JFA Pty Ltd v Touringcar Entrants Group Australia Pty Ltd
[2005] QSC 87
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- Notable Unreported Decision
- JFA Pty Ltd v Touringcar Entrants Group Australia Pty Ltd[2005] QSC 87
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JFA Pty Ltd v Touringcar Entrants Group Australia Pty Ltd[2005] QSC 87
JFA Pty Ltd v Touringcar Entrants Group Australia Pty Ltd[2005] QSC 87
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Trial |
ORIGINATING COURT: | |
DELIVERED ON: | 11 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 February 2005 |
JUDGE: | Muir J |
CATCHWORDS: | ARBITRATION – ARBITRATION AGREEMENT- where dispute as to whether license agreement is an “arbitration agreement” for the purposes of the Commercial Arbitration Act 1990 (Qld) – whether tribunal’s “powers” can be characterised as judicial in nature – whether the intention of the parties was to provide for an arbitration agreement Commercial Arbitration Act 1990 (Queensland) Uniform Civil Procedure Rules Arenson v Casson Blackman Rutley & Co [1977] AC 405 Australian Mutual Provident Society v Overseas Telecommunications Commission (Australia) [1972] 2 NSWLR 806 Eckersley v The Mersey Docks & Harbour Board [1894] 2 QB 667 In Re Carus-Wilson & Greene (1886) 18 QBD 7 PMT Partners Pty Ltd (in liquidation) v Australian National Parks and Wildlife Services (1995) 184 CLR 301 Santos Pty Ltd v Pipelines Authority of South Australia BC 9601565 (1996) 66 SASR 38 Thomas Cook v Commonwealth Banking Corporation (1986) ANZ ConvR 598 |
COUNSEL: | G C Martin SC with him M Connock for the plaintiff P H Morrison QC with him P A Hastie for the first defendant I R Molloy for the second defendant |
SOLICITORS: | Mallesons Stephen Jaques, town agents for Browne & Co, for the plaintiff Minter Ellison – Gold Coast for the first defendant Mr G Kyprios for the second defendant |
Introduction
[1] The plaintiff JFA Pty Ltd, the first defendant Touringcar Entrants Group Australia Pty Ltd (“TEGA”), and the second defendant Australian Vee Eight Supercar Company Pty Limited (“AVESCO”) are parties to materially identical agreements dated 19 December 2002. The purpose of each agreement (“the agreement”) is to regulate the terms and conditions under which the plaintiff as a team proprietor participates in a team-based motor sport competition conducted by TEGA and AVESCO. The shareholders of TEGA are the proprietors of the teams competing in the competition, all of whom enter into agreements identical in terms to the agreement.
[2] The shares in AVESCO, which is responsible for marketing and promoting the competition, are owned as to 75% by TEGA. A tribunal, the TEGA tribunal, constituted under clause 16 of the agreement, is given disciplinary, investigative and dispute resolution functions.
[3] In a notice dated 23 July 2002, TEGA notified the plaintiff that it had breached its obligations under the agreements and demanded, in respect of the breach, $300,000 by way of liquidated damages. The plaintiff, pursuant to clause 16.10 of the agreements, gave notice to the Tribunal alleging, amongst other things:
(a) The existence of a dispute as to whether the plaintiff is obliged to pay any or all of the amount demanded;
(b) That clause 7.6(d) of the agreement, under which the penalty was purportedly imposed, constitutes a penalty at law and is unenforceable;
(c) That the plaintiff was denied natural justice by TEGA before the imposition of the penalty;
(d) That TEGA erred in the exercise of its discretion in imposing the penalty and that its decision is void;
(e) That the plaintiff is exculpated from any relevant breach by the force majeure provisions of the agreements.
[4] The Tribunal, after two days of hearing, determined the matters raised by the plaintiff against it and made the following determination:
“The tribunal unanimously determines that JFA [the plaintiff] must pay the liquidated damages of $300,000 to TEGA in accordance with the breach notice dated July 23, 2003.”
[5] On 21 September 2004, the plaintiff commenced these proceedings seeking declarations in respect of the grounds relied on in its notice to the Tribunal. Additionally, it sought:
(a) Declarations that TEGA had breached the agreements in various respects;
(b) A declaration that the agreements are not arbitration agreements within the meaning of the Commercial Arbitration Act 1990 (Queensland) (“the Act”);
(c) A declaration that on the proper construction of the agreements the tribunal had no power to order as it did;
(d) Alternatively, an order pursuant to s 38(4) of the Act granting leave to appeal against the decision of the tribunal.
