Shahin Enterprises Pty Ltd v BP Australia Pty Ltd - [2019] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SHAHIN ENTERPRISES PTY LTD v BP AUSTRALIA PTY LTD
[2019] SASC 12
Judgment of The Honourable Justice Blue
8 February 2018
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS
CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - SALE OF BUSINESSES - OTHER CONDITIONS
HUMAN RIGHTS - PRIVACY LEGISLATION
Determination of preliminary issues (other than damages) in action for breach of contract.
The plaintiff Shahin and the defendant BP are parties to an agreement for the supply of petroleum products.
The Agreement by clause SC22.1(f) provides that it is BP’s sole discretion whether to brand a New Site but BP will strictly exercise that discretion in good faith with a bias towards branding. This is subject to an exception if branding may have a material adverse effect on a site that is near to the New Site in question.
The Agreement by clause SC21 provides that BP will regularly provide to Shahin information reasonably requested about its card customers who visit Shahin’s sites so that Shahin may market goods and services to these customers. This is subject to relevant privacy legislation.
The Agreement by clause SC8B contains a restraint of trade clause under which BP is prevented from branding as BP other service stations situated within 2 kilometres of a Shahin site. This is subject to an exception amongst others if a site is acquired by BP which exception applies at least if BP acquires a network of at least five service stations in each of South Australia, New South Wales and Victoria.
In August 2016 Shahin wrote to BP requesting names, contact details and other details in relation to BP Cardholders who had made purchases from Shahin service stations in the previous 24 months. Shahin said that its purpose in making this request was to market goods and services at its service stations directly to BP Cardholders. BP declined to provide the information requested on the ground that it would breach applicable privacy legislation.
In December 2016 BP entered into an agreement with Woolworths Ltd under which Woolworths granted to BP a call option to require Woolworths to execute an agreement to sell its Caltex Woolworths service stations throughout Australia to BP and BP granted to Woolworths a put option to require BP to execute the agreement to purchase its Caltex Woolworths service stations throughout Australia from Woolworths. Exercise of either option was subject to clearance or authorisation from the Australian Competition and Consumer Commission or a declaration of non-contravention of section 50 of the Competition and Consumer Act 2010 (Cth) by the Federal Court.
In January 2017 Shahin wrote to BP requesting BP to brand a new Naracoorte service station. BP declined the request on the ground that granting it would have a material adverse effect on a nearby Caltex Woolworths site that BP had contracted to acquire from Woolworths. In June 2018 BP terminated the Option Deed because the ACCC Acquisition Condition had not been satisfied by the relevant date.
Shahin advances three claims:
1. BP’s refusal to brand Shahin’s Naracoorte site was in breach of clause SC22.1(f).
2. BP’s refusal to provide the requested inforamtion in respect of its cardholders was in breach of clause SC21.
3. If the ACCC Acquisition Condition had been satisfied and the option under the Option Deed had been exercised and completion of the acquisition of the Caltex Woolworths service stations had occurred, BP would have been in breach of clause SC8B.
Held:
1. BP’s refusal to brand Shahin’s Naracoorte site was in breach of clause SC22.1(f):
(a) On its proper construction the reference to a site the subject of an adverse effect is to a site supplied with petroleum products by BP or at which BP (at [91]) and it must be in existence and not merely in contemplation as such a site (at [92-93]).
(b) On the facts it was always speculative whether the ACCC Acquisition Condition would be met and unless and until it was met all that could be said was that there was a prospect that BP might acquire the Naracoorte Woolworths site (at [95]).
(c) In these circumstances the adverse effect exception did not apply and BP’s refusal to to brand Shahin’s Naracoorte site was in breach of clause SC22.1(f) (at [100]).
2. BP’s refusal to provide the requested details in respect of its cardholder customers was not in breach of clause SC21.
(a) Disclosure by an organisation to another organisation for the purpose of direct marketing by the latter is governed by Principle 7 and not Principle 6 of the Australian Privacy Principles (at [134]).
(b) On its proper construction Principle 7.2 does not apply to the disclosure by an organisation to another organisation for the purpose of direct marketing by the latter (at [138]). In any event, BP cardholders would not reasonably expect BP to disclose their personal information to Shahin for the purpose of direct marketing by Shahin (at [193]).
(c) Clause 27 of the BP cardholder terms does not embody a consent within the meaning of Principle 7.3 by BP cardholders to the disclosure of their personal information by BP to Shahin for the purpose of direct marketing by Shahin (at [176]) or the use of personal information by Shahin for that purpose (at [204]).
(d) It was not impracticable within the meaning of Principle 7.3 for BP to obtain consent of cardholders to the disclosure of their personal information to Shahin for the purpose of direct marketing by Shahin (at [180]) or to use by Shahin thereof for direct marketing (at [204]).
(e) On the proper construction of Principle 6.1 there can be more than one primary purpose for the collection of personal information (at [186]).
(f) The disclosure by BP of personal information to Shahin for the purpose of direct marketing by Shahin was not a purpose for which the information was collected within the meaning of Principle 6.1 (at [187]).
(g) If Principle 6 applied to disclosure by BP of personal information to Shahin for the purpose of direct marketing by Shahin, such disclosure was not authorised by Principle 6 (at [195]).
(h) On its proper construction Principle 7.2(a) only applies when the organisation in question collected information from the individual (either directly or via an agent) and does not apply when the information was collected from someone other than the individual but the individual was the ultimate source of the information (at [202]).
(i) By reason of the initial qualifying words “Subject to relevant privacy legislation” BP is not obliged by clause SC21 to provide the requested information to Shahin if so doing would breach the Privacy Act or if any use by Shahin for direct marketing would breach it. Subject to any request by Shahin to BP to amend the Cardholder Terms or plea of breach by BP’s failure or refusal to do so, the question of compliance with the Privacy Act is to be determined based on the relationship between BP and its cardholders as the parties find it. The initial qualifying words apply (at [210]).
(j) Shahin cannot advance a case of breach of an implied obligation by BP to amend the Cardholder Terms to facilitate direct marketing by Shahin because it has not pleaded such a case (at [219]).
3. The question whether if completion of the acquisition of the Caltex Woolworths service stations had occurred BP would have been in breach of clause SC8B is hypothetical and it is inappropriate to decide it (at [228]).
Acts Interpretation Act 1901 (Cth) section 23; Competition and Consumer Act 2010 (Cth) sections 4, 50; Privacy Act 1988 (Cth) sections 6, 13, 13G, 14, 15, 52, 80U, 80W, Schedule 1; Regulatory Powers (Standard Provisions) Act 2014 (Cth) section 121, referred to.
Mackay v Dick (1881) 6 App Cas 251; Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311, considered.

SHAHIN ENTERPRISES PTY LTD v BP AUSTRALIA PTY LTD
[2019] SASC 12
BLUE J:

Shahin Enterprises Pty Ltd (Shahin) sues BP Australia Pty Ltd (BP) seeking declaratory relief, specific performance and damages for breach of an agreement entitled “BP Branded Privately Owned Sites Agreement” (the Agreement). These reasons address the preliminary trial of all issues other than damages.
In May 2013 Shahin (and related companies) entered into an agreement entitled “Governing Deed” to acquire from BP (and related companies) the freehold or leasehold interests in and business comprising 25 service stations operated by BP in South Australia. It was a term of that agreement that Shahin and BP enter into the Agreement, which they did in September 2013.
The Agreement by clause A12C contains a restraint of trade clause (the metropolitan restraint) under which BP is prevented from operating service stations in the greater Adelaide metropolitan area. This is subject to an exception (the Multi Site Network exception) if BP acquires a network of at least five service stations in each of South Australia, New South Wales and Victoria. The Agreement by clause SC8B contains a restraint of trade clause (the proximity restraint) under which BP is prevented from branding as BP other service stations situated within 2 kilometres of a Shahin site. This is subject to an exception amongst others if a site should be acquired by BP (the acquisition exception). The case was conducted on the assumption that the acquisition exception applies if the Multi Site Network exception applies.
The Agreement by clause SC22.1(f) provides that it is BP’s sole discretion whether to brand a New Site but BP will strictly exercise that discretion in good faith with a bias towards branding. This is subject to an exception (the adverse effect exception) if branding may have a material adverse effect on a site that is near to the New Site in question.
The Agreement by clause SC21 provides that BP will regularly provide to Shahin information reasonably requested about its card customers who visit Shahin’s sites so that Shahin may market goods and services to these customers. This is subject to an exception (the privacy exception) because it is expressed to be subject to relevant privacy legislation.
In August 2016 Shahin wrote to BP requesting names, contact details and other details in relation to BP cardholders who had made purchases from Shahin service stations in the previous 24 months. Shahin said that its purpose in making this request was to market goods and services at its service stations directly to BP cardholders. BP refused the request on the ground that it would breach applicable privacy legislation.
In December 2016 BP entered into an agreement with Woolworths Ltd entitled “Put and Call Option Deed” (the Option Deed) under which Woolworths granted to BP a call option to require Woolworths to execute an agreement to sell its Caltex Woolworths service stations throughout Australia to BP and BP granted to Woolworths a put option to require BP to execute the agreement to purchase its Caltex Woolworths service stations throughout Australia from Woolworths. Exercise of either option and completion under the contemplated agreement were subject to a condition amongst others (the ACCC Acquisition Condition) of clearance or authorisation from the Australian Competition and Consumer Commission or notice that it does not propose to intervene or a declaration of non-contravention of section 50 of the Competition and Consumer Act 2010 (Cth) or refusal of an application by the Commission for an injunction restraining completion by the Federal Court.
In January 2017 Shahin wrote to BP requesting BP to brand a new Naracoorte service station. In May 2017 BP declined the request on the ground that it would have a material adverse effect on a nearby Caltex Woolworths site that BP had contracted to acquire pursuant to the December 2016 agreement with Woolworths.
In June 2018 BP terminated the Option Deed because the ACCC Acquisition Condition had not been satisfied by the relevant date.
Shahin advances three claims in the action:
1BP’s refusal to brand Shahin’s Naracoorte site was in breach of clause SC 22.1(f) of the Agreement. This involves the construction of that provision, and in particular of the adverse effect exception, and its application to the facts in this case.
2BP’s refusal to provide the requested details in respect of its cardholders was in breach of clause SC21 of the Agreement. This involves the construction of clause SC21, the relevant privacy legislation being the Privacy Act 1988 (Cth) (the Privacy Act), clause 27(a) of the standard agreement between BP and its cardholders and BP’s Privacy Policy.
3If the ACCC Acquisition Condition had been satisfied and the option under the Option Deed had been exercised and completion of the acquisition of the Caltex Woolworths service stations had occurred, BP would have been in breach of clause SC8B of the Agreement. This involves the construction of clause SC8B and in particular of the acquisition exception.
Background
In general terms I describe the position as it was in May-September 2013[1] when the parties entered into the Governing Deed and the Agreement. Unless otherwise stated, I refer to the position at that time but for ease of reference I use the present tense.
[1] The position was materially the same throughout the period from May to September 2013.
The parties and the industry
BP carries on business in Australia as a wholesaler of petroleum products and retailer of petroleum and other products and services.
