Case: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101
Outcome: considered
had known Huston for a number of years prior to this. Huston acted as solicitor for Anaconda Nickel Ltd in proceedings in the Supreme Court of Western Australia culminating in an appeal to the Full Court: Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; (2000) 22 WAR 101. These proceedings concerned the enforceability of a short letter said to be a "heads of agreement". In certain respects it bears a remarkable similarity to the framework agreements. The majority (Ipp J; Pidgeon J agreeing) held that the heads of agreement was a valid and binding agreement. Huston helped prepare the draft as well as the final 8 November Letter concerning the three framework agreements provided by FMG to the ASX that day. He attended a meeting with Mr Tony Walsh, Assistant Manager Issuers of the ASX, on 8 November 2004 relevantly to discuss this draft for the purpose of providing further information to the ASX as to the terms of the framework agreements. I have concluded that, for this purpose, Huston would have considered the terms of the related 5 November Letter and the three framework agreements referred to in that letter. He did not advise the FMG Board or Forrest that these agreements were not legally binding or that the 5 November Letter was to that extent incorrect or not reasonably based. Given his role in FMG, had he formed that view, I find that he should have and would have informed the board. That he did not, entitled the board and Forrest to continue to regard the disclosures concerning the legal effect of the framework agreements as correct, or at least that they were reasonably based. That this was so is fortified by evidence of actual advice given by Huston to the FMG board that the framework agreements were legally binding as disclosed. The FMG board minutes of its 22 January 2005 meeting, attended by Huston, record his advice to the board that the CMCC Framework Agreement was binding. So too did an email sent by him on 30 March 2005 to Forrest, Christopher Catlow, David Liu, Rowley, Alan Watling and other FMG executives concerning the AFR Article in which he repeated this advice, relying in particular upon the Anaconda decision. The 30 March 2005 email was not disclosed in ASIC's pleading. While the minutes of the 22 January board meeting were set out as a particular of two allegations concerning FMG's and Forrest's knowledge of the Chinese Contractors' attitude towards the framework agreements and of the legal effect of the agreements, ASIC did not particularise the material passage in the minutes where Huston's legal advice to the board was set out, nor did it refer to this passage in its opening or closing submissions. This is so, despite the fact that, in relation to ASIC's s 674 case, it asserted, amongst other things, that FMG ought to have been aware of the legal effect of the framework agreements asserted by ASIC by first obtaining competent legal advice. Huston was a very experienced and competent commercial solicitor. I was not referred to these documents during the trial until the closing address by Forrest's senior counsel, Mr Myers QC. Their content, combined with other evidence, demonstrates that there was no basis for ASIC to assert dishonesty on the part of FMG, its board and in particular, Forrest. I make the same criticism of the description applied to FMG and by implication its board and particularly Forrest in the way ASIC's case was opened. It was asserted that FMG engaged in a concerted and designed course of conduct in which it made false, misleading and exaggerated statements to the ASX of which Forrest was the architect. In my view the evidence does not support such serious allegations. The principal basis, it seems, depends on ASIC's submission that the framework agreements are self-evidently not binding build and transfer agreements. I rejected that argument. I consider that there was a reasonable basis for FMG, through its board, including Forrest, to have held the view that the framework agreements were binding as claimed. It was supported by Huston's professional oversight to ensure the legal enforceability of FMG's agreements as well as his later positive advice to the effect that they were such. It was a view consistent with Forrest's knowledge of the Anaconda case. It finds arguable support in other authority. Significantly too, CREC approved the terms of the 23 August Media Release before FMG made the notifications to the ASX on 23 August 2004. The release described the CREC Framework Agreement as a "binding agreement to build and finance the railway component of Fortescue Metals Group Ltd's $1.85 billion Pilbara