[6] On 18 October 2004, with the consensus of all parties, a judge of this Court ordered the following question to be determined as a preliminary question pursuant to r 483 of the Uniform Civil Procedure Rules:
“Is the Teams Licence Agreement, in particular clause 16 thereof, …
an ‘arbitration agreement’ within the meaning of that expression … in the Commercial Arbitration Act 1990?”
[7] These proceedings are concerned with the resolution of that question.
The Teams’ Licence Agreement
[8] It is desirable to set out the provisions of the agreement of most relevance for present purposes:
“5.2Right of Investigation
Each Team acknowledges and agrees the TEGA Tribunal has the express right to investigate the Teams in accordance with clause 14.
14.1 Disclosure of Business Records
(a)The Team acknowledges that the TEGA Tribunal may require the Team to produce documents and respond to questions in connection with the Team’s compliance with the Rules and the terms of this Agreement. On request from the TEGA Tribunal, each Team agrees to provide full and frank disclosure to the TEGA Tribunal and, without limitation, the Team agrees to make available its Members and other personnel (to the extent that it is able) and all books, records, contracts and arrangements necessary to ascertain compliance open for the inspection of the TEGA Tribunal after the TEGA Tribunal has given five (5) days written notice of its intention to inspect records of the Team and/or to interview Team personnel. The Team covenants that the information provided to the TEGA Tribunal will be true in all respects and the Team agrees to act honestly and provide all assistance possible (including where required the copying of documents) in the provision of the information.
(b)The TEGA Tribunal will conduct an examination of the documents and review the responses provided pursuant to this clause 14 and, where the reference has come from the TEGA Board pursuant to clause 16.6(d) provide to the TEGA Board a written report. The TEGA Board may view all material reasonably relevant to the findings and relied upon by the TEGA Tribunal for the purpose of preparing the report.
14.2Failure to Disclose
Failure by a Team to produce documents and answer questions as requested by the TEGA Tribunal pursuant to clause 14.1 will be deemed a breach of this Agreement for the purposes of clause 11.3.
16.1 Tribunal and Members
(a)There is a tribunal called the TEGA Tribunal.
(b)One member of the TEGA Tribunal is to be appointed by the TEGA Tribunal Members as Chairperson of the TEGA Tribunal and the others are to appointed (sic) as Deputy Chairpersons of the TEGA Tribunal.
16.2 Tribunal objectives
The objectives of the TEGA Tribunal are to as expeditiously as possible and at minimal cost, resolve disputes arising from this Agreement and exercise the authority given to it by the Code of Conduct, and in exercising its power have regard to the welfare, needs and interests of AVESCO, TEGA and the Teams as a whole.
16.6 Jurisdiction and powers of the TEGA Tribunal
The TEGA Tribunal has jurisdiction to hear and determine matters referred to it in relation to:
(a)all disputes arising out of this Agreement;
(b)any matter referred to the TEGA Tribunal pursuant to clause 15 (Force Majeure);
(c)any matter arising out of the Code of Conduct; and
(d)any matter referred to the TEGA Tribunal by the TEGA Board.
16.8Procedures of TEGA Tribunal
In the exercise of its jurisdiction the TEGA Tribunal:
(a)must observe natural justice; and
(b)must proceed expeditiously with as little formality and technicality as is consistent with a fair and proper consideration of the matter before it; and
(c)is not bound by rules of practice as to evidence and may inform itself on any matter as it considers appropriate which includes engaging external experts to investigate and provide reports on any matter; and
(d)may regulate its procedures as it considers appropriate.
16.10 Commencement of Proceeding
If any dispute or matter arises from the matters referred to in clause 16.6 a party to that dispute or matter may commence a proceeding pursuant to the procedures outlined in clause 6.2 of the Code of Conduct.
16.13 Decision Binding
(a)The parties agree that any decision of the TEGA Tribunal is binding;
(b)A participant in a proceeding before the TEGA Tribunal, who is dissatisfied with the TEGA Tribunal’s decision may appeal to a Court against the decision on a ground of error of law only.
