The notice of appeal contains eight grounds. At the commencement of the hearing of the appeal, senior counsel for the appellant, Mr Tree, made application to add two further grounds of appeal, viz:

"4A That his Honour erred in law or alternatively, in fact and in law in failing to hold that there was an implied term of the contract between the parties to the effect that the parties were obliged to negotiate reasonably and in good faith with a view to overcoming any delays in the project development. 4B Alternatively, that his Honour erred in law in failing to hold that there was an implied term in the contract between the parties to the effect that the parties were obliged to negotiate in good faith with a view to overcoming any delays in the project development."

Senior counsel for the respondent, Mr Williams, opposed the application to amend. He claimed that by the addition of one or both of the new grounds, the appellant was seeking to raise an issue or issues that were neither pleaded nor raised at the trial and that granting the application would cause the respondent to suffer irreparable prejudice. The arguments, both for and against the application for amendment, were substantial and involved some important propositions of law. The Court reserved its decision on the application to amend the notice of appeal by the addition of proposed grounds 4A and 4B and adjourned the further hearing of the appeal.

It is well established that a party to an appeal will not be allowed to raise on appeal a point not taken at first instance where all the evidence bearing on that point was not given before the primary judge, and had such evidence been given, the point sought to be raised might have been defeated at first instance.

In Suttor v Gundowda Proprietary Limited [1950] HCA 35; (1950) 81 CLR 418, the court said at 438:

"The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. [Their Honours then quoted a passage from Connecticut Fire Insurance Co v Kavanagh (1892) AC 473 and went on:] The present is not a case in which we are able to say that we have before us all the facts bearing on this belated defence as completely as would have been the case had it been raised in the court below."

That statement of law was approved by a differently constituted bench in Bloemen & Another v The Commonwealth of Australia (1975) 49 ALJR 219 at 220.

For the respondent, Mr Williams submitted that had the existence of either of the implied terms set out in proposed grounds 4A and 4B been an issue at trial, he not only would have adduced evidence that he did not adduce, but also he would have sought and obtained particulars of the facts and circumstances from which it was claimed the term was to be implied, and might well have administered interrogatories and applied for further and better discovery.

It is necessary to set out some of the facts that were before the learned trial judge.

The principal purpose of the parties' agreement was to enable the appellant to set up a sawmilling operation for which the respondent would supply logs. There is, of course, nothing unusual about that, but in this case, the appellant proposed to mill certain logs not previously regarded as suitable for milling by cutting slabs, or flitches from them. Hitherto, these logs had been pulped so the appellant's proposal was attractive to the respondent because it would make better use of the State's forestry resources. In this respect it was a novel proposal. The logs that the appellant proposed to use are described in the agreement as "flitch logs". The specification of what constitutes a flitch log was not spelled out in the agreement other than by the statement that it must not be "milling timber" (this is defined) or logs suitable for the production of rotary veneer. The agreement provided that the specifications of a flitch log was something the parties had to reach agreement about later on. Agreement on the specifications of a flitch log was fundamental to the success of the project, for the appellant needed a certain minimum annual quantity of flitch logs for the project to be financially viable.

It is necessary to set out the relevant definitions in the agreement and the relevant terms. I take these from the judgment given at first instance. It will be seen that an important feature of the agreement was a timetable of events, or "milestones". Default in compliance with any "milestone" for twenty-eight days after notice of default has been given constituted a ground for termination of the agreement. However, the force majeure clause operated to give relief if delay was due to causes beyond a party's reasonable control by providing that in such an event, there was an obligation to "negotiate in good faith on practical steps which may be taken to overcome [the delayed event]". Herein lies the core of the dispute between the parties.