iron ore project". In the release Mr Qin Jiaming (Qin), the President of CREC, is quoted as saying that the contract presented an excellent opportunity for CREC to develop internationally and that CREC was fully confident about its capacity to build the rail project. It was described by him as a 'marriage' immediately following the high level ceremony when the parties signed the Joint Statement which rendered the agreement binding. I find that the terms of the 5 November Media Release provided to CHEC and CMCC was likewise approved, at least not disavowed, by them before disclosure to the ASX by FMG. For at least these reasons, it is important that allegations of dishonesty should be made only where there is a reasonable evidentiary basis for them. It is my opinion that on the totality of the evidence available to ASIC there was no such basis in this case. Notwithstanding that ASIC's assertions as to the meaning and legal effect of the framework agreements differs from that disclosed by FMG to the knowledge of Forrest, this difference, which, in effect, is a difference of opinion does not of itself provide a basis for alleging dishonesty against FMG, its board and in particular Forrest. FMG's opinion was underpinned by the oversight and advice of its in-house counsel Huston. Forrest had his knowledge and experience in Anaconda to draw upon . Documents demonstrating these significant matters were available to ASIC. In light of these it is difficult to discern why ASIC ran a case alleging that FMG's board could not have made the disclosures it did if it had obtained competent legal advice. The board of FMG had no reason to doubt the correctness of Huston's view as to the meaning and legal effect of the framework agreements. He was employed by FMG primarily to ensure that all of FMG's agreements were legally enforceable. The reasonableness of FMG's opinion was strongly contended for by senior counsel for both FMG and Forrest at trial. It was an opinion which I consider was reasonably open. In my view, these allegations of dishonesty should not have been made. I have no hesitation in concluding that FMG and its board, including Forrest, honestly and reasonably held the opinion that the framework agreements were legally enforceable in the sense asserted in FMG's disclosures. They did not hold the opinions propounded by ASIC. Those opinions do not self evidently and obviously arise upon a consideration of the terms of the framework agreements. PART 3: EVIDENTIARY MATTERS Standard of proof ASIC submits in written closing submission that the authorities such as Anaconda, Pagnan SpA, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 and Uranium Equities v Fewster [2008] WASCA 33 ; (2008) 36 WAR 97 relied on by FMG state that whether or not the parties intended to contract, they must agree on such terms, normally described as essential terms, such that the contract could be enforced or made complete by implying terms or applying considerations of reasonableness. I will consider these authorities further. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the Court of Appeal found that a binding contract had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement "constituted an agreement in itself intended to be replaced by a fuller agreement not different in substance or form". At [28], Ipp J referred to the following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg [1964] HCA 41 ; (1964) 112 CLR 597 at 607: It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions. In Uranium Equities [2008] WASCA 33 ; 36 WAR 97 , the parties to the putative agreement had been negotiating over a proposed mining joint venture, but no heads of agreement had been executed. The Court found that the trial judge was right in concluding that the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed. The Court went on to state on the question of uncertainty at [257] that it is "trite" that, even when the requisite intention is present, a contract can fail for uncertainty. The Court said it is also trite that only the omission of an essential term will have the effect that a contract is so incomplete or uncertain as to render it invalid, citing Ipp J in Anaconda [2000] WASCA 27 ; 22 WAR 101 at [29] . The Court referred to the statement of Lloyd LJ from Pagnan SpA [1987] 2 Lloyd's Rep at 619 and found that when regard was had to all the circumstances the parties did not intend to be bound by anything said or done by them until such time as the heads of agreement had been executed . The Court concluded that although some of the matters left over by the parties for future negotiation were important, none were essential to the efficacy of the alleged agreement