16.17 Tribunal remedies to be exhausted
The parties to this Sub-license (sic) agree that they will not become a party to any suit at law or in equity against the other parties until the remedies by the TEGA Tribunal have been exhausted.”
The nature of an arbitration agreement
[9] “Arbitration agreement” is defined in s 4 of the Act as meaning “an agreement in writing to refer present or future disputes to arbitration”. “Arbitration” is not a defined term. In support of their respective arguments, all parties placed reliance on Debelle J’s discussion of the nature of arbitration and arbitration agreements in Santos Pty Ltd v Pipelines Authority of South Australia.[1]In those reasons, with which the other members of the Court agreed, Debelle J said:
“There is no formula of universal application which will determine whether the decision-maker is an arbitrator and each case must be decided on its own facts: … Nevertheless, there are some indicia which, although not conclusive, provide assistance. They are:
1.A dispute must exist …
2.The agreement refers the dispute to arbitration. …
3.The manner in which the dispute is to be determined is relevant: Hammond v Wolt (1975) VR 108. It is well established that an arbitration involves an inquiry in the nature of a judicial inquiry … Some indicia of a judicial inquiry are:
a)the parties have the right to be heard if they so desire;
b)the parties are each entitled to see and hear the evidence advanced by their respective opponents;
c)the parties have the right to give evidence if they so desire;
d)each party is entitled to test by cross-examination or by other appropriate means the opposing case and to answer the opposing case.
…
The process to be engaged in by the arbitrators is quite unlike a valuation where the person appointed may decide the matter from his own experience and expert knowledge and may make his own investigations: AMP Society v Overseas Telecommunications Commission (supra) at 825. The arbitrators can be chosen from any field. They might be accountants, economists, engineers, barristers, retired judges or any other person competent to discharge the task. ...
- The description of the decision-makers as arbitrators is a relevant but not a conclusive factor: Edmund Barton Chambers (Level 44) Co-op Ltd v Mutual Life and Citizens Assurance co Ltd (supra)…
Finally, as Jacobs P pointed out in AMP Society v Overseas Telecommunication Commission (Australia) (supra) at 814, the question is not whether the parties intended arbitration but whether there is a subject matter of arbitration, that is, a subject matter in the nature of judicial enquiry.”
[10] To these indicia may be added the following further matters identified in “The Law and Practice of Commercial Arbitration in England”:[2]
“(i)The agreement pursuant to which the process is, or is to be, carried on (‘the procedural agreement’) must contemplate that the tribunal which carries on the process will make a decision which is binding on the parties to the procedural agreement.
(ii)The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal.
…
(v)The procedural agreement must contemplate that the tribunal will determine the rights of the parties in an impartial manner, with the tribunal owing an equal obligation or fairness towards both sides.
(vi)The agreement of the parties to refer their dispute to the decision of the tribunal must be intended to be enforceable in law.
…”.
The plaintiff’s principal arguments
[11] The agreement is a sophisticated commercial document but nevertheless makes no reference to either the Act or to “arbitration”. That is a strong indication that the agreement was not intended to include an agreement to arbitrate.
[12] Clause 14, which confers investigative powers on the Tribunal, is inconsistent with an arbitrator’s role. That is particularly so of the Tribunal’s obligation to report to the TEGA board when a matter has been referred by it to the Tribunal. Under clause 14.1 the Tribunal has wide ranging powers to require teams: “… to produce documents and respond to questions in connection with the Team’s compliance with the rules and the terms of this agreement …”. Failure to comply may result in a breach of clause 5 thereby triggering immediate termination of the agreement pursuant to clause 11.4. Under clause 14, the Tribunal is acting “in a policing and regulatory role, but also … as an extension of TEGA”.
[13] One of the Tribunal’s primary functions is to exercise the authority given to it under the Code of Conduct[3] which it has responsibility to supervise and administer.[4] The role of supervisor and administrator is not consistent with an arbitral role. Nor is the power given to it by the Code of Conduct to impose fines, a type of remedy which an arbitral tribunal is not empowered to give.
[14] Under clause 16.6 of the agreement, the Tribunal has other non-arbitral roles which are inconsistent with an intention by the parties that the Tribunal act judicially.
