218 CLR 451; 78 ALJR 1045; 208 ALR 213
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 5 Aug 2004 Case Number: S585/2003
Contract – Carriage of goods - Carriage by sea - Delivery of goods without surrendering bills of lading - Indemnity to carrier.
Contract – Construction and interpretation - Relevant principles - Objective interpretation of commercial documents - Letters of indemnity executed by trader in favour of carrier relating to unloading cargo without bills of lading - Where documents also signed by officer of the respondent bank - Whether letters of indemnity purported to bind the respondent as an indemnifying party.
Contract – Agency - Ostensible authority - Documents of the kind commonly relied upon and intended to be relied upon by third parties - Whether the assumption made by the appellant that the respondent was party to the letters of indemnity was induced or assisted by the respondent's conduct in such a way that it would be unjust to permit the respondent to depart from the assumption.
French CJ, Kiefel, Gageler, Keane, Nettle JJ
Date: 27 Jul 2016 Case Number: M219/2015 M220/2015
Banker and customer – Rule against penalties – Consumer credit card accounts – Late payment fees – Where late payment fees were $35 and $20 – Where costs actually incurred by respondent upon failure by first appellant to make timeous payment of amounts owing were approximately $3 – Where late payment fees not genuine pre-estimates of damage – Where respondent alleged it could conceivably have incurred loss provision costs, collection costs and regulatory capital costs as a result of first appellant's default – Whether late payment fees penalties – Whether late payment fees extravagant, exorbitant or unconscionable – Whether late payment fees out of all proportion to interests damaged – Whether respondent's legitimate interests confined to reimbursement of expenses directly occasioned by first appellant's default.
Contract – Rule against penalties – Essential characteristics of a penalty – Whether sum disproportionate to actual loss suffered amounts to a penalty – Whether sum incorporating loss too remote to be recoverable in action for damages amounts to a penalty – Relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd  AC 79.
Trade practices – Consumer protection – Late payment fees – Unconscionable conduct – Unjust transactions – Unfair terms – Whether late payment fees unconscionable, unjust or unfair.
Precedent – Apex courts of foreign jurisdictions – Status of unwritten law of United Kingdom in Australia.
Words and phrases – "exorbitant", "extravagant", "genuine pre-estimate", "in terrorem", "late payment fees", "liquidated damages", "out of all proportion", "penalty", "unconscionable", "unconscionable conduct", "unfair terms", "unjust transactions".
Australian Securities and Investments Commission Act 2001 (Cth) – ss 12BF, 12BG, 12CB, 12CC.
National Consumer Credit Protection Act 2009 (Cth) – Sched 1 s 76.
Fair Trading Act 1999 (Vic) – ss 8, 8A, 32W, 32X.
221 CLR 249; 79 ALJR 1121; 215 ALR 253
McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 25 May 2005 Case Number: S317/2004
Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Lender charged with carrying on the business of lending money on the security of pawned goods whilst not being the holder of a licence – Lender made short-term secured loans – Loan documents recorded that title in goods passed to lender – Chattel mortgage security – Goods usually kept by the lender for term of loan – Characterisation of transaction – Whether chattel mortgage was a bill of sale under Bills of Sale Act 1898 (NSW) – Whether the lender's business was the "business of lending money on the security of pawned goods" – Meaning of "pawned goods" in the Pawnbrokers and Second-hand Dealers Act 1996 (NSW).
Pawnbroking – History of meaning of "pawn" or "pledge" in Roman and common law – Understanding of "pawn" or "pledge" as one class of bailment of goods, distinct from mortgage and lien – Relevance of possession of goods.
Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Purposive construction – Contextual construction – Technical and common words – Relevance of Minister's Second Reading Speech – Relevance of consumer credit legislation – Relevance of sham arrangement.
Words and phrases – "pawn", "pawned goods", "pledge".
Pawnbrokers and Second –hand Dealers Act 1996 (NSW), s 6.
Bills of Sale Act 1898 (NSW).
219 CLR 325; 78 ALJR 87; 202 ALR 376
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Nov 2003 Case Number: S145/2003
Constitutional law (Cth) – Exclusive powers of Commonwealth Parliament - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).
Taxation – Land tax - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).
Constitution – s 52(i).
Commonwealth Places (Administration of Laws) Act 1970 (NSW).
Commonwealth Places (Mirror Taxes) Act 1998 (Cth).
Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW).
Land Tax Act 1956 (NSW).
Land Tax Management Act 1956 (NSW).
State Revenue Legislation Amendment Act 1997 (NSW).
