Implied freedom of communication- applying the test developed in McCloy v New South Wales

This blog provides opinion on the implied freedom of communication and outlines the protection it provides before applying the test developed in McCloy v New South Wales to the Workplaces (Protection from Protesters) Act 2014 (Tas) and considering whether or not a high court challenge would be successful.

The Freedom

In 1992 the High Court found in Nationwide News[1] and ACTV[2] that as the Australian constitution established a system of representative government there was, by implication, a degree of protected freedom of political communication necessary to sustain that system.[3] This finding was based on the idea, enunciated in Unions NSW[4] that “…the free flow of communication between all interested persons is necessary to the maintenance of representative government...”

The freedom is an invention of the court and cannot be found anywhere in the constitution.[5]  It is not an absolute freedom[6] or a positive individual right[7] but a “…qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may ‘exercise a free and informed choice as electors’.”[8]

Protection by the Freedom

The Australian Constitution does not recognize a free standing right to protest[9]  or the American equivalent of a freedom of assembly or association.[10][11] The constitutional protection does extend to political communication at the state level[12] and covers non-verbal forms of communication[13].  

The Constitutional Protection rises only indirectly following on from a finding that a law effectively and impermissibly burdens the implied freedom. Recently in McCloy v New South Wales a majority of the High Court set out an amended three step version of the two step Lange test[14] to assist in determining when this occurs. The questions to be asked are as follows:[15]

1.       Does the law effectively burden the freedom in its terms, operation or effect?

 

2.       Does the law pass the “Compatibility” test?  - Is the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?

 

3.    Does the law pass the “Proportionality” test? - Is the law reasonably appropriate and adapted to

advance that legitimate object?

 

If the answer to the first step is yes and the second or third steps is no then the law is invalid.

 

Applying the McCloy Test to Case

Step 1 – Burden the Freedom

The Workplaces (Protection from Protesters) Act (TAS) creates a number of offences that may be committed by protestors, including invading or hindering business; causing or threatening damage or risk to safety on business premises; not obeying police directions to leave and stay away from a business access area; and preventing the removal from obstructions.[16] These are indictable offences and significant penalties apply.[17]

The Act also includes additional police powers when dealing with protesters reasonably believed to have committed, to be committing or about to commit an offence, including powers to demand proof of identity, to direct persons to leave business premises, to remove obstructions, to arrest without warrant and to remove persons from business premises or a business access area.[18] The police are entitled to use reasonable force in exercising these powers.[19]

A protester is defined as a person “engaging in a protest activity”, which in turn is defined as an activity that “takes place on business premises or a business access area in relation to business premises” and is aimed at furthering or promoting “an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue.

Maina Kiai, a United Nations Special Rapporteur[20] commented that in democratic societies, demonstrations and protests are key to raising awareness about human rights, political, social concerns, including regarding environmental, labour or economic issues, and of holding not just governments, but also corporations accountable. By targeting protest activity the act clearly impedes this critical function and hinders political communication. [21]

It follows that the creation of these new offences & the provision of extra police powers to enforce them prevents protesters, who by definition are involved in promoting political issues, from undertaking a number of protest activities and places limits on their ability to politically communicate. Therefore, it can be safely assumed that the law does burden the implied freedom of political communication and the answer to this stage of the test is yes.

Step 2 – Compatibility Test

The purpose of the Workplaces Act is to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes.[22] It is clear from the previous decisions of the high court that this purpose would pass the compatibility test as the maintenance of public order[23] and public safety[24] and the prevention of obstruction of public roads[25] are legitimate objects or ends compatible with the maintenance of the constitutionally prescribed system of government[26]

 

Step 3 – Proportionality Test

This is the critical test for any successful high court challenge. The test requires consideration of the suitability, necessity and adequacy in its balance of the legislation.[27] It requires a value judgment, consistent with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.

