Submission 037 - Attachment - Stewart - Australian Law of Contract - Journal of Contract Law 29 2012 - 31 July 2012

Electronic copy available at: http://ssrn.com/abstract=2121101

University of Adelaide Law School University of Adelaide Law School Research Paper No. 2012-15


JOBNAME: No Job Name PAGE: 82 SESS: 6 OUTPUT: Wed Jul 18 10:23:37 2012/journals/journal/jcl/vol29pt1/part_1

Whats Wrong with the AustralianLaw of Contract?

Andrew Stewart*

The Australian Government is in the process of reviewing the law of contract,with codification being one option under consideration. This article explainsthe background to the review and considers the case for codification. Twomajor problems are identified with the current law: inconsistent oroverlapping statutory regulation, both between and within the variousjurisdictions; and the inability or unwillingness of the judiciary (especially theHigh Court) to resolve uncertainty on issues such as the evidenceadmissible for the interpretation of contracts and the recognition of a generalduty of good faith and fair dealing. Some observations are offered on whatform any new code might take, and who should be drafting it.

On 10 June 2011 a story appeared in the Legal Affairs section of theAustralian Financial Review, headed National Contract Law WellReceived. It revealed a federal government plan to introduce a national setof laws governing contracts, to clarify discrepancies between the states andmake it easier to do business across borders. The then Attorney-General,Robert McClelland, was quoted as saying that the idea had been raised at abusiness roundtable, and that he hoped to circulate a draft contractual codewhich would be bedded down by mid-2012. This might be enacted in agovernment-controlled jurisdiction such as Jervis Bay, either for adoption bythe States or, failing that, by parties as the law governing their agreement.Although conceding that contract law was not by any means broken, theAttorney did see it as tremendously complex and suggested that there wassome merit in drawing it together. He specifically referenced the movesalready made to update Australias laws on international arbitration,1 as wellas overseas examples such as the US Uniform Commercial Code and thePrinciples of International Commercial Law promulgated by the InternationalInstitute for the Unification of Private Law (UNIDROIT).2 He commentedthat Australias increasing engagement with the global economy made this theright time to be looking at a national contract law: the easier we make it todo business with Australia and Australian businesses, the better it is for thelong-term prospects of the country.This was a distinctly odd way to announce so important an initiative and

the suggested timetable for reform was ambitious, to put it mildly. That wiser

* John Bray Professor of Law, University of Adelaide; Consultant, Piper Alderman. Thisarticle is a revised version of a paper originally presented at the Advanced Contract LawConference organised by the Law Society of South Australia and the Adelaide Law Schoolin November 2011.

1 See the International Arbitration Amendment Act 2010 (Cth), giving effect to theUNCITRAL Model Law on International Commercial Arbitration.

2 The UNIDROIT Principles were first published in 1994, then updated in 2004 and 2010. Thecurrent version is available online at http://www.unidroit.org/english/principles/contracts/main.htm, or in book form: see UNIDROIT Principles of Commercial Law 2010,UNIDROIT, Rome, 2010.

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counsel has now prevailed inside the federal government is evident from therelease, in March 2012, of a discussion paper that is far more neutral in tone.3

It does not propose codification, but simply calls for submissions on anycosts, difficulties, inefficiencies or lost opportunities experienced with thepresent law of contract, and on how (if at all) the law might be reformed toaddress those problems. The declared purpose is to stimulate discussionamong businesses, legal practitioners, academics and other stakeholders aboutwhether Australian law is fit for its purpose and prepared for the challenges ofthe future.4

Although the government has plainly backed away from any commitmentto codify Australian contract law, it remains useful to consider the case formoving in that direction. After all, contract law codes are hardly unknownaround the world. Contract law is a standard inclusion in the Civil Codesfound throughout continental Europe, as well as Japan, while China adopteda single Contract Law in 1999. On the other hand, it has generally been adifferent story in the common law countries. This is despite the example setby the United States, which besides the Uniform Commercial Code has theAmerican Law Institutes influential (if not strictly binding) Restatement ofthe Law of Contracts, the second edition of which was released in 1979. In theUK, the English and Scottish Law Commissions devoted several years in the1960s and 1970s to the codification of contract law, but eventually abandonedthe project despite producing a detailed draft Code that was only publishedmany years later.5 It remains to be seen whether the European Commissionsrecent proposal for a Common European Sales Law fares any better.6

Where the Law Commission draft ran to over 500 sections, the authors ofwhat remains to date the only Australian equivalent went to the oppositeextreme with the emphasis on extreme. The Australian Contract Codepublished in 1992 by the Victorian Law Reform Commission comprised just27 short articles.7 According to the authors, academics Fred Ellinghaus andTed Wright, the high level of generality of their chosen propositions wasjustified by the central role played by a single concept that ofunconscionability.8 Many existing doctrines and principles were expressed byreference to this term. For instance, the entire law on termination for breachor repudiation was encapsulated as follows:

12. A party may be excused from performance of a contract to the extent that itwould be unconscionable for the other to insist on it.

13. It may be unconscionable for a party to insist on performance if 13.1 that party has breached the contract . . .

3 Improving Australias Law and Justice Framework: A Discussion Paper to Explore theScope for Reforming Australian Contract Law, Attorney-Generals Department, Canberra,2012.

4 Above, n 3, p 2.5 See S M Waddams, Codification, Law Reform and Judicial Development (1996) 9 JCL192.

6 See European Commission Proposes an Optional Common European Sales Law to BoostTrade and Expand Consumer Choice, press release, Brussels, 11 October 2011. The text ofthe proposed Law can be found athttp://ec.europa.eu/justice/contract/files/common_sales_law/regulation_sales_law_en.pdf.