in the sense that the agreement could not be enforced without it. ASIC also points to the absence of the following from the framework agreements: no provision for choice of contractors or the selection of materials; no definition of "practical completion"; and no specifications for any design elements of the infrastructure. The documents referred to in the Recitals to each agreement would have, no doubt, assisted in clarifying the matters absent from the agreements. In light of those documents, following the approach of Ipp J in Anaconda [2000] WASCA 27 ; 22 WAR 101 at [61] , it may have been possible to conclude that, despite the long list of matters said to render the framework agreements uncertain and incomplete, there was a binding contract, workable by implying terms or on the proper construction of the agreement. The court will apply orthodox principles of implying terms by reference to the implied duty to co-operate and use considerations of reasonableness, to give effect to that intention: Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR 540; Moffat Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60. The asserted uncertainty or incompleteness may therefore be overcome once the requisite intention to contract is found to be present. In Anaconda [2000] WASCA 27 ; 22 WAR 101 , the issue was whether a binding contract for Anaconda, a company interested in lateritic nickel, to explore and mine for base metals on the tenements of Tarmoola, a company interested mainly in gold, had been made when a heads of agreement containing five clauses was signed, the last paragraph of which said that the heads of agreement ' constitutes an agreement in itself intended to be replaced by a fuller agreement not different in substance or form' . Tarmoola argued that there was no intention to contract, no agreement on essential terms, and that the agreement was incomplete and uncertain. By majority, the WA Full Court rejected these arguments and held that the heads of agreement was a binding contract. Ipp J (with whom Pidgeon J agreed) found that contractual intention was present. His Honour endorsed the existence of the fourth Masters v Cameron category in stating: It is well recognised that parties may enter into a valid contract containing a limited number of terms comprising those terms essential to the bargain that they wish to conclude, in the expectation that at a later date a further contract will be arrived at containing additional terms that would facilitate and clarify the initial contract. That is to say, a binding contract may be arrived at even though it leaves unresolved many matters which might arise in future. [25] Since Anaconda was decided by the Court of Appeal on 17 February 2000 it has been cited, considered or applied without disapproval in a number of contract law cases involving questions of incompleteness or uncertainty, for example: Duskwood Pty Ltd v Bellara Willows Pty Ltd [2001] per Steytler J at [95]; Liristis Holdings Pty Ltd v Wallville Pty Ltd [2001] NSWSC 428 per Barrett J at [38]; African Minerals Limited v Pan Palladium Limited [2003] NSWSC 268 per Einstein J at [26]; Thompson v White &amp; Ors [2006] NSWCA 350 per Tobias JA with whom Ipp and McColl JJA agreed at [100]; Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 per Giles JA with whom McColl JA and Young CJ in EQ agreed at [27]-[28]; Donald Fin Enterprises Pty Ltd v APIR Systems Ltd (2008) 67 ACSR 219 per Edmonds J at [131]-[132]; Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd [No 3] [2009] WASC 352 per Murray J at [90]. The approach taken in G R Securities 40 NSWLR 631, Anaconda [2000] WASCA 27 ; 22 WAR 101 and Tasman Capital [2008] NSWCA 248 was followed very recently by the Queensland Court of Appeal in Moffat Property Development Group [2009] QCA 60 , mentioned above, which underlined the importance of the parties' manifest intention to contract. The issue was whether a contract for the sale of rural residential land had been made by an exchange of letters. The Queensland Court of Appeal held that the parties intended to be legally bound through their exchange of correspondence and that there was a contract even though matters such as the timing of completion and arrangements at settlement, the precise timing of the payment of the deposit, the place of settlement, responsibility for insurance, GST issues and the terms of a put and call option were not spelt out in the correspondence. Keane JA delivered the court's judgment. His Honour: (a) accepted McHugh JA's point in G R Securities that "the decisive issue is always the intention of the parties": [23]-[25]; (b) said "the terms of the correspondence exchanged between the parties