distinction between common law estoppel by conduct and equitable estoppel had largely disappeared. In any event, his Honour was of the view that an equitable estoppel had arisen entitling the respondents to relief as if the agreement they had assumed or expected had been entered into.

77. Gaudron J also noted that an estoppel which might otherwise arise may be prevented if the party making the assumption is aware, even if by an agent, that the assumption is false. The reasoning supporting that conclusion was, in her Honour's opinion, at 463:

... because the person sought to be estopped may escape a

relevant

duty to inform by reason of the agent's knowledge.

78. However, the party sought to be bound will not escape if the assumption made induced also a belief that enquiry was unnecessary.

79. In the present case, for example, Mr Portner might have instructed Mr White to cause the defendant to sign the Agreement and then to forward it to the ABL with the registration application. If the defendant had offered to take care of that aspect of the matter, such a situation might have arisen. Mr Portner might have thought it unnecessary to check with Mr White.

80. However, Mr Portner's instructions to Mr White were clear. He would know if they were carried out or not, by the receipt or non-receipt as might be the case, of the executed forms of the Agreement. It was only his failure to turn his mind to the question which led to the defendant being placed in a more favourable position in relation to the plaintiff than he would otherwise have been.

81. In Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582, a proposed tenant acted to its detriment in the expectation of gaining space in a proposed shopping mall. However, it refrained from agreeing to a rental for the increased area in the hope that it would be able to get a pro rata rental less than that offered in relation to the smaller space. The majority considered that it was not unconscionable for the developer, in those circumstances, to insist on the strict legal position that no binding agreement had been entered into.

82. In the present case, there is no suggestion that Mr Portner was acting so as to keep the plaintiff's options open. Indeed, there would have been no point in him doing so. The option clause benefited only the plaintiff.

83. It seems to me, however, that the defendant did nothing to induce in the plaintiff a belief that he would accept the agreement inclusive of clause 17. He simply took advantage of the plaintiff's inaction. It cannot be said that he was under a duty to inform the plaintiff that he had not signed the Agreement or that he did not propose to regard himself as bound by it in any event. Indeed, if the ABL had decided strictly to enforce its rules, the matter would have come to a head before the season began irrespective of either party's previous inaction. I am not persuaded that there was any duty on the defendant to raise the matter with the plaintiff.

84. In those circumstances, equitable estoppel does not seem to me to have any application to the present matter.

85. However, the plaintiff's submissions, whilst relying on equitable estoppel, also raises the concept of unjust enrichment.

86. That concept was recently applied by the High Court in David Securities Pty Ltd v Commonwealth of Australia [1992] HCA 48; (1992) 175 CLR 353 to monies paid under a mistake of law.

87. The guiding principle is that it is inequitable for a party to be permitted to retain a benefit conferred by an error even if that error was not induced by that party where it can be concluded that retention of the benefit by that party would be unconscionable.

88. However, whilst it may be that the defendant, had he not agreed to the option clause, would have been denied the payments made by the Bushrangers for playing baseball, he would have retained his employment in Melbourne which he gave up to play for the Bushrangers. No doubt, whilst the plaintiff benefited from an improvement in his playing skills and some smoothing of the way so far as playing experience in the United States was concerned, the benefit obtained by the defendant was not so enormous as to require that he risk his current employment and play during the current and next baseball seasons for the relatively small sums offered in and by the Agreement.

Is the option clause an unreasonable restraint of trade?
89. The defendant raised the question whether, in any event, the option clause would be void as being in restraint of trade.

90. The plaintiff's response was that a similar clause was upheld in Buckenara v Hawthorn Football Club Ltd (1988) VR 39.

91. However, that agreement did provide for escalating payments. It amounted to well-paid permanent employment. That is not the case with this Agreement. Indeed, although $225.00 per fortnight was agreed as a retainer with payments of bonuses for winning games, the written document, said by clause 19(e) to be the entire agreement, only provided for the "win" bonus.

92. Thus, if the defendant did not play, unless because of injury (see clause 3), he could be denied any payment. He would get no money for expenses under clause 4 unless he was selected to go onto a road trip (an away game) as defined.