7 An Australian Contract Code, Discussion Paper No 27, VLRC, Melbourne, 1992.8 Above, n 7, p 6.

Whats Wrong with the Australian Law of Contract? 75


Article 27 also stipulated as an overriding principle that A person may notassert a right or deny an obligation to the extent that it would beunconscionable to do so. Unconscionability was apparently to be judged byreference both to the values of the wider community and to the acceptedmorality of the particular environment in which it occurs.9

The authors contention was that the apparent certainty produced bydetailed rules was a delusion, given the tendency of courts to interpret, applyand modify those rules by open reference to what is fair, reasonable, just orequitable, or conforms with good faith or conscience, in the particular case.10

A general principle of the type expressed in Art 27 would not, they argued,entail the substitution of palm-tree justice for the rule of law.11 Rather, itwould remove the veil of complexity and abstraction which traditionaldoctrine places over the process of applying contract law, thereby increasingcertainty, not diminishing it.12

There would be few practitioners, I suspect, who would agree that courtsinvariably (as opposed to sometimes) resolve contractual disputes byreference to the dictates of conscience, rather than by endeavouring to applywhat they regard as the relevant set of rules. At any event, it was scarcelyrealistic that either the business community or the lawyers that advise themwould have been prepared to take the leap of faith required by so radical areworking of the law. It is true that we should never overestimate theimportance of the law of contract. As various empirical studies have shown,it is largely irrelevant in practice to the way in which many people andorganisations conduct their affairs. Contractual disputes are far more likely tobe resolved by reference to matters of trust, reputation, pressing need, cost orconvenience, than according to the strict letter of the law.13 But nor by thesame token should we underestimate its significance to the planning anddrafting of transactions, especially those involving substantial sums of money.It is hard to imagine parties involved in a major resource project, propertydevelopment or financial transaction feeling very confident about applying anentire law of contract barely longer than a set of recitals and a fraction ofthe size of their own written contracts.14 In the end, it was no surprise to seethe VLRC proposal sink without a trace.15

For a codification project to succeed, it clearly needs not just to garnerpolitical support, but preferably also to persuade those who will ultimately useit and advise on it that codification is necessary, and that the resultinginstrument will be framed in a way that as far as possible facilitates rather than

9 Above, n 7, p 9.10 Above, n 7, p 10.11 Above, n 7, pp 78.12 Above, n 7, pp 1011.13 See eg the studies cited in J Gava, Can Contract Law be Justified on Economic Grounds?

(2006) 25 University of Queensland Law Journal 253 at 2545.14 This is not to defend the use of unnecessary (or unnecessarily prolix) boilerplate terms in

commercial contracts, which often cause more problems than they solve.15 This has not stopped the authors from seeking to convince sceptics of the soundness of their

approach: see M P Ellinghaus, E W Wright and M Karras, Models of Contract Law: AnEmpirical Evaluation of Their Utility, Themis Press, Sydney, 2005; and see also the researchproject summarised at http://www.newcastle.edu.au/school/law/research/global-law-of-contract/.

76 (2012) 29 Journal of Contract Law


hinders the conduct of commerce. This is not to say that we should rewriteevery rule of contract law to suit business. As John Gava has cogentlyargued, that is neither necessary nor desirable. Business people, as he pointsout, tend to make use of contract law as a form of insurance, or as a lastresort mechanism when their preferred tools for resolving disputes are notavailable. From that perspective, law is attractive only because of itsformalist nature, not because of the specific nature or usefulness of particulardoctrines.16 Given the value likely to be attached to the maintenance ofestablished rules, we might draw the conclusion that a codified law of contractis more likely to be a viable proposition if it is largely consistent with, thoughstill an improvement upon, the existing regime.What that might imply for the type of code to be developed is a question to

which I will return. But for now, I wish to offer some preliminary thoughts onthe need for a code in the first place. In answering the question posed by thetitle what is wrong with the Australian law of contract? I will first of allmake some observations about the patchwork framework of legislation thatgoverns contracting in Australia. I will then go on to examine somedeficiencies in the common law of contract, focusing on the inability orunwillingness of the High Court to play what might be thought to be its properand natural role as a clarifier of uncertainty. Finally, I will consider what forma new code might take and who should be drafting it.

A Statutory Patchwork

There are few, if any, types of contract today that are not regulated by statute.In many cases, the regulation is extensive, as with the sale of goods,17

employment,18 insurance,19 consumer credit,20 bills of exchange,21 and bothresidential and retail leasing.22 But even where there is no general statutoryscheme, as remains the case for most type of agreements for the provision ofservices, it is hard to escape parliamentary attention in one form or other. Inparticular, any transaction entered into in trade or commerce will be subjectto some of the general rules laid down by what is now the AustralianConsumer Law (ACL),23 notably the proscription in s 18 on misleading ordeceptive conduct.In recent years there has been a notable shift to national or at least

harmonised regulation, especially under the aegis of the Council of AustralianGovernments (COAG). This has reduced the extent to which different rulesapply in different jurisdictions. Besides some of the examples given above,such as employment and consumer credit, the ACL has given us at leastbroadly consistent laws on consumer protection. There are also national

16 Can Contract Law be Justified on Economic Grounds?, above n 13, at 264.17 See eg Sale of Goods Act 1895 (SA); Sale of Goods (Vienna Convention) Act 1986 (SA).18 See eg Fair Work Act 2009 (Cth).19 See eg Insurance Contracts Act 1984 (Cth).20 See eg National Consumer Credit Protection Act 2009 (Cth).21 See Bills of Exchange Act 1909 (Cth).22 See eg Residential Tenancies Act 1995 (SA); Retail and Commercial Leases Act 1995 (SA).23 See Competition and Consumer Act 2010 (Cth) Sch 2. The ACL is extended by State

legislation to persons not otherwise subject to the federal statute: see eg Fair Trading Act1987 (SA) Pt 3.



schemes as to the enforceability of agreements to resolve commercial disputesby arbitration,24 as well as the treatment of electronic communications andprocesses.25

Nevertheless, important differences between jurisdictions remain. This isnot just a matter of inconsistent regulation of particular types of agreement,such as building contracts or (domestic) contracts for the sale of goods. EachState and Territory has a statute that is nominally concerned with property orconveyancing, but which in fact contains important provisions that apply to alltypes of contract, on matters such as the assignment of rights, the effect of atime stipulation, and so on.26 Most of these provisions are similar acrossjurisdictions, but by no means all. The most dramatic exceptions are theprovisions in Queensland, Western Australia and the Northern Territory thatcreate significant exceptions to the common law principle of privity ofcontract, in favour of third party beneficiaries.27 The enforceability ofagreements entered into by minors is another area of general significance inwhich uniformity is utterly lacking, with only New South Wales enactingcomprehensive legislation28 and other jurisdictions relying on a varyingmixture of common law and limited statutory provisions.29