contemplated the execution of a further contract as the means whereby the bargain which they had concluded would be implemented. It is necessarily implicit in such an agreement that the parties will co-operate to do what must be done to make the further agreement": [30]; (c) adopted McHugh JA's approach in G R Securities and explained that the implied obligation of each party to co-operate with the other to ensure each side obtains the benefit of its bargain serves to supply the deficiencies: [34]; (d) cited Australian Broadcasting Corporation v XIVth Commonwealth Games 18 NSWLR at 548 in stating: "I am of the view that there can be no doubt as to the orthodoxy of referring to 'implied terms or ... considerations of reasonableness' in order to determine whether the parties' 'consensus is sufficiently comprehensive to be legally binding : [51]. Forrest had known Huston for a number of years prior to this. Huston acted as solicitor for Anaconda Nickel Ltd in proceedings against Tarmoola Australia Pty Ltd in the Supreme Court of Western Australia: [2000] WASCA 27 ; (2000) 22 WAR 101. These concerned the enforceability of a short letter said to be a "heads of agreement". In certain respects it bears a remarkable similarity to the framework agreements. The then Full Court, in 2000, by majority (Ipp J; Pidgeon J agreeing) held that the heads of agreement was a valid and binding agreement. The judgment in that case was the foundation of the view held and the advice given by Huston. It was a case which was already well-known to Forrest. He had been Anaconda's CEO at the time of the litigation and its signatory to the heads of agreement which was the subject matter in the case. FMG and Forrest in particular, at least from the beginning of Oct 2004, if not before, were focused on ensuring that FMG's agreements were legally enforceable. This included the framework agreements. It is apparent that one of Huston's principal roles at FMG was to oversee and ensure the legal enforceability or, as Forrest sometimes described it, the "bankability" of FMG's agreements. On 3 October 2004 Forrest distributed a lengthy email to, amongst others, FMG executives and Huston in which he welcomed Huston to the team. Paragraph 3 with the heading "Legally binding contracts" included the following : Some agreements have been written in an ad hoc way with the best means available to the executive responsible. Unfortunately, on a full Bankers legal due diligence some of these may not pass the enforceability test. Gentlemen, please ensure with Peter complete legal enforceability on the agreements that we are all relying to construct FMG. The text of the email, almost entirely, concerns the three framework agreements. In context, therefore, I take this request by Forrest to be referring to, or at least to include, those agreements. Forrest concluded by saying "... I am happy with the release, subject to P. Huston's sign off on the enforceability, to go." This appears to be a reference to a press release concerning an iron ore contract with a Chinese company called Hebei. It again evidences Forrest's quite specific concern that FMG's agreements were legally enforceable. On 20 October 2004, after the execution of the CHEC and CMCC Framework Agreements but before the formal Joint Statement signing ceremony in Beijing on 5 November 2004 when those agreements became binding, Forrest sent an email to various FMG personnel, including Huston, where he referred approvingly to David Liu and his co-ordination of the arrangements with the three Chinese Contractors. He also thanked Huston for his contribution. He said: Peter, (Huston) thanks for the rappid (sic) fire support tonight. Hope we got your instructions right these contract (sic) better be bankable because people are signing them. David pls get the two we worked on today down to Peter for his all clear. I take the word "bankable" in this context to mean such as to satisfy potential FMG financiers, in the course of their due diligence process, as to the "legal enforceability" of these contracts. It is clear from the combination of the 22 January minutes and Huston's 30 March email that, in his opinion, the CMCC Framework Agreement was a binding build and transfer agreement. The case to which he referred was Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27 ; 22 WAR 101 which I have referred to previously. That case concerned the enforceability of a letter containing 5 clauses and described as a "heads of agreement" signed by Forrest who then was Chief Executive of Anaconda. The letter concluded, in terms not dissimilar to clause 7 in each of the framework agreements: The above forms a heads of agreement which constitutes an