N. A. Retail Solutions Pty Limited v St George Bank Limited [2010] FCA 259 (18 March 2010)

Last Updated: 23 March 2010

FEDERAL COURT OF AUSTRALIA

N. A. Retail Solutions Pty Limited v St George Bank Limited [2010] FCA 259

Citation:		N. A. Retail Solutions Pty Limited v St George Bank Limited [2010] FCA 259
Parties:		N. A. RETAIL SOLUTIONS PTY LIMITED (ACN 113 009 448) AND ORS v ST GEORGE BANK LIMITED AND ANOR
File number:		NSD 271 of 2010
Judge:		FLICK J
Date of judgment:		18 March 2010
Catchwords:		PRACTICE AND PROCEDURE – application for interlocutory relief – contracts – an implied duty of good faith – unconscionable conduct – relief refused
Legislation:		Trade Practices Act 1974 (Cth), ss 45, 45D, 51AC
Cases cited:		Asia Television Ltd v Yau’s Entertainment Pty Ltd [2000] FCA 254, 48 IPR 283, cited Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17, 253 ALR 324, cited Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682, cited Australian Airlines Commission v Commonwealth (1986) 17 FCR 445, 66 ALR 545, considered BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 180 CLR 266, followed Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187, 69 NSWLR 558, cited Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, applied Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, cited Carson v Minister for Education (Qld) (1989) 25 FCR 326, cited Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468, followed Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148, cited Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, cited Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 319, cited Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772, cited Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd [1999] FCA 903, (1999) ATPR 41-703, cited GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50, 128 FCR 1, cited McCarty v Council of the Municipality of North Sydney (1918) 18 SR(NSW) 210, cited R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518, cited Racecourse Totalizators Pty Ltd v Totalisator Administration Board of Queensland (1995) 58 FCR 119, cited Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860, 78 FCR 132, cited Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15, cited
Date of hearing:	18 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicants:	Mr R Dubler SC
Solicitor for the Applicants:	Law Partners Solicitors & Barristers
Counsel for the Respondents:	Mr C D Wood
Solicitor for the Respondents:	Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 271 of 2010

BETWEEN:	N. A. RETAIL SOLUTIONS PTY LIMITED (ACN 113 009 448) First Applicant VOLUME PLUS PTY LIMITED (ACN 103 123 011) Second Applicant TADCO SOLUTIONS PTY LIMITED (ACN 136 647 320) Third Applicant
AND:	ST GEORGE BANK LIMITED First Respondent WESTPAC BANKING CORPORATION Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	18 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for interlocutory relief in accordance with paragraphs 1, 2 and 3 of the Application as filed on 17 March 2010 and as amended today is dismissed.
2. Costs are to be the Respondents’ costs in the proceeding.
   

THE COURT FURTHER DIRECTS THAT:

3. Any further application for interlocutory relief, together with all affidavit evidence on which reliance is to be placed, are to be filed and served by 4:00 pm on 19 March 2010.
4. Any amended Application, together with a Statement of Claim, is to be filed and served by 4:00 pm on 19 March 2010.
5. The Respondents are to file and serve any evidence upon which they intend to rely by 12:00 midday on 23 March 2010.
6. Any Notices to Produce are to be filed and served by 4:00 pm on 19 March 2010.
7. The proceeding is to be stood over before the Duty Judge at 9:30 am on 22 March 2010 for the purpose of calling upon any Notices to Produce.
8. Any application for further interlocutory relief is to be stood over for hearing before the Duty Judge at 10:15 am on 24 March 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 271 of 2010

BETWEEN:	N. A. RETAIL SOLUTIONS PTY LIMITED (ACN 113 009 448) First Applicant VOLUME PLUS PTY LIMITED (ACN 103 123 011) Second Applicant TADCO SOLUTIONS PTY LIMITED (ACN 136 647 320) Third Applicant
AND:	ST GEORGE BANK LIMITED First Respondent WESTPAC BANKING CORPORATION Second Respondent

JUDGE:	FLICK J
DATE:	18 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Revised from Transcript)