Even where there has been an attempt to harmonise, this has not necessarilyended the problems. The ACL is the perfect example. While plainly animprovement on the previous mix of federal, State and Territory consumerlaws,30 the drafting of some of its key provisions leaves much to be desired.As John Carter has forcefully pointed out, the term consumer continues to beused or defined in many different ways throughout the ACL, and oftenconfusingly and/or counter-intuitively.31 As for the provisions in ss 2022concerning unconscionable conduct in relation to the commercial supply ofgoods or services, they remain, as Dan Svantesson has observed, usefulexamples of Australian legal drafting at its worst.32 Running to over 2000words between them, their scope and effect remains uncertain at best.Recently passed amendments tinker with the drafting, but clarify very little.33

The key problem with the ACL, drafting issues aside, is that it is not trulyan Australian Consumer Law. It is a measure that largely seeks to protectconsumers in their dealings with businesses, but that includes generallyworded provisions that have come to regulate dealings between businesses,whether through contested interpretations,34 or incremental amendments.35

24 See eg Commercial Arbitration Act 2011 (SA); International Arbitration Act 1974 (Cth).25 See eg Electronic Transactions Act 1999 (Cth); Electronic Transactions Act 2000 (SA).26 See eg Law of Property Act 1936 (SA).27 See Property Law Act 1974 (Qld) s 55; Property Law Act 1969 (WA) s 11; Law of Property

Act 2000 (NT) s 56; and see eg Jaddcal Pty Ltd v Minson (No 3) [2011] WASC 362.28 See Minors (Property and Contracts) Act 1970 (NSW).29 See eg Minors Contracts (Miscellaneous Provisions) Act 1979 (SA).30 See Productivity Commission, Review of Australias Consumer Policy Framework, Inquiry

Report No 45, 2008.31 The Commercial Side of Australian Consumer Protection Law (2010) 26 JCL 221.32 Codifying Australias Contract Law Time for a Stocktake in the Common Law Factory

(2008) 20 Bond Law Review 92 at 113.33 See Competition and Consumer Legislation Amendment Act 2011 (Cth) Sch 2.34 Notably Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre

Ltd (1978) 140 CLR 216, where the High Court refused to confine the generality of what



This is likely to create difficulties in determining the scope of any ContractCode, as will be discussed later.

The Common Law of Contract and the Quest forGuidance

Despite the inroads made by legislation, the common law remains animportant source of contract law. Even where particular types of agreementare heavily regulated by statutes (or statutory instruments), gaps often remainto be filled by judge-made law.36 Furthermore, common law principles andvalues continue to be important in shaping the interpretation of legislation.37

The High Court has insisted in recent years that there is a single commonlaw of Australia.38 Indeed it has suggested that each intermediate court ofappeal should generally follow any other such courts rulings on the commonlaw, unless persuaded the other courts view is plainly wrong.39As it happens,it is hard to think of recent examples in which there has been a clear divisionof opinion between jurisdictions on a matter of general contract law. Ifanything, the divisions have tended to be between different judges, bothbeyond and within a single jurisdiction as the discussion below of the issueof good faith and fair dealing reveals.To anyone raised on the common law method, there is nothing surprising or

especially perturbing about judges disagreeing on the formulation orapplication of legal principles. Indeed we can accept that at any point therewill be unresolved issues, most obviously because the right case has not yetarisen to test out a particular proposition. Two issues that bear upon electronicforms of contracting provide examples: the question of whether an emailedacceptance takes effect on despatch or receipt;40 and the far more fundamental(and practically important) issue of whether clicking I agree on a websiterepresents assent to a set of terms presented on that site, without furtherinquiry into whether reasonable notice has been given.41

Nevertheless, it remains important that some mechanism be available forresolving differences. At least in the absence of a general code, we cannot

was then s 52 of the Trade Practices Act 1974 (Cth) now s 18 of the ACL by referenceto its inclusion in a set of provisions headed Consumer Protection.

35 See especially the introduction in 1998 of what was originally conceived as a provisiondealing only with unconscionability in small business transactions, s 51AC of the TradePractices Act 1974, though the monetary cap placed on its application was set at awhopping $3 million. Under the current provision, s 21 of the ACL, the only bar is oncomplaints involving a listed public company as consumer or client.

36 As in the case of employment contracts, for example: see B Creighton and A Stewart,Labour Law, 5th ed, Federation Press, Sydney, 2010, pp 2369.

37 For an interesting example, see P Gillies, Non-Disclosure: Trade Practices Act, s 52 (2004)78 ALJ 653; and see further A Stewart and L McClurg, Playing Your Cards Right:Obligations of Disclosure in Commercial Negotiations [2007] AMPLA Yearbook 36.

38 See eg Lipohar v R (1999) 200 CLR 485 at [43][59]; PGA v R [2012] HCA 21 at [25].39 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].40 See E Mik, The Effectiveness of Acceptances Communicated by Electronic Means, or

Does the Postal Acceptance Rule Apply to Email? (2009) 26 JCL 68.41 See E Macdonald, Incorporation of Standard Terms in Website Contracting Clicking I

Agree (2011) 27 JCL 198. Cf eBay International AG v Creative Festival Entertainment PtyLtd (2006) 170 FCR 450, where the issue was subjected to cursory and inconsistent analysis.



reasonably expect the time and attention of our parliaments to be devoted toresolving what many in the community would regard as minor points of law.So in a common law regime, much depends on the willingness and ability ofthe judges who sit at the apex of the court system to do what they can to clarifyuncertainties and resolve differences of opinion. As Justice (and formerlyProfessor) Paul Finn notes, it is unreasonable and unrealistic to expect theHigh Court systematically to renovate Australian contract law. Yet at thesame time, he argues, it is reasonable to expect the Court, when suitableopportunities are presented, to rise above the making of mere doctrinaladjustments and to provide appropriate bearings for our contract law in themodern world.42 Opinions will legitimately differ on just how creative judgescan or should be in performing that role. But at the very least, we would surelywant the group of jurists funded by the public to sit in judgment on all othercourts to use that position to issue rulings that improve the clarity andconsistency of the law they are administering. That need not involve going outof their way to find excuses to formulate new doctrine. But when the chanceis there to put an issue to rest, they should do so.

