Commonwealth of Australia v Verwayen

[1990] HCATrans 5

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml4 of 1989

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Appellant

and

BERNARD LEONARDUS VERWAYEN

Respondent

MASON CJ

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

Verwayen(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 FEBRUARY 1990, AT 10.20 Alf

Copyright in the High Court of Australia

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MR M.E.J. BLACK, QC: May it please the Court, my learned

friend, MR N.A. MOSHINSKY, QC and I appear with

with our learned friend, MR. C.M. MA..t"<WELL, for
the appellant in this case. (instructed by the

Australian Government Solicitor)

MR B.K. THOMSON, QC: May it please the Court, I appear with

my learned friend, MR C.W. MOYLE, for the

respondent. (instructed by James Taylor & Co.)

MASON CJ:  Mr Black.

MR BLACK: If the Court pleases, might I have the Court the

appropriate number of copies of the outline of our

argument.

MASON CJ: Yes.

MR BLACK:  May it please the Court. As the Court will have

observed, there are o:vci essential- issues, quite separate

issues arising in this case. The first is

essentially this. Where a party makes a promise,

without consideration, that it will not plead the

statute of limitations, will the principles of

promissory estoppel, or perhaps I should simply say,

estoppel, operate to preclude a party from relying

on the statute at all, or, do the principles confine

the relief to some lesser, and we would say, more

proportionate remedy? The second issue is whether a

duty of care is owed by a serviceman to another
serviceman when they are members, in this case, of

a warship engaged in a tactical exercise at sea,

simulating combat conditions likely to be experienced

during wartime, but in fact, of course, in time of

peace? That was the question that we say was left

open in GROVES V THE COMMONWEALTH, a decision of this

Court in 1982 150 CLR 113 and we will be submitting

that on the proper view and indeed the only proper

view of the facts in this case, that question arises

for decision now.

I shall not need to burden the Court with the

facts to any substantial extent at this stage. It may

be sufficient if I say that on 10 February 1964 it

is clear and admitted that a collision occurred between

two of Her Majesty's Australian ships, the Melbourne,

an aircraft carrier and HMAS Voyager, about 20 miles

south-east of Jervis Bay.

(Continued on page 3)

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MR BLACK (continued):  The plaintiff was one of the crew of

the Voyager and a serving member of the Royal

Australian Navy at that time. He alleges that he

sustained injuries in that collision of which, of

course, he was a survivor. Over 20 years later

on 2 November 1984 he commenced an action against

the Commonwealth claiming damages for negligence
in respect of those injuries.

I should take the Court, very briefly, to the procedural steps whereby the matter, ultimately,

came to the Full Court of the Supreme Court from

which this appeal comes.

The Commonwealth originally delivered a defence

admitting all the allegations in the statement of claim, except those relating to the sustaining of

injury, and that is what it had said it would do -

no doubt about that. It was in accordance with the

position previously conveyed to the respondent's

solicitors. It, however, changed its mind and

notified that change of mind in May 1986 when it took

out a summons for leave to amend its defence in a

particular manner.

The master, on 29 May 1986,gave leave to amend

the defence so as essentially to deny negligence, to
plead that there was no duty of care in the circumstances

and to raise the applicable section of the LIMITATION

OF ACTIONS ACT Victoria section 5 which provides for

then, I think, a six-year limitation period for actions

for damages for personal injuries.

Significantly, although not perhaps decisively,

the master ordered that the Commonwealth pay the costs

rendered aborted by that change of mind. There is no

doubt that there was a substantial change in the

Commonwealth position and there is no doubt, if one can

say so without trivializing it, that this would have

been intens-ely. dis.appointed to the respondent. The

question that arises, however, is what equity arose

in his favour and by what means could that equity be

discharged consistently with principle.

Now, the plaintiffs delivered a reply to the

amended defence raising, in essence, these issues:

a claim that they disclosed no defence for the

estopple against the reliance on the Statute· of with

action and some other matters which I mention for

completeness but which, because they were arguments

ultimately not successful, in any of the courts;

waiver of the no-duty and Statute of Limitation defences
and the suggestion that the LIMITATION OF ACTIONS ACT

was not applicable to the Commonwealth.

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MR BLACK (continuing):  The procedural complexities, we would

think, could be summarized as follows: there was

an unsuccessful attempt to have preliminary points

arising on the pleadings argued and that went

ultimately before the Full Court. Fundamentally,

because of the way the Court construed the rules,

given that the plaintiff had required a trial by

jury as was his right, that application was

successful. However, when the matter came on for

trial before Mr Justice O'Bryan, before the jury

was empanelled, His Honour did deal with the

questions of law raised by the amended defence and

reply on the basis of essentially two sets of facts:

a set of facts that were conceded to be not in

serious dispute relating to the estoppel point -

and I can precisely identify these and, of course,

shall - and a series of facts deemed to be admitted

by reason- and this relates to the collision, the
no duty point - deemed to be admitted because the

then plaintiff, the respondent, had not answered a

notice to admit facts and tmder the Victorian rules

if you do not do that within time you are deemed

to admit them. I should add, perhaps to make one

feel more comfortable, that there was no application -

and this is noted in the Full Court judgment -

before Mr Justice O'Bryan, the primary judge, for

leave to call evidence or to withdraw the admissions.

In essence, Mr Justice O'Bryan held that there

was no estoppel and he did so on two grounds, one of
which - this was before WALTONS STORES was decided.

The first one was that there was no pre-existing

contractual relationship. But the second one was

that in any event there was no detriment, no relevant

detriment, shown by the then plaintiff, the respondent.

He rejected the waiver point and election having been raised he rejected that point too.

His Honour decisively rejected the no duty point,

although his findings of fact were the findings of

fact that we say ought to have been followed by the

Full Court and are the findings of fact that raise

the_points left open in GROVES about no duty, and

I will come to that in the second part of the

argument.

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MR BLACK (continuing):  On appeal to the Full Court the

court divided. The learned judges in the

majority, Mr Justice Kaye and Mr Justice Marks,

allowed the appeal applying, in Their Honours'

view, the principles that had then emerged from

the decision of this Court in WALTON STORES

(INTERSTATE) LIMITED V MAHER, (1988) 164 CLR 387,

and they held, in essence, that there was a promise
and that the Commonwealth ought not to be allowed

to resile from that promise.

There was a cross appeal on the no duty point

which was dismissed; dismissed, we would say, on

the basis of an erroneous conclusion about the

facts. If the conclusion about the facts was right,

namely that it was just an ordinary - it was

indistinguishable from civilian operations, then

I think our argument does not get airborne because

it would be outside any view of what was left open

in GROVES.	So I will have to address the Court
on the facts.