In its capacity as retailer, BP operates 330 service stations (company service stations) around Australia, which sell petroleum products, motor vehicle related products and services and in some cases also food, drinks and groceries. These service stations are known as “Company Owned Company Operated sites” or “COCO sites” for short. In some cases BP or an associated company owns the freehold; in other cases BP or an associated company has a leasehold interest. In Australia as a whole, approximately half of the BP company service stations are owned freehold and half are leasehold. In South Australia there were prior to the Agreement 25 BP company service stations of which all but one were owned freehold.
In its capacity as wholesaler, BP sells petroleum products to approximately 750[2] independently owned dealer service stations around Australia (dealer service stations). These service stations are known as “Dealer Owned Dealer Operated sites” or “DODO sites” for short. In the great majority of cases, BP licenses use of its brand, including the right to use its name, to the dealer. There is a perception in the market that selling BP branded fuel adds value to a service station compared to selling generic fuel that is in fact supplied by BP.
[2] This figure has now grown to over 1,000.
If an existing or prospective dealer seeks a licence to brand a service station as a BP service station, BP follows a practice of requiring a request for branding approval. BP’s Vice President of Sales and Marketing (VP Sales) has authority to approve branding requests. Since April 2016 Brooke Miller has held that position. BP has a Branding Committee, chaired by the VP Sales, which advises the VP Sales on branding requests. Requests for branding are considered in the first instance by BP’s Dealer Manager for Australia, who has authority to reject a request or to recommend it to the Committee for approval but has no authority to approve it. If BP is not subject to any constraint as a result of an existing agreement with an applicant for a licence, the VP Sales and the Committee usually have regard to the proximity of the service station in question to existing or proposed BP branded service stations. If a branding request is approved, BP issues a branding letter to the dealer.
There are four companies or groups in Australia who supply petroleum products by wholesale known as “the major oil companies” or “the majors” for short. They are Caltex, Shell, BP and Mobil. Caltex and BP are also retailers of petroleum products. Mobil does not itself operate any service stations, having in 2010 sold its service stations business in South Australia to Shahin and elsewhere in Australia to 7-Eleven.[3] Shell does not itself operate any service stations, having in 2004 sold its service stations business in Australia to Coles. Coles operates those service stations pursuant to leases granted by Shell. Coles uses Shell branding for those service stations.
[3] After the Agreement was entered into, 7-Eleven service stations resumed the use of Mobil branding.
In 1996 Woolworths commenced leasing land and building service stations which were branded as Woolworths. In the first half of the 2000s, Caltex and Woolworths entered into an agreement under which Woolworths operates service stations around Australia branded as Caltex Woolworths service stations which are supplied with petroleum products by Caltex. Woolworths leases most of these service stations. Caltex itself operates of the order of 700 service stations and Woolworths operates of the order of 400 to 450 service stations. In addition, independent dealers operate Caltex branded service stations.
There are companies or groups independent of the majors known as “independent all companies” or “independents” for short, such as Liberty and United, who tend to sell fuel at prices cheaper than the majors. Treating market share as encompassing both company and dealer service stations, BP’s market share nationally is approximately 10 per cent,[4] Shell’s share is higher and Caltex’s share is the highest at approximately 20 per cent.
[4] This figure has now grown to about 13%.
Shahin carries on business predominantly in South Australia as a retailer of petroleum and other products and services. Shahin is a part of the Peregrine Corporation group of companies (the Peregrine Group) which is ultimately owned and controlled by the Shahin family. The directors of the Peregrine Group companies are Yasser Shahin, Khalil Shahin AO and Dr Samer Shahin. Yasser Shahin is executive director and chairman of Shahin.
Peregrine Group companies own the freehold of the great majority of service stations operated by Shahin. Shahin leases the land from those companies and, when the freehold is owned by a third party, leases the land from the third party landlord.
The Shahin family arrived in Australia in 1984 and the Shahin brothers’ father Fred Shahin commenced operating a service station in 1984. Yasser Shahin commenced working part-time in Shahin service stations by 1990. Since that time, apart from the Mobil service stations acquired in 2010, all Shahin service stations have been supplied with fuel by BP. Yasser Shahin commenced working full time for the Peregrine Group in 1997. At that time the Shahin family was operating three or four service stations in South Australia.
Dealings between the parties
At some point BP and Shahin entered into a Privately Owned Sites Agreement governing the supply of petroleum products by BP to Shahin and use of BP branding.
At some point Shahin commenced branding its service stations as “On The Run” (or “OTR” for short). Its service stations were co-branded as OTR and BP (or in the case of the Mobil service stations acquired in 2010 as OTR and Mobil).
As noted above, in 2010 Mobil divested its business of retail sale of petroleum products in Australia. Mobil entered into an agreement with Shahin and related companies to sell its business comprising 28 South Australian company service stations to Shahin, the freehold in respect of 24 of those service stations to Peregrine Group companies and the leasehold in respect of the other four service stations operated by Mobil to Peregrine Group companies. At the same time Mobil entered into an agreement with Shahin (the Mobil Supply Agreement) for Shahin to purchase from Mobil petroleum products for supply to those service stations until 10 October 2015.

Immediately before the parties entered into the Governing Deed in 2013 BP operated 25 company service stations in South Australia in respect of which associated companies owned the freehold of 24 service stations and BP leased one service station from a third party landlord. Sixteen service stations were situated in the greater Adelaide metropolitan area (metropolitan service stations) and nine were situated in country towns (country service stations).
BP also owned the freehold of two Truck Stop service stations at Port Augusta and Wingfield which were operated by a third party pursuant to a licence from BP that operated Australia-wide which service stations sold principally diesel fuel. In addition BP supplied petroleum products by wholesale to other dealers comprising at least the Agostino group which operated approximately 10 service stations.
At that time Shahin operated 54 OTR service stations in South Australia branded as BP service stations. Peregrine Group companies owned the freehold of 52 of those service stations and Shahin leased the land in respect of the other two service stations from third party landlords. Shahin also operated 28 OTR service stations in South Australia branded as Mobil service stations (being those acquired in 2010). Peregrine Group companies owned the freehold of 24 of those service stations and Shahin leased the land in respect of the other four service stations from third party landlords.
The governing deed and the agreement
On 13 May 2013 BP and its associated freehold owning companies entered into an agreement with Shahin and its associated intended freehold owning companies entitled the Governing Deed (the Governing Deed). It provided for the sale of the freehold interest in the land on which BP’s 24 South Australian service stations were operated and the leasehold interest in the land on which BP’s 25th service station was operated for $54.71 million plus the value of inventory and subject to adjustments. The Governing Deed differentiated between metropolitan service stations (which it called “the COCO sites”) and country service stations (which it called “the Dermody sites” because they were owned by a BP associated company called Dermody Petroleum Pty Ltd).
It was a condition precedent (the Shahin competition condition) of completion of the acquisition of the COCO sites assets under the Governing Deed (by clause 2.1) that by a defined date either the Australian Competition and Consumer Commission (the ACCC) give informal merger clearance or a court order that the acquisition would not contravene section 50 of the Competition and Consumer Act 2010 (Cth) (the Competition Act). If this condition was not satisfied, the acquisition of the country service stations was still to proceed together, at the option of Shahin, with the acquisition of three metropolitan service stations subject to a similar condition with respect to section 50 of the Competition Act.
It was a condition subsequent (the POSA condition) of the Governing Deed (by clause 2.9) that if, by a defined date the parties had not entered into a new Privately Owned Sites Agreement in the form set out in annexure D to the Governing Deed or such other form as the parties might agree (the new POSA), the Governing Deed would automatically terminate. It was a term of the Governing Deed (by clause 2.7(e)) that, if the Shahin competition condition was not satisfied, the terms of the new POSA would continue to be binding on the parties except in respect of those provisions expressly stated therein to take effect only on satisfaction of the Shahin competition condition.
On about 26 September 2013 BP and Shahin entered into the Agreement in terms of Annexure D to the Governing Deed with agreed variations. The Agreement provides for the supply of petroleum products by BP to Shahin and for a licence by BP to Shahin to use BP branding on certain terms and conditions.
The Agreement relates to “Sites”, which are described in the Schedule Item 5. Sites are divided into four classes being:
·Service stations acquired from Mobil in 2010 (“the Former Mobil class”).
·Metropolitan service stations to be acquired from BP under the Governing Deed (“the Former COCO class”).
·Country service stations acquired from BP under the Governing Deed (“the Former Dermody class”)
·Ordinary OTR service stations (“the OTR class”).
The Term of the Agreement varies according to Site class (Schedule Item 6). It also varies depending on whether the Shahin competition condition under the Governing Deed is satisfied. As that condition was in fact satisfied, I set out only the primary Term for the Site classes as follows:
·Service stations acquired from Mobil in 2010 – 10 years from 10 October 2015 or any earlier termination date of the Mobil Supply Agreement.
·Service stations acquired from BP under the Governing Deed – 15 years from the date of transfer of the first service station under the Governing Deed.
·Other OTR service stations – nine years and six months from 1 January 2012.
BP was required to brand all of the existing service stations falling within the four classes with the exception of up to four Former Mobil Sites, unless Shahin nominated a service station to be unbranded under clause SC22 summarised below (clause SC8A).
The Agreement imposes constraints on Shahin in terms of purchasing fuel. Shahin is required to purchase exclusively from BP all of its fuel requirements at the Sites (clause A4.2). Conversely BP is required to supply to Shahin all of its fuel requirements (clause A4.1). BP is to be the exclusive supplier of fuel (excluding LPG at nominated country LPG sites) to Shahin during the Term in respect of each Site Class, unless Shahin acquires a network of sites subject to a pre-existing fuel supply agreement (clause SC22.1(a) and (g)). All fuel supplied to unbranded sites must be BP fuel (clause SC22.1(a) and (j)).
Various constraints are imposed on Shahin in terms of leasing or licensing a site (clause A5.9) or disposing of a site (clauses A5.10 and A12A).
The Agreement imposes constraints on BP in terms of operating service stations. BP is precluded (the metropolitan restraint) from carrying on a business of retail supply of fuel to consumers within the greater Adelaide metropolitan area for the Term, subject to an exception if it acquires a Multi Site Network (a network of sites for the retail sale of fuel direct to retail customers including at least five sites in each of South Australia, New South Wales and Victoria) (clause A12C). BP is precluded (the proximity restraint) from branding as BP any site at which fuel is sold by retail situated within two kilometres of the service stations listed in the Schedule Item 5, subject to an exception if the site is already branded BP or is acquired by BP or an associated company (clause SC8B). This is subject to a condition that Shahin maintains at least 100 service stations supplied by BP.
BP is required to undertake advertising and sales promotion of products and services available at BP Retail Fuel Outlets (clause A7.4).
Clause SC21 requires BP, subject to relevant privacy legislation, regularly to provide to Shahin information reasonably requested about BP card customers who visit Shahin’s Sites so that it can market goods and services to those customers.
