Carlin, Tyrone M --- "The Rise (and Fall?) of Implied Duties of Good Faith in Contractual Performance in Australia" [2002] UNSWLawJl 4; (2002) 25(1) UNSW Law Journal 99
[*] LLB (Hons), B Com, M Com (Hons), Grad Dip Fin, ASIA, CA, CPA. Lecturer in Management, Macquarie Graduate School of Management, Macquarie University. The author gratefully acknowledges the support and assistance of Joellen Riley and Professor Andrew Terry. In addition, the author wishes to thank the anonymous referees for their comments.
[1] Sir Anthony Mason and Stephen Gageler, ‘The Contract’ in P D Finn (ed), Essays on Contract (1987) 1.
[2] The epitome of this approach to contract and what it entailed is often said to be reflected in the statement of Jessel MR in Printing and Numerical Registering Co v Sampson [1875] UKLawRpEq 48; (1875) LR 19 Eq 462, 465:
[I]f there is one thing which more than another public policy requires it is that men of full and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely shall be held sacred and shall be enforced by Courts of justice. Therefore you have this paramount public policy to consider – that you are not lightly to interfere with this freedom of contract.
[3] See generally Grant Gilmore, The Death of Contract (1974).
[4] See generally Patrick Atiyah, The Rise and Fall of Freedom of Contract (1979).
[5] Sir Anthony Mason, ‘Contract: Death or Transfiguration?’ [1989] UNSWLawJl 1; (1989) 12 University of New South Wales Law Journal 1.
[6] Justice L J Priestley, ‘Contract – The Burgeoning Maelstrom’ (1988) 1 Journal of Contract Law 15.
[7] See, eg, Contracts Review Act 1980 (NSW); Trade Practices Act 1974 (Cth), particularly ss 52, 51AA, 51AB, 51AC.
[8] For example, in 1918, the New York Court of Appeals stated that ‘every contract implies good faith and fair dealing between the parties to it’: Wigand v Bachmann-Bechtel Brewing Co, 222 NY Rep 272, 277 (1918). The National Conference of Commissioners on Uniform State Law and the American Law Institute, Revision of Uniform Commercial Code Article 1 – General Provisions (2002) also specifies good faith in contractual dealings. Section 1-304 says that every ‘contract or duty within [the Uniform Commercial Code] imposes an obligation of good faith in its performance or enforcement’. The American Law Institute, Restatement (Second) of the Law of Contracts (1981) § 205 provides that every ‘contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement’. Note that this source is not binding but is viewed as highly persuasive.
[9] See David Harland, ‘Unconscionable and Unfair Contracts: An Australian Perspective’ in Roger Brownsword, Norma J Hird and Geraint Howells (eds), Good Faith in Contract: Concept and Context (1999) 243.
[10] The statute reflects a much older common law doctrine.
[11] Tony Scotford, ‘The Insurer’s Duty of Utmost Good Faith Implications for Australian Insurers’ (1988) 1 Insurance Law Journal 83.
[12] See, eg, Wessex Dairies Ltd v Smith [1935] 2 KB 80; Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] 1 Ch 169; Timber Engineering Co Pty Ltd v Anderson [1980] 2 NSWLR 488; Schindler Lifts Australia Pty Ltd v Debelak [1989] FCA 311; (1989) 89 ALR 275; Malik v BCCI SA [1997] UKHL 23; [1998] AC 20.
[13] Sir Anthony Mason, Cambridge Lectures: Contract and its Relationship with Equitable Standards and the Doctrine of Good Faith (1993) 35.
[15] Renard (1992) 26 NSWLR 234, 263–4.
[16] [1999] FCA 903; (1999) ATPR 41-703.
[17] Ibid 43 014.
[18] See, eg, Horst Lucke, ‘Good Faith and Contractual Performance’ in P D Finn (ed), Essays on Contract (1987) 155; Paul Finn, ‘Commerce, the Common Law and Morality’ [1989] MelbULawRw 5; (1989) 17 Melbourne University Law Review 87; Sir Gerard Brennan, ‘Commercial Law and Morality’ [1989] MelbULawRw 6; (1989) 17 Melbourne University Law Review 100; Sir Christopher Staughton, ‘Good Faith and Fairness in Commercial Contract Law’ (1994) 7 Journal of Contract Law 193; Roger Brownsword, ‘Good Faith in Contracts Revisited’ (1996) 49 Current Legal Problems 111; Andrew Phang, ‘Tenders, Implied Terms and Fairness in the Law of Contract’ (1998) 13 Journal of Contract Law 126; Jane Stapleton, ‘Good Faith in Private Law’ (1999) 52 Current Legal Problems 1; Sir Anthony Mason, ‘Contract, Good Faith and Equitable Standards in Fair Dealing’ (2000) 116 Law Quarterly Review 66; Rick Bigwood, ‘Conscience and the Liberal Conception of Contract: Observing Basic Distinctions’ (2000) 16 Journal of Contract Law 1; Andrew Phang, ‘Security of Contract and the Pursuit of Fairness’ (2000) 16 Journal of Contract Law 158.