Mr Justice King dissented on the estoppel point holding; in substance, that the detriment

suffered by the plaintiff in reliance on the

Commonwealth's representations was at most the

extra costs to which she had been put. And

His Honour said, and we say, with respect, correctly,

that this was a result that follows inevitably

from WALTON STORES and lines of authority accepted

by this Court that the remedy is flexible and is

commensurate with the detriment. Indeed, one perhaps

should more correctly argue that the relief, the

entitlement to relief, is in a sense co-extensive.

Your Honour Mr Justice Brennan expresses it

in a passage which I will cite in precisely the

way that we want to put it. I do not have

Your Honour's words precisely in mind - I cannot
recite them at the moment but I will come to them.
So that is how the matter comes to this Court, special leave, of course, having been granted. Could I then go straight to the estoppel issue

and, to start that, might I take the Court to the

facts upon which that issue was decided and they

essentially come down to five matters said to

constitute the Commonwealth's promise and the

reliance upon it; and they are to be found summarized
at page 341 which is in volume 2 of the appeal

book.

(Continued on page 6)

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MR BLACK (continuing): At the top ·of the page - I am reading now from the

judgment of the majority, Mr Justice Kaye and

Mr Justice Marks:

In addition to the particulars adjoined to paragraphs 6 and 7 of the reply, the

facts constituting waiver and estoppel upon

which Counsel for the Appellant relied before

the learned trial Judge were as follows -

And the first was a letter. The letter was from

the then plaintiff's solicitors on behalf of a

number of survivors of the collision, including

Mr Verwayen. It states that they were survivors.

It states in the second paragraph that these men

were in the same position as their shipmate, a

Mr Palmer, of whom they wrote to the out that the statute was waived as regards Mr Palmer

and liability was admitted.

Copies of those letters are enclosed. I can

take the Court to them but in substance they are

to the effect stated. The substance was that

liability was admitted and the statute was not to

be relied upon. Then it concludes:

We request you treat these men the same and

waive the Statute to allow us to proceed on

their behalf.

This is in September 1984, 20 years after the collision.

(Continued on page 7)

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MR BLACK (continuing):

2.       The contents of letters enclosed with

tQe letter of 6th September 1984 relating

to another claimant

in substance, the point is -

the Commonwealth -

it was said -

will not rely on the Statute of Limitations

in this action.

The Commonwealth position was, we would say, plain.

On 25th January 1985, some three months

after the issue of the Writ in the action,

an employee of the Australian Government	Solicitor advised the Appellant 1 s Solicitors
that the Respondent proposed to admit liability and waive the Statute of Limitations
The advice was confirmed by letter from the
Australian Government Solicitor to the Appellant's Solicitors.

The letter was never found, it appears, but nothing

turned on that; it is accepted there was such a letter.

Then, on 4 March, there was a defence - it admitted

liability - and that was delivered.

A further point which His Honour

Mr Justice O'Bryan noted but was perhaps not given

so much emphasis but was conceded in the Full Court by

the Commonwealth is this:

5. Thereafter on five occasions the
Australian Government Solicitor joined with

the Appellant's Solicitors in applications

to the Court for an expedited hearing of the

claim on the ground that liability was not

in issue.

At the bottom of that page, I should note while the

Court is at it, that the court says that:

Counsel ..... informed this Court that he did not -

that is for the appellant, Mr Verwayen -

did not make application to the learned judge
for leave to call evidence or seek to call

witnesses and that he then did not wish to call

evidence on the questions of waiver and estoppel.

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Their Honours then go on to say that the matters

were correctly decided as preliminary matters and

there was no criticism about that.

The learned primary judge adopts the substantially

the same analysis at pages 315 and 316 of the same

volume of the appeal book.

(Continued on page 9)

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MR BLACK (continuing):  But he notes at the top of the page,

and I should draw the Court's attention to this,

that many letters were set out in the particulars

but he says, at the top of the page:

those letters which were written after the

Writ was issued (2/11/84) and those which

are concerned with claimants other than the

plaintiff are not relevant save as to

establishing background to the defendant's

change of attitude.

Then His Honours says:

In the course of discussion, Mr Thomson

identified three matters -

and those are three of the five matters that the

Full Court mentioned. But the substance of the

matter is, undoubtedly, that the Commonwealth

had said it would do one thing and it changed its

mind and criticism was made of the Commonwealth

for doing that but the legal effect is what is,

of course, in issue.

Now, can I identify the promise that was

found to emerge from the matters relied upon in both

courts. I should start by saying that it was never

suggested that there was consideration for the
promise. In some of the cases, or at least one of
the cases, where the statute has been pleaded,
there has been found to be consideration in the
peculiar circumstances of the case. It was not
suggested here and there is a finding by both the

learned primary judge, at page 321, and by the

Full Court at page 346 that there was no basis

upon which an agreement supported by consideration

can be implied and in my understanding it was not

argued that there was.

The promise is found in very similar ways by

both the learned primary judge and by the Full Court.

Mr Justice O'Bryan, at page 323, says, in substance, that it was a promise that the Commonwealth would

not rely on a limitation defence. That is volume 2,

page 323 at line 16. The Full Court majority dealt

with the matter at page 352, line 5, where they

say:

In our opinion, the facts of the present case

disclose effectively a promise by the

respondent not to seek to have the appellant's

claim barred under the Victorian LIMITATION OF

ACTIONS ACT. This promise was made orally and

by letter - through its solicitor - that it would

not exercise the right -

there seems to be some misprint there -

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filed a defence admitting liability, signed

a Certificate of Readiness for assessment of

damages only and joined in applications for

a speedy hearing.

But the promise is that it would not seek to

have the appellant's claim barred under the

LIMITATION OF ACTIONS ACT. It seems clear from

what Their Honours there said that they construe the promise as that having made by the solicitor

for the Crown after the writ was issued - this was

in January the promise was made - that they would

not be relying on the statute; it was then, of course,

confirmed when the defence came admitting everything

except the injury. We do not contend that that was

not a very clear statement of what the Commonwealth's

position - or what its future intentions were - and,

indeed, what its then position was.

TOOHEY J:  Mr Black, neither of the trial judge nor the

Full Court expressed the promise in terms of an

actual undertaking not to plead.	Does anything turn
on that?

MR BLACK:  I think not, Your Honour.

TOOHEY J: Because the way in which the Full Court expresses

it, it is somewhat an indirect way of putting it.

MR BLACK: Yes, indeed, it seems to have been intentional

because the promise was broken by actually

seeking to do what they did: seeking to go to the
master. So, it was a promise,on Their Honours' view,

that they would not take the procedural step

necessary to change their position.	We would say -
well, we do submit	that is correct and it really

highlights that it is a promise of continuing,

including future, intention.

TOOHEY J: Yes, thank you.