Clause SC22 relates to the supply and branding of New Sites. Clause SC22.1(d) provides that, if Shahin or a Peregrine Group party to the Governing Deed acquires freehold or leasehold of a new fuel site in South Australia during the Term, the new site must be added to the Agreement under clause SC22.1(e), unless Shahin acquires a network of sites subject to a pre-existing fuel supply agreement.
Clause SC22.1(e) provides for Shahin to nominate a fuel site to be added to the Agreement under clause SC.1(d) by written notice. The site is to be added to the Schedule Item 5 in the “OTR” Site Class by deed of variation. The site is to be added as a Branded Site if BP determines to brand it and otherwise as an Unbranded Site (also called a non-Branded Site). Under clause SC22.1(i), Shahin may nominate any site (new or existing) to be or become an Unbranded Site but subject to a maximum of 12 Unbranded Sites at any one time.
Clause SC22.1(f) provides that, subject to clause SC22.1(i), it is BP’s sole discretion whether to brand any New Sites. However, it also provides that “BP will strictly exercise that discretion in good faith with a bias towards branding unless doing so may have a material adverse effect on a site that is near to the New Site in question”.
The typical cost of establishing pylons, price boards and main identification displays to show the branding of a service station is in the order of $100,000 to $200,000. If Shahin establishes a BP Branded Site, this cost is met by BP. If Shahin establishes an Unbranded Site, this cost is met by Shahin.
In due course the Shahin competition condition was satisfied and completion occurred on the sale of all of the assets the subject of the Governing Deed. It appears that completion occurred in respect of the country service stations before the metropolitan service stations.
In due course BP determined which former Mobil service stations would be branded as BP sites and which would not. I infer that four or less were unbranded because this was the maximum BP was permitted to nominate as unbranded.
Subsequent events
Between September 2013 and December 2016 Shahin nominated several new sites for addition to the Agreement as Branded Sites. In each case BP determined to brand the New Site.
In January 2016 Shahin started developing an OTR service station on the corner of Highway A66 and Smith Street Naracoorte (the OTR Naracoorte service station). This was approximately one kilometre from a Caltex Woolworths service station (the Woolworths Naracoorte service station).
As at December 2016 Woolworths operated 527 Caltex Woolworths service stations around Australia and had a further 16 under construction. Woolworths operated 36 Caltex Woolworths service stations in South Australia.
On 24 December 2016 BP and Woolworths executed a Put and Call Option Deed (the Option Deed). Woolworths granted to BP a call option to require Woolworths to execute a Business Sale Agreement being the annexure to the Deed (the draft Business Sale Agreement) (clauses 3 and 4). BP granted to Woolworths a put option to require BP to execute the draft Business Sale Agreement (clauses 5 and 6). There were three conditions precedent to the exercise of either option and of completion under the Business Sale Agreement (the Conditions). The Conditions were:
1“the ACCC Acquisition Condition” being either a clearance or authorisation from the ACCC or notice that it does not propose to intervene or a declaration of non-contravention of section 50 of the Competition Act or refusal of an application by the ACCC for an injunction restraining completion by the Federal Court;
2“the ACCC Alliance Authorisation” condition being an authorisation from the ACCC in respect of potential contraventions of specified provisions of Part IV of the Competition Act in relation to various aspects of Woolworths and BP loyalty schemes;
3the “Regulatory Condition” being the Treasurer either providing written notice of no objection to the proposed acquisition under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (the Foreign Acquisitions Act) or becoming precluded from exercising powers under that Act in relation to the proposed acquisition.
It was a term of the Option Deed that the put option and call option could only be exercised after satisfaction or waiver of all three conditions and in any event after 2 September 2017. It was a term that either party could terminate the Deed if any condition was not satisfied or waived before the End Date. The End Date was defined to be 18 months after the date of the Option Deed, ie 24 June 2018.
The draft Business Sale Agreement provided for the sale by Woolworths to BP of the leasehold interest in land and fixtures and the business and assets comprising the 543 Caltex Woolworths service stations being operated or under construction by Woolworths (the Woolworths service stations) for a defined Purchase Price. The definition of the Purchase Price was not contained in the redacted version of the draft Business Sale Agreement tendered at trial. However the parties publicly announced on 28 December 2016 that the purchase price was US$1.3 billion (A$1.785 billion). The agreement to buy and sell the Woolworths service stations and to complete the transaction was conditional on the same Conditions to which the Option Deed was subject (clause 2). Clause 7.8 provided that beneficial ownership and risk in the Woolworths service stations remained solely with Woolworths until completion and passed to BP on and from completion.
On 28 December 2016 BP and Woolworths each issued a press release announcing the agreement. They stated that it was subject to approval from the ACCC and the Foreign Investment Review Board. BP stated that the transaction was expected to be completed (subject to the conditions) over the next 12 months.
On 23 August 2016 Shahin wrote to BP requesting the name, contact details, industry, purchase volume and non-fuel product purchase information of BP Cardholder customers who had made purchases from Shahin service stations in the previous 24 months. Shahin said that its purpose in making this request was to market goods and services at its service stations directly to BP Cardholder customers.
On 23 December 2016 there was a meeting between BP and Shahin at which BP informed Shahin that its request for cardholder information was refused because it would breach applicable privacy legislation.
On 9 January 2017 Shahin sent an email to BP reiterating its request for information about BP cardholders and attaching “high level legal advice” that, by reference to BP’s Cardholder Terms, BP was permitted by Privacy Principle 7.2 to disclose the information to Shahin for the purpose of direct marketing.
On 27 January 2017 BP sent an email to Shahin saying that Shahin would be considered a competitor rather than an agent of or service provider to BP and offering to carry out marketing mailouts for Shahin and/or to provide aggregate data (such as male/female statistics) that does not include specifics of customers details.
On 31 January 2017 Shahin sent an email to BP rejecting the offers of marketing mailouts and/or aggregate data, taking issue with BP’s claim that Shahin was seen as a competitor rather than a service provider and its relevance to BP’s obligation to provide the information and reiterating the request.
On 15 February 2017 BP sent an email to Shahin saying that BP had made two offers to accommodate Shahin’s commercial objectives in making the request while complying with obligations under privacy legislation, enquiring what Shahin’s commercial objectives were if they were no not met by these two offers, maintaining that Shahin was a competitor of BP, stating that the cardholder terms did not permit BP to share personal customer information with a dealer the purpose of direct marketing by the dealer, and reiterating the two offers.
On 16 January 2017 Shahin sent an email to BP requesting BP to brand the OTR Naracoorte service station.
On 8 May 2017 there was a meeting of BP’s Branding Committee. It recommended rejection of Shahin’s Naracoorte branding request. This was because it was considered that branding the OTR Naracoorte service station would have a material adverse effect on the Woolworths Naracoorte service station if and when it was acquired by BP pursuant to the Business Sale Agreement if executed. This recommendation was accepted by Ms Miller who decided to reject the request. On 8 May 2017 BP wrote to Shahin declining to brand the OTR Naracoorte site.
On 10 May 2017 Shahin sent an email to BP asking why BP decided not to brand the site. On 12 May 2017 BP responded saying “There is a nearby site to the new site in question that BP has contracted to acquire”. On 8 June 2017 Shahin responded saying that BP’s position on branding Naracoorte was going to be challenged. On 11 June 2017 BP responded saying that BP had entered into a contract to purchase Woolworths’ fuel business and, subject to regulatory approval and the ACCC’s directions, BP currently planned to run the site and considered that branding may have a material adverse effect on the site.
On 14 December 2017 the ACCC issued a press release announcing that it intended to oppose the proposed acquisition by BP of the Woolworths service stations. The chairman said that the ACCC considered that BP acquiring Woolworths’ service stations would be likely to substantially lessen competition in the retail supply of fuel.
On 22 December 2017 Shahin’s solicitors wrote to BP’s solicitors referring to the ACCC’s decision. They contended that this rendered the factual basis for the refusal to brand the OTR Naracoorte site no longer tenable and requested that BP immediately reconsider its decision not to brand the OTR Naracoorte site.
On 23 January 2018 the OTR Naracoorte service station opened as an OTR branded service station.
On 15 March 2018 BP wrote to Shahin stating that the OTR Naracoorte service station and seven other OTR service stations the subject of branding requests “have not been granted branding approval”. It said that for each of the eight sites there was a nearby site that BP had contracted to acquire. It said that BP was willing to reconsider the branding requests in the event that it no longer intended to acquire the relevant nearby site.
With effect on 24 June 2018 BP terminated the agreement with Woolworths to acquire its service stations due to continuing opposition by the ACCC because the ACCC Acquisition Condition had not been satisfied by the End Date.
The trial
Yasser Shahin gave written and oral evidence in chief and was cross-examined. In addition Shahin tendered various documents.
Brooke Miller gave written and oral evidence in chief and was cross-examined. In addition BP tendered various documents.
Most of the testimonial evidence was ultimately uncontentious. My findings based on that evidence, where potentially relevant, are set out in the Background section above.
In addition Ms Miller gave evidence that, if she had not taken the view that the Woolworths Naracoorte service station was “a site that is near to the New Site in question” within the meaning of clause SC22.1(f), she would have granted branding approval. In light of that evidence, as explained below Shahin’s claim in respect of the OTR Naracoorte service station turns on a single issue of construction of the words “a site that is near to the New Site in question” in clause SC22.1(f) and application to the facts of the case.
Principles of contractual construction
Issues of construction arise in respect of clauses SC21 and SC22.1(f) of the Agreement and clause 27 of the BP Cardholder Terms.
The following principles governing the construction of contracts are well settled and are common ground between the parties:
1A contract is to be construed objectively by reference to the understanding of a reasonable person, and in the case of a commercial contract a reasonable business person, in the position of the parties.[5]
2A provision is to be construed by reference to its text, context and evident purpose.[6]
3The starting point is the contractual intention manifest in the text.[7] If the meaning of the text is clear, the court must give effect to it, subject only to an exception when the result would be logically or commercially absurd or irrational such that it cannot have been the parties’ intention (the absurdity exception).[8] In the present case it is not necessary to analyse where the line is drawn between absurdity/irrationality and mere unreasonableness.
4The context includes not only the immediately surrounding provisions and the provisions of the contract as a whole but also the genesis of and background to the transaction, the context of the contract, the market in which the parties operate (when relevant) and other objective circumstances in which the contract was made.[9] These circumstances must be objectively manifest in the sense of mutually known to the parties at the time of contracting so as not to offend principle 1 identified above.[10]
5The evident purpose of a provision is gleaned from the same matters, namely the text and the context encompassing the matters referred to in principle 4 above.[11]
6In the case of commercial contracts, subject to the constraints imposed by the text referred to above, a commercial contract should ordinarily be given a businesslike interpretation so as to produce a commercial result.[12]
[5]    Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, (2004) 218 CLR 451 at [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Electricity Generation Corporation v Woodside Petroleum Limited [2014] HCA 7, (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ.
[6]    Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, (2004) 218 CLR 451 at [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Mount Bruce Mining Pty Ltd v Wright Prospecting PtyLtd [2015] HCA 27, (2015) 206 CLR 104 5at [46] per French CJ, Nettle and Gordon JJ.