"'1 "area of supply" means the State forests in Southern Tasmania nominated by the defendant from time to time as being those forests from which timber may be supplied to the plaintiff; 2 "commencement date" means the milestone specified in the first schedule for the flitch recovery mill to commence production; 3 a "flitch" is a slab of timber cut from a flitch log; 4 a "flitch log" is a log which is not milling timber but which meets specifications agreed between the parties; 5 "flitch recovery mill" means a mill which processes flitch logs primarily to recover flitches; and 6 "milling timber" is timber which, in the reasonable opinion of the defendant, meets the specifications for category 1, 2, 3 and 4 sawlogs or veneer logs as defined in the Forestry Regulations 1993 or for logs suitable for the production of rotary veneer'."

"'2 SECURITY OFFERED BY THE COMPANY 2.1 FORESTRY TASMANIA will not execute this Agreement until the Company has paid $10,000 to FORESTRY TASMANIA, and by executing this Agreement FORESTRY TASMANIA acknowledges receipt of that amount from the Company. 2.2 Notwithstanding any other condition in this Agreement, this Agreement will cease and determine, and thereafter the Company shall not have any claim against FORESTRY TASMANIA with respect to any matter or thing arising out of, done or omitted to be done or performed under this Agreement: 2.2.1 on 1 December 1995 unless the Company has paid an additional $20 000 to FORESTRY TASMANIA by that date; or 2.2.2 on 1 April 1996 unless the Company has paid a further $20 000 to FORESTRY TASMANIA by that date. 2.3 The amounts to be paid by the Company to FORESTRY TASMANIA pursuant to this Clause 2 will be refunded provided that the Company proceeds to establish and operate the Flitch Recovery Mill and it uses a quantity of Crown logs in the Flitch Recovery Mill with a royalty value in excess of that amount by 31 August 1996. 3 UNDERTAKINGS BY THE PARTIES 3.1 The company will construct a Flitch Recovery Mill and the mill will be capable of normal operation by the Commencement Date. 3.2 The Company will be responsible for assessing the suitability and extent of resource for its project and for negotiating with third parties all agreements necessary for the successful implementation and operation of its project. 3.3 Forestry Tasmania will provide the Company with whatever assistance and support is prudent and reasonable for the assessment of the Crown resource for the Flitch Recovery Mill. .... 3.6 The Company warrants that it can successfully complete the development project in accordance with the timetable of Milestones set out in Schedule One. .... 3.8 Forestry Tasmania will, upon request from the Company, offer the Company a contract of sale (hereinafter the "Contract") for the supply of up to 90,000 tonnes per annum of flitch log material, meeting an agreed specification, from the Area of Supply. The Company shall make the request for the Contract during the month of January 1996, unless otherwise agreed, and Forestry Tasmania will provide a draft Contract for consideration by the Company within 3 months of such a request. 3.9 The term of the Contract shall be from the Commencement Date until the June 30th immediately succeeding the date five years after the Commencement Date. 3.10 The terms and conditions of the Contract shall be in general accordance with those in contracts of sale held by other purchasers of Crown Forest Produce in Tasmania except as provided for explicitly in this Agreement. The Company hereby warrants that it has a copy of a generic form of such a contract as at the date of this Agreement. The Contract will provide for renewal subject to agreement by the Parties. [then follow specific provisions to be incorporated in the Contract] .... 4 ARBITRATION 4.1 Disputes and other matters arising from this Agreement which require arbitration will be dealt with under the provisions of the Arbitration Act. .... 7 FORCE MAJEURE 7.1 Subject to Clauses 7.3 and 7.4, neither party shall be liable to the other, apart from any existing commitment to pay money, for any breach or failure to perform its obligations under this agreement where such breach or failure is caused by war, civil commotion, hostilities, strikes, lockouts, act of God or any other cause or causes beyond that party's reasonable control. 7.2 Subject to Clauses 7.3 and 7.4, the Company shall not be held accountable for a failure to meet its obligations under this Agreement where, through no fault of the Company, such failure is the sole result of the Export Licence being withdrawn or made practically ineffective by the Commonwealth Government. 7.3 If the occurrence of an event contemplated by either Clause 7.1 or 7.2 causes a delay of over 30 days in any obligation of either Forestry Tasmania or the Company then the parties will negotiate in good faith on practicable steps which may be taken to overcome that event PROVIDED THAT no such steps shall be taken other than by agreement by both parties in writing. 7.4 If the occurrence of an event contemplated by either Clause 7.1 or 7.2 causes a delay of over 60 days in any obligation of either Forestry Tasmania or the Company then this agreement may be terminated by notice in writing by either party to the other party. 8 TERMINATION 8.1 Subject to Clause 8.7 this Agreement will terminate on the sooner of any the occurrence contemplated by Clauses 8.2, 8.3, 8.4, 8.5 or 8.6. 8.2 Should any Milestone listed in Schedule One not occur by its time scheduled therein, or such other time as may be agreed between the parties and any such failure or default continues for a period of twenty-eight (28) days after notice requiring compliance with the Schedule has been given by the party requiring compliance to the other. 8.3 The event contemplated by Clause 7.4 occurs and either Party enforces its rights to terminate this Agreement. 8.4 If either of the events contemplated by Clause 2.2 occur which provide for termination of this agreement. 8.5 The execution by the parties of the Contract. 8.6 31 August 1996. 8.7 If this Agreement is terminated pursuant to this Clause 8 then this Agreement will cease and determine, and thereafter the Company shall not have any claim against FORESTRY TASMANIA with respect to any matter or thing arising out of, done or omitted to be done or performed under this Agreement, nor will the Company have any claim against Forestry Tasmania for monies paid by the Company pursuant to Clause 2.