(Continued on page 11)

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MR BLACK: In the Full Court's judgment they identified

promissory estoppel as the principle, and in

absolute substance what we say is, with respect,

there is a flaw in the majority judgment in that

relationship between the detriment and the relief to which that detriment, if in

the nature of detriment and the relationship of highly, but the

that detriment to the relief was not considered.

unconscionable circumstances gave rise, the equity

that arose was not considered. There was citations
from the Court's judgment in WALTONS STORES, but
they did not include, what we would submit for the

purposes of this case, are the critical parts and

that is the analysis of what really is the nature

of the equity that arises and its extent. And to

make that point good might I take the Court, without

transgressing the unstated rule that the Court is

not assisted by reading the whole case and I
certainly shall not do that, to a few passages in

the judgments in WALTONS STORES, to make the point

that WALTONS STORES focuses on the notion that

promissory estoppel has, as its object, not the

making good of representations, but the avoiding of

detriment. And more than that, the avoiding of detriment for a purpose, the purpose being the

relieving from unconscionable conduct and that is,

we would say, the extent of the matter. It defines
the existence of the equity or the right, if it be

not an equity, and its extent in the one go, if I

can· put it crudely.

And so what that involves, in our submission, is

finding precisely what the detriment is and equally
importantly, how it can be removed by the ~ourt's

order and we say that the Full Court did not do that.

Might I take the Court to the judgment of Your Honour

the learned Chief Justice and Justice Wilson at page

404, in the middle of the page, to seek to make those
general points good. (Continued on page 12)

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MR BLACK (continuing): Having discussed the cases, Your Honour

the learned Chief Justice and Justice Wilson say

in ~he middle of the page that:

One may therefore discern in the cases a

common thread which links them together, namely,

the principle that equity will come to the

relief of a plaintiff who has acted to his

detriment on the basis of a basic assumption

in relation to which the other party to the

transaction has "played such a part in the

adoption of the assumption that it would be

unfair or unjust if he were left free to ignore it":

per Dixon J. in GRUNDT; see also THOMPSON.

Equity comes to the relief of such a plaintiff

on the footing that it would be unconscionable

conduct on the part of the other party to ignore

the assumption.

Just a little above that in a passage to which - I

will refer to it now because it is just above it:

the nature and extent of the equity depending

on the circumstances.

is a matter that is stressed. Your Honours, at the top

of the page say, first paragraph:

The decision in CRABB -

that is CRABB V ARUN DISTRICT COUNCIL, the Court of

Appeal in England -

is consistent with the principle of proprietary

estoppel applied in RAMSDEN V DYSON. Under

that principle a person whose conduct creates or

lends force to an assumption by another that he
will obtain an interest in the first person's land
and on the basis of that expectation the other

person alters his position or acts to his

detriment, may bring into existence an equity

in favour of that other person, the nature and
extent of the equity depending on the circumstances.

And it should be noted that in CRABB, as in

RAMSDEN V DYSON, although equity acted by way

of recognizing a proprietary interest in the

plaintiff, that proprietary interest came into

existence as the only appropriate means by which

the defendants could be effectively estopped from

exercising their existing legal rights.

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MR BLACK (continuing): Indeed, opposite on page 405, at the

end of the first complete paragraph on that page,

the point is made that equity does not make good

representations directly. Your Honour

andJustice Wilson said there:

Because equitable estoppel has its basis in

unconscionable conduct, rather than the

making good of representations, the objection,

grounded in MADDISON V ALDERSON, that promissory

estoppel outflanks the doctrine of part
performance loses much of its sting. Equitable

estoppel is not a doctrine associated with

part performance whose principal purµose is to

overcome non-compliance with the formal

requirements -

et cetera.

Equitable estoppel, though it may lead to the

plaintiff acquiring an estate or interest in

land, depends on considerations of a different
kind from those on which part performance

depends. Holding the representer to his

representation is merely one way of doing

justice between the parties.

And, of course, we would respectfully add and in

some cases, in many cases indeed if the building has

been pulled down, it is the only just way.	But the
cases show	- I will refer the Court to a few of

them - that that may not be what is necessary;

not only not necessary but not really fair in the
circumstances. It is not, as it were, a carping

point that you have used the language of the courts

as some sort of statute and said the minimum

necessary, because that is the language they use,

and say aha, we are just within the minimum.

In a case like this the minimum necessary is,

in fact, if I can use , I hope, a not too vulgar

vernacular; · a fair thing in all the circumstances

and it is proportionate.

(Continued on page 14)

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DAWSON J:  What you really say is that the only detriment

suffered here was the non-fulfilment of the

promise and that can never be enough because if

it ·were it would mean that the mere breaking of

the promise was unconsionable.

MR BLACK: Exactly, Your Honour, and which the Court in

WALTONS - I think all of Your Honour - - -

DAWSON J: That is the whole of your case really.

MR BLACK:	Yes.
DAWSON J:	Putting aside how you explain away the costs.
MR BLACK:	Yes, that is it, and it is - one never likes to

break - one never should - one is taught one does

not break a promise, although some parts of society

may be in a different position when supervening

policy, or whatever, arises - I am not suggesting

it is this case, but it is not unconscionable as

such, it is naughty in a sense that children are

told not to do it: in certain circumstances it is

a very bad thing, but it is not unconscionable in

the equitable sense without more and it is the

more that creates the relevant detriment and it is

the more that creates the equity and is coextensive

with it.

Now, Your Honour Justice Brennan, at page 425,

expressed the - and indeed, might I start at 419, at

about point 6 on the page, said this - this is the

passage that I was seeking to reproduce very

unsuccessfully at the beginning of the argument:

The element which both attracts the

jurisdiction of a court of equity and shapes

the remedy to be given is unconscionable

conduct on the part of the person bound by

the equity, and the remedy required to

satisfy an equity varies according to the
circumstances of the case.	As Robert Goff J.

said in AHALGAMATED PROPERTY ..... "Of all

doctrines, equitable estoppel is surely one

of the most flexible." Sometimes it is

necessaty to decree that a party's

expectation be specifically fulfilled by the

party bound by the equity; sometimes it is

necessary to grant an injunction to restrain
the exercise of legal rights either
absolutely or on condition; sometimes it is
necessary to given an equitable lien on the

property for the expenditure which a party

has made on it.

And Your Honour cites Snell to which I will make

slightly more reference shortly.

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However, in moulding its decree, the court,

as a court of conscience, goes no further

than is necessary to prevent unconscionable

conduct.

And, in our submission, there is nothing in any of the other judgments in the case which is in any

way inconsistent with that, and indeed, in

FORA.N's case, very recently decided by the Court,

FORAN V WIGHT, (1989) 88 ALR, at page 313 - the only

report of which we are aware - the question of

estoppel was of course fundamental to the case, but

what we would get from it is that whatever

developments - and I say this respectfully that the

developments that are taking place in the law of

estoppel say nothing against what we are now

submitting, and at page 431, for example, Your Honour

the learned Chief Justice, at about line 25 - indeed,

specifically at line 31, regarded detriment as the

critical issue. In our submission detriment in

this type of estoppel, or in this branch of estoppel,

is the critical issue, and so too in the judgment

of Your Honour Justice Deane, at page 449 - - -

Y.tASON CJ:	What page was that, Mr Black?
MR BLACK:	I am sorry, 449,the judgment of Justice Deane.