 

The Tasmanian Government argues that the legislation is necessary to prevent businesses being disrupted by radical protesters and to allow “…Hard working Tasmanians … to go to work free from deliberate interference by protest action that obstructs and disrupts those businesses…”[28] The legislation strives to achieve a form of industry versus protestor balance with the Tasmanian Minister for Resources emphasizing that the legislation did not seek to remove the right to protest, but rather to “ensure that it is exercised responsibly and lawfully so that others rights are not negatively impacted”[29]

The legislation attempts to achieve this balance in four key ways[30]. Firstly, Section 6 applies only to activities taken out on business premises or in business access area’s. Secondly, section 6 and 7 apply only to protect the carrying out of business actives or access to business premises and specifically exempts marches and events that pass by business areas.[31]  Thirdly, the Legislation requires the mens rea that the person must be aware or reasonably ought to know that they are negatively impacting a business.[32] Fourthly, the police powers conferred by s10, 11 and 12 can only be exercised where the police “reasonably believe” an offence against the act is about to be / has been committed.[33]

The Tasmanian government argues that these four key ways provide sufficient balance to pass this test with protest activity outside the designated area’s not subject to the provisions of the legislation. Some support for this position can be found in Mulholland[34] where McHugh J stated “…protestors cannot complain about interference with, or prevention of their doing what they have no right to do anyway, for example, to communicate a protest on land on which their presence is a trespass…”

A similar balance was also recently found to be successful in the Occupy Sydney[35] Federal court case when Justice Katzmann decided that, the city’s prohibition to stay overnight in a busy part of Sydney’s central business district did not violate the implied freedom of communication recognised in Lange v Australian Broadcasting Corporation (1997). According to the Federal Court decision, the prohibition struck an appropriate balance with the legitimate aim of protecting public health, safety and amenity in a public and busy part of the city where people access the railway station and that needs to be cleared for regular cleaning and maintenance.

The legislation reflects the view that protest activities should not involve direct interference with lawful business activities.[36] This view makes no allowance for peaceful protest and suggests the law would almost certainly run afoul of Australia’s human rights obligations[37].

Critics of the legislation, such as David Kaye, a United Nations Special Rapporteur argue that the legislation is not balanced and “…“The law itself and the penalties imposed are disproportionate and unnecessary in balancing the rights to free expression and peaceful assembly and the government’s interests in preserving economic or business interests…” [38].

However Aroney and Finlay argue that the legislation is likely to satisfy the proportional test as the court will take the position that whether or not the balance struck by the Tasmanian laws is appropriate as a matter of legislative policy and that members of the High Court have maintained that the fact that a value judgment is involved in this balancing exercise “does not involve the substitution of the opinions of judges for those of the legislators upon contestable issues of policy”[39]

 

Following consideration, It is difficult to determine the answer to this test as there are strong arguments for both sides. Each judge will be required to perform a value judgement and this will have an unpredictable impact on the outcome. However, the complete removal of a form of protest without replacement of a viable alternative does seem to indicate that the legislation would fail this test.

 

Will a challenge be successful

A challenge to the Workplaces (Protection from Protesters) Act 2014 (Tas) will be successful if the high court follows on from its previous decisions and confirms the existence of the implied right to freedom of political communication and then conducts some form of compatibility and proportionally testing which, based on each judges values, finds the Act impermissibly burdens the freedom and, as a result, invalidates the Tasmanian law. 

Bibliography

A Articles / Books / Reports

Aroney Nicholas and Finlay Murdoch, ‘Protesting the anti-protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70

Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws Final Report, December 2015 ALRC Report 129 [6.23].

D McGlone “The Right to Protest” (2005) 30 Alternative Law Journal 274

Sarah Joseph and Melissa Castan, Federal Constitutional Law, Thomson Reuters 4th Edition 2014 490

Michael Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ [1994] 16(2) Sydney Law Review 185

B Cases

Attorney-General (SA) v City of Adelaide [2013] HCA 3

Australian Capital Television v Commonwealth [1992] HCA 45

Coleman v Power [2004] HCA 39

Lange v Australian Broadcasting Corporation [1997] HCA 25

Levy v Victoria [1997] HCA 31

McCloy v New South Wales [2015] HCA 34

Mulholland v Australian Electoral Commission [2004] HCA 41

Nationwide News V Wills [1992] HCA 46

O’Flaherty v City of Sydney Council [2013] FCA 344

Unions NSW v NSW [2013] HCA 58

C Legislation

Workplaces (Protection from Protesters)Act 2014 (Tas)

D Treaties

 

E Other

Dr Joyce, D ‘Is there a right to protest in Australia?’ 12 February 2016, Museum of Applied Arts & Sciences Blog, Accessed at www.law.unsw.edu.au/news/2016/02/there-right-protest-australia.