Sadly, however, this is an area in which our highest court has been foundwanting in recent years, at least in relation to the law of contract. The problemis one that John Carter and I have previously highlighted in two studies of theHigh Courts contracts jurisprudence. The original article was written in 1993and surveyed the preceding 30 years, effectively spanning the Barwick, Gibbsand Mason courts.43 Its follow-up considered the ensuing decade, under thestewardship of Chief Justices Brennan and Gleeson.44 The first piece generallyapplauded the courts willingness after 1982 to develop a distinctivelyAustralian law of contract after many years of deference to the English courts.Even so, we remarked that there was room for criticism both as to the extentto which [the Court] has chosen not to deal fully or finally with various issues,and as to its frequent failure to speak with one voice.45 We noted in particularthe courts tendency in certain instances to raise doubts about establisheddoctrine, but either to fail to indicate the full extent of its desire to change thelaw, or to adopt a new principle but refuse to give at least a workable outlineof it.46 By our second article, that concern had deepened:

[T]here continues to be no lack of examples of the court frustrating consumers ofits judgments by (a) refusing to take opportunities squarely presented to it to resolve

42 Internationalisation or Isolation: The Australian cul de sac? The Case of Contract Law ineds E Bant and M Harding, Exploring Private Law, Cambridge University Press,Cambridge, 2010, p 41 at p 64.

43 J W Carter and A Stewart, Commerce and Conscience: The High Courts Developing Viewof Contract (1993) 23 University of Western Australia Law Review 49.

44 A Stewart and J W Carter, The High Court and Contract Law in the New Millennium(2003) 6 Flinders Journal of Law Reform 185.

45 Commerce and Conscience, above n 43 at 70.46 Above, n 43 at 71, instancing in particular Trident General Insurance Co Ltd v McNiece

Bros Pty Ltd (1988) 165 CLR 107, where members of the court indicated a willingness tocreate a much broader exception to the privity doctrine than the limited one recognised forinsurance contracts; and Taylor v Johnson (1983) 151 CLR 422, where the court refused toelaborate on the breadth of the jurisdiction it was recognising to set aside contracts forunilateral mistake.



a longstanding issue of concern; or (b) saying just enough on a particular point tocall established principles into question, without going on to take a definitivestance.47

It is clear, looking back, that since 1995 there has been a distinct change inthe High Courts approach to the identification and resolution of legalcontroversies. As Finn observes, where the Mason court had openlyacknowledged policy considerations and embraced a species of legalrealism,48 the following era has featured a largely untheorised form oflegalism.49 The hallmarks of this approach have been:50

(i) a marked preoccupation with doctrine and close doctrinal analysis not overtlyinfluenced by policy considerations; (ii) a corresponding retreat from openconsideration of values . . . (iii) a varying but diminished regard forconsequentialist considerations in shaping doctrine; and (iv) affording greaterweight to precedent . . .[T]he renewed emphasis upon doctrine has not precluded innovation. But given

innovation is [now] rooted in doctrine, it has a particular orientation which iscontrived by doctrinal analysis. The perceived potential of individual doctrinesthemselves provides the impetus to development. Gone are the imperatives ofinspiring ideas: popular sovereignty, good administration, fairness, unjustenrichment and the like. To the extent that policy informs judicial reasoning, it isleft unspoken.

All that is true. And yet, from my perspective, it is not the most importantfeature of the approach that has prevailed for the past 16 years. Judicialcreativity will always have both its proponents and its detractors. But judicialclarity would surely be universally welcomed. Set against that standard, theHigh Court has frequently disappointed, by confusing rather than clarifying,negating rather than affirming. Take, for instance, its last two decisions on thedoctrine of restraint of trade, in which it carefully explained which principlesfor determining the scope of the doctrine were incorrect, but refused to revealwhat principles it thought should be used.51 Or the unnecessary questioning ofthe well-established presumptions as to intention to create legal relations,52 orof the reasonable expectation test for determining whether a non-disclosure

47 The High Court and Contract Law in the New Millennium, above n 44 at 213. As anexample of the latter tendency, see Concut Pty Ltd v Worrell (2000) 75 ALJR 312. In thatcase Gleeson CJ, Gaudron and Gummow JJ rejected the generally accepted view of theHouse of Lords decision in Bell v Lever Bros Ltd [1932] AC 161, but hinted that theproposition for which it had been thought to stand that an employee is under no impliedcontractual duty to disclose their own misconduct might still rest on a fiduciary analysis.This was in a case where, on the courts view of the facts, the point did not actually arise.

48 Internationalisation or Isolation, above, n 42, p 45.49 Above, n 42, p 46, quoting R Gray, The Constitutional Jurisprudence and Judicial Method

of the High Court of Australia: The Dixon, Mason and Gleeson Eras, Presidian LegalPublications, Adelaide, 2008, p 78.

50 Internationalisation or Isolation, above, n 42, p 47.51 See Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; Maggbury Pty Ltd v Hafele

Australia Pty Ltd (2001) 210 CLR 181.52 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 106. For an

unsuccessful attempt by a trial judge to acknowledge the High Courts caution aboutpresumptions and then effectively ignore it, see Evans v Secretary, Department of Families,Housing, Community Services and Indigenous Affairs [2012] FCAFC 81.



of information can be considered misleading or deceptive.53 Or the nowlengthy line of confusing and irreconcilable decisions on the assessment ofcompensation for misleading or deceptive conduct.54

Without question though, the High Court has been at its worst in dealingwith one of the most fundamental issues in modern commercial law theevidence that may be admitted to determine the meaning of terms in a writtencontract. In one respect, to be fair, the law has been clarified. The courtsobservations in Agricultural and Rural Finance Pty Ltd v Gardiner55 haveremoved any doubt about the inadmissibility (at least for the purpose ofconstruction) of the parties conduct after making the contract,56 much assome might like to argue that it is frequently the best evidence available as totheir intentions.57 But it has been a different matter with the question ofevidence as to the factual matrix.

