When Dr Jekyll Turns out to be Mr Hyde – The Undisclosed Principal to a Land
Contract and Section 52?
Amanda Stickley
The action for misleading or deceptive conduct is increasing in its application with the
development that silence may amount to a breach of s 52 Trade Practices Act 1974 (Cth). The
use of an agent is common practice in commercial transactions, and in some situations a party
will be an undisclosed principal to avoid having their true identity revealed. This is accepted
under the common law as a recognised category of agency. However, under the provisions of
the legislation, it would appear possible that a corporation as an undisclosed principal to a
contract, may be engaged in misleading or deceptive conduct. This paper intends to focus on
the use of the undisclosed agency in land transactions.
The scope for the future development of the action for misleading
or deceptive conduct is as wide as the language of s 52 in its
primary and extended operation...
Justice French, ‘The Action for Misleading or Deceptive Conduct:
Future Directions’ in Misleading or Deceptive Conduct: Issues and
Trends.1
Introduction
There can be no doubt as to the widening impact of the Trade Practices Act 1974 (Cth) on
commercial dealings in setting standards for the conduct of trade and commerce. This has led to
much debate concerning how the common law and the legislation interrelates. Of particular note
is the effect of s 52 on the traditional general law. Such areas as tort, contract, passing off and
defamation have all experienced the far reaching effect of the provision prohibiting misleading or
deceptive conduct.
As French J wrote in 1989, “[s 52's] limits are yet to be reached”. 2 This appears to be true as the
Federal Court continues to expand the concept of what amounts to misleading or deceptive
conduct. Of note is the relevance of s 52 to land contracts. 3 It is now well established that a
vendor who makes misrepresentations as to the use of land can be found guilty of misleading
and deceptive conduct.4 A further development in the last decade is the concept that silence can
be misleading or deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth).5
Actions for non-disclosure in respect of land contracts have so far only been brought by
purchasers against vendors. However, the words of s 52 do not prohibit an action for misleading
or deceptive conduct being brought against a purchaser.
What are the rights of a vendor against a purchaser whose silence has induced the vendor to
enter into a land contract that otherwise the vendor would not have done so? This situation could
arise where the vendor has objections to selling the property to a certain person or corporation.
The purchaser could employ an agent to overcome this obstacle without revealing the existence
of the agency relationship. The utilisation of an agent for such objectives is a common and
accepted commercial practice.
 QUT, Faculty of Law.
1C Lockhart (ed), Federation Press, Sydney, 1996, p 283.
2'A lawyer’s guide to misleading or deceptive conduct’ (1989) 63 ALJ 250 at 250. See also, C Lockhart
(ed), Misleading or Deceptive Conduct: Issues and Trends, op cit, Chpt 10.
3See D Skapinker, ‘The impact of the Trade Practices Act on land transactions’ (1996) 4 APLJ 107.
4Myers v Trans Pacific Pastoral Co Pty Ltd (1986) ATPR 40-672; Elders Trustee & Executive Co Ltd v E G
Reeves Pty Ltd (1987) 78 ALR 193; Alliota v Broadmeadows Bus Service Pty Ltd (1988) 65 LGRA 362.
5Rhone-Poulenc Agrochimie SA v UMI Chemical Services Pty Ltd (1986) 12 FCR 477; Henjo Investments
Pty Ltd v Colliers Marrickville Pty Ltd (1988) 79 ALR 83.
The Law of Agency
An agent creates legal relations between a principal and a third party. The agency exists when
one party is authorised by the other to act on their behalf in respect of acts that affect their rights
and duties in relation to third parties. The existence of the agency may be openly acknowledged,
or the agent may enter into the contract without revealing that they are contracting on behalf of
another. At common law, the latter situation falls within the doctrine of the undisclosed principal.
The doctrine of the undisclosed principal
In ordinary agency, where the principal and the existence of the agency relationship are
disclosed, the agent is merely the instrument through which the principal becomes a party to the
contract. Therefore, the principal acquires rights and liabilities under the contract. 6 Where the
principal is undisclosed, to all intents and purposes, the agent is the party to the contract who will
assume the rights and liabilities.
The doctrine of the undisclosed principal is at variance with one of the fundamental rules of the
law of contract.7 The rule of privity of contract allows only the parties to the contract to acquire
rights and liabilities under that contract. Under the doctrine of undisclosed principal, the principal
may be sued or may sue on the contract that is made by its agent, despite the fact that upon
strict interpretation, the agent is the contracting party and the undisclosed principal is a third
party to that contract.8
Commentators have suggested that the basis of the doctrine is similar to assignment, without the
evidence of a transfer, the undisclosed principal being the implied assignee of the agent.9
Bowstead suggests that the doctrine developed simply for commercial convenience, 10 and is
now firmly established despite being criticised as “unsound”, “unjust” and “inconsistent with
elementary principles”.11 In Armstrong v Stokes, Blackburn J stated in respect of the legality of
the doctrine:
It has often been doubted whether it was originally right to hold
so: but doubts of this kind come now too late.12
As in any agency relationship, for the undisclosed principal to sue or be sued on the contract, the
agent must have acted within its authority in entering into the contract. The authority can be
either express or implied.13
The agent of an undisclosed principal will be personally liable under the contract to the vendor,
as the agent has contracted personally.14 The agent loses the right to sue if the principal
intervenes on the contract. Therefore, both the agent and the undisclosed principal may sue and
be sued on the contract.15 Upon the vendor discovering the existence of the undisclosed
principal, the vendor has the option to choose between the agent or the principal to enforce the
rights under the contract.16 If the vendor seeks to enforce the contractual rights or liabilities
6G
Fridman, The Law of Agency, 6th ed, Butterworths, Sydney, 1990, p 229
Frederick Pollock characterised the doctrine as “inconsistent with the elementary doctrines of the law
of contract”: Notes (1887) 3 LQR 359 referring to Isaac Cooke & Sons v Eshelby (1887) 12 App Cas 271.
8Andrews v Nominal Defendant (1968) 89 WN (Pt 2) (NSW) 113 at 124. See F Reynolds, Bowstead on
Agency, 15th ed, Sweet & Maxwell, London, 1985, p 313.