1. Presently before the Court is an application which may be characterised loosely as an application for mandatory interlocutory relief.
2. The status of the First and Second Applicants is somewhat obscure but they are apparently corporations which operate or are involved in operating a number of petrol stations under the trading name “Volume Plus”.
3. There is also uncertainty as to the relationship between the First and/or Second Applicants (on the one hand) and the Third Applicant. There is also uncertainty as to the relationship between the First and/or Second Applicants and the First Respondent. For a considerable period of time, however, it would appear that the First Respondent, St George Bank Limited (“St George Bank”), provided what is referred to as “EFTPOS facilities” at the First and/or Second Applicants’ petrol stations.
4. Further uncertainty arises as to the corporate existence of St George Bank. To overcome that uncertainty, leave was given to amend the Application to join Westpac Banking Corporation (“Westpac”) as the Second Respondent to the proceeding.
5. The EFTPOS facilities extended to the First and/or Second Applicant were terminated in mid 2009. Subsequent applications to the Commonwealth Bank of Australia and the Australia and New Zealand Banking Group Limited for the provision of like facilities were rejected. Some insight into the reasons for this termination and for the subsequent lack of success in obtaining alternative facilities is provided by a director and shareholder of the First and Second Applicants, Mr Adil Magar. He maintains that in or about April or May 2009 he had the following conversation with a Mr Keuneman of St George Bank:

Mr Magar:	“Why are you terminating my EFTPOS facilities?”
Mr Keuneman:	“Your merchant facilities are going to be disconnected. We have received a letter from the Workplace Ombudsman. After we received their letter, the bank decided to terminate your EFTPOS merchant facilities.”
Mr Magar:	“You can’t do that. The Workplace Ombudsman has nothing to do with my EFTPOS facilities. I also need time to obtain a merchant facility from another bank.”
Mr Keuneman:	“I can extend the date of termination by 30 days.”

There was, thereafter, also the following conversation in about June 2009:

Mr Keuneman:	“You will never be able to get any EFTPOS facilities through your name and the Volume Plus name through any bank.”
Mr Magar:	“How can you go to our sites and approach my agents about changing the EFTPOS merchant facilities?”
Mr Keuneman:	“You will never get EFTPOS in Australia again. From any bank. You have been blacklisted on the system with all the banks.”

The existence of any such “blacklist”, it should perhaps be noted, was denied by the Respondents. A further telephone conversation should, however, also be recounted. That was a conversation to the following effect:

Mr Magar:	“The deadline is approaching. You have locked me out with all the banks.”
Mr Keuneman:	“The only way you can stay with St George is to put another name on the application for merchant facilities that does not mention your name.”

6. At about the same time, the Third Applicant, Tadco Solutions Pty Limited (“Tadco Solutions”), applied to St George Bank for the provision of EFTPOS facilities. The application was approved and it is said by Mr Magar that “the EFTPOS merchant facilities were transferred from the First Applicant’s name and account to Tadco’s name and account”.
7. By way of a letter dated 2 February 2010 Tadco Solutions was advised that the merchant facilities secured in 2009 would be “terminated as per clause 26(b) of your Merchant Agreement”. Thirty days notice was given with the letter stating that “[t]ermination will take effect as of close of business on 4th March 2010”.
8. In subsequent correspondence, Tadco Solutions maintained that the letter was not received until 15 February 2010. Reasons for this termination in 2010 were sought. A response from St George Bank dated 12 March 2010 maintained that:

“... the Agreement is being terminated pursuant to clause 26(b) of the Agreement. Pursuant to that clause the Agreement can be terminated without cause by giving written notice and the termination will be effective immediately. Even if cause was required to terminate the Agreement, St George Bank would not be obliged to provide those reasons to your client.”

Whether or not the bank was correct in its assertion that it need not explain its conduct, the absence of any reason at all being proffered in writing is perhaps surprising. Perhaps some insight into the reasons for termination of the agreement with Tadco Solutions, however, may be gleaned from the following conversation, again as between Mr Keuneman and Mr Magar, sometime after the letter dated 5 February 2010 was received on 15 February 2010:

Mr Magar:	“Why are you terminating EFTPOS facilities with Tadco?”
Mr Keuneman:	“We found that the money is being transferred from Tadco to N.A..”
Mr Magar:	“How is that any of your business?”