[15] Clause 16.2 of the agreement provides that: “… in exercising its power [the TEGA Tribunal shall] have regard to the welfare, needs and interests of AVESCO, TEGA and the Teams as a whole”. The Tribunal is thus required to have regard to matters which may be irrelevant to any dispute between the parties. Clause 16.2 is inconsistent with an obligation to act impartially and fairly between the parties. It is also inconsistent with an obligation to apply the law.
The first defendant’s principal arguments
[16] The first defendant’s central submissions are as follows. Clause 16.8 sets out, relevantly, how the Tribunal must exercise its functions. The provisions of that clause demonstrate that the Tribunal must act as a court would act in like circumstances.
[17] The fact that it has other functions inconsistent with the exercise of quasi judicial powers is irrelevant. What is of relevance is the power it must exercise in respect of the subject dispute.
[18] If the Tribunal, contrary to the first defendant’s contentions, has an obligation under clause 16.2 to have regard to “the welfare, needs and interests of AVESCO, TEGA and the Teams as a whole”, that is not inconsistent with its acting in a quasi judicial manner. The clause simply defines the matters which must be taken into account by the Tribunal in making a fair and impartial determination in accordance with the requirements of clause 16.8. Those requirements “would clearly override the more general statement of objectives at the end of clause 16.2 were they to conflict”.
[19] Clause 16.11, the power to give directions, further supports the conclusion that the Tribunal’s role is quasi judicial. Also of assistance in that regard is clause 16.10 which deals with the commencement of proceedings. Clause 16.16, which gives power to the Tribunal to rely on its own previous findings “where it has previously considered an issue”, is “another trapping of a judicial proceeding”.
[20] A provision such as clause 16.17, which prevents court proceedings unless a prior resolution dispute mechanism is followed, is also suggestive of an arbitration agreement.[5]
The second defendant’s submissions and the submissions generally
[21] Counsel for the second defendant adopted the submissions made on behalf of the first defendant. He also undertook the helpful task of seeking to explain how each of the matters identified in Mustill and Boyd as indicia of an arbitration agreement were satisfied by the agreement.
[22] The foregoing does not purport to record all of the submissions made by the parties. Their outlines of submissions occupy about 60 pages in total. And in each of them, its author canvasses, in great detail, those matters and considerations which tend to support, however faintly, his contentions. I make this observation without criticism – all submissions were carefully and skilfully prepared and presented. But for reasons I am about to articulate, I have found it possible to reach my conclusion by focussing on a narrower range of matters.
General observations on the contents of the agreement
[23] Many of the indicia of an arbitration agreement to which reference is made above are present in the agreement or exist in respect of the subject dispute. As the above narrative discloses, a dispute existed between the plaintiff and TEGA. That dispute was referred to the Tribunal under clauses 16.6 and 16.10 for determination. Clause 16.13 of the agreement contemplates that the Tribunal will make a decision binding on the parties. Clause 16.8 requires the Tribunal to afford natural justice to parties to a dispute.
Consideration of the Tribunal’s relevant roles and functions
[24] A significant area of controversy on the hearing was whether the enquiry upon which the Tribunal embarked was in the nature of a judicial enquiry in which the Tribunal could be said to be acting judicially or exercising a judicial function. The requirement of the decision-maker to act in such a manner has been identified in a number of cases as a significant indication that the process is arbitral in nature.[6]
[25] The plaintiff’s counsel, in support of the contention that the Tribunal’s role was non-judicial in nature pointed to a number of its functions which are more investigative or administrative than judicial. For example, under clause 5.4 of the agreement the plaintiff is required to make available to the Tribunal upon request “information which will allow the … Tribunal to confirm that the [plaintiff’s] contracts are permitted until those contracts are terminated”. The procedures to be followed in relation to such requests are prescribed by clause 14.
[26] Under clause 14 the Tribunal may require the plaintiff to “produce documents and respond to the questions in connection with [its] …compliance with the Rules and terms of [the] Agreement”. The plaintiff and “each Team” are required to make “full and frank disclosure” to the Tribunal which has the right to inspect the plaintiff’s books and records and to interview its “personnel”. Such powers may be exercised by the Tribunal of its own volition or upon reference to it by the TEGA board under clause 16.6(d).
[27] A matter which could be referred to the Tribunal by the TEGA board is whether the plaintiff is in breach of clause 5.1. Clause 5.1(a) prohibits the plaintiff from having an interest in more than four licences and V8 Supercars. Any breach of clause 5.1 results in substantial adverse consequences and confers on TEGA the right of termination under clause 11.4.