agreement in itself intended to be replaced by a fuller agreement not different in substance or form. The respondent, Tarmoola, signed the letter confirming its agreement to the tems and conditions set out in it. The parties then entered into negotiations for the "fuller agreement" but those negotiations were unsuccessful. No "fuller agreement' was concluded. Anaconda , amongst other relief, sought a declaration that the heads of agreement was a valid and binding contract. The respondent argued that it was not so bound on a number of bases, including lack of intention to create a binding legal relationship because so many important matters had been omitted, lack of certainty and completeness of the contract. The appeal was successful and the declaration was granted. Tarmoola's application to the High Court for special leave to appeal (P15/2000) was discontinued. Huston , I infer, during the period he was overseeing FMG's agreements, had a detailed knowledge of this case and the reasons for judgment. He was Anaconda's instructing solicitor in that case. As ASIC pleads, Huston was an experienced and practising commercial solicitor. He had, as I have said, been directly involved in preparing the 8 November Letter which concerned all three framework agreements. One of Huston's principal responsibilities was to ensure that FMG's agreements were legally enforceable. He had not suggested to the FMG Board, including Forrest, that the framework agreements were not legally enforceable. His opinion expressed in the 22 January 2005 board minutes and the 30 March 2005 email that the CMCC Framework Agreement was binding necessarily must have applied to the other two framework agreements. FMG's and Forrest's opinion as to the meaning and legal effect of the framework agreements was shaped and informed by Huston's involvement. They had the benefit of his dedicated professional oversight and later his advice as to the legal enforceability of the framework agreements. Forrest as CEO, was directly involved in the Anaconda case and would have been well aware of the judgments both at first instance and on appeal as well as the discontinuance of Tarmoola's application for special leave to appeal to the High Court. Forrest then had the benefit of legal advice in relation to the legal enforceability of a similar agreement. Huston alluded to this in his 30 March 2005 email when he stated, referring to the Anaconda decision: Thus if journalist(s) want to know why Andrew (Forrest) considers the (C)MCC agreement to be binding he is amongst other things relying on his own direct experience from this (S)upreme Court Case. All relevant FMG staff had been told by Forrest in early October to ensure, through Huston, that FMG agreements were legally enforceable. The evidence also demonstrates that, contrary to ASIC's assertion, Huston did give legal advice to FMG as to the legal enforceability of the framework agreements. In particular, the 22 January minutes show that the FMG board turned its mind to the question of whether the CMCC Framework Agreement was binding following the statement by Mr Ma at the 17 January meeting, that it sought legal advice on that question from Huston and that he answered the question in the affirmative. If, as I think likely, although I make no finding, he was asked to advise on the issue of the legal enforceability of the CREC Framework Agreement prior to the 23 August notification, it is reasonable to infer that his opinion and reasons for it were, or would have been, the same as he later twice provided to FMG's board. I consider that Forrest exercised his powers and discharged his duties with the degree of care and diligence that a reasonable person would exercise if they were a director or officer of FMG in FMG's circumstances; and if they occupied the offices of Forrest within FMG and had the same responsibilities within FMG as Forrest. Forrest, as I have explained earlier in detail, as a consequence of his own appreciation of the decision in Anaconda; his reliance on the legal oversight and advice of Huston; and his appreciation that the Chinese Contractors held the same view that the framework agreements were legally binding, had reasonable grounds for approving or permitting to be made the disclosures, complained of by ASIC, by FMG between August 2004 and March 2005. I am well satisfied that Forrest acted reasonably to ensure that FMG both complied with s 674 of the Act and did not contravene s 1041H of the Act. He did not breach s 180(1) of the Act as alleged by ASIC or at all. Given the conclusions to which I have come concerning ASIC's case under s 1041H I do not consider it necessary to deal with Forrest's further defence based