The problems can be traced to the judgment of Mason J in CodelfaConstruction Pty Ltd v State Rail Authority of NSW.58 Having supported thegeneral idea of interpreting written contracts by reference to their factualcontext, his Honour rather confusingly went on to express the true rule asbeing that evidence of surrounding circumstances is admissible to assist inthe interpretation of the contract if the language is ambiguous or susceptibleto more than one meaning. But it is not admissible to contradict the languageof the contract when it has a plain meaning.59 Since then, the High Court hasgenerally adopted an approach at odds with that restrictive view. Most of thecourts pronouncements have been consistent with (and indeed have oftenquoted) the broad and contextual view taken by Lord Hoffmann in InvestorsCompensation Scheme Ltd v West Bromwich Building Society.60 To take justone example, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd61 the court saidthis:

The meaning of the terms of a contractual document is to be determined by what areasonable person would have understood them to mean. That, normally, requires

53 See Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010)241 CLR 357. French CJ and Kiefel J cautioned (at [19]) that the language of reasonableexpectation is not statutory, while Heydon, Crennan and Bell JJ pointedly avoided anyreference to the test established in cases such as Demagogue Pty Ltd v Ramensky (1992) 39FCR 31. Their observations were noted in Clifford v Vegas Enterprises Pty Ltd [2011]FCAFC 135 by the Full Federal Court which then went on to apply the test anyway.

54 See eg Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; Murphy v OvertonInvestments Pty Ltd (2004) 216 CLR 388; HTW Valuers (Central Qld) Pty Ltd v AstonlandPty Ltd (2004) 217 CLR 640; and see generally D Wright, Remedies, Federation Press,Sydney, 2010, pp 24871.

55 (2008) 238 CLR 570 at [35].56 See Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [10][13],

[330][332]. As to the admissibility of subsequent conduct evidence for other purposes, seeeg Lym International Pty Ltd v Marcolongo [2011] NSWCA 303.

57 See eg D McLauchlan, Contract Interpretation: What is it About? (2009) 31 Syd LR 5.58 (1982) 149 CLR 337.59 (1982) 149 CLR 337 at 352. The judge himself later admitted that his judgment was

imperfectly expressed: Sir A Mason, Opening Address (2009) 25 JCL 1 at 3.60 [1998] 1 WLR 896 at 9123.61 (2004) 219 CLR 165 at [40] (emphasis added). See also the other authorities collected and

analysed by Campbell JA in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR603 at [274][276], [286][297].



consideration not only of the text, but also of the surrounding circumstances knownto the parties, and the purpose and object of the transaction.

If it is normal to have regard to surrounding circumstances, then it wouldseem to follow inexorably that it is no longer necessary to decide first that thedocument in question is ambiguous, before any evidence can be admitted asto those circumstances.62 So much has been the conclusion of both the FullFederal Court and the New South Wales Court of Appeal, after the mostcareful review of the authorities.63Yet astonishingly, judges of the High Courthave three times now suggested that the true rule in Codelfa is still to befollowed without once bothering to explain how that rule can bereconciled with their other decisions.In 2002, in Royal Botanic Gardens and Domain Trust v South Sydney City

Council,64 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated thatif anyone was inclined to discern any inconsistency between the approachestaken by Mason J and Lord Hoffmann, they should continue to followCodelfa. But they did not explain what the inconsistency might be, or whetherit even existed. At least outside South Australia,65 later decisions such as Tollwere regarded as resolving any difficulty. Yet twice in 2011 lower courts wererebuked for treating Codelfa as having been overruled: first by Heydon andCrennan JJ in a footnote to their judgment in Byrnes v Kendle;66 and thenmore explicitly by Gummow, Heydon and Bell JJ in Western Export ServicesInc v Jireh International Pty Ltd.67 In this latter decision leave to appeal wasrefused against a decision by the New South Wales Court of Appeal that wasregarded as correctly interpreting a contract. Yet their Honours went out oftheir way to criticise the Court of Appeal for applying the view that it was nolonger essential to identify ambiguity before the court may have regard to thesurrounding circumstances and object of the transactions.68 Until the HighCourt itself disapproved or revised what had been said in Codelfa, lowercourts should continue to follow that precedent. The binding status of Codelfahad been made clear in Royal Botanic and, the three judges added tartly, itshould not have been necessary to reiterate the point here.69 Crucially, theyadded, they did not read anything said in decisions such as Toll as operatinginconsistently with what had been said by Mason J. And that was that.The problems with this approach should be obvious. Once again, no attempt

was made to explain just how the true rule in Codelfa is to be reconciled withthe normal approach expressed in Toll and many other decisions besides.70

62 It has been accepted that the circumstances in question must be reasonably known to bothparties: see eg QBE Insurance Australia Ltd v Vasic [2010] NSWCA 166.

63 See Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 at [46], [100],[238]; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603. A similar view hasbeen adopted in Western Australia: see Oswal v Yara Australia Pty Ltd [2011] WASC 255at [163][165].

64 (2002) 240 CLR 45 at [39].65 See eg Quirke v Interstate Transport Services Pty Ltd (2005) 92 SASR 249; Symbion

Medical Centre Operations Pty Ltd v Thomco (No 2113) Pty Ltd (2009) 103 SASR 354.66 (2011) 243 CLR 253 at [99], n 135.67 (2011) 86 ALJR 1.68 (2011) 86 ALJR 1 at [2].69 (2011) 86 ALJR 1 at [4].70 SeeMcCourt v Cranston [2012] WASCA 60 at [20] [26]; DWong and B Michael, Western



Lower courts, and indeed practitioners, are apparently expected to guess theanswer. It is almost as if the High Court regards this as a private joke that neednot be shared. Such an attitude is disrespectful to the many judges that havedone their best to reconcile the High Courts conflicting decisions and dicta.And it is an abrogation of the courts responsibility to act as a custodian of thecommon law.71

A further example of the common law failing to resolve a fundamental pointof principle has concerned the suggestion, famously aired in 1992 byPriestley JA,72 that the time has come for Australian courts to fall into linewith many other legal systems and recognise the existence in all contracts ofa duty upon the parties of good faith and fair dealing in its performance. Thelast two decades have seen a welter of academic commentary on this issue,with an entirely predictable lack of consensus.73 Yet for a time, it seemed thepoint had been settled, at least in the State in which so much of Australiascommercial litigation takes place. On two occasions, in 1997 and 2001, theNew South Wales Court of Appeal endorsed the proposition that a termimposing such a duty should be implied by law, either into all contracts, or atleast all commercial contracts.74

By 2004, however, the court was beginning to have doubts. In VodafonePacific Ltd v Mobile Innovations Ltd75 Giles JA, speaking for Sheller andIpp JJA, rejected the view, cogently advanced by Elisabeth Peden,76 that goodfaith is a principle that informs the construction of contractual provisions,rather than resting on a separate implied term. But at the same time he shiedaway from the concept that a term requiring good faith and fair dealing shouldbe implied into all commercial contracts, referring to the width andindeterminancy of such a class.77 The following year, the Victorian Court ofAppeal went further. In Esso Australia Resources Pty Ltd v Southern Pacific

Export Services v Jireh International: Ambiguity as the Gateway to SurroundingCircumstances? (2012) 86 ALJ 57; D McLauchlan and M Lees, Construction Controversy(2011) 28 JCL 101.