208 CLR 388; 76 ALJR 163; 185 ALR 280
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 6 Dec 2001 Case Number: S8/2001
Injurious falsehood – Elements of the tort - Forged letter containing false statements - Initial publication to defined group intended to ridicule subject of letter - Report in newspaper of "bogus letter" - Contract terminated as a result of newspaper report - Whether loss suffered caused by initial publication - Whether loss suffered was a natural and probable consequence of initial publication - Identification of relevant falsehood - Relevance of reasonable foreseeability as criterion for limiting liability - Causation of plaintiff's damage - Whether actual damage to plaintiff proved or assumed by expert report.
Words and phrases – "Natural and probable consequence", "grapevine effect".
Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Aug 2019 Case Number: B19/2019
Parliamentary elections (Cth) – House of Representatives – Counting of votes – Where s 274(2A)-(2C) of Commonwealth Electoral Act 1918 (Cth) provides for indicative two-candidate preferred count in each Division – Where s 7(3) of Commonwealth Electoral Act confers power on Australian Electoral Commission to do all things necessary or convenient for or in connection with performance of its functions – Where practice of Australian Electoral Commission to publish information about indicative two-candidate preferred count for a Division after close of polls in that Division – Whether publication of information for a Division before polls closed in all parts of nation has any demonstrated effect on electoral choices – Whether information inaccurate or misleading – Whether publication constitutes imprimatur to any particular candidate or outcome – Whether publication authorised by s 7(3).
Constitutional law (Cth) – Parliament – Elections – Whether publication of information about indicative two-candidate preferred count prior to close of polls nationally contrary to ss 7 and 24 of Constitution – Whether factual foundation of challenge established.
Words and phrases – "direct and popular choice", "effect on electoral choices", "factual foundation", "imprimatur", "indicative two-candidate preferred count", "necessary or convenient", "partiality", "scrutiny of votes".
Constitution – ss 7, 24.
Commonwealth Electoral Act 1918 (Cth) – ss 7, 274.
Kiefel, Gageler, Keane, Nettle, Gordon JJ
Date: 8 Feb 2017 Case Number: B52/2016 B55/2016
Constitutional law (Cth) – Judicial power – Mandatory examination of persons about corporation's examinable affairs – Where plaintiffs former directors of corporation in voluntary liquidation – Where liquidators applied for and obtained order for issue of summons under s 596A of Corporations Act 2001 (Cth) requiring plaintiffs to attend for examination about corporation's examinable affairs – Whether s 596A invalid as contrary to Ch III of Constitution – Whether s 596A gives rise to "matter" that engages judicial power of Commonwealth – Whether power conferred by s 596A incompatible with or outside judicial power of Commonwealth.
Words and phrases – "examinable affairs", "federal jurisdiction", "judicial power", "matter".
Constitution – Ch III.
Corporations Act 2001 (Cth) – ss 596A, 597.
74 ALJR 791; 170 ALR 579
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 13 Apr 2000 Case Number: M25/1999
Mortgage – Construction of terms - Mortgage agreement provided that event of default occurred if bank formed opinion that circumstances had arisen which had material adverse effect on business, assets and financial condition of borrower and ability of borrower to perform its obligations to the bank - Formation of requisite opinion - Declaration that moneys owing were immediately due and payable - Notice demanding payment - Validity of notice.
Mortgage – Debenture - Default - Power in mortgage to appoint receiver after moneys became payable - Validity of appointment - Mortgage and loan agreements each specifying circumstances in which moneys became payable - No inconsistency between mortgage and loan agreements.
249 CLR 534; 87 ALJR 110; 293 ALR 215
French CJ, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Dec 2012 Case Number: S319/2011
Defamation – Defences – Common law defence of qualified privilege – Respondent involved in proposal to invest funds in football club – Appellant was board member of affiliated club – Appellant opposed proposal – Respondent sent letter to appellant's employer conveying imputations defamatory of appellant – Defamatory statements made voluntarily and in protection of personal interests – Whether defence of qualified privilege required respondent to show "pressing need" to protect interests – Whether "pressing need" to be adjudged by reference to test of "reasonable necessity" – Consideration of Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.
Words and phrases – "community of interest", "fairly warranted by any reasonable occasion or exigency", "pressing need", "qualified privilege", "reasonable necessity".
Defamation Act 2005 (NSW) – ss 6(2), 24.
238 CLR 1; 83 ALJR 765; 257 ALR 1
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 7 Jul 2009 Case Number: S35/2009
Constitutional law – Standing - Section 7 of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) ("the Act") provides that the Commissioner of Taxation must pay a tax bonus to entitled persons - Persons entitled under s 5 of Act if, inter alia, an individual, Australian resident with an adjusted tax liability greater than nil and not exceeding $100,000 for 2007-08 income tax year - Whether person entitled under s 5 of Act has standing to bring action for declarations and injunction.