9A Goodhart & C Hanson, ‘Undisclosed principals in contract’ (1931) 4 Camb LJ 320 at 351-352: “... the
doctrine of the undisclosed principal is perhaps best considered as a primitive and highly restricted form of
assignment...”.
10F Reynolds, Bowstead on Agency, op cit, p 313.
11Stoljar, The Law of Agency: Its History and Present Principles, Sweet & Maxwell, London, 1961, p 203.
12(1872) LR 7 QB 598 at 604.
13 However, unlike ordinary agency, an undisclosed principal cannot ratify the acts of an agent: Keighley,
Maxstead & Co v Durant [1901] AC 240.
14Williams v Bulat [1992] 2 QdR 566 at 567; Dyster v Randall & Sons [1926] 1 Ch 932 at 938.
15Short v Spackman (1831) 2 B & Ad 962; Hersom v Bernett [1955] 1 QB 98; Mooney v Williams (1906) 3
CLR 1.
16There is no duty imposed on a vendor dealing with an intended purchaser to make inquiries as to the
7Sir
against the agent, the agent will be personally liable.17
Application of the Principles to Land Contracts
From the case law, a vendor who is wishing to avoid a contract on the grounds that the
undisclosed principal was not the party the vendor intended to enter into contractual relationship
with, they will have to establish that the identity of the agent or the undisclosed principal is
material to the transaction.18 The fact that the vendor did not wish to enter into a contract with the
undisclosed principal, will not be a material element of the contract, unless the vendor contracted
with the agent due to some personal attribute of that agent.
It is difficult to see how the identity of an agent would be a material element in the contract for
the sale of land. As argued by Stoljar, a land contract does not involve an ongoing personal
relationship between the vendor and the purchaser. 19 This appears to be the approach taken by
the court in Williams v Bulat.20
If then, in land contracts, the identity of the purchaser is unlikely to be a personal consideration,
does an agent, as a purchaser, owe any obligation of disclosure to the vendor?
Obligations Between Vendor and Purchaser
In land contracts, the obligations of the vendor are well established. 21 The obligations of the
purchaser of land are far less onerous. In Coaks v Boswell, the Earl of Selbourne LC stated:
Every...purchaser is bound to observe good faith in all that he
says and does, with a view to the contract, and (of course) to
abstain from all deceit, whether by suppression of truth, or by
suggestion of falsehood. But inasmuch as a purchaser is
(generally speaking) under no antecedent obligation to
communicate to his vendor facts which may influence his own
conduct or judgment when bargaining for his own interest, no
deceit can be implied from his mere silence as to such facts,
unless he undertakes or professes to communicate them. 22
His Lordship went on further to say that a purchaser who intentionally misleads the vendor on
any material point, will be guilty of fraud and the contract could be set aside. 23 Therefore, if an
agent misrepresents to the vendor who they are acting for, the contract could be avoided by the
vendor. In Archer v Stone,24 the defendant asked the plaintiff if he was acting for a particular
third party. The plaintiff replied untruthfully that he was not. North J held that the
misrepresentation had induced the defendant to enter into the contract and therefore specific
performance could not be granted.
existence of
an agency relationship. In Sebright v Hanbury [1916] 2 Ch 245 it was held that the vendor
of land was not entitled to interrogate the defendant to ascertain whether he was acting for an undisclosed
principal.
17Under the laws of agency, an agent acting within its authority would be entitled to an indemnity from the
principal.
18See Smith v Wheatcroft (1878) 9 ChD 223; Said v Butt [1920] 3 KB 497; Dyster v Randall & Sons [1926]
1 Ch 932; Williams v Bulat [1992] 2 QdR 566.
19Compare
with the entering into a lease. A lease involves continuing obligations and the personality of the
lessee would be of importance, disentitling an undisclosed principal to intervene on the contract: Carberry
v Gardiner (1936) 36 SR (NSW) 559.
20[1992] 2 QdR 566. See A Milin, ‘Undisclosed principals and unacceptable purchasers of land’ (1994) 7
JCL 76.
21For example, the obligation not to make misrepresentations as to the use of the land; the obligation in
respect of defects in title.
22(1886) 11 App Cas 232 at 235-236.
23Ibid at 236.
24(1898) 78 LT 34.
If [the agent] tells a lie relating to any part of the contract or its
subject matter, which induces another person to contract to deal
with his property in a way he would not do if he knew the truth, the
man who tells the lie cannot enforce his contract. 25
None of the cases involving the doctrine of the undisclosed principal to a land contract discuss
the obligations of the purchaser to a vendor. An agent and principal are in a recognised fiduciary
relationship. For an agent to reveal the existence or identity of its undisclosed principal would be
a breach of the agent’s fiduciary duty. An agent, therefore, does not have the obligation to
disclose the existence of the agency to the vendor, even if the agent were aware of the vendor’s
objection to contracting with the undisclosed principal. But is this duty of confidence on the part
of the agent applicable when the agent is, upon strict interpretation, the actual purchaser?
Duncan and Jones suggest that an agent does not have a legal obligation to disclose the
agency, unless it is a material element in the vendor’s acceptance. 26
As to whether the agency is a material element in the vendor’s acceptance, presumably it would
need to be a personal consideration, that is, an attribute of the agent that induces the vendor to
enter into the contract.27 As discussed above, this would be difficult to prove in relation to land
contracts. The fact that the vendor has objections to contracting with the undisclosed principal
does not make the identity of the purchaser material. It is argued that it is only in respect of
personal contracts, that the identity of the purchaser would be a material element.28
Position of the Agent of the Undisclosed Principal at Common Law
At common law, the agent of an undisclosed principal is not guilty of any sharp practice or
misleading conduct. In Williams v Bulat,29 Ambrose J made reference to the fact that it was not
unusual in business for a purchaser to keep their identity hidden by engaging an agent for the
purpose of negotiating a lower price. In that case, the reason for using an agent was solely to
avoid paying an inflated price for the property, the defendants being willing to sell to anyone else
at a lower price.30 The doctrine of the undisclosed principal, despite being harshly criticised, is
accepted as part of the law of agency, justified on the grounds of commercial convenience or
even economic grounds to overcome strategic bargaining practices.