The schedule to the agreement containing the project milestones referred to in these provisions of the agreement is as follows:

Conclude final agreement with chip exporters or processors for the sale of residuals from the flitch recovery mill

It was common ground that the year attached to the January dates was an error and should have been 1996.

For present purposes, it is unnecessary to go into a lot of the evidence given at trial. It is sufficient to say that there was evidence, accepted by the learned trial judge, that the appellant asked the respondent to extend the dates for the "milestones". The respondent gave conditional agreement to extending the dates by one month. The appellant did not accept the condition. The respondent then gave the appellant written notice that unless the "milestones" specified in the notice occurred within twenty-eight days, the agreement would terminate. The "milestones" were not met and the respondent claimed that the agreement thereupon came to an end. However, the appellant claimed at trial that the causes for the "milestones" not being met were causes beyond its reasonable control as referred to in the agreement, cl7.1 (force majeure). Accordingly, so the appellant's case went, cl7.3 obliged the parties to "negotiate in good faith on practical steps which may be taken to overcome that event". The appellant claimed that the respondent had not done this and was thereby in breach of the agreement and not entitled to rely on the failure to meet "milestones" as a basis for termination. The respondent's case was that no cause for failure to meet the "milestones" was beyond the appellant's reasonable control and the agreement had terminated in accordance with its provisions.

Whether either or both of the parties acted in good faith was the subject of much attention at the trial. This is how the learned trial judge approached this issue at 18 of his reasons for judgment:

"Force Majeure The plaintiff, by reference to par7 of the agreement, claimed that causes beyond its reasonable control resulted in its failure to meet its obligations under the milestones. The plaintiff argued that each of those matters constituted a 'cause or causes beyond [its] reasonable control' within the meaning of par7.1 and therefore attracted the operation of par7.3. The plaintiff claims that express and implied terms of the agreement and the nature of the alleged fiduciary duty owed by the defendant to the plaintiff required that it negotiate in good faith in relation to these matters, that it failed to do so and that as a result the plaintiff has suffered damage. Before giving any consideration to the suggested consequences, it is appropriate to consider the evidence relevant to each of the matters sought to be relied upon by the plaintiff. It is unnecessary to consider the claimed consequences unless one or more of the claims made by the plaintiff has been established as a matter of fact. The causes specified by the plaintiff are the following: 1 the failure of the defendant to provide a draft supply agreement, required by the plaintiff in conducting negotiations with financiers to enable the project to proceed; 2 delays in the subdivision of the land upon which the mill was to be constructed; 3 changes to the forestry policy of the government of the Commonwealth; 4 the failure of the defendant to act reasonably and in good faith in agreeing a specification for flitch log material; 5 the failure of the defendant to agree in good faith a specification for flitch log material; and 6 delays in the administrative and consultative process of preparing and finalising the DP&EMP required by DELM."