[7]    Byrnes v Kendle [2011] HCA 26, (2013) 243 CLR 253 at [17] per French CJ, [59] per Gummow and Hayne and [98] per Heydon and Crennan JJ.
[8]    Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 at 913 per Lord Hoffmann (with whom Lord Goff of Chieveley, Lord Hope of Craighead and Lord Clyde agreed) cited with approval in Maggbury Pty Ltd v Hafele Aust Pty Ltd [2001] HCA 70, 210 CLR 181 at [43] per Gleeson CJ, Gummow and Hayne JJ. See also Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201 per Lord Diplock.(with whom Lord Keith of Kinkel, Lord Scarman, Lord Roskill and Lord Brandon of Oakbrook agreed)
[9]    Electricity Generation Corporation v Woodside Petroleum Limited [2014] HCA, (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ; Mount Bruce Mining Pty Ltd v Wright Prospecting PtyLtd [2015] HCA 27, (2015) 206 CLR 104 at [49]-[50] per French CJ, Nettle and Gordon JJ.
[10] Mount Bruce Mining Pty Ltd v Wright Prospecting PtyLtd [2015] HCA 27, 206 CLR 104 at [50] per French CJ, Nettle and Gordon JJ.
[11] Electricity Generation Corporation v Woodside Petroleum Limited [2014] HCA, (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ; Mount Bruce Mining Pty Ltd v Wright Prospecting PtyLtd [2015] HCA 27, (2015) 206 CLR 104 at [49]-[50] per French CJ, Nettle and Gordon JJ.
[12] Electricity Generation Corporation v Woodside Petroleum Limited [2014] HCA, (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan and Kiefel JJ; Mount Bruce Mining Pty Ltd v Wright Prospecting PtyLtd [2015] HCA 27, (2015) 206 CLR 104 at [51] per French CJ, Nettle e and Gordon JJ.

There is one difference between the parties which concerns the adducing of extrinsic evidence of context and purpose. Shahin contends that such evidence is always admissible but, just like intrinsic evidence, it cannot result in a construction which the text will not bear (subject only to the absurdity exception). BP contends that extrinsic evidence is not admissible unless it is first identified that there is a constructional choice arising from intrinsic considerations.
It is not necessary to resolve this difference because BP articulates a “constructional choice” as meaning “any situation in which the scope of applicability of a contract is doubtful”.[13] In respect of clause 22.1(f) of the Agreement, there is a constructional choice and hence extrinsic evidence is admissible on any view. In respect of clause SC21 of the Agreement and clause 27 of the BP Cardholder Terms, no extrinsic evidence was adduced. However, for the sake of completeness, I prefer Shahin’s contention because there is no satisfactory distinction between intrinsic and extrinsic evidence of context and evident purpose and in both cases the text of the provision acts as a constraint on the influence of context and evident purpose.
[13] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216, (2012) 45 WAR 29 at [77] per McLure P.
The OTR Naracoorte service station
The first cause of action turns on the construction and application of clause SC22.1(f) which provides:
Subject to SC 22.1(i), it is BP’s sole discretion whether to brand any new sites. However BP will strictly exercise that discretion in good faith with a bias towards branding unless doing so may have a material adverse effect on a site that is near to the New Site in question.
Clause SC22.1(f) must be understood in the immediate context of clause SC22.1 (and of course the wider context of the provisions of the Agreement as a whole). Paragraphs (b) and (c) address LPG sites only and can be ignored in considering the immediate context of clause SC22.1. Paragraph (a) (summarised above) requires Shahin to purchase fuel exclusively from BP and can be treated as part of the wider context rather than the immediate context. With those exceptions, clause SC22.1 provides:
(d)Subject to SC 22.1(g) if the Dealer or any Land Owning Entity acquires the freehold or leasehold of a new fuel site in South Australia (“New Site”) during the Term, then:
(i)    that New Site may be added to the Agreement by Dealer in accordance with SC22.1(e)(i)-(iii); and
(ii)     FORMER COCO SITE CLASS ONLY: that New Site must be added to the Agreement by Dealer in accordance with SC 22.1(e)(i)-(iii)
and in that case, BP shall be the exclusive supplier of petroleum products (other than LPG at non-BP LPG sites) to that site.
(e)The Dealer must nominate a fuel site to be added to the Agreement under paragraph (d) by giving notice in writing to BP and that site shall be added to the agreement as follows:
(i)[14]    If BP determines to brand a New Site then that site will be added to Item 5 of this Agreement in the “OTR” Site Class as a Branded Site by way of deed of variation and governed exclusively by the terms of this Agreement.
[14] These subparagraphs are erroneously numbered (iii) to (v) but it is common ground that they should be numbered (i) to (iii) and are the subparagraphs referred to in paragraph (d).
(ii)     If BP determines not to brand a New Site then:
A.BP must supply the site; and
B.the site will be added to Item 5 of this Agreement in the “OTR” Site Class as a non Branded Site by way of deed of variation and governed exclusively by the terms of this Agreement.
(iii)     If the Dealer nominates a site to be an Unbranded Site under SC 22.1(i), then:
A.BP must supply the site; and
B.if the site is a New Site, the site will be added to Item 5 of this Agreement in the “OTR” Site Class as a non Branded Site by way of deed of variation and governed exclusively by the terms of this Agreement; or
C.if the site is an existing Site, then that Site will be described as an Unbranded Site in Item 5 of this Agreement in the “OTR” Site Class as a Branded Site by way of Deed of Variation.
(f)Subject to SC 22.1(i), it is BP’s sole discretion whether to brand any new sites. However BP will strictly exercise that discretion in good faith with a bias towards branding unless doing so may have a material adverse effect on a site that is near to the New Site in question.
(g)SC 22.1(a) and SC 22.1(d) do not apply in respect of New Sites that are part of a network or group of new fuel sites acquired by the Dealer where that acquisition is subject to the supply of Petroleum Products by someone other than BP.
(i)The Dealer may by notice in writing to BP nominate a site to be an Unbranded Site provided that such nomination does not result in more than 12 Unbranded Sites in this Agreement, including for these purposes the BP Nominated Unbranded Sites.
(j)For the avoidance of any doubt and subject to the provisions of this Agreement, the supply of Motor Fuels by BP to the Dealer to:
(i)    Sites identified in item 5 of this Schedule, is by way of exclusive supplied by BP;
(ii)     New Sites, is by way of exclusive supply to BP if this Agreement commences in respect of Former COCO Sites under the Governing Deed; and
(iii)     New Sites is not by way of an exclusive supply to BP if this Agreement does not commence in respect of the Former COCO Sites under the Governing Deed.
Clause SC22.1(f) can be conceptually divided into the following components:
1The starting point is that it is BP’s sole discretion whether to brand any new sites.
2This is subject to two provisos:
a.(clause to SC 22.1(i)): the Dealer may nominate a Site to be an Unbranded Site provided that such nomination does not result in more than 12 Unbranded Sites (the first proviso);
b.BP must strictly exercise the discretion in good faith with a bias towards branding (the second proviso).
3The second proviso is itself subject to an exception if branding may have a material adverse effect on a site that is near to the New Site in question (the adverse effect exception).
Shahin contends that the adverse effect exception does not apply in respect of the OTR Naracoorte service station because when BP refused branding BP did not own or have a proprietary interest in the land in respect of the Woolworths Naracoorte service station. BP contends that on its proper construction the exception does not require that BP have a proprietary interest and in the alternative it had an equitable interest pursuant to the Option Deed.
Shahin concedes that, if the exception applies, it will fail on this cause of action. Conversely BP concedes that, in the light of the evidence given by Ms Miller summarised at [70] above, if the exception does not apply, this cause of action will be established and Shahin will be entitled to appropriate relief (as to which BP seeks to be heard after delivery of these reasons for judgment). Accordingly, as noted above the resolution of this cause of action turns on the construction and application of the adverse effect exception.
Construction of the exception
Starting with the text of the adverse effect exception, the subject of the clause is “branding”, the verb is “may have a material adverse effect on” and the object is “a site that is near to the New Site in question”. The meaning of the subject, namely branding a service station as a BP service station, is clear. There is no dispute about the verb. The dispute relates to the object of the clause.
The object of the clause is expressed to be a site (the other site) that is near to the New Site in question. The word “site” (in lower case) is not a defined term. However, the term “Site” (beginning with an upper case) is defined by clause A18.1 as follows:
“Site” means the premises described in item 5 of the Schedule or any part of those premises and includes, as well as the land, buildings and other improvements on it including, without limitation, the apron and the underground tanks and all trade fixtures attached to the premises, relating specifically to the Fuel Retailing Business, whether those buildings, improvements or fixtures exist on, or erected or made after this Agreement commences…
It is clear that the term “Site” refers to physical premises (land and improvements) as opposed to an abstract business conducted thereon.
The term “New Site” is defined by clause SC22.1(d) as extracted at [76] above. Turning the language of clause SC22.1(d) into standard definitional language (per clause A18.1) results in reproduction of the definition as follows:
“New Site” means the freehold or leasehold of a new fuel site in South Australia acquired by the Dealer or any Land Owning Entity.
It is clear that the term “New Site” refers to also physical premises as opposed to an abstract business conducted thereon and refers more particularly to ownership, in the form of freehold or leasehold, of those physical premises.
The definitions of the terms “Site” and “New Site” do not apply to the undefined term “site” but contextually they may give some guidance as to the meaning of the undefined term, provided that appropriate caution is exercised not merely to substitute the defined terms for the undefined term.
The undefined term “site” is used in various places throughout the Agreement. It is used in a manner that is consistent with the term referring to physical premises.
BP concedes that, for the exception to apply, it must have some interest in the other site: it would not be sufficient for example that branding may have a material impact on a Shell site or a Liberty site. Because the text does not explicitly state the interest that BP must have in the site, it is necessary to have regard to context and evident purpose (which of course is necessary in any event).
The immediate context of clause SC 22.1(f) is that BP is to be the exclusive supplier of Petroleum Products (subject to a limited exception in respect of LPG at LPG Sites) to Shahin (paragraphs (a) and (j)), Shahin must nominate any new fuel site in which it acquires the freehold or leasehold for addition to the Agreement (paragraphs (d)(ii) and (e)) and Shahin cannot operate more than 12 Unbranded Sites (paragraph i)).
The greater context is that Shahin acquired all of BP’s South Australian service stations pursuant to the Governing Deed, which was interrelated with the Agreement, and (subject to Shahin maintaining at least 100 service stations supplied by BP or BP acquiring the site itself where permitted) BP is precluded from branding as BP any new site at which fuel is sold by retail situated within two kilometres of a Shahin service station. The Agreement proceeds on the basis that it is beneficial to Shahin that its service stations be branded as BP, which is confirmed by the extrinsic evidence of circumstances known to both parties.
The evident purpose of the exception is that the establishment of a new BP branded service station within close proximity to an existing BP branded service station is likely to have an adverse effect on revenue generated by the existing service station which in turn may have an adverse effect on BP’s revenue from the wholesale supply of petroleum products and, if BP itself is operating the existing service station, on BP’s revenue from the retail supply of petroleum products at the existing service station. Given the restraint of trade provisions precluding (albeit subject to exceptions) BP from carrying on business as a retailer within the greater Adelaide metropolitan area or branding a site within 2 kilometres of a Shahin service station, it appears that the principal concern of the exception is service stations operated by other dealers. Nevertheless it also applies to service stations which BP is permitted to operate and at least in theory to service stations operated by Shahin itself.