The Real Estate Agent
It is usual in land contracts for the vendor to appoint a real estate agent to locate a purchaser for
the property. The real estate agent is subject to many duties, owed to the vendor as principal,
arising from the fiduciary relationship between the parties. As Cardozo stated in Meinhard v
Salmon:
The rule of undivided loyalty is relentless and supreme.31
The duty of the real estate agent, stated broadly, is to act in good faith in the best interests of the
vendor. Under the laws of agency, an agent is bound to keep the principal informed about
matters which would be of concern to the principal. 32 To fulfill this duty, the real estate agent
25Ibid
at 35.
W Duncan & S Jones, Sale of Land in Queensland, 4th ed, LBC Information Services, Sydney,
1996, p 36.
27Greer v Downs Supply Co [1927] 2 KB 28. In that case the third party contracted with the agent solely for
personal reasons (to obtain a set-off to settle a debt owed by the agent) and the undisclosed principal was
debarred from intervening on the contract.
28See B Markesinis & R Munday, An Outline of the Law of Agency, 3rd ed, Butterworths, London, pp 174176.
29[1992] 2 QdR 566 at 571.
30See also R Barnett, ‘Squaring undisclosed agency with contract theory’ (1987) 75 Cal L Rev 1969 at
1976-1977, a vendor would otherwise seek to gain advantage from the purchaser’s known financial
position.
31(1928) 62 ALR 1 at 7.
32Neeson v Wrightson NMA Ltd (1989) ANZ ConvR 605 at 609, citing with approval Bowstead on Agency,
12th ed, Sweet & Maxwell, London, 1985, p 147.
26See
must disclose to the vendor all matters that may affect the vendor’s judgment in relation to the
land transaction. In Georgrieff v Athans, Waters J stated in respect of information as to the
financial standing of the purchaser:
...I would deem it [the real estate agent’s] duty to convey to
the vendor any material, information or advice which the
vendor should know in order to guide him in transacting the
business in progress. 33
As to what are matters which would affect the vendor’s judgment, the rule is that a real estate
agent should disclose what a reasonable agent would consider material in the ordinary course of
business.34
The real estate agent is required to make full disclosure of all offers made to purchase the
property. There must be full and accurate disclosure of all material facts to the vendor before
obtaining consent to enter into the contract of sale. This duty of disclosure continues until the
completion of the contract.35
Should the real estate agent become aware that the purchaser being dealt with is in fact acting
as an agent for an undisclosed principal, the real estate agent would be under a duty to disclose
that information to the vendor. The identity of the purchaser would be information which “the
vendor should know in order to guide him in transacting the business in progress”.36 This would
be even more applicable if the real estate agent was aware that the identity of the purchaser was
a material element of the contract for the sale of the property. 37
Section 52 Trade Practices Act 1974 (Cth)
Section 52(1) of the Trade Practices Act 1974 (Cth) (hereinafter referred to as ‘the Act’)
provides:
A corporation shall not, in trade or commerce, engage in conduct
that is misleading or deceptive, or is likely to mislead or deceive.
The section is directed at foreign corporations, trading and financial corporations formed within
Australia, bodies corporate incorporated in a Territory and any holding company of the
preceding.38 By virtue of the operation of s 6, the application of s 52 extends to persons in
specific circumstances.
Section 52 will apply to natural persons where:
(i)
the person engages in conduct in the course of interstate trade or commerce with
a Territory or the Commonwealth, or in trade or commerce with a place outside of
Australia;39
(ii)
the person engages in conduct in the course of telephone, telegraphic, or postal
services or telephone or radio broadcasts;40
33(1981)
26 SASR 412 at 415.
v Wrightson NMA Ltd (1989) ANZ ConvR 605 at at 609; Payne & Co v Lewis [1917] WN 195.
35Blundell & Brown Ltd v Gathergood (1989) ANZ ConvR 599.
36Georgrieff v Athans (1981) 26 SASR 412 at 415.
37If the real estate agent is working for both the vendor and the purchaser, there will be a conflict of
fiduciary duty owed by the agent to both of its principals. In Kelly v Cooper [1992] 3 WLR 936, the
House of Lords held that estate agents must be free to act for several competing principals and will not be
subject to an obligation to disclose information to one principal when it would constitute a breach of the
fiduciary duty owed by the agent to another principal. See A Lang, Estate Agency Law and Practice in New
South Wales, 5th ed, Law Book Co, Sydney, 1994, p367.
38Trade Practices Act 1974 (Cth), s 4(1) definition “corporation”.
39Ibid, s 6(2).
40Ibid, s 6(3).
34Neeson
(iii)
the person engages in conduct in the course of advertising for business or
professional services.41
The section applies to corporations which engage in “trade or commerce”.42 Conduct in the
course of negotiations is within the ambit of the section. But the private sale of goods or land is
not.43
As to whether the conduct in question is misleading or deceptive, it is determined objectively in
view of the existing circumstances.44 It is not necessary to establish that there was any intention
to mislead or deceive.45 Conduct which can be characterised as inducing or capable of inducing
error will be characterised as misleading or deceptive. 46
The Act provides that a remedy may be obtained against the person who has contravened the
Act and any person who is “involved in the contravention”. 47 A person is defined to be “involved
in the contravention” if they have knowledge of the facts which constitute the contravention of the
Act.48
All States have enacted legislation mirroring the Commonwealth Act, the remedies being limited
to “consumers”. In Queensland, s 6 of the Fair Trading Act 1989 defines “consumer” to include:
(i)
a person who acquires an interest in land otherwise than for a business
carried on by that person;
(ii)
a person who acquires an interest in land for a business if the interest in
land is not more than $40,000; or
(iii)
a corporation which acquires an interest in land for less than $40,000.
Due to this restricted definition of “consumer”, it is more likely that an action brought in relation to
a land contract, will not come under the Fair Trading legislation of the States, but recourse will
have to be to the Federal Act.
Section 52 and the Common Law
As an increasing number of cases were brought under s 52, there was much debate as to
whether the Act imposes a code of conduct in commercial dealings that alters the common law.
The case law has now established that s 52 imposes a “broadly stated standard of commercial
probity”.49 Section 52 does not alter the common law by imposing a duty of disclosure, but it does
impose a code of conduct.