Constitutional law – Appropriations of moneys from the Consolidated Revenue Fund - Whether payment of tax bonus supported by valid appropriation under ss 81 and 83 of Constitution - Whether appropriation "for the purposes of the Commonwealth" under s 81 - Whether phrase "for the purposes of the Commonwealth" limits legislative power - Whether source of legislative "power to spend" is ss 81 and 51(xxxix).
Constitutional law – Powers of the Commonwealth Parliament - Whether Act law with respect to trade and commerce under s 51(i) - Whether Act law with respect to taxation under s 51(ii) - Whether Act law with respect to external affairs under s 51(xxix) - Whether Act supported by implied nationhood power - Whether Act supported by power conferred by ss 81 and 51(xxxix) - Whether Act supported by power conferred by ss 61 and 51(xxxix) - If Act beyond power, whether Act can be read down so as to be within power.
Constitutional law – Executive power of the Commonwealth - Global financial and economic crisis - Whether Act supported by ss 61 and 51(xxxix).
Constitutional law – Taxation power - Persons entitled under s 5 of Act included persons entitled to tax bonus greater than their adjusted tax liability for the 2007-08 financial year - Whether Act law with respect to taxation.
Words and phrases – "appropriation", "for the purposes of the Commonwealth", "made by law" and "maintenance of this Constitution".
Constitution – ss 51(i), (ii), (xxix), (xxxix), 61, 81 and 83.
Acts Interpretation Act 1901 (Cth) – s 15A.
Tax Bonus for Working Australians Act (No 2) 2009 (Cth).
Taxation Administration Act 1953 (Cth) – ss 2 and 16.
80 ALJR 317; 222 ALR 421
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 6 Dec 2005 Case Number: S226/2005
Vendor and purchaser – Sale of land – Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval – Vendor wrongly purported to rescind contract – Vendor denied purchasers access to land – Purchasers sued for damages for breach of access provision – Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission – Whether vendor's conduct waived condition of approval.
Contract – Construction of contract – Purchasers to have access to land prior to completion to farm in areas approved by vendor – Whether vendor required to act reasonably in granting or withholding approval.
Contract – Construction of contract – Implied duty to co-operate – Limits of operation of implication.
Practice and procedure – Appeal – Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.
83 ALJR 494; 252 ALR 619
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 12 Feb 2009 Case Number: S317/2008
Practice and procedure – Appeals - Procedural fairness - Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy - Officers of respondent seized documents relating to "other goods" imported within previous five years - District Court decided in In the matter of the appeal of Lawrence Charles O'Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents - Court of Appeal decided O'Neill "mistaken" without affording appellant opportunity to make submissions - Whether appellant denied procedural fairness in Court of Appeal - Scope of principles respecting procedural fairness in curial proceedings - Whether appellate court required to afford parties opportunity to be heard on non-binding decision.
Practice and procedure – Appeals - Procedural fairness - Court of Appeal went on to decide appeal on footing O'Neill correct - Whether lack of opportunity to make submissions with respect to O'Neill caused prejudice to appellant and affected outcome in Court of Appeal.
Evidence – Illegally or improperly obtained evidence - Evidence Act 1995 (NSW) ("Evidence Act"), s 138 - Respondent admitted condition precedent to execution of warrant not satisfied - Whether wilful disregard of Act in execution of warrant - Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138.
Practice and procedure – Appeals - Procedural fairness - Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act.
Words and phrases – "procedural fairness", "relating to the goods", "the goods".
Customs Act 1901 (Cth) – s 214, Sched V.
Evidence Act 1995 (NSW) – s 138.
Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 8 May 2019 Case Number: S140/2018
Aviation – Carriage of passengers by air – Accident – Carrier's liability – Where respondent engaged by appellant to carry out survey using helicopter – Where passenger aboard helicopter killed in crash – Where Pt IV of Civil Aviation (Carriers' Liability) Act 1959 (Cth) applied – Where s 28 provided that carrier liable for damage sustained by reason of death of passenger – Where s 35(2) substituted liability under s 28 for any civil liability of carrier under any other law in respect of death of passenger – Where s 34 imposes time limit on availability of right of action created by s 28 – Where widow, daughter and son of passenger brought claims in tort against appellant and respondent for damages for negligently inflicted psychiatric harm resulting from death of passenger – Where claims brought outside time limit prescribed by s 34 – Whether claims precluded by Act.