93. No doubt, given the appreciation by the plaintiff's responsible officers of the defendant's talents, it is not likely that the plaintiff would, in fact, not play the defendant in the team. Nor is it likely that the $225.00 per fortnight retainer would be arbitrarily discontinued. However, the Agreement would, if strictly enforced according to its terms, amount to an unreasonable restriction on the freedom of the defendant to play baseball and contribute his talents to the game at a national level. It is no answer to say that he could still play at a local level. Theoretically, the Agreement could be so enforced as to dispense with the defendant's services for two years without remuneration yet prevent him from playing for the major baseball league in this country. There was, it may be added, no suggestion in the evidence that the defendant would be as well remunerated in money terms by playing at the local level. Indeed, that would be inherently unlikely.

94. In that respect the Agreement differs from that considered by Crockett J in Buckenara (supra).

95. The case of Curro v Beyond Productions Pty Limited (1993) 30 NSWLR 337 is also different. In that case, the possible disadvantage to the appellant, Miss Curro, of being put "on ice" was avoided by the implication of a term that the respondent was obliged to provide suitable work for Miss Curro to perform as a television presenter.

96. It was pointed out by the Court of Appeal in Curro (supra) that, even if the possibility of "sterilisation" was unlikely, the test for the validity of a restraint of trade provision has to be based on the terms themselves, not with what the employer has done or is likely to do. In Curro, that "sterilisation", if it had been open to the respondent to bring it about, would still have left Ms Curro entitled to remuneration at the rates agreed.

97. It seems to me therefore that whilst the restraint implied by the options clause would be reasonable for the protection of the legitimate interests of the plaintiff, similar to those identified by Crockett J in Buckenara, it is unreasonable unless remuneration continued even if the plaintiff was not selected to play and unless the contract was to be construed so as to oblige the plaintiff to give the defendant reasonable opportunity to exercise and enhance his playing skills in the national competition.

98. It follows that I am not satisfied the restraint of trade represented by the option clause is reasonable.

Should injunctive relief be granted?
99. Of course, as I have taken the view that no case for injunctive or any other relief has been made out, it is strictly speaking unnecessary to consider this question.

100. Much was, however, made of the alternative remedy available under the ABL rules. However, that alternative remedy does not seem to me to provide a reason for refusing relief if it had been otherwise warranted. It seems to me that, in the absence of a signed agreement, the ABL was bound to accept that the defendant was, as at the end of the 1993/94 season open to bids from teams other than the Bushrangers. The latter had the right to match a genuine offer. Whether an offer was genuine would be for the ABL to determine. It has not been a matter in issue in this hearing and I express no view about the genuineness of the Monarch's offer. The only issue in these proceedings was whether, in truth, the defendant's contract had expired.

101. That involved quite difficult questions of law as well as of fact. I do not regard either an appeal to the Board of the ABL or to its Appeal Board as a suitable alternative.

102. There was an issue raised as to delay. It is clear that Mr Portner initially believed the ABL Board could resolve the issue. When the matter came before the Board it was plain that it could not.

103. I believe the plaintiff acted reasonably promptly to resolve the dispute. I would not regard delay as warranting refusal of relief.

104. It was submitted also that relief would be "futile". The basis for that submission was that the ABL, even if it was to be declared that the defendant was still contractually bound to the plaintiff, had already registered the defendant as a player for the Monarchs. However, that action was taken in the belief that the defendant's contract with the plaintiff had expired. If that assumption had been declared to be incorrect by this Court, I have no reason to suppose that the ABL would decline to adjust its records accordingly. If necessary, the plaintiff could seek to enforce its rights against the ABL.

105. However, whilst futility is not a factor, those factors which have persuaded me that the plaintiff has failed to demonstrate that the Agreement represents a reasonable restraint of trade, or that it would not be unconscionable for him to retain the benefit conferred by his assertion of his strict legal rights, positively satisfy me that it would, in any event, have been inequitable to enforce the Agreement by granting injunctive relief.

106. The issue of damages does not arise.

107. There will be judgment for the defendant. The plaintiff's claim is dismissed.

108. I will hear the parties as to costs.