As to what is the standard of conduct imposed, in General Newspapers Pty Ltd v Telstra
Corporation it was observed that:
[Section 52] does not require arms’ length negotiations to be
completely open or require full disclosure at all times. The
41Ibid,
s 6(4).
words “trade or commerce” are used in the same wide understanding as in s 51(i) of The
Constitution Act 1901 (Cth): Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at
602. Note that despite the omission of the phrase “trade or commerce” in s 6(3) and (4), a natural person
must be engaged in trade or commerce to be in breach of s 52.
43O’Brien v Smolongov (1983) 53 ALR 107.
44Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177; Parkdale Custom Built Furniture Pty Ltd
v Puxu Pty Ltd (1982) 149 CLR 191.
45Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd (1978) 140
CLR 216 at 223; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197.
46Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; Rhone-Poulenc
Agrochimie
SA v UMI Chemical Services Pty Ltd (1986) 12 FCR 477.
47Trade Practices Act 1974 (Cth), ss 82 and 87.
48Ibid, s 75B. Yorke v Lucas (1985) 158 CLR 661 at 670.
49Justice French, ‘The Action for Misleading or Deceptive Conduct: Future Directions’ in C Lockhart (ed),
Misleading or Deceptive Conduct: Issues and Trends, op cit, p 283. See Brown v Jam Factory PtyLtd
(1981) 53 FLR 340 at 348; Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604.
42The
particular facts of the case must be considered in the light of the
ordinary incidents and character of the commercial behaviour.50
The obligation to disclose material matters in the course of negotiation is considered by the
courts on a case by case basis. Whether conduct in commercial transactions, that under the
general law is merely considered to be ordinary business practice is caught by s 52, is
dependent on the circumstances.
At common law, parties to a commercial dealing who are at arms’ length have no duty of
disclosure.51 In Poseidon Ltd v Adelaide Petroleum NL,52 it was held that s 52 did not challenge
the usual practices of commercial negotiation, but that the bargaining process is not a licence to
deceive. It is common in negotiations that one party will possess information which, if the other
party had knowledge of, may cause the other party to alter their negotiating stance. In the recent
case of Walker Corporation Ltd & Anor v Australia NID Pty Ltd & Ors,53 a vendor orally agreed to
sell real estate to a purchaser, but before contracts were exchanged, the vendor received a
higher offer and contracted with the new purchaser. The original purchaser claimed that the
vendor was guilty of misleading or deceptive conduct by silence in failing to inform them that it
was considering another offer for the property.
The court held that the mere act of the vendor agreeing to sell when it had already orally agreed
to sell for a lesser sum, would not ordinarily be a breach of s 52, as the vendor was not bound to
sell to the original purchaser. The court made reference to the accepted commercial dealings in
such situations:
Although s 52 must be applied according to the words which it
uses and ought not be read down by reference to principles of
common law or equity, a judgment as to what is and what is not
deceptive conduct ought not be made without regard to relevant
relationships established by principles of law applying in
commercial transactions.54
Silence in Negotiations
Failing to disclose information may to amount to misleading or deceptive conduct. Silence will
only be in breach of s 52 when the person who has failed to make the disclosure is aware or has
knowledge of the information which has been omitted. The silence in respect of a fact is
“conduct” as defined under the Act, if the failure to disclose involves some actual or deemed
decision making.55
Pengilly suggests that silence will infringe s 52 in negotiations upon:
50(1993)
(i)
failure to disclose the whole truth and thereby creating an
erroneous impression by what is disclosed;
(ii)
active concealment of a fact, giving rise to an impression
that such a fact does not exist;
(iii)
failure to correct a false statement, thereby implying it is
true; or
(iv)
failure to disclose facts when there is an obligation to do
so in the circumstances.56
117 ALR 629 at 642.
v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458.
52(1991) 105 ALR 25.
53(1995) NSW ConvR 55-758.
54Ibid at 55,826.
55Trade Practices Act 1974 (Cth), s 4 definition of “conduct” includes the refusal to do an act. See Spedley
Securities Ltd (in liquidation) v Bank of New Zealand (1991) ATPR 41-143.
56W Pengilley, ‘“But you can’t do that anymore!”- The effect of section 52 on common negotiating
51Lam
Mere silence by itself does not constitute misleading or deceptive conduct. 57 It is only when
coupled with the surrounding circumstances, silence may be misleading or deceptive. In RhonePoulenc Agrochimie SA v UMI Chemical Services Pty Ltd, Lockhart J stated:
...when all the relevant circumstances of a case are analysed
silence of the alleged contravener may be the critical matter upon
which reliance is placed to establish misleading or deceptive
conduct.58
The courts are not restricted to finding there has been misleading or deceptive conduct by the
failure to disclose information merely to situations where there is a common law duty of
disclosure.59 As Bowen CJ stated in Rhone-Poulenc Agrochimie SA v UMI Chemical Services
Pty Ltd:
The notion of relationships giving rise to an obligation to make
disclosure is one which may well prove useful in determining
some of the cases which may arise under section 52....However,
the Court will not be restricted to cases where such a relationship
has already been held to exist at common law or in equity. The
Court is likely to be faced with situations under section 52
between particular parties, where it will feel bound to hold that
such an obligation to disclose arises from the circumstances. 60
Section 52 does not impose a duty to disclose all information. 61 No obligation of absolute good
faith is imposed. However, if information is disclosed it must be considered adequate in the
circumstances to allow a properly informed decision to be made.62 In Kimberley NZI Finance Ltd
v Torero Pty Ltd, French J held:
...unless the circumstances are such to give rise to the
reasonable expectation that if some relevant fact exists it would
be disclosed, it is difficult to see how mere silence could support
the inference that the fact does not exist.63
In determining whether silence is misleading or deceptive, the test applied by the courts is
whether the circumstances are such to give rise to a reasonable expectation that if some
material or relevant fact existed, it would be disclosed.64
As noted by Harland,65 the court’s approach to the issue of whether silence can be misleading
still leaves it open as to how readily a reasonable expectation of disclosure will be inferred.
Reasonable expectation of disclosure
In the context of commercial negotiations it can be discerned from the cases that a number of
judges are opposed to s 52 imposing unduly restrictive inhibitions. In Lam v Ausintel Investments
Australia Pty Ltd, 66 it was discussed that imposing disclosure obligations on parties negotiating
techniques’ (1993) 1 TPLJ 113 at 121.