71 An indication of the confusion generated by the High Court can be gleaned from CraigHargraves Investments Pty Ltd v Australian Business Insurance Advisors Pty Ltd (2011) 111SASR 506 at [46], where Lord Hoffmanns judgment in Investors Compensation Schemewas still being treated as an authoritative restatement of the contemporary approach tointerpretation. Both Toll and Byrnes v Kendle were cited, but no mention was made ofWestern Export Services.

72 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at268.

73 For a survey of some (though by no means all) of the literature, see H Munro, The GoodFaith Controversy in Australian Commercial Law: A Survey of the Spectrum of AcademicLegal Opinion (2009) 28 University of Queensland Law Journal 167.

74 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 at 3689; Burger King Corp vHungry Jacks Pty Ltd (2001) 69 NSWLR 558. For recognition in other jurisdictions, see egHughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 192;Far Horizons Pty Ltd v McDonalds Australia Ltd [2000] VSC 310 at [120]; but cf ServiceStation Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 918.

75 [2004] NSWCA 15 at [204][207].76 See eg E Peden, Good Faith in the Performance of Contracts, Butterworths, Sydney, 2003;

and see also J W Carter, E Peden and G J Tolhurst, Contract Law in Australia, 5th ed,LexisNexis, Sydney, 2007, ch 2.

77 [2004] NSWCA 15 at [191].



Petroleum NL78 Buchanan JA considered that at most it might be appropriateto imply a term as a matter of fact rather than law,79 and only where a duty ofgood faith is truly necessary for the effective operation of the particularcontract. It might, he suggested, be appropriate to import such an obligationto protect a vulnerable party from exploitive conduct which subverts theoriginal purpose for which the contract was made.80 Both Warren CJ andOsborn AJA concurred, with the former describing good faith as a nebulousstandard that threatened commercial certainty.81

The judgments in Esso have plainly struck a chord with judges, both in NewSouth Wales and elsewhere, who are wary of the implications of a universallyapplicable duty of good faith and fair dealing.82 In CGU WorkersCompensation (NSW) Ltd v Garcia,83 a case in which it rejected the notion oftortious liability for bad faith administration of an insurance claim, a Court ofAppeal comprising Mason P, Hodgson and Santow JJA stressed that its earlierdecisions do not establish that such an implied term is to be inserted intoevery contract or even into every aspect of a particular contract.84 Despitethis, in United Group Rail Services Ltd v Rail Corp NSW85 a differentlyconstituted Court of Appeal (Allsop P, Ipp and Macfarlane JJA) made nomention of Garcia in reaffirming the proposition that good faith, in somedegree or to some extent, is part of the law of performance of contracts. SomeNew South Wales judges have subsequently been content to toe that line.86

But others continue to express doubts. For example, in Starlink InternationalGroup Pty Ltd v Coles Supermarkets Australia Pty Ltd87 Bergin CJ in Eqomitted any reference to United Group Rail Services (or for that matterGarcia) in reaffirming her disquiet about the implication of a duty of goodfaith, citing her own previous decision in Insight Oceania Pty Ltd v PhilipsElectronics Australia Ltd.88

Over the past decade, therefore, the New South Wales courts have movedfrom a position that was tolerably clear (if somewhat controversial), to one in

78 [2005] VSCA 228.79 As to the distinction between terms implied in fact and in law, see Castlemaine Tooheys Ltd

v Carlton and United Breweries Ltd (1987) 10 NSWLR 468 at 48690; Byrne v AustralianAirlines Ltd (1995) 185 CLR 410 at 44752; and see further University of Western Australiav Gray (2009) 179 FCR 346 at [135][147].

80 [2005] VSCA 228 at [25]. In Meridian Retail Pty Ltd v Australian Unity Retail Network[2006] VSC 223 a franchise agreement was found to have these characteristics, though onthe facts it was found that any duty of good faith had not been breached.

81 [2005] VSCA 228 at [3].82 See eg Maitland Main Collieries Pty Ltd v Xstrata Mt Owen Pty Ltd [2006] NSWSC 1235;

Tote Tasmania Pty Ltd v Garrott (2008) 17 Tas R 320 at [16]; Specialist Diagnostic ServicesPty Ltd v Healthscope Ltd [2010] VSC 443; Starlink International Group Pty Ltd v ColesSupermarkets Australia Pty Ltd [2011] NSWSC 1154; Dura (Aust) Constructions Pty Ltd vHue Boutique Living Pty Ltd [2012] VSC 99.

83 (2007) 69 NSWLR 680.84 (2007) 69 NSWLR 680 at [132].85 (2009) 74 NSWLR 618 at [61]. The case itself concerned an express agreement to negotiate

in good faith as part of a dispute resolution procedure, which was held to be enforceable.86 See eg AMC Commercial Cleaning v Coade [2011] NSWSC 932 at [123]; and see also

Alstom Ltd v Yogogawa Australia Pty Ltd (No 7) [2012] SASC at [595][598].87 [2011] NSWSC 1154 at [18][33].88 [2008] NSWSC 710 (affirmed in Philips Electronics Australia Ltd v Insight Oceania Pty Ltd

[2009] NSWCA 124 without reference to the issue of good faith).



which there are parallel and competing lines of authority. Now in practice, itmay be that the problem with determining whether there is a general duty ofgood faith and fair dealing in the performance in contracts is more apparentthan real. For one thing, it is open to parties to exclude any such term, as thecourt confirmed in Vodafone.89 For another, it has been notable just how oftenan implied duty of good faith has been assumed to exist then found on thefacts not to have been breached.90 Either it is being argued in the wrong cases or the bar for intervention is being set so high that the concept has littlepractical application.