[28] The TEGA board has the power under clause 5.3, if satisfied of the existence of prescribed matters, to treat the plaintiff as being in material breach of the agreement. Such a conclusion may be reached by the TEGA board in reliance upon information provided to it by the Tribunal pursuant to clause 14.
[29] The Code of Conduct sets out the standards of conduct for participants in the V8 Supercar Category and participants must “comply with both the letter and spirit of the Code”.[7]
[30] The Code is to be supervised and administered by the Tribunal.[8] Breach of the Code, in the first instance, may result in a reprimand. A fine of $5,000 may be imposed for a second breach and fines of $10,000 may be imposed by the Tribunal for subsequent breaches.[9] Decisions of the Tribunal are binding and appeals against those decisions may be to a court “on a ground or (sic) error of law only”. Complaints against the plaintiff and other participants for alleged breaches of the Code may be made by another participant, a member of AVESCO or by a member of the general public.
[31] The plaintiff points out that the Tribunal’s role in respect of the Code is not limited to the determination of disputes but includes dealing with complaints from members of the public and others and attending to disciplinary matters. Also it is submitted, by reference to Mustill and Boyd[10] that the power to impose a fine is inconsistent with an arbitral role.
[32] Developing that theme, the plaintiff refers to clause 16.6 under which the Tribunal has jurisdiction to hear and determine, not just “disputes arising out of this Agreement”, but any matter arising out of the Code and any matter referred to the Tribunal by the TEGA board.
[33] Much emphasis was placed in the plaintiff’s submissions on the non-judicial functions of the Tribunal. But as the defendants point out, it is possible for a tribunal to have differing roles, only some of which are judicial in nature. What is of critical importance is whether the role of the Tribunal in determining the subject dispute is judicial in nature. I do not mean to suggest, however, that the fact that the Tribunal is vested with non-judicial roles under the agreement is entirely irrelevant. Further consideration will be given to that matter shortly.
[34] The plaintiff’s case also placed great emphasis on the obligation of the Tribunal under clause 16.2, in exercising its power, to “have regard to the welfare, needs and interests of AVESCO, TEGA and the Teams as a whole”. The defendants’ response to the arguments based on clause 16.2 is that the clause merely provides for matters to which the Tribunal must “have regard”, and does not override other obligations of the Tribunal such as the obligation to “observe natural justice”. They further submit that this provision is applicable to Code of Conduct matters and not to the determination of disputes within the Tribunal’s jurisdiction.
[35] I am not persuaded by the latter argument. There is nothing in clause 16.2 itself to suggest that the concluding words relate to Code of Conduct matters and not to the Tribunal’s dispute resolution role. Moreover, the exercise of the Tribunal’s “power” is something which is equally applicable to dispute resolution and to matters arising under the Code of Conduct. I note that clause 16.16 refers to “exercise of power” in a context which plainly includes reference to the Tribunal’s dispute resolution jurisdiction.
[36] There is substance, however, in the defendant’s first point. Parties to a contract may agree on the matters to be taken into account in construing provisions of that agreement or to be taken into account by an arbitrator when deciding disputes under it. And it does not follow, necessarily, that because a tribunal is directed to have regard to matters which go beyond those normally relevant to contractual construction that it is not determining the dispute between the parties according to law.
[37] But neither is it the case that the existence of such a direction is irrelevant to the determination of whether the Tribunal is acting as an arbitrator. The concepts embodied in “welfare, needs and interests” are difficult to define or delimit. Of at least equal difficulty is determining how, if at all, regard to such matters is to affect the Tribunal’s determinations when acting in a dispute resolution role. The fact that the Tribunal is required to address such matters is more suggestive of a non-judicial than judicial role. So too is the fact that in exercising its power the Tribunal is required to have regard to the “welfare, needs and interests of AVESCO, TEGA, and the Teams as a whole”, but not to the welfare, needs and interests of the plaintiff.
[38] The fact that the Tribunal has some roles which are plainly non-judicial in nature does lend some support to the conclusion that it was not the intention of the parties that the dispute resolution processes be viewed as arbitrations. Although the agreement is a sophisticated and lengthy commercial document, no reference is made to arbitration or to the Commercial Arbitration Act. That is of some significance in itself and the fact that some of the Tribunal’s roles are clearly not that of an arbitrator would, in my view, tend to make it more likely that the parties would have specified some of the Tribunal’s roles as arbitral had that been their intention.