The Court divided on the facts as to whether there

was detriment and Your Honour Justice Deane and other

members of the Court found that there was, but

the significant thing is, in our submission,

that it has never been suggested that however much

the doctrine develops, detriment is not a central

factor, plus, if the promissory aspect is involved

we would say unconscionability.

Now, whether one looks at the doctrine, or

looks at estoppel as a coherent doctrine with

branches, or as two branches serving similar purposes

of justice, is an area in which we very respectfully

are not intending to tread for the purposes of this

case, because what we say is that whatever the

true doctrinal basis of it all, it has rules, and

the rules that have been established in this

Court and, in our submission,not questioned, in

relation to the type of situation, if I can call

it that, that arises here, is that the relief has

a close relationship - we would say, a necessary

relationship .., with the detriment and with what is required to do justice, to use rather loose

language in the circumstances of the case, and our

submission is that the Full Court did not do that and what

the Full-Court ciid. -,;as tc treat ·ib.at had been saici as a contract &-id to

enforce the contract which is not what was necessary.

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~ BLACK (continuing):  Had Mr Verwayen's solicitors said,

"Well, thank you for that. If I promise you a

peppercorn at mid-sununer, will you make it a bargain",

it·would have been different but that was not what

happened and the fact that it has not happen is not

just technically different, in our submission, it is

profoundly different obviously in law but also as a

matter of practical application because the connnunity

knows that there are bargains and that bargains that

are not otherwise tainted are not broken whatever the

value of the consideration is. The law also knows that

if the bargain is not a bargain, if there is no

peppercorn, let us say, no obvious act of bargain or

no act of bargain, then the rules are different and

the parties act accordingly.

Befqre passing to what ~he Full Court did, might we

submit that although the appliation of the doctrine

has, with respect, developed in this Court

particularly of recent years, it is still a good law

as was accepted by this Court in LEGIONE V HATELEY,

that there are types of equitable estoppels or

promissory estoppels or this type of estoppel where

the promisor can resile from his promise on giving

reasonable notice unless the promisee cannot resume

his position. Now, that is still good law and those

cases are the cases of TOOL METAL MANUFACTURING CO LTD V

TUNGSTEN ELECTRIC CO LTD, (1955) 1 WLR 761 and its

predecessor, AJAYI V R.T. BRISCOE (NIGERIA) LIMITED,
(1964) 1 WLR 1326. In both those cases - I am sorry,

AJAYI, of course, was the later one and that was

the decision of the Privy Council and might I, in fact,
respectfully ask the Court to refer to it. That case

involved reference to BIRMINGHAM DISTRICT LAND COMPANY

V THE LONDON NORTH-WESTERN RAILWAY and it was

accepted by Their Lordships at page 1330, towards the

top of the page - I am sorry, Your Honours, I was not

watching the Court and I was busy reading with my

head down. I do apologize - (1964) 1 WLR 1326, a

decision of the Privy Council on appeal from Nigeria

and the passage to which I desire to refer the Court is at page 1330, the first complete paragraph:

Their Lordships are of opinion that the principle of law as defined by Bowen LJ has been confirmed by the House of Lords in the case of TOOL METAL ..... where the authorities

were reviewed and no encouragement was given

to the view that the principle was capable of

extension so as to create rights in the

promisee for which he had given no

consideration. The principle, which has been

described as quasi estoppel and perhaps more

aptly as promissory estoppel, is that when one

party to a contract in the absence of fresh

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consideration agrees not to enforce his

rights an equity will be raised in favour

of the other party. This equity is,

however, subject to the qualifications (1)

that the other party has altered his position,

(2) that the promiser can resile from his

promise on giving reasonable notice, which

need not be a formal notice, giving the
promisee a reasonable opportunity of

resuming his position, (3) the promise only

becomes final and irrevocable if the promisee

cannot resume his position.

(Continued on page 19)

17

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MR BLACK (continuing):	Now although the law has developed,

of course,greatly since then, it nevertheless- there is a species of right that the Court will recognize that consists of no more than saying,

"Well if you are going to change your mind you must give the person reasonable notice". It is

a mini quasi estopple	. combining the language
of the 1960s with what Their Lordship said.	But

it is limited because that is all that is needed.

It does not turn what was said into a contract and

give contractual-like remedies or auxiliary

remedies and those cases were	referred to
with	approval in this Court in LEGIONE V HATELEY,

where,having examined tne doctrine, Your Honours

(1952) 406 CLR, and I was making particular reference to

thejoint judgment of Your Honour the learned Chief

say, at the bottom of that page:

In our view, nothing is to be gained either by such attempts at forced reconciliation or by

an analysis of the relevant cases aimed at

showing that statements of the kind found in

CHADWICK V MANNING were not necessary to the

actual decision in the particular case. It

is preferable to acknowledge that a choice has

to be made between these statements and the

clear acceptance, in subsequent cases in the

Privy Council and the House of Lords, of a doctrine of promissory estoppel which may operate to preclude the enforcement of rights

at least between parties in a pre-existing

contractual relationship (see TOOL METAL

MANUFACTURING CO. LTD. V TUNGSTEN ELECTRIC CO.

LTD.; AJAYI V R.T. BRISCOE (NIGERIA) LTD - and then Your Honours continue -

The clear trend of recent authorities, the

rationale of the general principle underlying

estoppel in pais, established equitable

principle and the legitimate search for justice

and consistency under the law combine to persuade

us to conclude that promissory estoppel should
be accepted in. Australia as applicable

between parties in such a relationship.

The only point that we make about those cases is

simply this, that they are good law to the extent

that they show that there is a limited type

of relief that certain facts will give rise to,

they represent modern law and modern law, of course,

having gone further but not having left behind its

antecedents and, in substance, that is what we are

complaining about in the Full Court's judgment,

we say it was . an error of principle. Might

ClT14/l/JL	18	8/2/90
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I now turn to that judgment to seek to make good our

contention that the learned Judges who constitute

the-majority were in error. Might I invite the

Court to turn to page 352 of the appeal book,

volume 2,where the matter is essentially dealt with.

The Court there sets out the promise;

enunciates its components - the oral conversation; and the filing of the defence; the signing of the certificate of readiness and the applications for

speedy hearing; and then, Their Honours, identify

what we would say is the - the passage then is the

identification to detriment. They say:

As a result, and it is not disputed, the aRpellant pursued

his claim through solicitors engagea at his

expense for that purpose, and attended medical

examination. His case was duly prepared and

he attended court by himself or by his

legal representatives on some five occasions

before the respondent broke its promise by

seeking and obtaining leave to amend its

defence to plead the statute. Although it

might be thought that the respondent engaged

in conduct which induced the appellant to

undertake the expense and activity necessary to

pursue his claim, we think that on analysis

the proper interpretation of that conduct is
the making of a representation that it would

not seek to defeat the claim of the plaintiff for damages for personal injuries by exercise of the right provided by the LIMITATION OF

ACTIONS ACT.