Paul Harriss , Protecting Workers from Radical Protesters, 22 October 2014 Tasmanian Government, Accessed at http://www.premier.tas.gov.au/releases/protecting_workers_from_radical_protesters

 

Tasmania Workplaces (Protection from Protesters) Bill 2014: Second Reading speech, Hansard (House of Assembly), 26 June 2014, p 1 (The Hon Paul Harriss MP (Minister for Resources).

 

United Nations, UN experts urge Tasmania to drop its anti-protest bill, 9 September 2014 - Accessed at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.pRpVR7Rv.dpuf

 

 

[1] Nationwide News V Wills [1992] HCA 46.

[2] Australian Capital Television v Commonwealth [1992] HCA 45.

[3] Sarah Joseph and Melissa Castan, Federal Constitutional Law, Thomson Reuters 4th Edition 2014 490.

[4] Unions NSW v NSW [2013] HCA 58.

[5] Michael Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ [1994] 16(2) Sydney Law Review 185.

[6] Ibid n 2.

[7] Nicholas Aroney and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.

[8] McCloy v New South Wales [2015] HCA 34; at [2].

[9] Dr Joyce, D ‘Is there a right to protest in Australia?’ 12 February 2016, Museum of Applied Arts & Sciences Blog, Accessed at www.law.unsw.edu.au/news/2016/02/there-right-protest-australia.

[10] D McGlone “The Right to Protest” (2005) 30 Alternative Law Journal 274.

[11] Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws Final Report, December 2015 ALRC Report 129 [6.23].

[12] Ibid n 3; at [25]–[27].

[13] Levy v Victoria [1997] HCA 31.

[14] Lange v Australian Broadcasting Corporation [1997] HCA 25.

[15] Ibid N 7; at [2].

[16] Workplaces (Protection from Protesters)Act 2014 (Tas),s 6–9, read with s 10–11.

[17] Ibid n 15 s 16(1).

[18] Ibid n 15, s 10-13.

[19] Ibid n 15  s 14.

[20] Maina Kiai, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association

[21] United Nations, UN experts urge Tasmania to drop its anti-protest bill, 9 September 2014 - Accessed at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.pRpVR7Rv.dpuf.

[22] Workplaces (Protection from Protesters)Act 2014 (Tas),  Long Title.

[23] Coleman v Power [2004] HCA 39.

[24] Levy v Victoria [1997] HCA 31.

[25] Attorney-General (SA) v City of Adelaide [2013] HCA 3.

[26] Ibid 23.

[27] [27] McCloy v New South Wales [2015] HCA 34.

[28] Paul Harriss , Protecting Workers from Radical Protesters, 22 October 2014 Tasmanian Government, Accessed at http://www.premier.tas.gov.au/releases/protecting_workers_from_radical_protesters.

[29] Tasmania Workplaces (Protection from Protesters) Bill 2014: Second Reading speech, Hansard (House of Assembly), 26 June 2014, p 1 (The Hon Paul Harriss MP (Minister for Resources).

[30] Nicholas Aroney and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.

[31] Ibid n 29 at 70.

[32] Ibid 21 S6,

[33] Ibid n 29 at 70.

[34] Mulholland v Australian Electoral Commission [2004] HCA 41.

[35] O’Flaherty v City of Sydney Council [2013] FCA 344.

[36] Aroney Nicholas and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.

[37]http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.Bv6JDU1S.dpuf

[38] http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E

[39] Ibid 33, at [32]

 

Critical Case Summary of Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226

1.               Case citation

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226

2.               Brief summary of facts

In 1976, Con-Stan Industries of Australia Pty. Ltd. (“Con-Stan”) obtained several general insurance policies through a broker, Bedford Insurances Pty. Ltd. (“Bedford”).

Con-Stan paid the required premiums to Bedford, however Bedford did not forward the premiums on to the Insurer, Norwich Winterthur Insurance (Australia) Ltd. (“Norwich”).

In September 1978, Norwich successfully obtained a winding-up order against Bedford. The premiums were not recovered and Norwich then sought to recover the premiums from Con-Stan directly.

3.               Brief summary of procedural history

On the 29 June 1978, Norwich presented a wind-up order to Bedford and the order was made on 20 September 1978.