Nevertheless, it would clearly be preferable if the issue were resolved. Ifnothing else, this would stop a great deal of time and effort being wasted incommercial litigation especially in relation to the exercise of rights toterminate agreements.91 In Burger King Corp v Hungry Jacks Pty Ltd92 it washeld that a franchisor could not terminate in responses to breaches by thefranchisee that it had effectively engineered. The fact that this conclusion wasjustified by reference to a duty of good faith has led to suggestions that aparty to a contract should not pretend to rely upon breaches of no importanceto him or her to achieve a collateral but desired result of bringing thecontractual relationship to an end.93 But other judges have been lessconvinced about applying or extending the concept of good faith in this way.For example in Trans Petroleum Australia Pty Ltd v White Gum Pty Ltd94

Allanson J observed that the courts should be cautious about implying a termwhich the parties have not agreed to in circumstances where the parties haveexpressly provided for termination for cause, but have chosen to express theterm of the agreement as terminable on notice and without cause.

As John Carter and I have previously pointed out,95 the idea thattermination rights must be exercised in good faith does not sit well with HighCourt authorities as to the grounds on which decisions to terminate may beconstrained. Those authorities suggest that at most there is limited scope underequitable doctrines to restrain unconscionable conduct.96 It seems likely that

89 [2004] NSWCA 15. It was held that an implied duty to exercise a particular power in goodfaith would not have been consistent with the express terms of the relevant contract. It wasalso noted that the contract contained a whole of agreement clause that purported toexclude any implied terms. See also Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26WAR 33.

90 A point noted in Esso [2005] VSCA 228 at [2]. For recent examples, see Cordon v Lesdor[2010] NSWSC 1073; AMC Commercial Cleaning v Coade [2011] NSWSC 932.

91 The same can be said about litigation over employment contracts: see A Stewart, GoodFaith: A Necessary Element in Australian Employment Law? (2011) 32 Comparative LaborLaw & Policy Journal 521; and see eg Shaw v NSW [2012] NSWCA 102.

92 (2001) 69 NSWLR 558.93 Mangrove Mountain Quarries Pty Ltd v Barlow [2007] NSWSC 492 at [28]; although on the

facts of the case it was found that the termination was justified.94 [2011] WASC 150 at [53]. See also Solution 1 Pty Ltd v Optus Networks Pty Ltd [2010]

NSWSC 1060; Fuji Xerox Australia Pty Ltd v CSG Ltd [2010] NSWSC 1258; StarlinkInternational Group Pty Ltd v Coles Supermarkets Australia Pty Ltd [2011] NSWSC 1154.

95 J W Carter and A Stewart, Interpretation, Good Faith and the True Meaning of Contracts:The Royal Botanic Decision (2002) 18 JCL 182 at 1945.

96 See eg Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315. See further E Peden,When Common Law Trumps Equity: The Rise of Good Faith and Reasonableness and theDemise of Unconscionability (2005) 21 JCL 226.



if an appropriate case came before the High Court, and the point were allowedto be argued, any notion of obliging parties to commercial contracts toexercise powers of termination in good faith would be swiftly quashed, andthe primacy of the equitable doctrines reaffirmed. But this assumes of coursethat the High Court would be prepared to address the issue. In their onlyopportunity to date, the Royal Botanic case in 2002, the court declined toexpress an opinion.97 Much of the current uncertainty may have been avoidedhad it taken the opportunity to clear the air.

The Case for a Code But What Type?

The fragmented nature of the statutory regulation of contracts in Australia,together with the uncertainties plaguing our common law (and the apparentunwillingness of many current judges to resolve them), would certainlysuggest that a case can be made for some form of codification. This mayseem to many practitioners a very large and radical step to take. But it neednot be. According to John Cartwright, in a recent reflection on the case forreforming the English law of contract:98

It might be said that codification is not the way forward because that is not the waywe do things in the common law. In the essential structure of the common law, thedevelopment of the general principles of the law through the cases, with onlytargeted correction by statutory intervention, is the way our private law works, andcodification of the law of contract would disturb the complex ecosystem that is theEnglish common law. On the other hand, it all depends on what you mean bycodification.

It does indeed. Cartwright notes that the 1925 property legislation thatcreated a set of modern rules for English land law could be considered anexercise in codification, even though it still assumed a continuity with thecommon law concepts of the past and was not a complete systematicpresentation of the law of the property.99 The same could obviously be saidin Australia of the Insurance Contracts Act 1984 or, much earlier, the Sale ofGoods Acts.

On that basis, there is scope for various types of codification exercise thatfall short of a complete restatement of the law. One might be the creation ofa single but non-comprehensive statute to regulate a number of the moreimportant and common types of commercial transaction. This might start withtypes of contract already subject to significant statutory regulation, such as thesale of goods (and possibly also land), retail leases, consumer credit, bills ofexchange, insurance and so on. New titles could progressively be added overtime to deal with other contracts. Besides the separate titles on different typesof contract, such a law could also include a number of universal provisionsdesigned to overcome uncertainties or deficiencies in the general law ofcontract, but otherwise leave the common law to fill in gaps, as it does atpresent.

97 (2002) 240 CLR 45 at [40].98 The English Law of Contract: Time for Review? (2009) 17 European Review of Private

Law 155 at 170.99 Above, n 98.



A different (and perhaps more manageable) approach could involve atwo-pronged strategy. On the one hand, a series of harmonisation projectscould be added to the COAG agenda, with work to be undertaken on thedevelopment of uniform laws on transactions currently subject to State andTerritory regulation: sale of goods, sale of land, retail leases, buildingcontracts, and so on. At the same time, and as a separate exercise, draftingcould begin of a General Contract Law (GCL) to replace State and Territoryprovisions that bear on contracts generally, such as those noted earlier thatappear in property and conveyancing legislation. Again, this need not codifythe entire common law, yet it could still make selected improvements orrefinements. The GCL could operate alongside the more specific statutoryregimes, being displaced only to the extent of any inconsistency.