(Continued on page 20)

C1Tl4/2/JL	19	8/2/90
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MR BLACK (continuing):  Then they continue:

Thus, the representation when made was

essentially promissory as it was in respect

of a period not yet fully run. It was not,

we think, a representation of an existing fact

other than a statement of intention.

Their Honours then hold that the principles emerging

clarified and developed in WALTONS STORES were

the relevent ones. Their Honours cited. a passage

from the judgment of Your Honour the learned

Chief Justice and Justice Wilson where the extra

something that was needed is found. That is the

extra something that makes the failure to comply

with a promise unconscionable and the extra something

that Your Honours find is the encouragement and the

knowledge that the other party will rely on an

assumption to his detriment and they emphasize that.

Their Honours then cite from the principles that

Your Honour Justice Brennan summarized in Your Honour's

judgment and simply then conclude without having

referred to the analysis of the Court as to why

promissory estoppel, if we so call it, did not

outflank the doctrine of consideration and as to

how the relief was really the minimum necessary.

Their Honours then apply those principles, in our submission, without reference to the entirety of

what emerged from the case. They say, at line 10:

In our view, such proofs are met here.

There can be little doubt, for example, that

the promise by the respondent to admit the

claim and not to plead the statute was made

deliberately and with the knowledge and intention

that the appellant pursue his claim and have his

damages assessed. The respondent, we repeat,

signed a Certificate of Readiness and joined

more than once in an application by the appellant for a speedy hearing of an assessment of damages.

We are unable to agree with the learned Judge that

the appellant did not suffer detriment because

his claim was at all material times statute

barred. The true analysis, we think, is that

the appellant was entitled to claim damages at

common law but the claim was defeasible at the

option of the respondent because the limitation
period had expired.

Then Their Honours say:

But once the respondent promised not to rely

on the limitation period, the appellant engaged his

legal representatives to do what was required

to pursue his claim and he did what was necessary.

CITlS/1/CM	20	8/2/90
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Now in our submission, the detriment identified

there is no more than and can be no more than the

detriment which was specifically identified by

Mr Justice O'Bryan and that is costs. I should add that Mr Justice O'Bryan said that there was

no detriment because, in the event, the plaintiff would get his costs. I come to that in a moment. But really the only detriment one can find in these

particular circumstances is costs and if I can just

break off from the train of the argument for a

moment, althoueh the courts - the masters in

judicial offices proceed without reference to the

high principles of estoppel, if one wants to change

ones pleading, the substance of the matter is that

prima facie one always should, unless the other side

has been irreparably prejudiced, but you pay the

costs and if you have been particularly naughty, you

pay everything, and so you should. Everything does

not usually include solicitor/client costs and maybe

it should, but the point is that you can make your

point, but you pay for it and you pay for it out of

your pocket and off you go and have the case.

(Continued on page 22)

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MR BLACK (continuing): Indeed, although that principle does

not really provide the complete answer because it

may be said, "Well, that was a particularly nasty

change of mind", its substance is supported by a

decision of this Court in CLOUGH AND ROGERS V FROG,

it is not on our list but I make passing reference
to it, it is reported in 4 ALR 615 and there is a
statement of principle approving earlier late

19th century authority in England at page 618. So, in our submission, the law copes with

this sort of situation and has for years but once

one gets into the estoppel area one is, of course, in a different area but essentially the same, dare

I say it, corrnnon sense principles apply and that

the masters would apply all over the country.	The
other point we make and it is admittedly an

advocates point is that it is totally distinct that

the throwing away of legal costs, which can be

compensated for, is totally distinct from such

things as pulling down a building or not getting

your finance in hand and losing the right that one

has to get one's deposit back, which can be argued

as - which is - something very serious. You cannot

put the building up again. It is quite different,

in our submission.

In the estoppel cases where the plea has succeeded the remedy is proportionate, not

necessarily precisely proportionate but proportionate

to the extent necessary. Our submission is that

that question of what is the detriment and what

should be down to relieve from it was simply not

analysed. Mr Justice O'Bryan, at page 328, did

so. At the bottom of the page, His Honour said -
I am sorry, middle of the page, line 17:

Further, as a consequence of the promise the plaintiff was not materially disadvantaged hecause the legal costs he incurred will be

the master's order giving the costs thrown away	I should add that at page 11 of the appeal book recoverable by an appropriate costs order.
appears and His Honour Mr Justice O'Bryan made an
order that the Corrnnonwealth pay all the costs of the proceedings before him. His Honour thought
that was the right thing to do in these circumstances.
I do not think there is any appeal against that
part of His Honour's order. His Honour
Mr Justice O'Bryan continues:

Nothing has been shown upon which equity could

act to preclude the defendant from relying

upon the limitation defence at the trial.

Before the offer or promise was made the

ClT16/l/DR	22	8/2/90
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plaintiff must have appreciated and believed

that his claim for damages was stale and that
the defendant might rely upon the limitation

defence. After the letter of 6th September

went unanswered, no more than a reasonable

expectation was created ..... The plaintiff's

legal position did not change ..... When the

defendant was given leave to amend its defence

the plaintiff's expectations were dashed but

he had not altered his position nor had he

placed himself in a position of material

disadvantage in the meantime.

It has to be said - and we do concede - that it

is possible that the plaintiff, in the order for

costs that the master made which was tax costs, could be out of pocket - it may not be for very much, in fact it might not be for anything but the

possibility exists because of the difference between

taxed costs and legal costs and real costs. In this

area of the law we would not wish to make the point

that taxed costs are the only sort of costs that the

law recognizes because the person who pays them

pays the actual costs; suffers the detriment of

paying the notes out of his wallet. So that, in the

end, we say that the approach of Mr Justice King

of an inquiry is the appropriate fashioning of the

remedy. Indeed, if there were such an inquiry and it appeared that the Cormnonwealth had been generous in its view of what the costs were there

might not be anything owing at all.

(Continued on page 24)

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MR BLACK (continuing): It has not been suggested as I read the

papers that there was any detriment actually caused
because the master's order did not cover everything

but that possibility has to be admitted and it would

be appropriate if we did admit that possibility

because the position is that if there is some detriment

it should be relieved from.

In our submission the critical passage in the Full Court's judgment is at page 355. L_return

now to the majority in the Full Court. Having cited

from WALTONS STORES, having cited from Sir Alexander

Turner's edition of estoppel by representation, Their Honours then say, at the top of the page:

It is accepted than an essential requirement

of promissory estoppel is that the conduct of

the promisor must be unconscionable. However, the

test of unconscionability is provided in the above

excerpts from the judgments of Mason C.J. and

Wilson J. on the one hand and Brennan J. on the

other in WALTON'S STORES. There is no material

conflict between them and the test is met here, for

the appellant clearly was led by the respondent to
understand that his claim would be met, the

statute would not be pleaded and the appellant relied on that promise to the knowledge of the

respondent.