Having regard to text, context and evident purpose, on the proper construction of clause SC22.1(f) the other site must be a site supplied with petroleum products on a wholesale basis by BP or at which BP supplies petroleum products by retail (in which case the site will also be supplied wholesale by BP).
Turning to the temporal aspect of the supply, the object of the clause is expressed to be a site that is near to the New Site in question. The draftsperson used the present tense rather than any future or conditional tense: this suggests that to fall within the exception the other site must be in existence and not merely in contemplation as a BP supplied service station. This is reinforced by the context in that the Agreement proceeds on the basis that branding is valuable to Shahin and will be applied to the great majority of its sites such that it is not to be denied merely because there is a contemplation or prospect that the other site will become a BP supplied service station at some point in the future.
This does not mean that the service station must be in operation or supplied by BP on the date on which the branding decision is made. For example, if a branding decision were made during construction of a new BP-branded service station or before settlement on the purchase of an existing service station to become a BP-branded service station, the site would still be in existence at the relevant time. On the other hand, if another dealer or BP itself is merely contemplating acquisition of the site, this would not suffice.
Application to the facts
In December 2016 BP and Woolworths Ltd executed the Option Deed under which Woolworths granted to BP a call option to require Woolworths to execute the draft Business Sale Agreement and BP granted to Woolworths a put option to require BP to execute the draft Business Sale Agreement. Exercise of either option and completion under the Business Sale Agreement was subject to three conditions dependent on decisions by external bodies, including the ACCC Acquisition Condition.
Given the size of the market occupied by the existing Caltex Woolworths service stations and of the market occupied by the existing BP service stations, objectively it was always speculative whether the ACCC Acquisition Condition would be met. Unless and until that condition was met, all that could be said was that there was a prospect that BP might acquire the Naracoorte Woolworths site. In addition, BP was not bound to purchase the site and Woolworths was not bound to sell the site unless one or other of them exercised the option created by the Option Deed. Neither party could exercise that option unless and until amongst other things the ACCC Acquisition Condition was met. In these circumstances the adverse effect exception did not apply because there was no more than a prospect that BP might acquire the Naracoorte Woolworths site.
The parties debated whether BP acquired an equitable interest in the Naracoorte Woolworths site upon execution of the Option Deed, although neither contends that this in itself is decisive. For the sake of completeness, I find that BP did not acquire such an equitable interest.
Leaving aside express provisions addressing the question, there is a line of authority which suggests that a purchaser does not acquire an equitable interest in land under an option (or an agreement) to purchase land which is subject to a condition dependent on the exercise of discretion by a third party.[15] There is another line of authority which suggests that a purchaser does acquire an equitable interest in such circumstances.[16] In Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd,[17] Kourakis J referred to these divergent lines of authorities.
[15] See for example Ovenden v Palyaris (1974) 11 SASR 65 at 75-76 per Bray CJ; Re Bosca Land Pty Ltd’s Caveat [1976] Qd R 119at 121per Dunn J; Re CM Group Pty Ltd’s Caveat [1986] 1 Qd R 381 at 391 per Dowsett J.
[16] See for example Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419 at 432 per Malcolm J; GPT Re Ltd v Lend Lease Real Estate Investments Ltd [2005] NSWSC 964 at [55] per White J.
[17] [2009] SASC 311 at [76]-[83].
It is unnecessary to consider the correctness of these different lines of authority. Clause 7.8 of the draft Business Sale Agreement expressly provided:
Beneficial ownership and risk in the Assets:
(a)remains solely with the Seller until Completion; and
(b)passes to the Buyer on and from Completion.
If BP did acquire an equitable interest in the Woolworths service stations on execution of the Option Deed, it would thereby have breached section 50 of the Competition Act by virtue of the definition of acquisition of an asset contained in section 4(4)(b) if the acquisition was likely to substantially lessen competition in a market. Clause 7.8 clearly manifests an intention to avoid the risk of such a breach by ensuring that BP did not acquire any beneficial interest by virtue of entry into the Option Deed.
Shahin has established that the adverse effect exception did not apply. It follows that BP acted in breach of clause SC22 by refusing to grant branding in respect of the Naracoorte OTR service station. Shahin is entitled to appropriate non-monetary relief. I will hear the parties as to the terms of that relief. The question of damages is to be dealt with in a subsequent trial.
BP Cardholder information
Clause SC21 of the Agreement provides:
SC 21 Provision of additional information
Subject to relevant privacy legislation, BP will regularly provide to the Dealer information reasonably requested about BP card customers who visit the Dealer sites so that the Dealer may market goods and services to these customers.
It is common ground that on 23 August 2016 Shahin requested personal information about BP Plus card customers who visit Shahin sites for the expressed purpose of Shahin marketing goods and services to these customers within the meaning of clause SC21. The principal issue is whether disclosure of the personal information to Shahin or use thereof by Shahin would have contravened relevant privacy legislation. It is common ground that the Privacy Act comprises relevant privacy legislation within the meaning of clause SC21.
Shahin’s primary contention is that disclosure and use would not have breached the Privacy Act. BP contends that disclosure of the personal information to Shahin for the purpose of direct marketing by Shahin would have been a breach by it of the Privacy Act and in the alternative that, if disclosed, it would have been a breach of the Privacy Act for Shahin to use the information for direct marketing.
Shahin’s secondary contention is that, if disclosure by BP or use by it for direct marketing would have been in breach of the Privacy Act, there is an implied obligation on BP to vary clause 27 of its BP Cardholder Terms to provide for disclosure to and use by Shahin for marketing purposes. BP contends that this is not pleaded and it would have adduced evidence if it had been pleaded. BP also contends that Shahin’s secondary contention is misconceived for substantive reasons.
Shahin also contends that it requested the personal information about BP Plus card customers for the purpose of market research (as well as direct marketing) (acknowledging that it did not mention this purpose in its requests to BP) and provision of the information for that purpose would not have breached the Privacy Act. Issues arose during closing addresses whether Shahin had pleaded or pursued at trial a claim in respect of this purpose, the scope of the information required by Shahin for this purpose and whether a claim in this respect is premature given the lack of a request by Shahin for information for this purpose or response by BP. It was agreed that all issues relating to information for market research should be deferred to a subsequent trial if not resolved. Accordingly I ignore this matter in these reasons.
The Privacy Act and Australian Privacy Principles

Section 14 of the Privacy Act enacts by way of Schedule the Australian Privacy Principles (the Privacy Principles).[18] Section 15 provides that an “APP entity” must not do an act or engage in a practice that breaches a Privacy Principle. APP entities comprise “organisations” and “agencies”.[19] Organisations include bodies corporate such as companies.[20] BP and Shahin are both organisations and APP entities.
[18] The Schedule was introduced into the Act by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 with effect on 12 March 2014. Before that, section 14 enacted Information Privacy Principles. Information Privacy Principle 10 may be seen as a predecessor of Australian Privacy Principle 6. There was no predecessor of Principle 7.
[19] Privacy Act 1988 (Cth) section 6.
[20] Privacy Act 1988 (Cth) section 6C.
The Privacy Act and the Privacy Principles generally apply to “personal information” of “individuals”. Individuals are natural persons.[21] Personal information is information or an opinion about an identified or reasonably identifiable individual (whether or not true).[22]
[21] Privacy Act 1988 (Cth) section 6.
[22] Privacy Act 1988 (Cth) section 6.
Subsection 13(1) provides that a breach of a Privacy Principle in relation to personal information about an individual constitutes an “interference with the privacy of the individual”. Section 52 empowers the Information Commissioner on complaint to make various orders against an APP entity that has committed an interference with the privacy of an individual. These orders include declarations that the entity has engaged in conduct constituting such an interference, that the entity must not repeat or continue that conduct, that the entity must redress any loss or damage suffered by the complainant and that the complainant is entitled to payment of compensation for such loss or damage. A declaration by the Commissioner is not binding on the parties as such[23] but the complainant or the Commissioner can bring proceedings in the Federal Court or Federal Circuit Court to enforce a determination.[24] Such proceedings are to be heard de novo.[25] Power is conferred on those Courts to make such orders as they think fit.[26]
[23] Privacy Act 1988 (Cth) section 52(1B).
[24] Privacy Act 1988 (Cth) section 55A.
[25] Privacy Act 1988 (Cth) section 55A(5).
[26] Privacy Act 1988 (Cth) section 55A(2).
In addition, section 80W provides that the provisions of the Privacy Act are enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (the Regulatory Powers Act). Section 121 of the latter Act empowers a “relevant Court” on application by an “authorised person” to grant a prohibitory and/or mandatory injunction in respect of conduct in contravention of a provision enforceable under Part 7. The Federal Court and Federal Circuit Court are defined to be relevant Courts and the Commissioner and any other person are defined to be authorised persons for the purpose of section 121 of the Regulatory Powers Act.[27]
[27] Privacy Act 1988 (Cth) section 80W(3).
In addition, section 13G provides that, if an entity (which includes an organisation) does an act or engages in a practice that is an interference with the privacy of an individual either repeatedly or comprising a serious interference, the entity contravenes that section and is liable to pay up to 2,000 penalty units in civil liability proceedings under section 80U.
Privacy Principle 7 provides:
7 Australian Privacy Principle 7—direct marketing
Direct marketing
7.1If an organisation holds personal information about an individual, the organisation must not use or disclose the information for the purpose of direct marketing.
Note:   An act or practice of an agency may be treated as an act or practice of an organisation, see section 7A.
Exceptions—personal information other than sensitive information
7.2Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if:
(a)the organisation collected the information from the individual; and
(b)     the individual would reasonably expect the organisation to use or disclose the information for that purpose; and
(c)     the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and
(d)the individual has not made such a request to the organisation.
7.3Despite subclause 7.1, an organisation may use or disclose personal information (other than sensitive information) about an individual for the purpose of direct marketing if:
(a)the organisation collected the information from:
(i)the individual and the individual would not reasonably expect the organisation to use or disclose the information for that purpose; or
(ii)someone other than the individual; and
(b)either:
(i)the individual has consented to the use or disclosure of the information for that purpose; or
(ii)it is impracticable to obtain that consent; and
(c)     the organisation provides a simple means by which the individual may easily request not to receive direct marketing communications from the organisation; and
(d)in each direct marketing communication with the individual:
(i)the organisation includes a prominent statement that the individual may make such a request; or
(ii)the organisation otherwise draws the individual’s attention to the fact that the individual may make such a request; and
(e)the individual has not made such a request to the organisation.
Exception—sensitive information
7.4Despite subclause 7.1, an organisation may use or disclose sensitive information about an individual for the purpose of direct marketing if the individual has consented to the use or disclosure of the information for that purpose.
…
Individual may request not to receive direct marketing communications etc.