9. The EFTPOS facilities were terminated on 15 March 2010. The effect on the businesses operated by the First and/or Second Applicants, or in which they are involved, has been immediate. It is claimed that “[b]efore the termination of the EFTPOS facilities the ten affected Volume Plus petrol stations had revenue in the order of $50,000.00 per day”. That is now said to have halved. The effect of the termination on the Third Applicant, however, remains far from clear.
10. Yesterday, on 17 March 2010, an Application was filed claiming relief. It is said that the termination on 15 March 2010 of the EFTPOS facilities was a breach of an implied term to act in good faith and a contravention of ss 45, 45D and 51AC of the Trade Practices Act 1974 (Cth) (“Trade Practices Act”). Interlocutory and declaratory relief is sought by Tadco Solutions.
11. Of present concern is the application made by Tadco Solutions for the following relief:

(1) An Order that upon the Third Applicant giving the usual undertaking as to damages, the Respondent, by itself, its servants or agents, is, until further order restrained from: (a) acting upon or implementing or from relying upon its notice of Termination of Merchant Facilities under the Merchant Agreement between the Third Applicant and the Respondent addressed to the Third Applicant purportedly given under cover of letter dated 2 February, 2010 (the “Termination Notice”) in relation to Merchant facilities numbered 3679180, 3676400, 3677002, 3677036, 3677465, 3678174, 3679081, 3680105, 3680477, and 3679958 (the “Merchant Facilities”) or from issuing any substitute notice.

(2) An Order that upon the Third Applicant giving the usual undertaking as to damages, the Respondent, by itself, its servants or agents is, until further order restrained from treating the agreement as being at an end upon the expiry of the 30 day notice period referred to in the Notice of Termination or any extension of the notice period which the Respondent has notified as 15 March, 2010.

(3) An Order that, upon the Third Applicant giving the usual undertakings as to damages, the Respondent reinstate the Merchant Facilities, including but not limited to the Eftpos equipment and associated electronic banking facilities which the Respondent deactivated on or about 15 March, 2010, which order shall remain in force until further order of the Court.

12. Given potential difficulties confronting Tadco Solutions alone seeking such relief, an amendment to the Application was allowed which permitted the First Applicant to also seek the same relief. A further amendment was also allowed which permitted either the First Applicant or Tadco Solutions to seek that relief as against the St George Bank and/or Westpac.

THE PRINCIPLES UPON WHICH A MANDATORY INTERLOCUTORY ORDER MAY BE MADE

13. The principles to be applied when considering the grant or refusal of interlocutory injunctions are comparatively well-settled. In Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153, Mason ACJ said:

The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

It is to be borne in mind that “irreparable injury” does not mean injury that cannot be repaired but injury for which damages would not be adequate compensation: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 at 215; R v Macfarlane; Ex parte O’Flanagan and O’Kelly [1923] HCA 39; (1923) 32 CLR 518 at 550.

14. But there has been some divergence as to the principles to be applied when considering whether to grant mandatory interlocutory relief.
15. On the one hand, in Australian Airlines Commission v Commonwealth (1986) 17 FCR 445 at 451 to 452 Northrop J made the following observations as to the circumstances in which an interlocutory mandatory injunction would be granted:

The essence of the orders sought by Ansett and TAA are mandatory. The principles to be applied in considering whether an interlocutory mandatory injunction should be granted are discussed by Gibbs CJ in Queensland v Australian Telecommunications Commission (1985) 59 A.LJR 562. The first question to consider is whether there is a serious question to be tried. Where a mandatory injunction is sought, the existence of such a question of itself does not justify the granting of the mandatory injunction. In this respect the Chief Justice said (at 563):

“The first of those considerations is that what is sought is a mandatory injunction. In Redland Bricks Ltd v Morris [1970] AC 652, the House of Lords held that the grant of a mandatory injunction is never made as of course and that a factor to be taken into consideration is that the defendant has not behaved unreasonably but only wrongly. According to Halsbury’s Laws of England, (4th ed) vol 24, par 948, the position regarding the grant of a mandatory injunction on an interlocutory application is as follows:

‘A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can easily be remedied, or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.’

Megarry J stated the principal in Shepherd Homes Ltd v Sandham [1971] 1 Ch 340 at 351, in the following words: ‘. . . on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted; and this is a higher standard than is required for a prohibitory injunction.’
Although, as I have already indicated, there is a serious question to be tried in the present case, I lack ‘a high degree of assurance’ that the plaintiff will necessarily succeed.”