In 1981, Norwich commenced action seeking to recover the premiums from Con-Stan in the NSW Supreme Court.[1]  Rogers J. held that an insurer had no recourse against an assured if the assured had paid premiums to the broker who had procured the insurance.

In 1983, the judgment was reversed by majority in the Court of Appeal.[2] Glass and Mahoney JJ. held that the implied terms were not able to be implemented because they were not capable of being formulated so as to define the rights of the parties and did not pass the business efficiency test as there was no evidence that Norwich would have agreed or have treated the terms as so obvious that it goes without saying.[3] Hutley J.A. in his dissenting judgment, found that Con-Stan and Norwich were contracting on the basis of the implied term he noted that if the implied term did not exist Con-Stan may have acted differently, by paying the broker direct or insisting on the broker maintaining a trust account.[4]

In 1986 Con-Stan appealed to the High Court by special leave on the basis that there was an implied term in the contract of insurance, arising by custom or usage, that Bedford alone was liable to Norwich for payment of the premium, or that there was an implied term that payment of the premium to the Bedford discharged the assured's obligation to Norwich.[5]

 

4.               Brief summary of the ratio decidendi

The court was willing to imply a term into a contract, based on custom or usage, provided four key propositions were met. (1) The existence of the term is a question of fact, (2) it is so well known that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract, (3) it is not contrary to an express term and (4) that the parties did not have to have knowledge of the custom for it to be implied. [6]

However, the court decided not to imply the terms as Con-Stan had not met these propositions for two main reasons.

Firstly, Con-Stan failed to prove the existence of the term, as a matter of fact, as they had not  established a clear pattern of conduct that insurers did not look the assured for payment of the premium, when the broker failed to pay.

Secondly, Con-Stan had failed to demonstrate that the requested term was so well known that it could be presumed to have been included in the contract. There was still a great deal of uncertainty around the parties actual position and, whilst there was evidence that in other cases insurers had not looked to the assured or had accepted a compromise, it did not establish the foundation of the rights and liabilities required to imply a term.[7] 

The court was also willing to imply terms in order to give business efficacy to the contract provided the term implied was necessary to make the contract work and was so obvious it goes without saying.[8]  However the court held that the contract was able to sensibly operate without the sought terms and only served to make the contract less onerous on Con-stan.[9]   

 

 

 

5.               Critique

 

The argument of this work is that the primary role of the court to uphold the legitimacy of private law and that the court was correct not to imply the terms requested leaving any changes for the elected members of parliament.

Insurance, the commercial relationship in which a person, with some ascertainable benefit that would count as a loss if it were no longer available, is indemnified by an insurer who assumes the risk of that loss occurring,[10] is based on the premise that an insured and insurer can create a binding contract, enforceable at law, which is tailored to cover certain risk(s) whilst omitting others in return for differing levels of premium(s).  In short, insurance relies on the ability of the parties to create private law.

Private law originates from the classical contract theory view, based on will theory, that Con-Stan and Norwich should be free to enter whatever bargains they consider would benefit them and that the courts should facilitate that freedom by enforcing whatever bargains they choose to make. [11]

 Express Terms

In this context, it is essential that Con-Stan and Norwich have certainty about the terms of the contract that will become private law. Additional terms or omissions can fundamentally alter the positions of the parties influencing the insurance offered and the premiums payable under the contract.

In its decision, the court supports the proposition, discussed in Summers v The Commonwealth[12], that terms will not be implied in law, in fact or by custom where they are expressly excluded by the parties or are inconsistent with the express terms of the contract.[13] This proposition, which was later confirmed in Castle Maine Tooheys[14], provides the basis for private individuals to create the necessary private law with a degree of certainty.  

The express terms in the agreement between Con-Stan and Norwich called for payment of the premium to Norwich not Bedford.[15] Therefore any implied term would have to be consistent with this express term.  

Promise Theory & Power Imbalance

This use of express terms is consistent with the promise principle suggested by Charles Fried.[16] Fried suggests a contract is first a promise and a promise must be kept.[17] The court should therefore enforce a promise made by Con-Stan for payment of the premium. However promise theory, and will theory, fail to consider the power imbalance which exists between Con-Stan and Norwich.  Norwich as an insurer would generally have many clients and expertise in insurance law whilst Con-Stan’s general business was not insurance and their policy would not represent most of Norwich’s income. In these circumstances, it appears Con-Stan is at a disadvantage and would not have been able to alter any the terms of agreement advanced by Norwich leading to the courts supporting an unfair advantage to Norwich.