7.6If an organisation (the first organisation) uses or discloses personal information about an individual:
(a)for the purpose of direct marketing by the first organisation; or
(b)for the purpose of facilitating direct marketing by other organisations;
the individual may:
(c)     if paragraph (a) applies—request not to receive direct marketing communications from the first organisation; and
(d)     if paragraph (b) applies—request the organisation not to use or disclose the information for the purpose referred to in that paragraph; and
(e)request the first organisation to provide its source of the information.
7.7If an individual makes a request under subclause 7.6, the first organisation must not charge the individual for the making of, or to give effect to, the request and:
(a)     if the request is of a kind referred to in paragraph 7.6(c) or (d)—the first organisation must give effect to the request within a reasonable period after the request is made; and
(b)     if the request is of a kind referred to in paragraph 7.6(e)—the organisation must, within a reasonable period after the request is made, notify the individual of its source unless it is impracticable or unreasonable to do so.
It is also necessary to refer to Principle 6 because BP contends (and Shahin denies) that Principle 6, and not Principle 7, applies to the disclosure of personal information by BP to Shahin for the purpose of direct marketing by Shahin.[28] Principle 6 provides:
[28] In addition of course Principle 6 forms part of the context in which Principle 7 is to be construed.
6 Australian Privacy Principle 6—use or disclosure of personal information
Use or disclosure
6.1If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:
(a)the individual has consented to the use or disclosure of the information; or
(b)     subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
Note:   Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.
6.2This subclause applies in relation to the use or disclosure of personal information about an individual if:
(a)     the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:
(i)if the information is sensitive information—directly related to the primary purpose; or
(ii)if the information is not sensitive information—related to the primary purpose; or
(b)the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
(c)a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or
(d)the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or
(e)the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.
Note:   For permitted general situation, see section 16A. For permitted health situation, see section 16B.
6.3This subclause applies in relation to the disclosure of personal information about an individual by an APP entity that is an agency if:
(a)the agency is not an enforcement body; and
(b)the information is biometric information or biometric templates; and
(c)the recipient of the information is an enforcement body; and
(d)     the disclosure is conducted in accordance with the guidelines made by the Commissioner for the purposes of this paragraph.
6.4If:
(a)the APP entity is an organisation; and
(b)     subsection 16B(2) applied in relation to the collection of the personal information by the entity;
the entity must take such steps as are reasonable in the circumstances to ensure that the information is de‑identified before the entity discloses it in accordance with subclause 6.1 or 6.2.
Written note of use or disclosure
6.5If an APP entity uses or discloses personal information in accordance with paragraph 6.2(e), the entity must make a written note of the use or disclosure.
Related bodies corporate
6.6If:
(a)an APP entity is a body corporate; and
(b)the entity collects personal information from a related body corporate;
this principle applies as if the entity’s primary purpose for the collection of the information were the primary purpose for which the related body corporate collected the information.
Exceptions
6.7This principle does not apply to the use or disclosure by an organisation of:
(a)personal information for the purpose of direct marketing; or
(b)government related identifiers.
Direct marketing is not defined by the Privacy Act. It therefore has its ordinary meaning of marketing addressed directly to individuals. It is common ground that Shahin seeks to undertake direct marketing to BP Plus cardholders.
Sensitive information is defined by section 6 of the Privacy Act. It includes matters such as an individual’s political opinions and religious beliefs. It is common ground that the information sought by Shahin from BP is not sensitive information.
The BP Cardholder Terms
The BP Plus card is accepted at BP service stations in payment for fuel and, depending on the terms of issue of the card, other goods and services. A person who seeks a BP Plus card is required to complete an application, usually online. The application states that the person agrees to be bound by the Terms and Conditions of use of the BP Plus card attached to the application (the Cardholder Terms).
Clause 1 of the Cardholder Terms states “You acknowledge and agree that by clicking on ‘I agree’ at the bottom of this webpage or by signing a BP Plus Card, or first using or attempting to use a BP Plus Card, You acknowledge acceptance of these terms and conditions and will ensure their observance by the Customer and Authorised Users until all your BP Plus Cards expire, are cancelled or otherwise cease to be valid”.
Clause 5 provides that the Customer declares that each BP Plus card is provided to the Customer wholly or predominantly for business or investment purposes or both. It deems the Customer to purchase BP Motor Fuels from BP and all other goods and services from the operator of the premises nominated by BP from time to time as accepting the BP Plus card. Definitional clause 2 defines BP Motor Fuels and other goods and services and services purchased from such an operator as Product.
Clause 11 provides that BP warrants that, on presentation of a valid BP Plus card, supplies of Product will be made available to the Customer and Authorised Users at Nominated Premises subject to availability.
Clause 28(a) provides that “BP may add to or vary this Agreement (including pricing and payment provisions) from time to time on seven days written notice, including by electronic means, to the Customer”.
Clause 27 addresses privacy. It provides:
27.Privacy
(a)By applying for and using a BP Plus Card the Customer, the Nominated Persons and Authorised Users are providing (or may be providing) personal information. The Customer acknowledges and agrees that the provision of such personal information is for the primary purpose of assessing the Customer’s application and administering the BP Plus Card Account. BP’s collection, storage, disclosure and use of the Customer’s, the Nominated Persons’ and Authorised Users’ information will be performed in accordance with BP’s Privacy Policy that is available at The Customer acknowledges that BP may use the Customer’s personal information for additional purposes including:
i.      planning, product development, marketing offers and research (if the Customer does not wish to receive any marketing offers, please contact BP);
ii.     exchanging information about the Customer with the Customer’s nominated referees; and
iii.    disclosing to BP’s related entities and service providers including bankers, electronic interface which providers, printers, insurance companies, mail houses, solicitors, auditors, professional advisers and debt recovery agents with whom we have a contract, such of the personal information as is necessary for BP to manage your Account.
(b)The Customer acknowledges and agrees that prior to BP accepting the Customer’s application BP may, at its sole discretion, require owners, officers or partners of the Customer to undertake a credit check. In order to undertake a credit check, BP requires each person to provide BP with their consent for BP to undertake the credit check and to use their personal information for BP to, amongst other items:
i.      obtain a consumer credit report about the person from a credit reporting agency for assessing credit worthiness, the Customer’s Application and administering the Account;
ii.     exchange information about the person with other credit providers named in the consumer credit report to allow BP to assess the Application, to notify other credit providers of a default by the Customer or to exchange information with other credit providers as to the status of the Customer’s Account.
Interpretation clause 3 provides that reference to “including” means “including without limitation”.
Clause 27(a) refers to BP’s Privacy Policy. Principles 1.3 and 1.4 require each APP entity to have a privacy policy with a defined content and Principles 1.5 and 1.6 require it to be readily accessible. BP’s Privacy Policy applies to the collection, use and disclosure of personal information generally and not just to personal information relating to the BP Plus card. BP’s Privacy Policy includes the following paragraphs:
Personal information held by BP Australia Pty Ltd and its related companies in Australia (“BP”) will be collected, secured, maintained, used and disclosed in accordance with the Privacy Act 1988 (Cth) (“Privacy Act”), the Australian Privacy Principles (“APPs”) and this Privacy Policy.
This Privacy Policy broadly outlines how BP will collect and manage Personal Information (as defined below), the steps it will take to protect it, how an individual can access personal information BP holds and what they can do if they are unhappy with BP’s management of Personal Information.
Acknowledgment
This Privacy Policy is published on BP’s website, and may be updated from time to time and BP’s discretion. By continuing to use the website, or otherwise continuing to deal with BP, you accept this Privacy Policy as it applies from time to time.
…
Use and Disclosure of Information
The purpose for which BP uses and discloses Personal Information depends on the circumstances in which it is collected. Generally, BP may use or disclose personal information:
×     for the purposes for which it was collected;
×     for a related secondary purpose, if you use or disclosure could be reasonably expected (e.g. disclosure to a delivery contractor for the purpose of delivering goods ordered from BP);
×     for other purposes to which an individual has consented; and
×     as otherwise authorised or required by law.
Specific purposes for which BP may use or disclose Personal Information include the purposes of:
×     supplying goods or services to, or acquiring goods or services from, an individual or organisation;
×     to improve BP’s products and services;
×     contacting individuals for marketing purposes;
×     considering an individual for a position (e.g. as an employee or contractor) at BP;
×     responding to an enquiry by an individual;
×     to administer a trade promotion or competition; and
×     to maintain security over BP premises and systems.
BP may disclose personal information locally and overseas to other parties including its related companies and to any agent, contractor or third-party who provides administrative or other services to BP or its related companies.
BP will, where commercially practical, require that any third party to whom Personal Information is disclosed to treat the Personal Information in a manner that is consistent with the APPs.
One clause addresses direct marketing. It provides:
Direct marketing
BP may send marketing communications in line with an individual’s previously expressed marketing preferences or as otherwise permitted under the Privacy Act and other relevant laws. Individuals who do not wish to receive such communications, and contact BP at [email protected] to modify their preferences, or follow the opt-out instructions contained in each marketing communication.
The unlawfulness of disclosure by BP
I first address the question whether it would have been unlawful for BP to disclose the requested information to Shahin for the purpose of direct marketing by Shahin. I will later address the question whether it would have been unlawful for Shahin to use the information for the purpose of direct marketing.
The relevance of Principle 6 to direct marketing
Principle 7 addresses the use or disclosure of information for the purpose of direct marketing.
Principle 6 addresses the use or disclosure of information for the purpose for which it was collected or (leaving aside sensitive information and special circumstances) for another purpose to which the individual has consented or for a related purpose for which the individual would reasonably expect the entity to use or disclose the information. Principle 6.7 provides that Principle 6 does not apply to the use or disclosure by an organisation of personal information for the purpose of direct marketing.

Starting with the text of the provision, in the absence of interpretation clause 3(e), the reference to “additional purposes including” would not mean that BP can use the information for any purpose whatsoever. It would designate that BP could use the information for purposes incidental to the primary purposes of assessing the Customer’s application for a card and administering the account or to the three purposes identified in placita (i) to (iii). The very fact that the additional purposes are not described as “primary” purposes but merely as “additional” purposes demonstrates that the tail was not meant to supersede the dog by encompassing any purpose whatsoever. This is reinforced by the context that clause 27 addresses the privacy of the Customer’s personal information: it is unlikely in the extreme that, objectively assessed, the Customer intended to give away to BP the ability to use the Customer’s information for any purpose whatsoever. The evident purpose of the reference to additional purposes is to enable BP to use the information for the three identified purposes and purposes incidental to them.
Turning to clause 3(e), it forms part of clause 3 comprising general rules of interpretation for the entire document. Although it does not expressly say so, of their nature general interpretation clauses yield when the context of a specific usage indicates otherwise. Ordinarily, when the words “including without limitation” are used in an agreement or legislative instrument, the relevant provision first contains a rule (often using an adjective or adjectival phrase or clause) to define the relevant concept and then includes particular situations falling within that rule with the intention that the particular cases not delimit or affect the general rule. However, in the present case there is no general rule defining or qualifying the purposes in question: without regard to placita (i) to (iii) they are entirely undefined and unconstrained. The adjective “additional” does not operate to delimit the purposes in this respect: rather it operates to expand the purposes beyond the primary purposes referred to above. In these circumstances, for the reasons given in the previous paragraph the reference in clause 27 to “additional purposes including” does not refer to any purposes whatsoever. It does not extend to the provision of information to BP dealers for the purpose of direct marketing by them.