[39] I do not consider of great weight the fact that in some circumstances the Tribunal’s members are appointed by the TEGA board. Parties to a contract are free to appoint as arbitrator a person who has an interest in the outcome of the proceedings through being, for example, a certifying engineer under a building contract who may even be the servant or agent of one of the parties.[11] But where the tribunal has a number of roles including regulatory and investigative, as is the case here, the conclusion that it is not being required to act as an arbitrator in any dispute resolution role conferred on it may more readily be drawn.
[40] That is particularly so, where, as is the case with the Tribunal, there is not a precise demarcation of the dispute resolution role on the one hand and administrative regulatory or investigative functions on the other. The requirement that the Tribunal have regard to the “welfare, needs and interests of AVESCO, TEGA and the Teams as a whole” under clause 16.2 probably derives from its general regulatory and supervisory roles. But whatever the explanation for its inclusion, it assists the plaintiff’s case.
[41] The plaintiff’s case is supported also by the fact that in exercising its dispute resolution role, the Tribunal may exercise its investigative powers under clause 14. Some of the powers of the Tribunal under this clause are inquisitorial in nature and foreign to the processes normally employed by judicial tribunals in this country. So too is the obligation imposed on the plaintiff and “each Team”, but not on TEGA, to “provide full and frank disclosure”, so that the Tribunal may “ascertain compliance” with the Rules and terms of the agreement. This obligation extends beyond a requirement to give discovery of documents which are directly relevant or even those which might put a party on a train of enquiry. So too does the obligation on the part of the plaintiff to “provide all assistance possible …in the provision of the information”.
[42] Such powers are conferred on the Tribunal in aid of its regulatory, disciplinary and even administrative roles. They assist the Tribunal and TEGA to determine whether a Team is in breach and, in consequence, assist in ensuring that “the Teams” comply with the letter and spirit of their respective agreements. Of particular relevance is the possibility that such powers may be employed by the Tribunal in its dispute resolution role. That is not suggestive of a process under which all parties to a dispute before the Tribunal have equal rights and must be treated equally and impartially.
[43] An example of the awkward nature of the Tribunal’s position as a resolver of disputes under clause 16 is provided by its role under clause 14 of reporting to the TEGA board. The contents of such a report may be relied on by TEGA to find the plaintiff in breach of the agreement thereby generating a dispute upon which the Tribunal may be required to adjudicate, notwithstanding the fact that the Tribunal, in its report, may have determined the issue in dispute against the plaintiff.
Conclusion
[44] All of these matters combine to suggest that the subject proceedings, despite the content of clauses 16.8, 16.10 and 16.11 are not judicial in nature and indicate that the intention of the parties was not, by the agreement’s dispute resolution provisions, to provide for an arbitration agreement.
[45] It will be declared that clause 16 of the agreement referred to in paragraph 3 of the affidavit of Simon Greg Reid filed in these proceedings on 15 October 2004 does not constitute “an arbitration agreement” within the meaning of that expression in the Commercial Arbitration Act 1990”. There appears to be no reason why costs should not follow the event, but I will hear submissions on costs.
Footnotes
[1] BC 9601565 (1996) 66 SASR 38.
[2] 2nd ed. by Mustill and Boyd, Butterworths 1989.
[3] clauses 16.2 and 16.6(c).
[4] clauses 13 and 16.1of the Code.
[5] PMT Partners Pty Ltd (in liquidation) v Australian National Parks and Wildlife Services (1995) 184 CLR 301.
[6] See eg, Thomas Cook v Commonwealth Banking Corporation (1986) ANZ ConvR 598; Arenson v Casson Blackman Rutley & Co [1977] AC 405 at 423-4; In Re Carus-Wilson and Greene (1886) 18 QBD 7 and Australian Mutual Provident Society v Overseas Telecommunications Commission (Australia) [1972] 2 NSWLR 806.
[7] Code of Conduct, clause 13.
[8] Clause 13.
[9] The Code, clause 17.
[10] (supra) at 149.
[11] Eckersley v The Mersey Docks & Harbour Board [1894] 2 QB 667.