16. But in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502, Gummow J cited with approval, inter alia, the following observations of Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 781:

If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel a ‘high degree of assurance’ about the plaintiff’s chances of establishing his right, there cannot be any rational basis for withholding the injunction.

Gummow J there declined to follow the observations of Gibbs CJ in the Australian Airlines case, supra. Both approaches as to the circumstances in which a mandatory interlocutory injunction is to be granted have also been considered by Spender J in Carson v Minister for Education (Qld) (1989) 25 FCR 326 at 337 to 339. His Honour there concluded that he did the applicants “no disservice if I proceed on the basis indicated by Gummow J”. The interlocutory relief was there refused. The approach of Gummow J has also received the approval of the Full Court in Telstra Corporation Ltd v First Netcom Pty Ltd [1997] FCA 860, 78 FCR 132 per Lockhart, Beaumont and Hill JJ.

17. It is considered in the present proceeding that the approach of Gummow J is that to be applied.

AN IMPLIED TERM OF GOOD FAITH?

18. In Australia, divergent views have been expressed as to whether a duty of good faith or reasonableness should be applied to all contracts or whether it is only an incident of particular classes of contracts: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50, 128 FCR 1 at 208 to 209 per Finn J. In Asia Television Ltd v Yau’s Entertainment Pty Ltd [2000] FCA 254 at [76], [2000] FCA 254; 48 IPR 283 at 298, Gyles J was of the opinion that the implication of an obligation to act in good faith in the context of the termination of a licence agreement raised “controversial questions”.
19. But a review of the authorities reveals that more and more Australian courts are proceeding on the assumption that a duty of good faith, or a duty to act reasonably, may be implied as an incident of a commercial contract: Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 at [120]; Burger King Corporation v Hungry Jack’s Pty Ltd (“Burger King”) [2001] NSWCA 187 at [141] to [168], 69 NSWLR 558 at 567 to 570. In Burger King, Sheller, Beazley and Stein JJA reviewed the authorities and concluded:

[163] This necessarily brief survey of the case law post Alcatel indicates that obligations of good faith and reasonableness will be more readily implied in standard form contracts, particularly if such contracts contain a general power of termination ...

Indeed, in Garry Rogers Motors (Australia) Pty Ltd v Subaru (Australia) Pty Ltd & Anor [1999] FCA 903, (1999) ATPR 41-703 Finkelstein J has ventured the view that:

[34] ... Recent cases make it clear that in appropriate contracts, perhaps even in all commercial contracts, such a term will ordinarily be implied; not as an ad hoc term (based on the presumed intention of the parties) but as a legal incident of the relationship ...

Terms of agreements which at one point of time may have been implied into an agreement to give effect to the intention of the parties may subsequently become so much a part of common understanding that they may, thereafter, become imported into all transactions of the same kind: Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 at [183] to [187].

20. The traditional formulation of the conditions to be satisfied before a term is to be implied into a contract is found as follows in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40; (1977) 180 CLR 266 at 283:

... the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that “it goes without saying”; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.

A basic distinction as between terms which may be so implied by the satisfaction of these conditions to give business efficacy to a particular agreement, and terms implied as a matter of law is that terms implied by law are (in general) implied in all contracts of a particular class or contracts which answer a given description: Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 487; Byrne v Australian Airlines Limited (“Byrne”) [1995] HCA 24; (1995) 185 CLR 410 at 448 per McHugh and Gummow JJ. See also: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 30 per Mason CJ.

21. In Burger King reference was also made to an “increasing acceptance ... that if terms of good faith and reasonableness are to be implied, they are implied as a matter of law”: [2001] NSWCA 187 at [164], 69 NSWLR at 569. If such a term is to be so implied, it must be “both reasonable and necessary”. In Byrne (1995) 185 CLR at 450, McHugh and Gummow JJ there explained as follows the meaning of “necessity” in this context:

Many of the terms now said to be implied by law in various categories of case reflect the concern of the courts that, unless such a term be implied, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined. Hence the reference in the decisions to “necessity”.

22. In the present proceeding clause 26(b) of the EFTPOS Merchant Agreement (“the Agreement”) provides as follows:

26 Term and Termination
(b) The Bank may terminate this Agreement at any time without cause by giving written notice to the Merchant. Termination will be effective immediately.