57Brophy v NIAA Corporation Ltd (in liq) (1995) ATPR 41-399; Demogogue v Ramensky (1992) 39 FCR
31.
58(1986) 12 FCR 477 at 504.
59Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 95; Commonwealth Bank of
Australia v Mehta (1991) 23 NSWLR 84 at 88.
60(1986) 12 FCR 477 at 490.
61Fraser v NRMA Holdings Ltd (1995) 127 ALR 543.
62Ibid at 555.
63(1989) ATPR(Digest) 46-054 at 53,193.
64Demogogue Pty Ltd v Ramensky (1992) 110 ALR 608; Warner v Elders Rural Finance Ltd (1993) ATPR
41-238; General Newspapers Pty Ltd v Telstra Corporation (1993) 117 ALR 629.
65D Harland, ‘The statutory prohibition of misleading or deceptive conduct in Australia and its impact on the
law of contract.’ (1995) 111 LQR 100 at 116.
66(1989) 97 FLR 458.
commercial contracts would be contrary to the ordinary practice and expectations. Uncertainty
still exists as to what extent the courts will go in setting a minimum standard of commercial
probity as the common law does not limit the scope of the section. 67 So what circumstances give
rise to a reasonable expectation of disclosure?
From the recent decisions of Demogogue Pty Ltd v Ramensky 68 and Warner v Elders Rural
Finance Ltd,69 it is clear that the role of the common law in relation to disclosure is merely an aid
to interpreting the surrounding circumstances. 70 Black CJ stated in Demogogue Pty Ltd v
Ramensky:
Although “mere silence” is a convenient way of describing some
fact situations, there is in truth no such thing as “mere silence”
because the significance of silence always falls to be considered
in the context in which it occurs. That context may or may not
include facts giving rise to a reasonable expectation, in the
circumstances of the case, that if particular matters exist they will
be disclosed.71
The courts may be influenced by the following factors in determining under what circumstances
a reasonable expectation arises:72
(i)
relationships of proximity between the parties;73
(ii)
knowledge of the relevant information;
(iii)
materiality of the undisclosed information;74
(iv)
failure to disclose resulting in injustice to one party;75 and
(v)
the nature of the information.
A reference to the circumstances of the case is referable to the common law on a factual level.
No general test can be devised as each case must be determined on its merits as guided by the
above factors. Any inequality in knowledge, experience and bargaining power would be
important in determining what expectations are reasonable. 76
Reasonable Expectation in Negotiation of a Land Contract
To establish that the agent has engaged in misleading or deceptive conduct by failing to disclose
the agency, the circumstances must be such to give rise to a reasonable expectation on the
behalf of the vendor, that the agency or the identity of the undisclosed principal would be
revealed. As discussed above, the existence of a reasonable expectation must be determined by
the nature of the information and the surrounding circumstances.
67See
D Clough, ‘Misleading and deceptive silence: Section 52, confidentiality and the general law’ (1994)
2 TPLJ 76 at 79.
68(1992) 110 ALR 31.
69(1993) ATPR 41-238.
70D Clough, ‘Misleading and deceptive silence: Section 52, confidentiality and the general law’, op cit at 8889.
71(1992) 110 ALR 608 at 610.
72 D Skapinker, ‘The imposition of a positive duty of disclosure under section 52 of the Trade Practices Act
1974 (Cth)’ (1991) 4 JCL 75.
73For example the relationship between directors and shareholders of a company: Fraser v NRMA
Holdings Ltd (1995) 127 ALR 543.
74In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83, the vendor of a restaurant
breached s 52 by not disclosing that the premises were licenced to hold a lesser number of people than
the seating indicated.
75In Demogogue Pty Ltd v Ramensky (1992) 110 ALR 31, the fact that the party entered into a contract
induced by misleading and deceptive conduct was sufficient for an action for damages under s 87.
76See A Robertson, ‘Silence as misleading conduct: Reasonable expectations in the wake of Demogogue
Pty Ltd v Ramensky’ (1994) 2 CCLJ 1.
Relationship of proximity between the parties
A vendor and an agent acting for an undisclosed principal are not in a fiduciary relationship. In
ordinary commercial dealings involving land contracts, the parties are at arms’ length and would
have conflicting interests. Therefore, there is no requisite proximity between the parties that
would give rise to an obligation to disclose information during negotiations.
Knowledge of the relevant information
To be in breach of s 52, the agent must be aware of the information which is not disclosed.
Obviously the agent has knowledge of the existence of the undisclosed principal. If the agent
has no knowledge of the reason for the principal remaining unacknowledged, the agent cannot
be guilty of deliberately misleading the vendor on a material point. If the vendor does not
communicate to the agent any objections as to who purchases the land, the agent could not be
aware that the identity of the purchaser is a material element to the vendor’s acceptance of the
offer to purchase.
Materiality of the information
The identity of the purchaser must be a material element of the contract. Applying the principles
from the common law cases on undisclosed principals, the vendor would need to establish that it
was induced to enter into the land contract by the identity of the agent. Proof would be needed to
establish that the vendor would not have entered into the contract with anyone else on the same
terms as were agreed with the agent.77 This would be difficult to prove in respect of land
contracts as there is no personal, ongoing relationship between a vendor and a purchaser. But it
must be kept in mind that s 52 is not dependent on the common law principles. If the agent is
aware that the vendor would be opposed to selling the land to the undisclosed principal, the
courts could find that this makes the identity of the purchaser a material element to the contract.
Resulting injustice to one party
On strict interpretation, the use of an agent is not fraud, giving rise to unilateral mistake. The
agent does not make any false representations to the vendor as to its identity. If an undisclosed
principal engages an agent, in order to overcome the vendor’s opposition to selling the land to it,
the vendor ends up in a contractual relationship with a party that it had no dealing with and no
intention of contracting with. Being induced to enter into a contract by misleading or deceptive
conduct could be considered sufficient injustice.78
Nature of the information
The agent owes a duty of confidentiality to the undisclosed principal, due to the fiduciary
relationship between the parties. The existence and the identity of the undisclosed principal is
confidential information and an agent would be in breach of its duty if it disclosed that information
without the authority of the principal. Can a vendor have a reasonable expectation of disclosure
of confidential information?