[19] For three different approaches see E Allan Farnsworth, ‘Good Faith Performance and Commercial Reasonableness Under the Uniform Commercial Code’ (1963) 30 University of Chicago Law Review 666; Robert Summers, ‘Good Faith in General Contract Law and the Sales Provisions of the Uniform Commercial Code’ (1968) 54 Virginia Law Review 195; and Steven J Burton, ‘Breach of Contract and the Common Law Duty to Perform in Good Faith’ (1980) 94 Harvard Law Review 369.
[20] Tort has no doubt played a role of (perhaps increasing) importance in regulating such relationships.
[21] (1996) 186 CLR 71, 95.
[22] Tyrone Carlin, ‘Fiduciary Obligations in Non-Traditional Settings – An Update’ (2001) 29 Australian Business Law Review 65.
[23] Ronald H Coase, ‘The Nature of the Firm’ (1937) 4 Economica 386.
[24] This position was forcefully put by the High Court a decade earlier in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41.
[25] To use Professor Lucke’s term: Lucke, above n 18, 160.
[26] Meagher JA dissented vehemently: Renard (1992) 26 NSWLR 234, 272–8.
[27] (1989) 16 NSWLR 582, 585–6.
[28] Ibid 586. See also State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, 177; Trawl Industries of Australia v Effem Foods Pty Ltd (1992) 27 NSWLR 326, 332, where it was noted that courts should be upholders and not destroyers of commercial bargains.
[30] Renard (1992) 26 NSWLR 234, 257–60 (Priestley JA), 280 (Handley JA).
[31] See above n 28 and accompanying text.
[32] Kirby P stated that he applied the doctrine only out of duty and that he felt bound to do so even if he disagreed strongly with the doctrine: Hughes Bros (1993) 31 NSWLR 91, 93.
[33] Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349, 369 (Sheller JA).
[34] Far Horizons Pty Ltd v McDonalds Australia [2000] VSC 310 (Unreported, Byrne J, 18 August 2000) [120].
[35] Renard (1992) 26 NSWLR 234, 272–8.
[36] Hughes Bros (1993) 31 NSWLR 91, 104.
[37] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596.
[38] Renard (1992) 26 NSWLR 234, 265.
[39] Minster Trust Ltd v Traps Tractor Ltd [1954] 1 WLR 963, 973.
[40] See, eg, Stapleton, above n 18.
[41] Renard (1992) 26 NSWLR 234, 271. The content of this discussion was largely consistent with his previous extra-curial writings: Priestley, ‘Contract’, above n 6; Justice L J Priestley, ‘A Guide to a Comparison of Australian and United States Contract Law’ [1989] UNSWLawJl 2; (1989) 12 University of New South Wales Law Journal 4; Justice L J Priestley, ‘Conduct After Breach: The Position of the Party Not in Breach’ (1991) 3 Journal of Contract Law 218.
[42] See Burger King v Hungry Jack’s Pty Ltd [2001] NSWCA 187 (Unreported, Sheller, Beazley and Stein JJA, 21 June 2001) [154] in which Justice Priestley’s insights in Renard are clearly acknowledged as obiter. However, references to Renard have generally been couched as if the case represented binding authority in relation to the implied good faith question: see, eg, below n 89 and accompanying text.
[44] Walford v Miles [1992] 2 AC 128; see also Courtney and Fairbairn Ltd v Tolaini Bros (Hotels) Ltd [1975] 1 WLR 297.
[45] It has been suggested that in the US, like England, there is no recognised duty of good faith in precontractual negotiations. This is in contrast to the apparent ready acceptance in the US of duties of good faith in contractual performance. See Justice T R H Cole, ‘Law – All in Good Faith’ (1994) 10(1) Building and Construction Law 18, 28.