But we would add rhetorically,"but how and with what consequence?" and those. questions, in our submission, were

not answered or were not analysed and they really

admit of no other other answer. The way the Full Court

approached the matter is,in our submission, if it is

correct, really no different, or was applicable to

every case where somebody changes their mind, thinks
of a fatal point, wishes to plead it and on that view
they would always be precluded from doing so, assuming
that the fatal point was a reasonably obvious one the

other side knew of and were hoping that they would not

take. In our submission that is wrong in principle.

The consideration given by this Court of the

problem, if Imight so call it, of the entrenched doctrine

of consideration and the development of estoppel in
the principled fashion without doing violence to -
without coming to conflict with established doctrine,

is in fact not followed by the Full Court with a result

that we say is simply incorrect. The remedy is

disproportionate and the remedy is as if the peppercorn

were offered to make it a bargain and there is, we

would say, not any difference in law but in terms of

broad justice a fundamental difference because people

know that you can make bargains and they know that

promises as such can be broken and the law says it is

not unconscionable without more merely to change

your mind, which is a polite way of saying broken a

ClT17/l/LW	24	8/2/90
Verwayen(2)

promise and I do not resile from all that can be

said about breaking promises. But legally, in

oµ~ submission, the position is different. Might

I turn -

DEANE J:	How does that work in a case such as this, Mr Black? I mean as I follow it the Commonwealth
did not make any unqualified offer to compensate. That being so, what you are saying really is that without any such unqualified offer to compensate
there was no estoppel precluding departure. What is the
corollary of that? That the respondent had an
independent right of action for damages? And if that
is so, how could estoppel found such a right to damages
except in the context of an order that your client be estopped unless?

MR BLACK: Well, it could not, Your Honour.

DEANE J:	So what you are saying really is tl:i..at the re~ondent was not
entitled to be fully compensated as a matter of law?

MR BLACK:  I am sorry, Your Honour, I think I have not properly

followed Your Honour's question. What we say is that

whatever rights the respondent may have or have had,

the sole question is what did he do to his detriment

on the faith of the Commonwealth promise, analyse

that, and if that is conscionable,that the Commonwealth

should not be bound by that promise. If that is

conscionable ask what is needed to remove the detriment

that is part of the unconscionability. Remove that.

(Continued on page 26)

C1Tl7/2/LW	25	8/2/90
Verwayen(s)

DEANE J:	I follow that you say that and I would understand
it if the Commonwealth had said, "We will compensate
you for everything you have done, acting on our
promise.", how the court could then have said the interests of justice that do not require any estoppel
because the Commonwealth has undertaken to compensate
them.

MR BLACK:· Anyway?

DEANE J:  Yes. But the Commonwealth gave no such undertaking,

made no such offer and, as I follow it, you now

say that there is no method by which the respondent

is legally entitled to recover what loss it has

sustained.

MR BLACK:  That follows, Your Honour, from what would seem

to be the inevitable operation of the statute,

unless there are - and it is not suggested that

there is - that the rare· case where the statute

can be answered. So that is -

DEANE J: Seeing things in terms of legal doctrine, that

seems to me to have some relevance to the proposition

principles which had been called into play. that the court should. have just disregarded the estoppel

MR BLACK:  Your Honour, all that we do say is that the plaintiff -

the Commonwealth having said that it would not do something that would be fatal to the claim,

all one can do is to ask, "Well, what happened

as a result of that?", and what happened, in reliance
on that, is the measure of the detriment, not the

dashed expectation.

DEANE J:	But what I was really raising for your consideration
was whether when an estoppel or estoppel principles
are called into operation in circumstances such
as this, in the sense that estoppel is relied on as a basis of producing a result in litigation,
whether the party who seeks to escape from the
state of facts that he has represented on the basis
that justice can be satisfied by some lesser step,
can only do that if he proffers that lesser step.

MR BLACK:  I am sorry, Your Honour. In other words, if the

Commonwealth has in itself offered every last cent for the - - -

DEANE J: If the Commonwealth did not at the time when the

issue of estoppel fell to be determined said - - -

MR BLACK:	I am sorry, Your Honour, I have completely - - -
DEANE J:	- - - justice can be satisfied by this and this
we offer to do.

C1Tl8/l/ND	26	8/2/90
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MR BLACK:  And here is $30,000 which will certainly cover

your costs, particularly in 1984?

DEANE J:	Yes.
MR BLACK:	Yes, I understand, Your Honour, and I am sorry,

I completely misunderstood what Your Honour was

saying.

DEANE J:	I am not suggesting it is right but it is just
that it is operating - - -
MR.BLACK:	Your Honour, we would respectfully - we did not

do it, although whether or not the order for costs

was opposed before the master, one assumes it was
not because it would have been - it was not, and

one would hope it would not have been and it would

have been futile if it had been. So, on the fact

assuming that the order was not opposed, and it

was the inevitable price of what was to be paid,

certainly the Commonwealth was implicitly going

along, prepared to pay the price and, possibly,

all of the price, certainly most of it.

But, Your Honour, although that may make one

feel morally comfortable, the answer to Your Honour's

question is, "No, you do not have to offer.the sum or act required to remove the detriment to

enable you to rely upon the fact previously asserted.",
because in every case - or in many of the cases
where the relief has been fashioned it has been
fashioned to the minimum extent necessary in the

face of - and I think in ARUN's case, a very

recalcitrant representor.

(Continued on page 27)

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MR BLACK (continuing):  The district council in Arun still

wanted to put up its fence and would not talk to

anyone - I will come to the case in a moment - and

the- Court of Appeal said, "Well, all right, if that

is the way you feel, not only will we give this
person a right of way over the land that you are
locking up but you, the district council of Arun

are not going to get any compensation for it".

DEANE J:  But, assume that here the costs are $10,000 more

than those covered by the master's order, how do
you say in the absence of voluntary action by the

Commonwealth the respondent can recover these $10,000?

MR BLACK:  By the order of the court. The court says,

as Justice King proposed in dissent, that the equity

is a flexible and proper mode of giving effect to the

equity, is for an inquiry as to the costs and payment

of such amount as is found due.

DEANE J:	As part of the common law action for damages, for negligence?
MR BLACK:	No, as a separate - - -
DEANE J:	I mean, what were the proceedings that sought those

damages?