The cases show that although confidential information may be material to the applicant, the
characterisation of the information as confidential indicates that there can be no reasonable
expectation of disclosure between experienced commercial parties. 79
In Kabwand Pty Ltd v National Australia Bank Ltd, 80 it was held that there was no duty on a bank
to disclose to a third party information concerning a customer of the bank. This was cited with
approval in Winterton Constructions Pty Ltd v Hambros Australia Ltd, 81 a case in which the
77Dyster
v Randall & Sons [1926] 1 Ch 932; Williams v Bulat [1992] 2 QdR 566.
Pty Ltd v Ramensky (1992) 110 ALR 31. See fn 105.
79Winterton Constructions Pty Ltd v Hambros Australia Ltd (1992) 111 ALR 649; Brophy v NIAA
Corporation Ltd (in liq) (1995) ATPR 41-399; Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR
40-950.
80(1989) ATPR 40-950.
81(1992) 111 ALR 649.
78Demogogue
respondent, a merchant bank, did not inform the appellant that the property developer, a client of
the respondent’s, with whom the appellant was contracting was not financially stable. The
appellant claimed that the respondent had engaged in misleading or deceptive conduct by failing
to inform them that no further funds would be released to the property developer. Hill J held that
the circumstances did not involve the law imposing an obligation on the respondent to disclose
to the appellant the change in the financial conditions of its client. His Honour stated:
...a borrower is entitled to expect (even if it is not an implied term
of the contractual arrangement) that his financier will keep
confidential matters concerning the borrower’s financial affairs. To
impose upon a lender such an obligation to communicate to a
person whom it knows to be under contractual obligations with
the borrower, would impose an intolerable burden upon the
financier and could be most damaging to its borrowers. 82
In General Newspapers Pty Ltd v Telstra Corporation, Davies and Einfeld JJ stated in regard to
confidential information:
Commercial people understand, or should understand, that they
will not ordinarily be informed of information which is regarded as
confidential...The common understanding of commercial people
must therefore be taken into account in determining what is
misleading or deceptive or likely to be so.83
It was held that although the respondent was aware of the information and that it had not been
disclosed, the surrounding circumstances did not give rise to a reasonable expectation. The
respondent had told the appellant that their name would be placed on a tender list for printing
contracts. The respondent did not disclose that it was negotiating the renewal of the contracts
with its current printers and that in fact tenders would not be called for. The court held that
because the appellant had not indicated to the respondent that it was relying on being placed on
the tender list, the respondent was not placed in the position of being obliged to respond. The
appellant could not have an expectation of disclosure in such circumstances.
Although the facts of the case did not involve any common law duty of confidentiality, the
information that negotiations were taking place with the current contractors was clearly
confidential to the respondents. The confidentiality of the information was treated by the court as
a highly important facet of the circumstances rather than invoking a general law rule. 84 But the
court did suggest that an expectation of disclosure could arise, despite the confidentiality of the
information, if the appellant had indicated that it was acting in reliance on the respondent’s
actions. The fact that the appellant and the respondent were experienced commercial entities
placed them on equal standing. Therefore, what the appellant expected to be disclosed was not
reasonable in view of their knowledge and experience in commercial transactions.
The confidentiality of the information is merely another fact of the case, although an important
one, that needs to be considered in determining whether the conduct has been misleading or
deceptive.85 If there is a common law duty of confidentiality, this should make it more difficult to
establish that a party has engaged in misleading or deceptive conduct, when compared to the
circumstances of cases where there is no such duty. 86 The decision in Demogogue Pty Ltd v
Ramensky87 clearly establishes that there is no link between the common law principles and an
action under s 52. The courts may look to the common law on a factual level, but the Act stands
82Ibid
at 667-668.
117 ALR 629 at 641.
84See D Clough, ‘Misleading and deceptive silence: Section 52, confidentiality and the general law’ , op cit
at 91.
85S Christensen, ‘The Effect of the Trade Practices Act 1974 on Non-Disclosure’ in T Cockburn & L
Wiseman (eds), Disclosure Obligations in Business Relationships, Federation Press, Sydney, 1996, p 113.
86D Clough, ‘Misleading and deceptive silence: Section 52, confidentiality and the general law’, op cit at 99.
87(1992) 110 ALR 608.
83(1993)
independent of the common law principles. Therefore the fact that the information that has not
been disclosed is subject to a fiduciary duty of confidentiality, may not be an adequate defence
to any charge of misleading or deceptive conduct.
Application of s 52 to the Undisclosed Agency Relationship
There have been no reported cases involving an action brought against a purchaser under s 52,
but such actions are not barred. The provision will apply if the purchaser is a corporation, or is a
natural person within the extended operation of the Act under s 6, and the purchase of the land
is either for resale in trade or commerce, or is for business purposes as a capital acquisition.88
Due to the ever increasing application of s 52 and the acknowledgement that silence may be in
contravention, it is feasible that the common practice of employing an agent may give rise to a
claim for misleading or deceptive conduct.
In acting as an agent for an undisclosed principal in a land contract, the agent is in fact the
purchaser. Under the common law principles, as stated in Coaks v Boswell,89 a purchaser is
generally under no obligation to disclose to the vendor facts that may influence the vendor’s
conduct or judgment, when bargaining for their own interest. Therefore there is no common law
duty of disclosure.
For an agent to be guilty of misleading or deceptive conduct by refraining from identifying the
agency relationship, the agent would need to be aware that the identity of the purchaser is an
element considered important to the vendor. This could give rise to a reasonable expectation
that the identity of the true purchaser would be disclosed. The knowledge that the vendor has an
expectation of disclosure may arise from the context of the negotiations or from any inquiries that
the vendor makes.
The relationship between a vendor and a purchaser gives rise to certain assumptions
concerning the dealings between the parties. In Colliers Jardine (NSW) Pty Ltd v Balog
Investments Pty Ltd,90 a vendor appointed a real estate agent to sell a hotel. The vendor did not
inform the agent that there was a right of first refusal and that the vendor was merely using the
agent to assess the market value of the property. The court held that as the right of first refusal
was something unusual, the vendor’s conduct in remaining silent amounted to an indication that
the transaction was an ordinary one, when in fact it was not. The failure to disclose the unusual
information was held to be misleading.