[46] This line of argument has been consistently followed by Kirby P in a range of his decisions on the New South Wales Court of Appeal. See above n 28.
[47] Coal Cliff Collieries (1991) 24 NSWLR 1, 26–7 (Kirby P).
[48] Ibid.
[49] Renard (1992) 26 NSWLR 234, 268.
[50] Hooper Bailie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194.
[51] Ibid 209.
[53] Ibid 580.
[54] The case has only been briefly cited in Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 (Unreported, Byrne J, 18 August 2000) [121].
[55] GSA Group (1993) 30 NSWLR 573, 579.
[56] See also Kirby P in Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130, 132–3.
[57] [1993] FCA 638; (1993) 45 FCR 84.
[58] Ibid 97.
[59] Ibid 98.
[60] The appellant sought to convince the Court that the respondent owed a duty to perform contracts in good faith. The only authorities that appear to have been cited were Justice Priestley’s discussion of good faith in Renard, and the American Law Institute, Restatement (Second) of the Law of Contracts (1981) § 205: ibid 91–6.
[61] Service Station Association [1993] FCA 638; (1993) 45 FCR 84, 92.
[62] The same can be said of Justice Finn’s invocation of community standards and expectations in Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151, 191–3.
[63] Peter Van den Dungen, ‘Good Faith, Unconscionable Conduct and Imaginary Community Standards: Section 51AC of the Trade Practices Act and the Insurance Industry’ (1998) 10 Insurance Law Journal 1, 18.
[64] Priestley JA consistently uses language such as ‘all contracts’ in his discussion of good faith. See, eg, Renard (1992) 26 NSWLR 234, 270.
[65] His Honour mentions, among others: the Unfair Contracts Terms Act 1977 (UK), Money Lenders and Infants Loans Act 1905 (NSW), Hire Purchase Agreement Act 1940 (NSW), Hire Purchase Agreement Act 1960 (NSW), Industrial Arbitration Act 1940 (NSW), Contracts Review Act 1980 (NSW) and Trade Practices Act 1974 (Cth).
[66] Renard (1992) 26 NSWLR 234, 264–8.
[67] GSA Group (1993) 30 NSWLR 573, 580. For a review of the nature of the impact of the Contracts Review Act 1980 (NSW) in its first 20 years of operation, including some comment on the ascendancy of other statutory unconscionability provisions such as those contained in the Trade Practices Act 1974 (Cth), see Tyrone Carlin, ‘The Contracts Review Act 1980 (NSW) – 20 Years On’ [2001] SydLawRw 5; (2001) 23 Sydney Law Review 125.
[68] GSA Group (1993) 30 NSWLR 573, 580.
[69] Another way of putting this argument is that the common law does not proceed too readily from a series of examples to the adoption of a general principle: see Staughton, above n 18, 194.
[70] As was found to be the case in GSA Group (1993) 30 NSWLR 573.
[71] In Renard, Priestley JA referred extensively to the provisions of the US Uniform Commercial Code and to the American Law Institute, Restatement (Second) of the Law of Contracts (1981) § 205, which states that every ‘contract imposes upon each party a duty of good faith and fair dealing in its performance and in its enforcement’. While that is so, § 205 is subject to a qualification – the parties are free to determine by express agreement what good faith will require or permit of them: see Burton, above n 19, 371–2. Assuming that no common law duty of good faith in contractual performance exists in Australia, this nevertheless lends weight to the argument that if contracting parties wish to adopt such a standard, their desire should be recognised by a court, so long as it is clearly expressed within the contract by which they are bound. Alternatively, if it is the case that a duty to perform in good faith has taken root in the Australian common law, the ability to define the content of that duty should reside with the contracting parties, as it does in the US. That would at least ameliorate some of the fear of uncertainty that has emerged as a result of the arrival of the doctrine of good faith in contractual performance.
[72] The legitimacy of this distinction was recognised in Castlemaine Tooheys Ltd v Carlton United Breweries Ltd (1987) 10 NSWLR 468, 486–7 (Hope JA). However, the mechanism for implying terms at law still seems the subject of controversy: Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151, 191–2 (Finn J).
[73] Service Station Association [1993] FCA 638; (1993) 45 FCR 84, 89–90.
[74] Ibid 92. Usually this will take place in the context of an informal contract with no written terms – though, of course, the existence of written terms does not preclude implication at law by the courts: J W Carter and D J Harland, Contract Law in Australia (3rd ed, 1996) [631].