in s 180(2) concerning the Business judgment rule. For all these reasons ASIC's Application against each of the defendants should be dismissed. ASIC should pay the costs of each of the defendants. There will be orders accordingly. I certify that the preceding nine hundred and six (906) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 23 December 2009 Counsel for the Plaintiff: Mr N J Young QC with Mr J A Thomson, Mr D J Crennan and Mr A J Musikanth Solicitor for the Plaintiff: Mallesons Stephen Jaques Counsel for the First Defendant: Mr J Karkar QC with Mr B Dharmanada and Mr R J Price Solicitor for the First Defendant: Clayton Utz Counsel for the Second Defendant: Mr A Myers QC with Mr M Thangaraj Solicitor for the Second Defendant: Jackson McDonald Date of Hearing: 6-30 April 2009 1-7 May 2009 Date of Judgment: 23 December 2009 SCHEDULES 'A' Dramatis Personae ABB Australia Pty Ltd Australian Securities and Investments Commission ("ASIC") Plaintiff Australian Securities Exchange Limited ("ASX") Walsh, Tony, Assistant Manager Issuers Australian, The (Newspaper) Armitage, Catherine Bromby, Robin Barclay Mowlem Construction Ltd ("Barclay Mowlem") Killinger, Bill, Director and General Manager (Rail) BGC Contracting Pty Ltd ("BGC") China Harbour Engineering Company (Group) ("CHEC") Chen Yongkuan, Vice President Liu Huai Yuan, President China International Trust &amp; Investment Corporation ("CITIC") Wang Jun, Chairman China Metallurgical Construction (Group) Corporation ("CMCC") Ma Yanli, President/ Chairman Shen Heting, President Sun Longjun, Second Business Department Manager Wang Yongguang, Vice President Yang Changheng, Chairman, Zou Wei Min, General Manager China Railway Engineering Corporation ("CREC") Bai Zhongren, Vice President Liang, assistant to Mr Zhang Qin Jiaming, President/ Chairman Zhang, Kean, Project Manager Chinese Ambassador Madam Fu Ying Citigroup Fraser, Chris, Vice President Investment Bank Downer EDI Rail Broad, Danny, employee Expert Witnesses Houston, Gregory, consulting economist employed by NERA Economic Consulting Keene, Reginald, senior client adviser at Bell Potter Securities Sisson, Andrew, Managing Director of Balanced Equity Management Pty Limited Watson, Iain (Dr) Deputy Dean of the UWA Business School External Consultants to FMG Bai Lou-Lin (Lawrence) Xin Yin Field Public Relations ("Field PR") Field, John, Managing Director Skinner, Kevin, Senior Consultant Fortescue Metals Group Limited ("FMG") First Defendant Campbell, Rod, Company Secretary Catlow, Christopher, Chief Financial Officer Dewar, Todd, Project Engineer Fisher, Wei, Executive Assistant Forrest, John Andrew Henry, Second Defendant, Chief Executive Officer and Chairman of Directors of First Defendant. Heyting, Ed, Project Manager of Infrastructure Huston, Peter, in-house legal counsel Kirchlechner, Philip, Head of Marketing Li, Catherine, Engineer Liu, David, Head of China Business Morrin, Juliet, Executive Assistant of Second Defendant O'Reilly, Louise Rowley, Graeme, Executive Director Operations Rui Dana Du, Senior Business Analyst Scrimshaw, Russell, Director Tapp, Julian, Head of Government Relations Watling, Alan, Chief Operating Officer and Head of Port &amp; Rail Williams, Jim, Head of Mining Operations Government of Australia Farmer, Pat, Assistant Minister for Education Haase, Barry, Federal Member for Kalgoorlie Hewett, Kym, Senior Trade Commissioner at the Australian Embassy Thomas, Dr Alan, Australian Ambassador to China Vaile, Mr, Minister for Trade Government of Western Australia Brown, Clive, Minister for State Development Leighton Contracting Leighton Holdings Group Ministry of Commerce ("MOC") Chen Jian, Assistant Minister National Development Reform Commission ("NDRC"). He Lianzhong , Deputy Director General, Foreign Capital Utilization Department Liu Xuhong , Deputy Director General, Foreign Capital Utilization Department Other Chinese companies Chiao United (Fuzhou) Steel Co. Ltd China Shougang International Trade &amp; Engineering Corporation Hebei Wenfeng Iron &amp; Steel Co Ltd Ping Xiang Iron &amp; Steel Co. Ltd Jiangsu Fengli Group Co Ltd Patersons Securities Ltd ("Patersons") Quantm Ltd Shanghai Baosteel Group Sinosteel Corporation ("Sinosteel") State-Owned Assets Supervision and Administrative Commission ("SASAC") Wang Xiaoqi, Director General of the Bureau of Planning and Development ThyssenKrupp Engineering (Australia) Pty Ltd ("ThyssenKrupp") Wong K C, FMG's second largest shareholder in 2004/05 Worley Pty Ltd ("Worley") SCHEDULE 'B' CREC FRAMEWORK AGREEMENT SCHEDULE 'C' CHEC FRAMEWORK AGREEMENT SCHEDULE 'D' CMCC FRAMEWORK AGREEMENT SCHEDULE 'E' AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1586.html