Words and phrases – "any civil liability of the carrier under any other law", "by reason of the death of the passenger", "claim", "damage sustained", "Hague Protocol", "in respect of the death of the passenger", "Montreal Protocol No 4", "negligently inflicted psychiatric harm", "tort", "Warsaw Convention".
Civil Aviation (Carriers' Liability) Act 1959 (Cth) – ss 28, 34, 35(2), 37.
209 CLR 246; 187 ALR 409
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby JJ
Date: 14 Feb 2002 Case Number: M39/2001
Constitutional law (Cth) – Judicial power - Extradition - Jurisdiction of Federal Court to review order by magistrate that applicant, being eligible for surrender to extradition country, be committed to prison - Provision requiring Federal Court to have regard only to the material before the magistrate - Whether provision denies to the Federal Court power to receive evidence led to show that proceeding before it was an abuse of its process - Whether consistent with the exercise of the judicial power of the Commonwealth - Whether provision enabling curial review of administrative function amounts to purported conferral of non-judicial power.
Extradition – Judicial review by Federal Court of magistrate's order - Provision requiring Federal Court to have regard only to material before the magistrate - Whether provision invalid under the Constitution as inconsistent with the exercise of federal power - Whether provision invalid as conferral of non- judicial power to participate in administrative function.
Constitution – s 71.
Extradition Act 1988 (Cth) – ss 19, 21.
247 CLR 531; 86 ALJR 954; 290 ALR 189
French CJ, Hayne, Heydon, Kiefel, Bell JJ
Date: 24 Aug 2012 Case Number: B11/2012 B25/2011
Criminal law – Manslaughter by criminal negligence – Appellant convicted of manslaughter and unlawfully doing grievous bodily harm – Section 288 of Criminal Code (Q) imposes duty on persons who undertake to administer surgical treatment to have reasonable skill and use reasonable care – Prosecution alleged appellant breached his duty by deciding to operate on certain patients – Whether "surgical treatment" in s 288 encompasses decision to operate.
Criminal law – Miscarriage of justice – Change in prosecution case at late point in trial – Prejudicial evidence admitted – Whether test of criminal negligence is objective – Whether evidence remained relevant on revised case – Significance of tactical decisions by defence counsel.
Criminal law – Appeal – Application of "proviso" – Irrelevant and prejudicial evidence admitted – Whether no substantial miscarriage of justice actually occurred – Consideration of Wilde v The Queen (1988) 164 CLR 365 and concept of fundamental error.
Words and phrases – "fundamental error", "miscarriage of justice", "moral culpability", "no substantial miscarriage of justice has actually occurred", "proviso", "surgical treatment".
Criminal Code (Q) – ss 282, 288-289, 303, 320, 668E(1)-(1A).
227 CLR 471; 80 ALJR 1588; 229 ALR 432
Gummow ACJ, Kirby, Hayne, Callinan, Crennan JJ
Date: 4 Oct 2006 Case Number: B110/2005
Bankruptcy – Transfers to defeat creditors - s 121(1)(a) of the Bankruptcy Act 1966 (Cth) ("the Act") - Transfers of property void against the trustee in bankruptcy if the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred - Where pursuant to s 121(9)(b) of the Act property that did not previously exist is taken to have been transferred for the purposes of s 121 of the Act - Where the bankrupt unilaterally severed a joint tenancy in Torrens title land held between himself and his wife who later died prior to his bankruptcy - Whether s 121(9)(b) of the Act operated so as to take the bankrupt to have transferred property to his wife - Whether that property would probably have become part of the transferor's estate in bankruptcy if the property had not been transferred.
Real property – Joint tenancy - Severance - Torrens system land - Unilateral severance of joint tenancy pursuant to s 59 of the Land Title Act 1994 (Q) - Effect of severance upon property of the bankrupt.
Statute – Statutory construction - Construction of pars (1)(a) and (9)(b) of s 121 of the Act where drafting reflects inconsistent assumptions - Whether possible to render those sub-sections capable of concomitant operation so as to give effect to the text and policy of the Act.
Bankruptcy Act 1966 (Cth) – s 121.
Land Title Act 1994 (Q) – ss 57, 59, 60.
Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 1 Mar 2017 Case Number: A39/2016
Criminal law – Appeal against conviction – Directions to jury – Where discreditable conduct evidence admitted under s 34P of Evidence Act 1929 (SA) – Relevance of discreditable conduct evidence – Whether trial judge adequately directed jury as to permissible and impermissible uses of discreditable conduct evidence in accordance with s 34R.