[75] Butterworths, Halsbury’s Laws of England (4th ed, 1974) vol 9, Contract, ‘2 Implied Terms’ [353]. See also Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48, 61.
[76] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226; Re Palmdale Insurance Ltd [1982] VicRp 93; [1982] VR 921, 924–7.
[77] Although the concept had been raised a decade earlier in United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766, 799–801 (McLelland J), it seems to have disappeared from notice until its revival in Justice Priestley’s dicta in Renard (1992) 26 NSWLR 234, 263–71. It would be a surprising result indeed if a custom could be established within a year by the mere appearance of obiter comments, irrespective of the eminence of the author.
[78] Devefi Pty Ltd v Mateffy Perl Nagy Pty Ltd (1993) 113 ALR 225.
[79] See especially Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 450 (McHugh and Gummow JJ).
[80] Renard (1992) 26 NSWLR 234, 268.
[81] Service Station Association [1993] FCA 638; (1993) 45 FCR 84, 98.
[82] His Honour argued that both the US and Australia had the same ultimate source for their common law. Academic interest, which had stimulated a broad acceptance of good faith in the US, was increasing in Australia. Also, given the strong focus on open economic trading conditions and the social and political similarities between the two nations, if the US could readily adopt such a doctrine, why not Australia?: Renard (1992) 26 NSWLR 234, 267.
[83] Service Station Association [1993] FCA 638; (1993) 45 FCR 84, 92.
[84] The doctrine, now espoused in the National Conference of Commissioners on Uniform State Law and the American Law Institute, Revision of Uniform Commercial Code Article 1 – General Provisions (2002) § 1-304, has been described as something of a toothless tiger. Within the context of the Uniform Commercial Code, determination of whether or not action has been in good faith is largely measured against a subjective standard: Farnsworth, above n 19, 671. This might offer one explanation as to why, as Priestley JA observes in Renard, the existence of the doctrine appears to have interfered little, if at all, in the undertaking of business in the US: Renard (1992) 26 NSWLR 234, 266.
[85] Certainly in relation to the High Court of Australia’s consideration of the approaches taken to fiduciary law in the US and Canada, and the transplantation of those systems to Australian law, the answer must be no. The High Court has made it plain that it has no interest in adopting ‘unprincipled’ approaches from overseas. Justice Gummow’s suggestion that it was possible that good faith in contractual performance might be seen as a licence for judicial intuition, leading to unpredictable and inconsistent results, seems to be very similar to labelling the doctrine ‘unprincipled’: Breen v Williams (1995) 186 CLR 71, 132–8.
[86] See generally Tyrone Carlin, ‘Doctors as Fiduciaries – Revisiting the Past With an Eye on the Future’ (2001) 9 Journal of Law and Medicine 95, 99.
[87] [1994] FCA 1358; (1994) 52 FCR 572.
[88] Jenkins v NZI Securities [1994] FCA 1358; (1994) 124 ALR 605, 619. Note that this discussion is omitted from the official report of the case, Jenkins [1994] FCA 1358; (1994) 52 FCR 572.
[89] Jenkins v NZI Securities [1994] FCA 1358; (1994) 124 ALR 605, 619.
[91] The source of the Full Federal Court’s reasoning in this case would appear to be the ‘commercial certainty’ approach favoured by English law. This is exemplified by statements such as those of Lord Reid in White and Carter (Councils) Ltd v McGregor [1961] UKHL 5; [1962] AC 413, 429–30, and, two decades later, those of Lord Wilberforce in Bunge Corporation New York v Tradax Export SA, Panama [1981] UKHL 11; [1981] 1 WLR 711, 715.
[92] [1996] FCA 1256; (1996) 58 FCR 447.
[93] (1896) 7 QLJ 68.
[94] Ibid 70–1. For an earlier construction of the same rule, see Mackay v Dick (1881) 6 App Cas 251, 261 where Lord Blackburn notes that:
[A]s a general rule … where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect.
This approach is still authoritative in Australia: see Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 607–8 (Mason J).
[95] It should be noted that there is some support for the proposition that the dictum of Griffith CJ in Butt v M’Donald (1896) 7 QLJ 68, 70–1 has essentially the same content as the doctrine of good faith in contractual performance. Thus in United States Surgical Corporation v Hospital Products International Pty Ltd [1982] 2 NSWLR 766, 799–801, McLelland J considered that the good faith requirement contained in the American Law Institute, Restatement (Second) of the Law of Contracts (1981) § 205 did not demonstrate any material divergence from the rule set out by Griffith J in Butt v M’Donald. However, McLelland J was quite restrictive in making such a characterisation. He noted, for example, that the requirement of good faith extended only to the performance of the express terms of the contract, and may not be used as a springboard for other implied terms. Arguably, the doctrine supported by Priestley JA in Renard went beyond these restrictive limits.
