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CISG CASE PRESENTATION

Australia 3 November 2000 Federal Court (South Sydney District Rugby League Football Club v News Ltd)
[Cite as: http://cisgw3.law.pace.edu/cases/001103a3.html]

Primary source(s) of information for case presentation: Case text sourced from CISG-Australia website and, in turn, sourced from AustLII

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Case identification

DATE OF DECISION: 20001103 (3 November 2000)

JURISDICTION: Australia

TRIBUNAL: Federal Court of Australia

JUDGE(S): Finn J

CASE NUMBER/DOCKET NUMBER: New South Wales District Registry N 1295 of 1999

CASE NAME: South Sydney District Rugby League Football Club Ltd v News Ltd

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Australia (plaintiff)

BUYER'S COUNTRY: Australia (plaintiff)

GOODS INVOLVED: Not a contract for sale of goods


Classification of issues present

APPLICATION OF CISG: No [obiter dicta reference to CISG]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 7(1)

Classification of issues using UNCITRAL classification code numbers:

7A3 [Observance of good faith]

Descriptors: General principles ; Good faith

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Editorial remarks

EDITOR: Lisa Spagnolo

Excerpt from analysis of Australian case law on the CISG. Reproduced with permission of 10 Melbourne Journal of International Law (2009) 174

South Sydney District Rugby League Football Club Ltd v News Ltd [188]

Like Renard some five years earlier, this case did not really involve the CISG, since the dispute was between a rugby league organisation and a club that had been unsuccessful in seeking admission to the competition. The dispute did turn to some degree on the existence or otherwise of contractual duties of good faith in the performance and enforcement of contracts. While noting that Australia had not at that time committed itself in an unqualified manner to such duties, Finn J observed in passing that the 'supposed uncertainty with "good faith" terminology has not deterred every state and territory legislature in this country from enacting into domestic law the provisions of art 7(1) of the [CISG]'.[189]

Notably, in both South Sydney and Renard, the heightened level of awareness of the CISG was displayed by members of the Court who had each previously written extrajudicially on comparative law issues and participated in international uniform law efforts.[190] As the CISG was not applicable, the case attracted little comment by CISG writers.[191] [page 174]
_________________________

188. (2000) 177 ALR 611 ('South Sydney'). Also reported internationally at: Pace Law School, <http://cisgw3.law.pace.edu/cases/001103a3.html>; available from CISG-online, Search for Cases (Case No 586) <http://www.globalsaleslaw.org/index.cfm?pageID=29>; available from UNILEX, <http://www.unilex.info>.

189. Ibid 696.

190. See Lancelot John Priestley, 'A Guide to Comparison of Australian and United States Contract Law' (1989) 12 University of New South Wales Law Journal 4; Paul Finn, 'The Fiduciary Principle' in Timothy Youdan (ed) Equity, Fiduciaries and Trusts (1989) 1. See also UNIDROIT, UNIDROIT Principles of International Commercial Contracts 2004 (2004) x (acknowledging Finn J as Rapporteur for art 1.8); UNIDROIT, Annual Report 2002 (2003) 10 (acknowledging Priestley J's involvement in a UNIDROIT Working Group) <http://www.unidroit.org/english/documents/2003/cd82-02-e.pdf>.

191. In the CISG context, see Jacobs, Cutbush-Sabine and Bambagiotti, above n 4, [9.6]. In terms of Australian commentary on good faith in contract more generally, it received greater attention: see, eg, Jeannie Paterson, Andrew Robertson and Peter Heffey, Principles of Contract Law (2nd ed, 2005) 309.

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1142&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (English): Austl.II website <http://www.austlii.edu.au/au/cases/cth/federal%5fct/2000/1541.html> [excerpt presented below]; [2000] FCA 1541 (3 November 2000)

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Jacobs et al., 17 Mealey's International Arbitration Reports (August 2002) 24

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Case text (excerpt)

South Sydney District Rugby League Football Club Ltd v. News Ltd

FEDERAL COURT OF AUSTRALIA

[2000] FCA 1541 (3 November 2000)

Last Updated: 3 November 2000 [reference is to Austl.II publication update]

(...)

393 3. Australian law has not yet committed itself unqualifiedly to the proposition that every contract imposes on each party a duty of good faith and fair dealing in contract performance and enforcement: cf Restatement, Second, Contracts, 205; and see generally the discussion in Renard Constructions (ME) Pty Ltd v Minister for Public Works(1992) 26 NSWLR 234 at 263ff; Service Station Association Ltd v Berg Bennett & Associates Pty Ltd (1993) 45 FCR 84 at 95-97; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 191ff. Such a duty has been accepted as an implied legal incident of particular classes of contract: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v. Airservices Australia, above; and particularly contracts of a commercial character: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703 at 43,014; notwithstanding the supposed uncertainty in defining the concept of "good faith and fair dealing"' see generally Aiton Australia Pty Ltd v. Transfield Pty Ltd (1999) 153FLR 236 at 255ff. I would note in passing that the supposed uncertainty with "good faith" terminology has not deterred every State and Territory legislature in this country form enacting into domestic law the provisions of Article 7(1) of the United Nations Convention on Contracts for the International Sale of Goods: eg Sale of Goods (Vienna Convention) Act 1986 (NSW).

394 4. Importantly for the purposes of the present case, recent decisions suggest that the implied duty of good faith and fair dealing ordinarily would not operate so as to restrict decisions and actions, reasonably taken, which are designed to promote the legitimate interests of a party and which are not otherwise in breach of an express contractual term: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd, above, 43,014; see also Asia Television Ltd v Tau's Entertainment Pty Ltd [2000] FCA 254 at para 77; Advance Fitness Corporation Pty Ltd v. Bondi Diggers Memorial & Sporting Club Ltd [1999] NSWSC 264 at para 122; Far Horizons Pty Ltd v McDonald's Australia Ltd [2000] VSC 310; and see further below, "Other Possibilities".

(...)

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Pace Law School Institute of International Commercial Law - Last updated July 31, 2009
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