The issue, as to whether the agent’s silence in respect of the identity of the undisclosed principal
is misleading or deceptive, will be determined with reference to the usual commercial practice
and expectations in such relationships. In negotiations of commercial dealings, it is usual for one
party to possess information that, if the other party knew, may cause the other party to change its
negotiating stance. It is not unusual in the commercial world for purchasers to engage agents to
act on their behalf for the purpose of keeping their identity secret in order to negotiate a more
favourable transaction. Therefore, the use of an agent without disclosing the agency is not an
unusual circumstance, as there was in Colliers Jardine (NSW) Pty Ltd v Balog Investments Pty
Ltd.91
It is possible for an agent of an undisclosed principal to have engaged in misleading or deceptive
conduct by failing to disclose the existence of the agency and the identity of the principal. The
circumstances must be such that the vendor had a reasonable expectation that the identity of
the true purchaser would be disclosed and the vendor relied on the agent’s silence. If the agent
has been absolutely silent as to the agency relationship and has done nothing more, there has
88M
Richardson & P Williams (eds), Law and the Market, Federation Press, Sydney, 1995, p 197.
11 App Cas 232 at 235-236.
90(1995) ATPR(Digest) 46-140.
91Ibid. In Demogogue Pty Ltd v Ramensky (1992) 110 ALR 608, it was held that the fact that vehicle
access to property was by licence over Crown land, not over land owned by the body corporate, was an
unusual circumstance that required disclosure. Failing to inform the purchaser of this unusual
circumstance was misleading.
89(1886)
been no infringement of s 52.92
Examples
As there have been no cases under s 52 claiming a breach by an agent in acting for an
undisclosed principal, it is useful to apply the principles derived from the case law to some
factual situations.
The Parties:
Vendor of land (V).
Undisclosed Principal (UP), actual purchaser of the land.
Agent Pty Ltd (A Pty Ltd) acting as agent for undisclosed principal.
V enters into a contract for the sale of land with A Pty Ltd. V has no objections to selling
the land to UP.
At common law:
It is an accepted commercial practice to use an agent without revealing the agency relationship.
The identity of the purchaser is not material to V and therefore the contract could not be avoided.
V would be willing to contract on the same terms with any other purchaser.
Under the Act:
In this situation, V could not claim to have been misled or deceived. The identity of the purchaser
is not a material element to the contract and there are no circumstances giving rise to an
expectation that the agency would be disclosed. The silence of the agent is not misleading or
deceptive conduct.
V contracts with A Pty Ltd and would not contract on the same terms if contracting with
UP, but does not inform A Pty Ltd of this objection.
At common law:
From the case law, the fact that V would not enter into the contract on the same terms with UP
as it did with A Pty Ltd, does not render the identity of the purchaser a material element of the
contract.93 V has contracted with A Pty Ltd on terms it would be willing to contract with in respect
of other purchasers, but just not UP. The contract would be valid.
Under the Act:
If A Pty Ltd has no knowledge of V’s objections to contracting with UP, A Pty Ltd cannot know
that V would expect the information to be disclosed. V has not indicated that it is relying on A Pty
Ltd’s silence as to the existence of the agency. Therefore, the conduct cannot be characterised
as misleading or deceptive. Having regard to the usual commercial practices, the courts state
that total disclosure in negotiation is not imposed by s 52. 94 The fact that V would not contract on
the same terms with UP as it would with another, does not establish that the identity of the
purchaser is a material element to the contract. A Pty Ltd would not be in breach of s 52.
V would not enter into a contract with UP on any terms. V does not reveal this opposition
to A Pty Ltd.
At common law:
The identity of the purchaser is not a personal consideration because it is only UP that V would
refuse to contract with. To avoid the contract, V would need to prove that it agreed to the
contract due to the identity of A Pty Ltd, and would not have entered into the contract with
anyone else on the same terms. This would be difficult to prove in relation to a land contract. On
92General
Newspapers Ltd v Telstra Corporation (1993) 177 ALR 629; Kimberley NZI Finance Ltd v Torero
Pty Ltd (1989) ATPR (Digest) 46-054.
93Dyster v Randall & Sons [1926] 1 Ch 932; Williams v Bulat [1992] 2 QdR 566.
94Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458; Poseidon Ltd v Adelaide Petroleum NL
(1991) 105 ALR 25.
the face of it, V could not avoid the contract.
Under the Act:
A Pty Ltd’s liability is dependent upon V having a reasonable expectation of disclosure. If V has
not informed A Pty Ltd of its objections to contracting with UP, there has been no reliance by V
upon A Pty Ltd’s silence and, hence, the circumstances do not give rise to such an expectation.
As in General Newspapers Pty Ltd v Telstra Corporation,95 V has not indicated to A Pty Ltd that it
is acting in reliance on the representation that A Pty Ltd is the actual purchaser.
V would not contract with UP on any terms and informs A Pty Ltd of this.
At common law:
V would need to prove that it contracted with A Pty Ltd because of some personal consideration
of A Pty Ltd’s attributes. If V would contract to sell the property to another on similar terms, the
contract could not be avoided.
If V enquires as to whether A Pty Ltd is acting for UP and A Pty Ltd denies the agency, the
contract could be set aside. The misrepresentation by A Pty Ltd has induced V to enter into a
contract it would otherwise not have. It is not necessary for V to prove damage. 96
Under the Act:
Regard would be had to the usual business practices and the nature of the information. As noted
earlier “[n]o one expects all the cards to be on the table.”97 For there to be a reasonable
expectation of disclosure, the information must be material to V.98
In this situation, it could be argued that by informing A Pty Ltd of its objections to contracting with
UP, there is a reasonable expectation by V that A Pty Ltd would disclose the identity of the actual
purchaser if that fact existed. Despite the confidentiality of the information, if V could prove that it
had indicated to A Pty Ltd that it was relying on A Pty Ltd being the purchaser, A Pty Ltd could be
in breach of s 52 by failing to respond.99
The failure to respond would create circumstances allowing V to assume that if A Pty Ltd was
acting for UP, it would be disclosed. The fact that the information is confidential would be
considered as an important fact of the case by the court. The confidentiality arises from the
fiduciary relationship between A Pty Ltd and UP. This would have strong impact upon any
obligation to disclose the agency to V.100 It is submitted that as the confidentiality arises from a
fiduciary relationship, the courts would be reluctant to find that a vendor could have a reasonable
expectation of disclosure of the confidential information.