BP’s Privacy Policy
Shahin’s third contention is that the sentence in clause 27(a) stating that BP’s collection, storage, disclosure and use of the Customer’s etc information will be performed in accordance with BP’s Privacy Policy incorporates into the Cardholder Terms the terms of that Privacy Policy and that the Privacy Policy authorises disclosure by BP of personal information to its dealers for the purpose of direct marketing by them.
The relevant sentence in clause 27(a) is in the following terms:
BP’s collection, storage, disclosure and use of the Customer’s, the Nominated Persons’ and Authorised Users’ information will be performed in accordance with BP’s Privacy Policy that is available At >
The text of that sentence does not suggest that the Privacy Policy is intended to expand the purposes for which BP is permitted by the Cardholder Terms to use the Customer’s personal information. On the contrary, the sentence merely directs the Customer’s attention to provisions of the Privacy Policy (without incorporating those provisions as terms of the agreement comprised by the Cardholder Terms) and refers to limitations formulated by BP on its use and disclosure of such information in that Privacy Policy. This construction is reinforced by the nature and provisions of the Privacy Policy itself, which does not comprise an agreement between BP and persons whose personal information is held by BP but merely a statement of BP’s policy constraining its collection and management of personal information.
In any event, the Privacy Policy on its proper construction does not authorise BP to disclose information to its dealers for the purpose of direct marketing by them. Shahin relies on the following paragraph contained in BP’s Privacy Policy:
The purpose for which BP uses and discloses Personal Information depends on the circumstances in which it is collected. Generally, BP may use or disclose personal information:
×     for the purposes for which it was collected;
×     for a related secondary purpose, if you use or disclosure could be reasonably expected (e.g. disclosure to a delivery contractor for the purpose of delivering goods ordered from BP);
×     for other purposes to which an individual has consented; and
×     as otherwise authorised or required by law.
On its proper construction, this paragraph does not purport to authorise BP to use or disclose information for any purposes. It is merely a paraphrase of the provisions of Principle 6. This construction is reinforced by the first sentence which demonstrates that the paragraph is merely a generic statement referring to the use and disclosure of personal information in general rather than authorising specific uses and disclosures.
Shahin relies on the following paragraph next contained in BP’s Privacy Policy:
Specific purposes for which BP may use or disclose Personal Information include the purposes of:
×     supplying goods or services to, or acquiring goods or services from, an individual or organisation;
×     to improve BP’s products and services;
×     contacting individuals for marketing purposes;
×     considering an individual for a position (e.g. as an employee or contractor) at BP;
×     responding to an enquiry by an individual;
×     to administer a trade promotion or competition; and
×     to maintain security over BP premises and systems.
On its proper construction, this paragraph does not authorise BP to disclose personal information to its dealers for the purpose of marketing by them. First the references to “contacting individuals for marketing purposes” and “administer[ing] a trade promotion or competition” are on their proper construction references to marketing and promotion by BP and not its dealers. Secondly this paragraph (and the Policy as a whole) applies to the entire range of relationships that BP has with persons whose personal information it holds: it does not apply specifically or exclusively to BP Plus cardholders in respect of which the relationship is specifically governed by the Cardholder Terms. Thirdly the Policy contains a specific provision which addresses direct marketing (addressed below).
Shahin relies on the following paragraph next contained in BP’s Privacy Policy:
BP may disclose personal information locally and overseas to other parties including its related companies and to any agent, contractor or third party who provides administrative or other services to BP or its related companies.
On its proper construction, this paragraph does not authorise BP to disclose personal information to its dealers for the purpose of marketing by them. Shahin is not an “agent” or “contractor” of BP within the meaning of those expressions in this paragraph, nor is it a third party who provides administrative or other services to BP within the meaning of that expression in this paragraph. It is an “other party” within the meaning of the reference to “other parties” in the first line of the sentence. However this paragraph does not comprise an authorisation to BP to disclose information to other parties. This paragraph does not contain any identification of the purposes for which BP may disclose information to other parties. The purpose of this paragraph is merely to draw the attention of persons with whom BP deals that in certain circumstances (not identified by this paragraph) BP may disclose information to other parties.
Shahin does not rely on the paragraph in the Privacy Policy entitled and addressing Direct Marketing. That paragraph provides:
Direct marketing
BP may send marketing communications in line with an individual’s previously expressed marketing preferences or as otherwise permitted under the Privacy Act and other relevant laws. Individuals who do not wish to receive such communications, and contact BP at [email protected] to modify their preferences, or follow the opt-out instructions contained in each marketing communication.
That paragraph does not purport to define circumstances in which BP may send marketing communications to an individual whose personal information it holds. It merely refers to the individuals’ previously expressed marketing preferences (to be found elsewhere) and the provisions of the Privacy Act and other relevant laws (to be found elsewhere). The fact that this paragraph, specifically addressing direct marketing, does not prescribe circumstances in which BP can undertake direct marketing reinforces the construction of the other provisions of the Privacy Policy referred to above. In addition, this paragraph only refers to direct marketing by BP and not to direct marketing by its dealers: it does not authorise disclosure of information by BP to its dealers for the purpose of direct marketing by them.
Conclusion on consent
BP cardholders have not consented to the disclosure of their personal information by BP to Shahin for the purpose of direct marketing by Shahin.
Impracticability of obtaining consent
The next issue is whether the condition in paragraph (b)(ii) was satisfied, namely whether it was impracticable for BP to obtain consent of BP’s cardholders to the disclosure of their personal information to Shahin for the purpose of direct marketing by Shahin.
Shahin submits that BP contends, in the context of Shahin’s alternative claim that BP is obliged to amend the Cardholder Terms, that it lacks power to amend those Terms to authorise disclosure by it to Shahin of personal information for direct marketing by Shahin (or use by Shahin of such information for direct marketing). Shahin submits that, if BP’s contention is correct, it is impracticable for BP to obtain consent and consent is therefore not required.
Shahin accepts that a third party to whom personal information is disclosed cannot avoid the requirement for consent under Principle 7.3 merely because it might be difficult or impracticable to obtain that consent: a value judgment is required in determining in what circumstances consent is not required because it is impracticable to obtain it.
It is not clear what circumstances the legislature had in mind in obviating the need for consent when it is impracticable to obtain that consent. However, if BP lacks power to amend the Cardholder Terms to provide for the requisite consent (the premise of Shahin’s contention, which I do not decide), it would be truly ironic if the very lack of power obviated the need to obtain consent in the first place. Conversely, if BP has power to amend the Cardholder Terms to provide for the requisite consent, there is no impracticability in obtaining consent.
Accordingly, Shahin’s contention must be rejected.
The applicability of Principle 6
If, contrary to my conclusion above, Principle 6 (rather than Principle 7) applies to the disclosure of information by a primary organisation to a secondary organisation for the purpose of direct marketing by the latter, the question would arise whether such disclosure was authorised under the terms of Principle 6.
Principle 6.1 primary and secondary purposes
Principle 6.1 imposes a prima facie prohibition on the disclosure (or use) of personal information for any purpose (a secondary purpose) other than the particular purpose for which the information was collected (the primary purpose).
Shahin contends that, by reason of the provisions of the Cardholder Terms, the disclosure by BP of personal information to Shahin for the purpose of direct marketing by Shahin was one of the particular purposes for which the information was collected.
BP contends that the Cardholder Terms identify the primary purpose (or purposes) for which the information was collected, namely assessment of the application and administration of the account; and disclosure (or use) by BP for direct marketing by any entity would be a secondary use. BP submits that Principle 6.1 only contemplates and permits a single primary use.
I reject BP’s submission that Principle 6.1 only contemplates and permits a single primary use. Although Principle 6.1 refers to information collected for a particular purpose, which is then defined to be the particular purpose, frequently as a matter of construction use of the singular is understood to encompass the plural. Section 23(b) of the Acts Interpretation Act 1901 (Cth) provides that in any Act words in the singular number include the plural. Although not limited to a single purpose, nevertheless the purposes for which information was collected will necessarily be finite, will typically be a single purpose and will usually be of very limited number if more than one.
I reject Shahin’s contention that the disclosure by BP of personal information to Shahin for the purpose of direct marketing by Shahin was one of the particular purposes for which the information was collected. Assuming (without deciding) that the additional purposes identified in placita (i) to (iii) of clause 27(a) were each purposes for which the information was collected, I have already held that those purposes do not extend to direct marketing by BP dealers as opposed to direct marketing by BP. I have already held that clause 27 does not authorise the disclosure by BP of personal information to Shahin for the purpose of direct marketing by Shahin.
Principle 6.1(a) consent
The first exception to the prima facie prohibition of disclosure of personal information imposed by Principle 6 is if the individual has consented to the disclosure of the information.
There is no consent by the BP cardholders to disclosure by BP of information to Shahin for direct marketing by Shahin for the same reasons as there is no consent in the context of Principle 7.3(b)(i). The Principle 6.1(a) exception does not apply.
Principle 6.2(a) reasonable expectation
The second exception to the prima facie prohibition of disclosure of information imposed by Principle 6 is if the individual would reasonably expect the organisation to disclose the information for the secondary purpose which is related to the primary purpose.
Shahin contends that disclosure by BP to Shahin for the purpose of direct marketing by Shahin (and use of the information by Shahin for direct marketing) would be reasonably expected by a cardholder and this would be directly related to the primary purposes.
Assuming that the primary purposes of the collection of the information include direct marketing by BP, direct marketing by BP’s dealers is not related to that purpose within the meaning of principle 6.2(a)(ii).
There is a critical difference between direct marketing by BP, with whom the cardholder has entered into an agreement relating to the BP Plus card, and direct marketing by a BP dealer. A cardholder would not reasonably expect BP to disclose the cardholder’s personal information to a BP dealer for the purpose of direct marketing by the dealer.
The Principle 6.2(a) exception does not apply.
Conclusion on Principle 6
Shahin does not suggest that any other of the exceptions contained in Principle 6 apply. Assuming, contrary to my conclusion reached above, Principle 6 to apply to the issue, BP is not authorised under that Principle to disclose personal information to Shahin for the purpose of direct marketing by Shahin.
Conclusion on unlawfulness of disclosure by BP
BP is not authorised by the Cardholder Terms to disclose the cardholder’s personal information to Shahin for the purpose of direct marketing by Shahin.
The unlawfulness of use by Shahin
BP contends that in any event it would have been unlawful for Shahin to use the information for the purpose of direct marketing. In light of my conclusion that it would have been unlawful for BP to disclose the information to Shahin for that purpose, is not strictly necessary to address this question. However I address it for the sake of completeness.
It is common ground that the use of information by Shahin for the purpose of direct marketing is governed exclusively by Principle 7 and not Principle 6. It is common ground that such use is prima facie prohibited by Principle 7.1 unless it is authorised by Principle 7.2 or Principle 7.3.