MR BLACK:	There are not an~ but the proceedings in which the order would be made would be the proceeding brought
by the - notionally in this case because of the way it
happened - plaintiff/~espondent to establish the
estoppel which he needs and in those proceedings the court would make an order that gave - to put it ~nan unprin~ipled way - simply did justice between the parties. It would allow the amendment to stand as an effective amendment but on condition, in
effect, it would say there is no preclusion provided
that and, in our submission, that is the way in which
the cases have gone although in this case it has all
happened within the context of an existing action and
critical of the other side and it is not my position it would have been neater - I say this without being to be critical anyway in the situation where we
changed our mind - but it might have been neater had
they appealed from the master's order and the relief
might have been more obviously closer to what was
actually happening but, in our submission, there is
no question in principle why that should not happen.

If one took the - and I am reminded that

Mr Justice O'Bryan's order gave the plaintiff the costs of everything - the only matter in issue is whether possibly the costs that the plaintiff got

from the master andfrom Mr Justice O'Bryan were in

some way short of_ vmat he was actually out of pocket. And

it is not being suggested, I am bound to say, as far as

ClT19/l/JH	28	8/2/90
Verwayen(2)

we read any of the transcript of the argument, that there was a difference between what he actually got and what he had incurred. I do not think the costs were ever actually taxed but an amount was paid to

the plaintiff and there has not been in the court -

McHUGH J:  Is not one answer that you have got that the

way the issue was formulated was that in the

plaintiff's reply he pleaded an absolute and

unconditional estoppel,and that was the issue to be decided, did the facts give rise to an unconditonal estoppel, an unconditional promise on your

part.

MR BLACK:	Yes, and that is the issue that Mr Justice O'Bryan determined and Mr Justice King in the general view
which we would say is the correct one said, "Well,
I'd go a bit further than that and determine it in this
way and fashion the remedy", and we say correctly.
There are behind Your Honour Mr Justice Deane's
question, of course, matters lurking that I cannot
go into without giving evidence from the bar table
but it would be at least a possible hypothesis that the Corrmmwealth made what it considers to be a very proper payment in response to the master's order but
there is no evidence about that. But, what there is evidence about is the negativ~ that there is no
complaint that that disparity between the notional
maximumof ta.xeg costs and what the Commonwealth either
might voluntarily pay or be ordered to pay was a
subject of complaint as we read the transcript of the
full argument before Mr Justice O'Bryan.
Might I turn to the final part of the argument, which in a sense I have really covered, and that is
the way in which we say that equity fashions the
remedy.

(Continued on page 30)

C1Tl9/2/JH	29	8/2/90
Verwayen(2)

MR BLACK (continuing):  We say that the nature, or the

capacity of the law, I should say, rather than equity -
the capacity of the law to fashion the remedy to

remove the unconscionability permeates the decision

in WALTONS, it is quite explicit in the passages

that I have cited, particularly in the passage I

cited fror.:, the judgment of Your Honour Justice Brennan

at 419, and to further illustrate that the

flexibility of equity: Your Honour Justice Brennan

at 419 in WALTONS, cited from the 28th edition of

Snell's Principles of Equity, _1982 edited by

Mr Baker and Mr Langan, and in that treatment, to

which I make just passing reference, the learned

authors give examples of flexibility under the

heading of "Proprietary Estoppel". They deal with -

the whole chapter, chapter 5, deals with equitable

estoppel as one doctrine. It is devided into -

there is a preface "Estoppel at common law".

Section 2 deals with promissory estoppel and then

proprietary estoppel is dealt with in the third

section, and in the passage to which Your Honour

Justice, 13:r.er.ir'.Eir. rrade particular - reference, at 562,

the satisfaction of the equity in the case of

proprietary estoppel is, in our submission, shown

very clearly by the various ways in which the

lea:ned authors show equicy has acted: ''injunctions,

a charge for expenditure, an equitable lied',although

in one case it was held, apparently, that the person complaining had already had sufficient satisfaction for his expenditure: so, no relief

is the extreme case.

TI161. there is reference to the cases in which

the estoppel can only be - the right can only be made

good by the conf·erTil=.:nt of a form of title, an

example of which was a perpetual licence in the case of PLIMMER, to which I would briefly refer the Court - it is a decision of the Privy Council

on appeal from New Zealand, PLTMMER V '.MAYOF. OF

WELLII:IGTON,	9 AC 699 - it was a case decided in 1884 -
had some sort of right to use a jetty with the	and what happened there was that the appellant
permission of the government, and it had spent
money on it and the government stood by and let it do that - and indeed I think encouraged it to do that - and the question arose is, what interest, if any - there was no formal document - did the jetty
holders have in their jetty? And the Privy Council
gave them - I should say, ordered them - a perpetual
licence.

The flexibility of equity in this area, in

our submission, is well illustrated, not only by

what Their Lordships did, but by the cases they

cited, and might I take the Court to 713 of the

ClT20/l/FK	30	8/2/90
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report, towards the bottom of the page, where

there is a reference to RAMSDEN V DYSON:

In such a case -

Their Lordships say -

the evidence (according to Lord Kindsdon's view)

shewed that the tenant expected a particular

kind of lease, which Vice-Chareellor Stuart

decreed to him, though it does not appear what form

land would satisfy the equity raised in favour of those who spent their money on it, and it

of relief Lord Kingsdown himself would have

given. In such a case as the DUKE OF BEAUFORT V

was secured to them at a valuation. In such a

case as DILLWYN V LLEWELYN nothing but -

and I emphasi~e the language because it is in the
language of what do we need to do to fix the

problem -

nothing but a grant of the fee simple would satisfy the equity which the Lorn Chancellor held to have been raised by the son's

expenditure.

McHUGH J:  Those cases so interpreted almost seem to be an

illustration of making good the representation.

MR BLACK:  Yes, Your Honour, indeed, but -

McHUGH J: It is not the true doctrine, is it?

MR BLACK:  It is not the true doctrine and the way we cite it

is it is - the key to it is in the words "nothing

but", because it is "nothing but" that to do

their defence this time and admit liability again

as it was at the time we seek to go back.to_ - ta be

restored to that position. I think that is what

the Full Court were trying to do, and I think by

an oversight they did that.	We do not mind that.
If the Court pleases.

MASON CJ: Yes, thank yo~ Mr Thomson. Mr Black, how long is

your reply going to take?

MR BLACK:  Short, Your Hohour, I could undertake to be

no more than 10 minutes and it could possible be less.

MASON CJ: Very well, let us here your _reply now.

MR BLACK:  If the Court pleases. The first point we make is

what we might term the reliance type of detriment

that the equity realizes in relation to and it is

that which the costs compenstate for. That,we say,

is the only relevant detriment. Next, as to the

point made in the first paragraph of the outline,

about the modern developments of estoppel so that -

DEANE J:	Mr Black, why do you say that? Why are not costs
comparatively insignificant compared to the emotional aspect of people carrying on a case,reliving a tragedy of 20 years before,under the encouragement of
the Corrrrnonwealth?  Why should we not take account of
that?
MR BLACK:	In an appropriate case, Your Honour, it would be

difficult to resist that, if it were a clear matter

that that had happened, but the - - -

DEANE J:	Well, is there any dispute that they made themselves available for medical examination; they answered
questions; they gave discovery and what Mr Thomson
said,were right up at the stage of a hearing when
the Commonwealth finally changed its mind?
MR BLACX:.	There can be no dispute that whatever was necessary

in the action was done. I do not know precisely what

was done, but no doubt a lot of things.