Clause 38 of the Agreement further provides:

38 Code of Banking Practice
(a) The relevant provisions of the Code of Banking Practice apply to this Agreement, if the Merchant is an individual or a Small Business.
(b) In accordance with the Code of Banking Practice, on the Merchant’s request, the Bank will make available to the Merchant information about:

(i) account opening procedures (including Financial Transaction Reports Act requirements);
(ii) the Bank’s obligations regarding the confidentiality of the Merchant’s information;
(iii) complaint handling procedures;
(iv) bank cheques;
(v) the advisability of the Merchant informing the Bank promptly if the Merchant is in financial difficulty; and
(vi) the advisability of the Merchant reading the terms and conditions applying to a banking service.

What, for present purposes has been assumed to be the Code of Banking Practice (“the Code”) there referred to provides in clause 2 as follows:

2 Our key commitments to you
2.1 We will:

(a) continuously work towards improving the standards of practice and service in the banking industry;
(b) promote better informed decisions about our banking services:

(i) by providing effective disclosure of information;
(ii) by explaining to you, when asked, the contents of brochures and other written information about banking services; and
(iii) if you ask us for advice on banking services:
(A) by providing that advice through our staff authorised to give such advice;
(B) by referring you to appropriate external sources of advice; or
(C) by recommending that you seek advice from someone such as your legal or financial adviser;

(c) provide general information about the rights and obligations that arise out of the banker and customer relationship in relation to banking services;
(d) provide information to you in plain language; and
(e) monitor external developments relating to banking codes of practice, legislative changes and related issues.

2.2 We will act fairly and reasonably towards you in a consistent and ethical manner. In doing so we will consider your conduct, our conduct and the contract between us.

For the purposes of the present proceeding, it is assumed that the contractual power of termination conferred by clause 26(b) is a power to be exercised in good faith. It is also presently assumed that clauses 2.1(a) and (b)(i) and clause 2.2 of the Code are incorporated as terms of the Agreement.

THE TRADE PRACTICES ACT

23. Sections 45, 45D and 51AC of the Trade Practices Act 1974 (Cth) are well-known provisions.
24. For present purposes, it is sufficient to note that s 45D(1) and (2) provide as follows:

Secondary boycotts for the purpose of causing substantial loss or damage
(1) In the circumstances specified in subsection (3) or (4), a person must not, in concert with a second person, engage in conduct:

(a) that hinders or prevents:

(i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and

(b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

(2) A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.

Section 51AC(1) and (2) provide as follows:

Unconscionable conduct in business transactions
(1) A corporation must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.

(2) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a corporation (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.

25. The width of s 51AC is not to be doubted: Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [17]. Gordon J there cited with approval the following observations of Foster J in Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17, 253 ALR 324:

[113] There is a body of authority in this Court which establishes the following propositions:

(a) The scope of s 51AC is wider than that of s 51AA. The meaning of unconscionable for the purposes of s 51AC is not limited to the meaning of the word according to established principles of common law and equity: per French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2; (2000) 96 FCR 491 at [24] and [25] (p 503); per Sundberg J in Australian Competition and Consumer Commissioner v Simply No-Knead Franchising Pty Limited [2000] FCA 1365; (2000) 104 FCR 253 at [31] (p 265); per Selway J in Australian Competition and Consumer Commission v 4WD Systems Pty Limited [2003] FCA 850; (2003) 59 IPR 435 at [183] (p 487) and per Jacobson J in Pacific National (ACT) Limited v Queensland Rail (2006) 28 ATPR 46-268 (p 53,515) at [918] (p 53,527).