 

Gap Filling

Difficulties arise when the express terms, or promises, do not cover a particular event or are ambiguous on how an express term should be implemented. Intervention by the court to imply a term is at odds with the concept of freedom of contract and the ability to make private law.

 In this case neither Con-Stan or Norwich appears to have considered the possibility of the broker not passing on the premiums and therefore have not included express provision to cover this scenario. As a result, it is extremely difficult for the court to determine what the actual intentions of the parties would have been when considering this dispute. Accordingly, the court can only seek to resolve the dispute by reference to the parties presumed intention.[18] To determine presumed intention the court will look to what the words and conduct of each party would lead a reasonable person, in the position of the other party, to believe.[19]

 Consent Theory, proposed by Randy Barnett[20], argues that by choosing to enter into a contract, Con-Stan and Norwich have implicitly committed themselves to the jurisdiction of the legal system. This includes the use of the background rules of contract law to fill gaps in their agreement.[21]   Barnett suggests that those terms should reflect the conventional or common-sense understanding existing in the relevant community of discourse.[22]

 The courts method of determining the presumed intention of the parties based on the general notoriety of the custom then assuming it is reasonable that the parties contracted on that basis.[23] Is evidence of the court following this suggestion.

 This approach is consistent with the promise theory view that it is acceptable, where the original promise didn’t cover the situation, to imply terms by applying non-promissory principles of fairness.[24] There has been some discussion within the court of a concept of reasonableness.[25][26] This would restrict Norwich’s ability to recover from Con-Stan on the basis that it was reasonable for them to do so given the circumstances of the case. However, the use of such a concept is limited by its inability to override the exercise of powers conferred by a contract.[27]

 Fairness

The ability to enforce private law and fill gaps makes no distinction on the fairness of the decision. American legal philosopher John Rawls described fairness as a "fundamental idea in the concept of justice"[28] and there is an inherent unfairness in the courts finding requiring Con-Stan to pay the premiums twice.  Con-Stan acted in good faith and was not responsible for the failure of Bedford to pass on the premiums. However, there is also an inherent unfairness in requiring Norwich to forgo the premium. Norwich has also acted in good faith and provided the promised cover. Legal theorist Edmond Cahn,[29] suggests that we have a better sense of injustice than we have of justice and this seems true in this case.

 To resolve this unfairness, the court has generally accepted that the laws that are currently in force within a society form part of the facts of each matter and must be taken into account in order to render full justice to the parties.[30] The court having taken the, “black letter” view that it is their role to declare and interpret the laws not to create new law directly give rise to the problem, theorized by Hume that the law can only deicide based on what the law is, not what the law ought to have been. [31]

 As businesses use the courts selectively this formalist approach gives the contract law some predictability which is useful in the business community. It would be counterproductive if the law was not predictable and business were unable to rely on the courts to resolve disputes the way businesses expect.[32]

 The court then leaves any issues of fairness to the parliament and its elected representatives.[33] It is in this forum that the unfairness of the decision can be best addressed and it is perhaps indicative of the success of this model that at the same time this case was proceeding through the courts the Law Reform Commission was investigating the law(s) affecting the insurance brokerage industry. The Commission recognized the unfairness of the outcome and recommended the insurer should be held responsible for the receipt of premiums by a broker.[34]

 This recommendation was adopted by the parliament in 1984, effectively reversing the precedent which would have been set by Con-Stan. [35]

 

 6.        Brief conclusion to draw together the themes/ main points of your critique.

The court facilitates private law by upholding the express terms of an agreement over any other term and only implying terms that would have been consented to by the parties if they had considered them during the negotiating process. The court determines the presumed intentions of the parties using strict criteria and the concept of what a reasonable person would have agreed to in the same circumstances.  By only implying terms that meet strict criteria the court defends the classical understanding that the role of contract law is to facilitate the legitimacy of private law.  

Whilst the court was legally correct, based on the finding that the evidence did not support an implied custom or that it was necessary to give the contract business efficacy, to refuse to imply the terms sought, the resulting decision was not fair on Con-Stan.  However, there is no capacity, within the law, for the court to consider alternate solutions and these decisions are best left for the elected members of parliament.