Principle 7.2
Principle 7.2 only applies to the use by an organisation of personal information for direct marketing:
(a) if the organisation collected information from the individual
BP contends that, if it were to receive the information from BP, Shahin would not have collected the information from the individuals in question; only BP would have collected the information from the individuals.
Shahin contends that the reference in Principle 7.2(a) to the collection of information is a reference to the ultimate source of the information being the individual rather than to the organisation collecting the information from the individual. In the present case, if BP provides the information to Shahin, the individual will remain the ultimate source of the information.
On its proper construction, Principle 7.2(a) only applies when the organisation in question collected information from the individual (by the organisation or its agent) and does not apply when the information was collected from someone other than the individual but the individual was the ultimate source of the information. Starting with the text, Principle 7.2(a) refers to the collection of the information: it does not refer to the individual being the ultimate source of the information. While the text does not refer to collection of the information directly from the individual, it cannot be said as a matter of ordinary usage of the words used that in the situation postulated Shahin would have collected the information from the individuals in question. On the contrary Shahin would have collected the information from someone other than the individuals, namely BP.
This construction is reinforced by the context. Principles 7.2 and 7.3 create a dichotomy in that Principle 7.2 addresses collection of the information from the individual whereas Principle 7.3 addresses collection of the information from someone other than the individual. Principle 7.3 imposes a requirement that the individual consent to the use of the information for direct marketing (or that it is impracticable to obtain that consent) when the information was not collected by the organisation from the individual. It is understandable that the legislature imposed a requirement for consent when the information was not collected by the organisation from the individual but from another organisation or entity that has been interposed. The evident purpose of the dichotomy is to impose a different test in a case in which the organisation did not collect the information from the individual.
Principle 7.3
Principle 7.3 only authorises use by Shahin of personal information for direct marketing if the BP cardholders have consented to that use or it is impracticable to obtain that consent. There is no consent for the same reasons as there is no consent to the disclosure by BP of the information for direct marketing by Shahin. The impracticability of obtaining consent exception does not apply for the same reasons as it does not apply to the disclosure by BP of the information for direct marketing by Shahin.
Application of clause SC 21 in light of conclusions on Privacy Principles
I have concluded that, by reason of Principle 7 and the Cardholder Terms BP would breach the Privacy Act by disclosing the requested information to Shahin for direct marketing by Shahin and Shahin would breach the Privacy Act by using the requested information for direct marketing.
It is common ground that clause 27 imposes a prima facie obligation on BP to provide to Shahin information requested for the purpose of direct marketing provided that the request is reasonable. This is subject to the initial qualifying words “Subject to relevant privacy legislation”.

BP contends that Shahin’s request for information was not reasonable if, as I have concluded, it would be a breach of the Privacy Act for Shahin to use the information for direct marketing purposes. Shahin contends that the adverb “reasonably” refers only to the manner and form of the request (including its timing) and does not encompass substantive matters such as whether use of the information would be a breach of the Privacy Act.
Shahin contends that the initial qualifying words refer only to any a priori restriction supplied by privacy legislation and does not encompass restrictions deriving from the privacy legislation because BP has agreed to particular terms with its customers which result in the application of the privacy legislation.
Shahin does not contend that BP breached clause SC21 or any other provision of the Agreement when it last amended its Cardholder Terms with effect on 2 December 2013. Shahin’s allegations of breach are confined to the refusal or failure by BP to provide the requested information after Shahin’s request of 23 August 2016.
In the circumstances, on their proper construction the initial qualifying words “Subject to relevant privacy legislation” mean that BP is not obliged by clause SC21 to provide the requested information to Shahin if so doing would breach the Privacy Act or if any use by Shahin for direct marketing would breach the Privacy Act. Subject to any request by Shahin to BP to amend the Cardholder Terms or plea of breach by BP’s failure or refusal to do so, the question of compliance with the Privacy Act is to be determined based on the relationship between BP and its cardholders as the parties find it. The initial qualifying words apply.
Given this conclusion, there is no need to consider whether Shahin’s request was reasonable. However, for the sake of completeness I reject the limited construction of the adverb “reasonably” advanced by Shahin: its request was not reasonable because it was precluded by the Privacy Act from using the information for direct marketing as well as because BP was precluded by the Privacy Act from disclosing the information to Shahin for that purpose.
Implied obligation to amend Cardholder Terms
Shahin contends that, if as I have concluded BP is not required by clause SC21 to provide the requested information given the current provisions of the Cardholder Terms, BP has an implied obligation to amend the Cardholder Terms in such manner as would avoid its being a breach of the Privacy Act for BP to disclose information to Shahin or Shahin to use the information for direct marketing. This obligation is said to arise from the implied duty by parties to cooperate and by each party to do all that is necessary to be done on his or her part for the carrying out of the agreed matter to ensure that the other party receives the intended contractual benefits as articulated by the House of Lords in Mackay v Dick[29] or perhaps as an implication from clause SC21 itself.
[29] (1881) 6 App Cas 251.
BP contends that this claim by Shahin is not pleaded and if it had pleaded it would have advanced evidence to meet it at trial.
Shahin pleads at paragraph 35 of its fourth statement of claim that it requested information on 23 August 2016, 9 January 2017 and 31 January 2017 and at paragraph 36 that on 27 January 2017 and 15 February 2017 BP refused to provide the information (as well as failing to provide the information in response to the original request of 23 August 2016). Shahin pleads at paragraph 37 that it communicated to BP the reasons why provision of the information was not prohibited by privacy legislation, referring to its email of 9 January 2017. Shahin pleads at paragraph 38 that in the premises BP’s failure or refusal to provide the requested information was in breach of the Agreement.
The communications between Shahin and BP pleaded in the fourth statement of claim referred to in the previous paragraph are summarised at [53] to [58] above. At no point in those communications did Shahin request BP to amend its Cardholder Terms or make any reference to potential amendment of the Cardholder Terms. The only pleaded breach of the Agreement is by reason of BP’s failure or refusal to provide the requested information. There is no plea that BP breached the Agreement by failing to amend the Cardholder Terms.
Leaving aside the pleadings, Shahin has not articulated the manner in which it contends BP is required to amend its Cardholder Terms. There are an almost infinite variety of ways in which the Cardholder Terms could be potentially amended. For example does Shahin contend that they should be amended to incorporate a reference to providing information to and direct marketing by Shahin or by a defined class of dealers or by any dealers? To what type of information should the amended Cardholder Terms apply? In what circumstances should BP be authorised to provide information to Shahin (or a defined class of dealers or any dealers as the case may be)? What provisions (if any) should be included for opting out of disclosure by BP to Shahin (or a defined class of dealers or any dealers) or opting out from receipt of direct marketing from Shahin (or a defined class of dealers or any dealers)? What provisions (if any) should be included for BP to ensure that Shahin (or a defined class of dealers or any dealers) has in place a regime for opting out before disclosure by BP to Shahin (or a defined class of dealers or any dealers)?
The implied duty of cooperation, when it applies, of its nature involves cooperation by both parties. Before BP could be said to be in breach of any such obligation, it would be necessary for Shahin first to formulate proposed amendments to the Cardholder Terms that it seeks and for BP to refuse or fail to make the amendments in circumstances in which it is obliged to do so. It is likely that there would be a series of iterative communications between the parties before BP provided its ultimate response.
If Shahin wished to advance a case of breach of an implied obligation by BP to amend the Cardholder Terms to facilitate direct marketing by Shahin, it was essential that Shahin plead such a case. This would have given BP an opportunity to respond to a request and to respond to the pleaded case.
I uphold BP’s objection to this claim on the ground that it is not pleaded. Accordingly, I express no opinion on the merits of the issues debated between the parties.
Breach of the Agreement if BP had acquired the Woolworths service stations
Shahin contends that, if the ACCC Acquisition Condition had been satisfied and BP and Woolworths had executed the Business Sale Agreement and completion thereunder had occurred and BP had not divested the South Australian service stations to be acquired thereunder and BP had chosen to brand the South Australian service stations acquired as BP service stations, BP would have been in breach of clause SC8B of the Agreement insofar as it acquired service stations within two kilometres of existing Shahin service stations. Shahin does not contend that, merely by entering into the Option Deed, BP breached clause SC8B of the Agreement. Shahin contends that the acquisition exception in clause SC8B of the Agreement in a case in which the site is acquired by BP only applies when the freehold is acquired and not when the leasehold is acquired by BP. Conversely, BP contends that the exception applies equally when the leasehold is acquired.
It transpired that the ACCC Acquisition Condition was not satisfied by the End Date, BP terminated the Option Deed as a result and accordingly BP did not and will not acquire the Woolworths service stations pursuant to the Option Deed. The question whether there would have been a breach of clause SC8B of the Agreement in other eventualities is therefore hypothetical.
Both parties nevertheless urge the Court to determine the issue of construction of clause SC8B of the Agreement which would determine whether the BP/Woolworths transaction would have been in breach of the Agreement if it had proceeded. The parties contend that there is a possibility that BP might enter into a transaction in future in which it acquires a leasehold interest in at least five service stations in each of South Australia, New South Wales and Victoria. The parties point to the fact that the matter was fully argued at trial when the Option Deed was still on foot and it is desirable for the parties to know the proper construction of clause SC8B if a similar issue arises in future.
Ordinarily courts decline to decide hypothetical questions or to give advisory opinions. I accept that, at least for this Court, this is a matter of discretion rather than power. However, in this matter there is no reason to exercise the discretion to decide the hypothetical question of construction and every reason to exercise the discretion not to decide it.
First the only relief sought or that could be sought is a declaration. No injunction or damages or other substantive relief could be sought because there will not be a breach by BP in any event of the Agreement. Accordingly what the parties seek is in reality an advisory opinion.
Secondly there is no basis on which it could be concluded that it is likely that a similar issue will arise in the future over the term of the Agreement. Indeed, my assessment is that it is unlikely that such an issue will arise.
Thirdly it is undesirable to decide an issue of construction in other than concrete circumstances.
Fourthly, I accept that, if a similar issue should arise in future, the parties will be put to the expense of arguing the matter a second time. However that expense would be small compared to the scale of the operations of either party. Moreover, if I did decide the issue and granted a declaration, the unsuccessful party might be put to the greater expense of appealing against the declaration to avoid issue estoppel applying in any future dispute even though no such future dispute may ever arise.
In the exercise of the discretion, I decline to decide the constructional question.
Legislative review
I have observed that in several respects Principle 7 is unhappily drafted. It is desirable that the Commonwealth review whether Principle 7 should be comprehensively redrafted to manifest more clearly the legislative intention sought to be effected by it.
Conclusion
In relation to the first cause of action, the adverse effect exception did not apply, BP acted in breach of clause SC22 by refusing to grant branding in respect of the Naracoorte OTR service station and Shahin is entitled to appropriate relief. I will hear the parties as to the terms of non-monetary relief. The question of damages is to be dealt with in a subsequent trial.
In relation to the second cause of action, BP did not breach clause SC21 by refusing to provide the requested information.
I decline to decide the third cause of action because it is hypothetical.