(b) The ordinary or dictionary meaning of unconscionable, which involves notions of serious misconduct or something which is clearly unfair or unreasonable, is picked up by the use of the word in s 51AC. When used in that section, the expression requires that the actions of the alleged contravenor show no regard for conscience, and be irreconcilable with what is right or reasonable. Inevitably the expression imports a pejorative moral judgment: per Heerey, Drummond and Emmett JJ in Hurley v McDonalds Australia Limited (2000) 22 ATPR 41-474 (p 40, 578) at [22] (p40,585). This helpful articulation of the meaning of the word when used in s 51AC was followed by Selway J in ACCC v 4WD Systems Pty Ltd [2003] FCA 850; (2003) 59 IPR 435 at [183]- [185] (pp 487-488) and by Sundberg J in ACCC v Simply No-Knead Franchising Pty Limited [2000] FCA 1365; (2000) 104 FCR 253 at [30] (p 264); and

(c) Normally, some moral fault or moral responsibility would be involved. This would not ordinarily be present if the critical actions are merely negligent. There would ordinarily need to be a deliberate (in the sense of intentional) act or at least a reckless act: per Selway J in ACCC v 4WD Systems Pty Ltd [2003] FCA 850; (2003) 59 IPR 435 at [185] (p 488).

THE REASONS FOR TERMINATION

26. Albeit cryptically expressed, it is considered that some reason for the termination of the Agreement with Tadco Solutions may be gleaned from the conversations in June 2009 and February 2010 as between Messrs Magar and Keuneman. Those conversations provide some basis for a conclusion that for an uncertain reason the St George Bank was seeking to ensure that the First and/or Second Applicants would not be able to secure EFTPOS facilities with any bank and that that objective was not to be circumvented by the First and/or Second Applicants using the Third Applicant.
27. So construed there is at least some basis for a conclusion that there may be a contravention of ss 45D and 51AC of the Trade Practices Act and for a conclusion that the right to terminate the Agreement conferred by clause 26(b) was exercised other than in good faith. It may be further open to conclude that clause 2.1(b)(i) of the Code may also have been breached.
28. But it is considered that no interlocutory relief should presently be granted.
29. The relief which is sought in paragraph 3 of the Application, as amended, is in effect, to seek to compel St George Bank to enter a new agreement with Tadco Solutions, presumably on the same terms as were previously agreed. Tadco Solutions, however, was put on notice no later than 15 February 2010 that the termination of its Agreement was being proposed. Whatever may have been the date upon which Tadco Solutions may have been advised of the intended termination — it was extended a period of 30 days during which it could have sought such relief as it may have been advised. Tadco Solutions only approached this Court after termination had been effected.
30. Moreover, the effect of the termination on the business of Tadco Solutions remains, at this stage, unknown.
31. As amended, paragraph 3 of the Application now also seeks an order that an entirely new agreement be entered into as between Tadco Solutions and Westpac, presumably on the same terms as the terminated agreement as between Tadco Solutions and St George. Whatever may be the approach which should be applied when considering interlocutory applications seeking mandatory relief, to now make such an order in the present proceeding would be truly exceptional relief.
32. The effect of the termination of the agreement with Tadco Solutions and the disconnection of the EFTPOS facilities on the business of the First Applicant, however, is more certain. But the existence of any independent cause of action as between the First Applicant and one or other of the Respondents arising out of the termination of the agreement on 15 March 2010 remained unspecified.
33. As a matter of discretion, the interlocutory relief which is presently sought is thus refused.
34. The unsatisfactory state of the evidence only provides further reason to refuse relief and no order should be made, especially where there is accepted uncertainty as to the entity against which any mandatory relief would operate.
35. The Applicants may bring such further applications for interlocutory relief as they see fit.

ORDERS

36. The Orders of the Court are:
    1. The application for interlocutory relief in accordance with paragraphs 1, 2 and 3 of the Application as filed on 17 March 2010 and as amended today is dismissed.
    2. Costs are to be the Respondents’ costs in the proceeding.
37. The Court further directs that:
    3. Any further application for interlocutory relief, together with all affidavit evidence on which reliance is to be placed, are to be filed and served by 4:00 pm on 19 March 2010.
    4. Any amended Application, together with a Statement of Claim, is to be filed and served by 4:00 pm on 19 March 2010.
    5. The Respondents are to file and serve any evidence upon which they intend to rely by 12:00 midday on 23 March 2010.
    6. Any Notices to Produce are to be filed and served by 4:00 pm on 19 March 2010.
    7. The proceeding is to be stood over before the Duty Judge at 9:30 am on 22 March 2010 for the purpose of calling upon any Notices to Produce.
    8. Any application for further interlocutory relief is to be stood over for hearing before the Duty Judge at 10:15 am on 24 March 2010.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 23 March 2010