[96] News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256; (1996) 58 FCR 447, 540–1.
[97] Ibid 541.
[98] Ibid.
[99] Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151, 192.
[100] It is arguable that the basis on which the requirement of good faith was implied may be subjected to the same criticism directed at international decisions which have imposed fiduciary relationships in novel situations to construct a certain outcome. This has been described as ‘remedial abuse’: Rosemary Teele, ‘The Search for the Fiduciary Principal: A Rescue Operation’ (1996) 24 Australian Business Law Review 110, 112.
[101] [1997] FCA 558; (1997) 76 FCR 151.
[102] See ibid, 192–3, where Finn J states: ‘I should add that, unlike Gummow J, I consider a virtue of the implied duty to be that it expresses in a generalisation of universal application, the standard of conduct to which all contracting parties are expected to adhere throughout the lives of their contracts’.
[103] Hughes Aircraft Systems is cited as authority for the proposition that duties of good faith in contractual performance should be implied in contracts at law in: Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349; Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703; Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236; Hungry Jack’s Pty Ltd v Burger King Corporation [1999] NSWSC 1029 (Unreported, Rolfe J, 5 November 1999); Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 (Unreported, Byrne J, 18 August 2000).
[104] Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151, 190–1 (implication ad hoc), 191–8 (implication at law).
[105] Ibid 191.
[106] Service Station Association [1993] FCA 638; (1993) 45 FCR 84.
[107] See Hughes Aircraft [1997] FCA 558; (1997) 76 FCR 151, 192 where Finn J states: ‘it is appropriate to indicate that my own view inclines to that of Priestley JA’.
[108] This would accord with the authority on the subject of comity – see, eg, Bank of Western Australia Ltd v FCT (1994) 55 FCR 233; Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485; Bradley v Armstrong [1981] FCA 177; (1981) 39 ALR 118.
[109] Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93, 108.
[110] See, eg, News Ltd v Australian Rugby Football League [1996] FCA 870; (1996) 64 FCR 410, 538. See also Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14 685.
[111] See especially Breen v Williams (1996) 186 CLR 71, 95 (Dawson and Toohey JJ).
[112] See Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151, 192 where Finn J contrasts the basis of his approach with that of Gummow J in Service Station Association [1993] FCA 638; (1993) 45 FCR 84, 96.
[113] Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151, 195–8.
[114] Ibid.
[115] Ibid.
[116] [1912] HCA 69; (1912) 15 CLR 333.
[117] Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151, 196.
[118] Telstra, in its present incarnation, is a prime example of this.
[119] See generally Mark Aronson, ‘A Public Lawyer’s Response to Privatisation and Outsourcing’ in Michael Taggart (ed), The Province of Administrative Law (1997) 40.
[120] Hughes Aircraft Systems (1997) FCR 151, 195–8.
[121] Some do not. In Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 433 (Unreported, Simos J, 26 May 2000), Simos J felt that it was not appropriate even to proceed towards a contemplation of the existence and nature of an implied term requiring a duty of good faith in contractual performance. The basic conditions for implication of such a term, set down in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 had not been met.
[122] See, eg, Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703; Hungry Jack’s Pty Ltd v Burger King Corporation [1999] NSWSC 1029 (Unreported, Rolfe J, 5 November 1999); Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 (Unreported, Byrne J, 18 August 2000); Apple Communications Ltd v Optus Mobile Pty Ltd [2001] NSWSC 635 (Unreported, Windeyer J, 26 July 2001).
[123] An example of where such an approach is taken is Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349.
[124] See, eg, Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94 (Unreported, Malcolm CJ, Wallwork and Steytler JJ, 23 April 2002). Rather than turning their minds to the question of whether such terms ought to be implied, the Full Court of the Supreme Court of Western Australia simply proceeded on the basis that they were indeed implied. The Court then considered the issue of whether a breach could be demonstrated and what remedial action would be appropriate were such a breach proven.
[125] For a recent judicial discussion of the nature of the franchise relationship see Dymocks Franchising Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239.