 

 

 

 

Bibliography

A Articles / Books / Reports

Cahn Edmond, The sense of injustice (New York University Press 1949)

Gava John, How Should Judges Decide Commercial Contract Cases? (2013) 30 Journal of Contract Law 140

Mann, Trischa et al (eds) Australian Law Dictionary (Oxford, 2nd ed, 2013)

McLauchlan David, The Contract That Neither Party Intends (2012) 29 Journal of Contract Law

Paterson Jeannie, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 5th ed, 2016)

Rawls, John, 'Justice as Fairness' (1958) 67 The Philosophical Review

The Law Reform Commission, Report No 16 Insurance Agents and Brokers (Australian Government Publishing Service Canberra 1980)

Wacks, Raymond, Understanding Jurisprudence (Oxford, 4th ed, 2015)

B Cases

Castle Maine Tooheys Ltd v Carlton & United Brewers Ltd (1987) 10 NSWLR 468

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226

Gary Rogers Motors (Aust) v Subaru (Aust) [1999] FCA 903

Norwich Winterthur Insurance (Aust) Ltd v Con-Stan Industries of Australia Pty Ltd [1983] 1 NSWLR 461

Norwich Winterthur Insurance (Aust) Ltd v Con-Stan Industries of Australia Pty Ltd [1981] 2 NSWLR 879

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596

Summers v The Commonwealth (1918) 25 CLR

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [(2004) 219 CLR 165

C Legislation

The Insurance (Agents and Brokers) Act 1984 (Cth)

D Treaties

E Other

D'Amato Anthony, On the Connection Between Law and Justice (Northwestern University School of Law 2011). Faculty Working Papers. Paper 2.

 

[1] Norwich Winterthur Insurance (Aust) Ltd v Con-Stan Industries of Australia Pty Ltd [1981] 2 NSWLR 879.

 

[2] Norwich Winterthur Insurance (Aust) Ltd v Con-Stan Industries of Australia Pty Ltd [1983] 1 NSWLR 461.

[3] Ibid 473.

[4] Ibid 467.

[5] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226.

[6] Ibid 236.

[7] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 240.

[8] Ibid 241.

[9] Ibid 241.

[10] Mann, Trischa et al (eds) Australian Law Dictionary (Oxford, 2nd ed, 2013) 394.

[11]Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 5th ed, 2016) 6 [1.10].

[12] Summers v The Commonwealth (1918) 25 CLR 148.

[13] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 236 [3].

[14] Castle Maine Tooheys Ltd v Carlton & United Brewers Ltd (1987) 10 NSWLR 468 490 [3].

[15] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 per A M Gleeson Q.C 231.

[16] Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 5th ed, 2016) 10 [1.20].

[17] Ibid 10 [1.20].

[18] David McLauchlan, The Contract That Neither Party Intends (2012) 29 Journal of Contract Law.

[19] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [(2004) 219 CLR 165; 211 ALR 342 [40].

[20] Jeannie Paterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Thomson Reuters, 5th ed, 2016) 14 [1.25].

[21] Ibid 16 [1.25].

[22] Ibid 16 [1.25].

[23] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226  237.

[24] Ibid n 20 11 [1.20].

[25] Gary Rogers Motors (Aust) v Subaru (Aust) [1999] FCA 903 [34].

[26]Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 [14.155].

[27] Gary Rogers Motors (Aust) v Subaru (Aust) [1999] FCA 903 [35].

[28]John Rawls, 'Justice as Fairness' (1958) 67 The Philosophical Review 164.

[29] Edmond Cahn, The sense of injustice (New York University Press 1949).

[30] Anthony D'Amato, On the Connection Between Law and Justice (Northwestern University School of Law 2011). Faculty Working Papers. Paper 2.

http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/2, 6.

[31] Raymond Wacks Understanding Jurisprudence (Oxford, 4th ed, 2015) 285.

[32] John Gava, How Should Judges Decide Commercial Contract Cases? (2013) 30 Journal of Contract Law 140.

[33] Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 At [19].

[34] The Law Reform Commission, Report No 16 Insurance Agents and Brokers (Australian Government Publishing Service Canberra 1980).

[35] The Insurance (Agents and Brokers) Act 1984 (Cth).