DEANE J:	Well, that would m~an detailed statements of-what
had happened,going through the incident and everything
else.

(Continued on page 112)

CIT83/l/CM	111	8/2/90
Verwayen(2)

MR BLACK: But, Your Honour, on the facts of this case, the

action was started not in reliance upon any

promise. The promise that my friend relies upon

began after the action and, further - so that the

plaintiff embarked upon an action that would

involve reliving the circumstances in any event.

DEANE J:	But in a context that we have seen, and in a situation where one assumes if the Commonwealth had
said, or had not said, "We will not rely upon the to a very abrupt halt.
MR BLACK:	Your Honour, one just does not know what happened

to the plaintiff. It is after all for the plaintiff
to establish that there is a detriment against which

equity should relieve him by giving him, as it were,

the whole of his action back, other than what he has

apparently lost by appearing to rely upon the

Commonwealth promise. Now, Your Honour, it is a

rather hard answer but, in our submission, it is

the correct answer in this case.

GAUDRON J: Except that in the extraordinary way this

matter developed there was no opportunity for him

to have a hearing of anything. It was asserted

that all these matters could be tried on

undisputed material before the court.

MR BLACK: Well, Your Honour, again, that is what happened and had there been other matters there can be no doubt that Mr Thomson would have been astute to

advance his client's interest with vigour and

effectiveness on that point - no doubt.

Your Honour, in perhaps further answer to what Your Honour Mr Justice Deane put to me, we would

submit that the modern developments in the law of

estoppel should indicate that the flexibility that

was always present in the estoppel in its equitable

emanation should not be lost because of some

combination of the previously divergent streams, and

that is indicated by the modern - I use the expression -

the modern tendency of courts when looking at even
common law estoppel, to refer to - to use such phrases as -

"sufficient detriment', or "adequate detriment", a phrase, if

we might, with respect, remind Your Honour

Mr Justice Deane, that Your Honour used in FORAN's

case at 449.

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So that, in so far as common law estoppel

was rigid in its application, and equitable estoppel was·flexible, we would submit that in the developing
coherent doctrine the same flexibility should be

maintained, consistent, perhaps more, with the

equitable principles, so that even if one gets to a
conunon law situation where either you have it or

you do not, it is still a matter of looking at

whether there is, what is described as, sufficient

or adequate detriment.

(Continued on page 114)

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MR BLACK (continuing): Another very recent illustration

of that happening is the case of JANRED - I will

not give the full title - (1989) 2 All ER 444, and it is a decision of the Court of Appeal in England at 455C where this sufficient detriment
notion emerges.

As to whether this is what in truth occurred

here was a representation of fact or a promise,
we, of course, contend that it was a promise and
we would submit it bears all the marks of a promise

and it would indeed be odd if on the same facts

it could legitimately give rise on the one view

to a statement of fact that something had been

waived, that is to say, done and on the same facts

something has all the emanations of a promise

-	which allows equity to provide a flexible remedy
proportionate to whatever detriment happens to
be proved in the individual case; again, perhaps
an argument for flexibility in the merging streams
of estoppel.but, in any event, we say on the facts,
what in fact occurred was either a statement of
present intention - which was not shown to be wrong -
or a statement of promise as to the future which
attracts the particular rules relating to promissory matters without consideration.

BRENNAN J:  Mr Black, if this action had proceeded without

amendment of the defence and had gone to trial

and the verdict had passed in favour of the
plaintiff in the action, no question being raised

on the pleadingsof the Statute of Limitations,

what would have been the legal mechanism by which

that result would have been achieved in the light

of the statutory provision that no action shall

be brought after the limitation period?

MR BLACK:  I was going to say merger, Your Honour, the right

would simply merge into an unchallengable right

of judgment but that is rather off the top of my

head.

BRENNAN J:  No doubt it would have passed into judgment,

the cause of action would have passed into judgment

but how is it that the statute comes to be

overlooked?

MR BLACK: It appears, Your Honour, that it is something

that is regarded as a private matter in the sense that it is not a matter of public policy that the courts will look at for themselves, so that if

nobody raises it there is no objection in the action

being proceeded with.

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MR BLACK (continuing): It is a command, although in terms of

command it is not a command in the terms of criminal

prohibition or public policy prohibition. That is

all I can think of, Your Honour.

BRENNAN J:  ·Then, it must be a case of waiver, to use an

unfashionable term, perhaps.

MR BLACK:  Your Honour, that is our next point. We submit that

waiver is deservedly unfashionable because the only
independent existence that it really ever had apart from

estoppel, agreement or election - the only doctrinal

separate existence - was possibly to describe accurately

the unilateral action, or unilateral abandonment of a

right which, in those circumstances, was only a temporary

thing unless a party had acted on it to his detriment, and that aspect of the doctrine is discussed - I might give the Court the reference - and the case is set out

in Halsbury 4th edition, volume 16 at paragraph 1471, and

particularly the notes which indicate the

irrevocability of that sort of waiver.

The Full Court of the Supreme Court of Victoria

dealt with this same notion in KERRISON V MARTIN AND

HEYWARD, (1975) VR 401,and particularly at page 405.

In our submission, that case, and the cases cited in

it, and in Halsbury, support the view that if there is

such a thing as waiver, and many have said that there

is not, as a separate element, then it really only

describes the unilateral situation which is revocable

on notice in the absence of irretrievable detriment

on the part of the other side.

We say, too, that the case is not one of election

because there are no inconsistent rights and that the true definitions of election appear in the judgments of Your Honour the Chief Justice and Justice Stephen

131 CLR 634, particularly at 641 in Mr Justice Stephen I s	in SARGENT V AUSTRALIAN SECURITIES LIMITED,
judgment, and also in the judgment of Your Honour
the Chief Justice.

(Continued on page 116)

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MR BLACK (continuing):  The cases cited by my learned friend

and particularly THE "UHENBELS", I think it was,

are all, in our submission, explicable on a

conventional election estoppel grounds and, indeed,
THE UHENBELS' case was a case of an estoppel of a
matter extrinsic to the litigation. It was conduct
within the litigation that led to what would seem
to have been a common law estoppel as to a fact

outside the litigation. That is the existence

of a contract. So, that case, in our submission,

does not advance his case. If the Court pleases,

those are the submissions in reply.

MASON CJ:  Yes, thank you, Mr Black. The Court will consider

its decision in this matter.

AT 4.37 PM THE MATTER WAS ADJOURNED SINE DIE

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