[126] Relief under the Trade Practices Act 1974 (Cth) s 51AC is not available to listed public companies or in respect of transactions to a value in excess of A$3 million.
[127] [2000] FCA 1365; (2000) 104 FCR 253.
[128] Commonwealth Bank of Australia v Milder Elfman Szmerling Krycer Pty Ltd [1998] (Unreported, Supreme Court of Victoria, Hansen J, 18 February 1998); Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349; Advance Fitness Corporation Pty Ltd v Bondi Diggers Memorial and Sporting Club Ltd [1999] NSWSC 264 (Unreported, Austin J, 30 March 1999); Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703; Hungry Jack’s Pty Ltd v Burger King Corporation [1999] NSWSC 1029 (Unreported, Rolfe J, 5 November 1999); Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 (Unreported, Byrne J, 18 August 2000); Asia Television Ltd v Yau’s Entertainment Pty Ltd [2000] FCA 254; (2000) 48 IPR 283; Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 433 (Unreported, Simos J, 26 May 2000); Central Exchange Ltd v Anaconda Nickel Ltd [2001] WASC 128; (2001) 24 WAR 382; Apple Communications Ltd v Optus Mobile Pty Ltd [2001] NSWSC 635 (Unreported, Windeyer J, 26 July 2001); Central Exchange v Anaconda Nickel Ltd [2002] WASCA 94 (Unreported, Malcolm CJ, Wallwork, Steytler JJ, 23 April 2002); Overlook v Foxtel [2002] NSWSC 17; (2002) ATPR (Digest) 46-219.
[129] [2001] NSWSC 197 (Unreported, Master Macready, 5 March 2001).
[130] [1998] (Unreported, Supreme Court of Victoria, Hansen J, 18 February 1998).
[131] [1999] NSWSC 264 (Unreported, Austin J, 30 March 1999).
[132] Hungry Jack’s Pty Ltd v Burger King Corporation [1999] NSWSC 1029 (Unreported, Rolfe J, 5 November 1999).
[133] Ibid [431].
[134] [2002] HCA 5; (2002) 186 ALR 289.
[135] Ibid 312.
[136] Ibid 327.
[137] Ibid 312.
[138] Hughes Aircraft Systems (1997) FCR 151, 195.
[139] [1998] NSWSC 483; (1998) 44 NSWLR 349.
[140] Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349, 363; Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703, 43 014.
[141] This approach is favoured by Finkelstein J in Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703, 43 014, who suggested that to act in good faith meant to not act capriciously.
[142] See, eg, Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236 (Einstein J).
[143] Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94 (Unreported, Malcolm CJ, Wallwork and Steytler JJ, 23 April 2002).
[144] See Hungry Jack’s Pty Ltd v Burger King Corporation [2001] NSWSC 197 (Unreported, Master Macready, 5 March 2001).
[145] Some members of the judiciary remain adamant that good faith is not synonymous with reasonable behaviour. See Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996; (1999) 153 FLR 236, 256 (Einstein J).
[146] Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349; Burger King Corporation v Hungry Jack’s Pty Ltd [2001] NSWCA 187; Overlook v Foxtel [2002] NSWSC 17; (2002) ATPR (Digest) 46-219.
[147] Contrast Service Station Association [1993] FCA 638; (1993) 45 FCR 84 with Hughes Aircraft Systems [1997] FCA 558; (1997) 76 FCR 151. For more recent examples of similar conflict, contrast Garry Rogers Motors [1999] FCA 903; (1999) ATPR 41-703 with Asia Television Ltd v Yau’s Entertainment Pty Ltd [2000] FCA 254; (2000) 48 IPR 283.
[148] Central Exchange Ltd v Anaconda Nickel Ltd [2001] WASC 128; (2001) 24 WAR 382; Central Exchange Ltd v Anaconda Nickel Ltd [2002] WASCA 94 (Unreported, Malcolm CJ, Wallwork, Steytler JJ, 23 April 2002).
[149] Gold Coast Waterways Authority v Salmead Pty Ltd [1997] 1 Qd R 346; Re Zurich Australian Insurance Ltd [1998] QSC 209; [1999] 2 Qd R 203.
[150] R v Parsons [1983] VicRp 109; [1983] 2 VR 499; Cook v Cook [1986] HCA 73; (1986) 162 CLR 376.
[151] See above, nn 18–19.
[152] For a detailed examination of similar debates, see Elisabeth Peden, ‘Cooperation in English Contract Law: To Construe or Imply?’ (2000) 16 Journal of Contract Law 56.