It would also of course be possible to aim for a complete restatement. AGCL could seek to express all the basic rules of contract presently governedby the common law. Or, on the first approach canvassed above, the relevantlegislation could set out a comprehensive law on sales, leases, insurance, etc.But this would add significantly to the time and complexity of the task. Evenif a decision were made to start (say) with the UNIDROIT Principles ofInternational Commercial Law, and then look at possible modifications, themany differences from the existing common law some of them profound would necessitate a lengthy process of deliberation and consultation.

Whichever approach is taken, however, one obstacle looms large theACL. It is a problem because it cuts across the regulation of almost every typeof contract likely to be covered by any new regime. To leave it intact wouldbe to sacrifice any hope of having either a single law on particular types oftransaction, or a single GCL not to mention perpetuating the uncertaintiesand confusion highlighted by John Carter.100 One option could be to amend itso that it lives up to its name and deals only with consumer transactions. Itcould then become a base for a more comprehensive law on contracts for thesupply of goods or services to a consumer in the ordinary parlance (that is,someone acquiring goods or services for personal or private use). Or it couldbe cannibalised, with different parts hived off to different laws. The problemwith either approach, of course, is the political difficulty of taking an axe to alaw that was the product of so much effort and negotiation and so recently,at that.

At any event, the what type of codification? question has a furtherdimension, which goes not so much to the scope or form of any code orrestatement, but to the objectives of the exercise. In his helpful review of ideasabout codification, Svantesson identifies three different exercises:101

a stocktake a mere restatement of the law at the time ofcodification;

gap filling which involves not just restating the law butexpanding it where the existing law is unclear; and

100 Above, n 31.101 Codifying Australias Contract Law, above, n 32 at 945. Cf Improving Australias Law

and Justice Framework: A Discussion Paper to Explore the Scope for Reforming Australian

Contract Law, above n 3, pp 1819, adopting a similar taxonomy of reform options, exceptfor the substitution of simplification for gap filling as the second option.



reform a conscious decision to start fresh, leaving the shackles ofthe existing law behind and constructing a code from scratch.

As Svantesson argues, a combination of the first two methods is more likelyto gain acceptance from stakeholders than one with a more overt agenda ofreform. But whichever option is chosen, he suggests, the benefits to be gainedfrom codification should include simplification, standardisation, unification,clarification, evolution and internationalisation.102

This last point is one that has been very strongly urged by Finn. He arguesthat in a world of increasingly globalised trade, Australia is in danger of beingleft behind if it continues its isolationist approach to the regulation ofcontracts. It is important, he suggests, to take note of the gradual convergenceof the contract laws of the civilian and common law systems, and to considerthe guidance offered by the UNCITRAL Convention on Contracts for theInternational Sale of Goods, the UNIDROIT Principles and the Principles forEuropean Contract Law promulgated by the Lando Commission. It is theseinstruments, he argues, that seem likely in quite some degree to embody thefuture with which Australian contract law will have to contend.103 As henotes, most (if not all) of these and other similar codes lay considerable stresson principles of good faith and fair dealing. He goes on to contend that:104

if contract as an institution is to have integrity, if Australian contract law is tomaintain its standing in the global arena, it must, in my view, have effective legalsafeguards against undue exploitation and advantage-taking in contract formation. Itmust secure fair dealing in contract performance and enforcement. The need for suchsafeguards and standards . . . is widely accepted in international instruments and incivil and common law countries.

The fact remains, however, that many Australian lawyers are suspicious ofthe concept of good faith and fair dealing, or at least are not persuaded that itadds very much to the common law armoury for policing contractualbehaviour. The inclusion of such a concept in any new code is likely to be asource of disquiet and opposition regardless of how well accepted it maybe overseas. This is just one of the challenges that must be met in anycodification project.A final issue of form concerns whether any new code or restatement

should be given direct statutory effect, or whether it should simply be putforward as an optional regime that parties would be free to choose to governtheir contracts. If the second course were taken, a decision would need to bemade whether to legislate to give the chosen law priority over existing laws,and if so to what extent. Would it be possible, for instance, to contract out ofthe ACL? Or the Commercial Arbitration Acts?Personally, I am not convinced that an optional law approach would be

worth the time and effort. Parties can and do already modify the common lawin various ways through express terms and to some extent it is already opento them, especially in the context of international transactions, to adoptregimes such as the UNIDROIT Principles. Without an effective program ofeducation and encouragement, it seems reasonable to suppose that for

102 Above, n 32 at 96.103 Internationalisation or Isolation, above, n 42, p 63.104 Above, n 42, pp 578.



domestic contracts at least, take-up rates for any optional law would not behigh. The case for the reform or, more particularly, the clarification ofAustralian contract law arguably demands something more.

Codification by Whom?

That, finally, brings me to the question of who should undertake the processof restatement and codification. Once again, Finn is characteristicallyassertive:105

[T]he sensitive and successful reformation of contract is likely best to be achievedif the task is undertaken in the first instance by experts, subject to rigorous reviewby judges and practitioners knowledgeable in the discipline . . . A significantreappraisal of Australian contract law is needed but it needs first and foremost to besystematic; the law needs to be simplified and clarified; and it needs to be betteraligned with international commercial law. If the ultimate vehicle must necessarilybe national legislation because of the quirks of our federation, the process itselfshould not be left simply in the hands of governments. Australian contract law as asystem is too important for that.

It is easy to agree that the ideal way of reforming Australian contract lawwould be to have a body of experts, including academics, judges andpractitioners, labour away over a period of years to produce a well-craftedrestatement. The problem, as StephenWaddams notes, is that the days are longgone in which knowledgeable experts could confidently expect to have theirrecommendations enacted by a wise legislature.106 Politics no longer worksthat way, if it ever did.Realistically, if the federal government decides to continue down the

codification path and at the time of writing that is by no means certain it seems likely that it will be an exercise driven largely by bureaucrats, inconsultation with interested stakeholders, rather than by independentexperts. It is certainly not impossible for useful reforms to emerge from sucha process. But unless someone in government is prepared to acknowledge themistakes made in framing the ACL, and indeed to bite the bullet by reopeningsome of its more problematic provisions, then we may doomed to anotherepisode of regulatory failure.

105 Above, n 42, pp 656.106 Codification, Law Reform and Judicial Development, above, n 5 at 192.


Documents

Submission 037 - Attachment - Stewart - Australian Law of Contract - Journal of Contract Law 29 2012 - 31 July 2012