Criminal law – Appeal against conviction – Application of proviso – Criminal Law Consolidation Act 1935 (SA), s 353(1) – Where majority of Full Court found miscarriage of justice occasioned by misdirection to jury – Where majority of Full Court divided as to whether misdirection occasioned substantial miscarriage of justice for purposes of applying proviso – Whether appeal could be dismissed pursuant to proviso.
Words and phrases – "discreditable conduct evidence", "error of law", "opinion of majority", "permissible and impermissible use", "proviso", "substantial miscarriage of justice", "sufficiency of direction".
Criminal Law Consolidation Act 1935 (SA) – ss 349, 353(1).
Evidence Act 1929 (SA) – ss 34P, 34R.
214 CLR 514; 77 ALJR 1070; 197 ALR 364
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 8 May 2003 Case Number: S124/2002
Insurance – Obligations of insured to disclose to insurer – Where decision "probably not" to renew policy for following year – Whether decision was a failure to disclose a "matter relevant to the decision of the insurer whether to accept the risk" to extend policy under s 21(1)(a) of the Insurance Contracts Act 1984 (Cth) – Whether non-disclosure was a misrepresentation in breach of s 26(2) of the Act.
Fraud – Whether trial judge erred in failing to consider that evidence of an alleged misrepresentation became fraudulent – Whether fraud was clearly and distinctly pleaded and put at trial – Whether appellate court was warranted in finding error on this ground.
Insurance Contracts Act 1984 (Cth) – ss 21(1)(a), 26(2).
220 CLR 388; 79 ALJR 146; 211 ALR 18
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 12 Nov 2004 Case Number: M277/2003
Constitutional law (Cth) – Taxation - Whether s 55 of the Constitution applies to a law made in exercise of the power conferred by s 52(i) of the Constitution - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Whether invalid as a law imposing taxation and dealing with matters other than the imposition of taxation - Whether invalid as a law imposing taxation and dealing with more than one subject of taxation.
Constitutional law (Cth) – Commonwealth laws of regulation of trade, commerce or revenue not to give preference to one State or any part thereof over another State or any part thereof - Revenue laws - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Where effect of law is that different rates of tax apply in Commonwealth places depending on the State in which place is located - Whether prohibition in s 99 of the Constitution applies with respect to revenue laws supported by s 52(i) of the Constitution - Whether the Commonwealth law infringed the prohibition in s 99 of the Constitution.
Constitutional law (Cth) – Places acquired by Commonwealth for public purposes - Exclusive legislative power of Commonwealth Parliament - Extent of power - Whether decisions in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 and Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 should be re-opened.
Constitutional law (Cth) – Exclusive legislative power of the Commonwealth - Delegation - Whether Commonwealth law permitting State Treasurer to modify applied State taxing law confers the legislative power of the Commonwealth on the Executive Governments of the States.
Constitution – ss 52(i), 53, 54, 55 and 99.
Commonwealth Places (Mirror Taxes) Act 1998 (Cth) – ss 3, 6, 8, 9 and Sched 1.
Commonwealth Places (Mirror Taxes Administration) Act 1999 (Vic) – s 7.
Stamps Act 1958 (Vic) – ss 17, 17A and Third Schedule.
205 CLR 126; 75 ALJR 1385; 181 ALR 337
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 9 Aug 2001 Case Number: P64/2000
Trade practices – Restraint of trade – Sale of business – Appellant manufactured and sold ice cream products in Western Australia under the "Peters" marks – Respondents manufactured and sold ice cream products under the "Pauls" marks nationally and under the "Peters" marks in every State except Western Australia – Sale of respondents' Western Australian ice cream business to appellant – Sale agreement provided that the appellant be granted the exclusive right and licence to use the "Pauls" marks in Western Australia in return for percentage royalty – Sale agreement contained covenant restraining respondents from selling ice cream products in Western Australia – Restraint coextensive with duration of licensing arrangements but extended to ice cream products to which licensing arrangements not applicable – Whether restraint is one to which the common law restraint of trade doctrine applies.
Trade practices – Restraint of trade – Circumstances in which the restraint of trade doctrine does not apply – Whether "sterilisation of capacity test" should be adopted in Australia.
Trade practices – Restraint of trade – Development of common law respecting restraint of trade – Considerations of public interest – Relationship between doctrine of "restraint of trade" and Trade Practices Act 1974 (Cth).
Words and phrases – "restraint of trade" – "sterilisation of capacity" – "fettering of existing freedom" – "public interest".
Trade Practices Act 1974 (Cth) – ss 4M, 45-51AAA.