If V informs A Pty Ltd that it would not sell the property to “just anyone”, but does not indicate
that it would not sell to UP in particular, A Pty Ltd is put on notice that V regards the identity of
the purchaser as important. It could be argued that this is sufficient to support a reasonable
expectation by V that the true identity of the purchaser would be revealed. A Pty Ltd is aware of
V’s expectations and is placed in the position of having to respond. V is relying on A Pty Ltd
being the purchaser as opposed to someone else.
It is possible that in either of these situations, A Pty Ltd would be expected to disclose the
identity of the purchaser in response to V’s information concerning its willingness to enter into
the contract. Once V establishes that it is relying on A Pty Ltd’s silence in relation to the identity
of the purchaser, A Pty Ltd would need to disclosed its true capacity. But, an overarching
consideration in assessing whether there is a reasonable expectation on the behalf of V is the
95(1991)
117 ALR 629.
v Stone (1898) 78 LT 34.
97Poseidon Ltd v Adelaide Petroleum NL (1991) 105 ALR 25 at 26.
98Fraser v NRMA Holdings Limited (1995) 127 ALR 543.
99General Newspapers Pty Ltd v Telstra Corporation (1993) 117 ALR 629.
100See Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950; Brophy v NIAA Corporation
Ltd (in liq) (1995) ATPR 41-399.
96Archer
relative experience of the parties.
If V and A Pty Ltd each possess commercial experience, the existence of the information that
would be regarded as confidential in negotiations would be known to both parties. It would not be
reasonable for V to expect that A Pty Ltd would breach its fiduciary duty owed to UP. However, if
V is inexperienced in comparison to A Pty Ltd, the courts could merely regard the confidentiality
of the information as another fact, not as a defence to the non-disclosure.
Summary
Claims brought under s 52 are determined on a case by case basis. Clough suggests that the
court’s approach of taking into account the circumstances of each case is broad ranging and
flexible and
... requires the courts to examine the circumstances of each case
on its merits with the guidance of the [general principles which
have been the subject of judicial development], rather than be
ruled by the categories and limitations of fiduciary duties.101
To make a successful claim for breach of s 52, a vendor would bear the onus of proving that the
silence of the agent in the circumstances prior to the completion of the land contract amounted
to misleading or deceptive conduct. The vendor would need to prove:
(i)
that the agent was aware that the vendor was opposed to contracting with the
undisclosed principal;
(ii)
the identity of the purchaser was a material fact to the vendor;
(iii)
there was a reasonable expectation that the identity of the true purchaser would
be disclosed;
(iv)
that there was reliance on the silence as to the identity of the true purchaser;
(v)
that it was led into error by the agent’s conduct.
Liability
Section 82 of the Act allows a person who has suffered loss or damage by conduct of another, in
contravention of Part IV or V of the Act, to recover damages against that person. The operation
of the provision extends to allow the claimant to seek damages against any person involved in
the contravention, by virtue of s 75B.
If a claim for damages is brought against a natural person as a “person involved in the
contravention”, it is not sufficient to show that they were the principal on whose behalf the
misleading or deceptive conduct was carried out.102 To be a person involved in a contravention,
that person must have knowledge of the essential elements constituting the contravention. 103
Should the undisclosed principal be held to be “involved in a contravention”, it is only the liability
for the contravention that is imposed on the principal, they are not deemed to be in contravention
of the Act themselves.
If the undisclosed principal is a corporation, any misleading or deceptive conduct engaged in by
its agent, is deemed by s 84(2) to have been engaged in by the corporation. In an action for
damages, it would be unnecessary for the vendor to establish that the corporation had
knowledge of the conduct which constituted a breach of s 52.
It is an issue whether a vendor who has entered into a contract for the sale of land has in fact
suffered any loss or damage. If the vendor would have sold to the undisclosed principal at a
higher price, this could not be classified as damage. And if the vendor would not have sold to the
101D
Clough, ‘Misleading and deceptive silence: Section 52, confidentiality and the general law’, op cit at
81.
102Keen Mat Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1985) 61 ALR 504.
103York v Lucas (1985) 158 CLR 661 at 670.
undisclosed principal on any terms, but would have sold to another, no loss has been suffered
by the vendor. Therefore, a vendor would need to claim damages under s 87, the more liberal
remedy provision of the Act.
To succeed in damages under s 87, the vendor needs to prove that it suffered, or is likely to
suffer, loss or damage. In Demogogue Pty Ltd v Ramensky,104 the court held that the
disadvantage of being bound by a contract, induced by misleading or deceptive conduct, is
sufficient loss or damage for the purposes of s 87. Therefore, a vendor who has been induced
by an agent’s misleading or deceptive conduct to contract for the sale of land has suffered loss
or damage for the purposes of relief under s 87.
A vendor who is able to prove misleading or deceptive conduct would also be entitled to apply to
have the land contract set aside under s 87(2). The court is empowered to declare the whole or
any part of a contract void ab initio.
Conclusion
It must only be a matter of time before the courts are faced with a claim for breach of s 52 by an
agent acting for an undisclosed principal in a land contract. As French J writes:
...some of the areas [of s 52's] growth...hold the promise of
interesting and intellectually challenging issues for resolution by
the courts in the years ahead.105
Although the courts claim that reference will be had to the common law and the usual
commercial practices, the case by case approach leaves it open for an agent acting for an
undisclosed principal to be found guilty of misleading or deceptive conduct. Applying s 52
independent of the common law duties allows the existence of a fiduciary duty, such as the duty
of confidence, to be taken into account merely as another circumstance of the case. Although
the obligation of confidence would be regarded as an important factor, the very broadly stated
test of “reasonable expectation” enables the court to find that the failure to disclose the identity of
the true purchaser amounts to misleading or deceptive conduct. The reasonable expectation
test is open to interpretation, and “has the capacity to find its way up by capillary action wherever
there is room for it to move.”106
104(1992)
110 ALR 608
French, ‘The Action for Misleading or Deceptive Conduct: Future Directions’ in C Lockhart (ed),
Misleading or Deceptive Conduct: Issues and Trends, op cit, p 305.
106Ibid, p 288.
105Justice