The learned trial judge then proceeded to examine the facts relevant to each of the appellant's claims and found that insofar as any of the claimed events caused the appellant to fail to achieve a project "milestone", such event was not due to a cause "beyond [the appellant's] reasonable control" as provided by cl7.1. Thus, the learned trial judge held that there was no obligation on the appellant to "negotiate in good faith on practical steps which may be taken to overcome [those events]" as provided by cl7.3, and that the agreement had been terminated in accordance with its terms.

By its statement of claim, the appellant pleaded cls7.1 and 7.3 of the agreement and relevantly for present purposes, by par7(a), the following implied term:

"That should the Plaintiff fail to meet milestones (or any of them) and be delayed by causes beyond its reasonable control, the Defendant will: (i) negotiate with the Plaintiff in good faith to overcome the cause; (ii) negotiate with the Plaintiff in good faith to extend the time for compliance with the milestone; (iii) refrain from giving a notice under clause 8.2 until such negotiation has taken place; (iv) agree to reasonable extensions of time in respect of contractual milestones in the event of those milestones not being achieved by the initial contractual dates set out in schedule 1 to the Agreement due to any cause or causes beyond the Plaintiff's reasonable control."

It may be immediately noted that the appellant's case, based both on the express and on the implied term, was not that there was a contractual obligation to negotiate in good faith to overcome the cause of any delay, but to negotiate in good faith to overcome the cause of any delay that was "beyond [the appellant's] reasonable control." However, both proposed new grounds of appeal allege an implied obligation to negotiate with a view to overcoming "any delays in the project development" and further, ground 4A claims that such obligation was to negotiate "reasonably" as well as in good faith. Mr Williams submitted that had such implied terms been an issue on the pleadings or an issue at the trial, he would have conducted pre-trial procedures and adduced evidence. Accordingly, it was submitted that if the Court entertained these grounds, the respondent would suffer irreparable prejudice. For the appellant, Mr Tree submitted that no additional evidence would have been called because all the relevant evidence had been adduced, or, with respect to proposed ground 4B, because the proposed implied term is to be implied from the nature of the contract itself or, "implied by law" and not "implied ad hoc".

Whether or not a term is to be implied into a contract is an issue of law. See Pioneer Shipping Ltd & Others v BTP Tioxide Ltd [1982] AC 724 at 736; Francis v Lyon [1907] HCA 12; (1907) 4 CLR 1023 at 1040. The authors of Contract Law in Australia (3 ed) at 203 succinctly describe three main bases for implying terms into a contract, viz:

- terms implied in fact to give business efficacy to a contract; - terms implied from the nature of the contract itself and the obligations it creates; - terms implied because a statute applies to the contract and requires certain terms to be implied.

The authors describe the first category as "terms implied in fact" and the second and third categories as "terms implied by law". The application to amend concerns only the first and second categories of implied terms. The same categorisation was adopted by Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234, a judgment relied upon heavily by Mr Tree. His Honour said at 255 - 256:

"Questions of construction and different kinds of implication tend to blur together. In recent years terms implied in contracts have been said to fall into two classes the first of which has come to be called, somewhat misleadingly, implication in fact, the second, implication by law. The so-called implication in fact is really implication by judge based on the judge's view of the actual intention of the parties drawn from the surrounding circumstances of the particular contract, its language, and its purposes, as they emerge from the language and in the circumstances. This has been called implication ad hoc (see Professor Lucke 'Ad Hoc Implications in Written Contracts' (1973 - [1973] AdelLawRw 3; 1976) 5 Adelaide Law Review 32) a usage I will adopt."

Mason J (as he then was) in Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (1981 - [1982] HCA 24; 1982) 149 CLR 337 at 345, described a term implied by law as "a legal incident of a particular class of contract ...". Hope JA expanded on this concept in Castlemaine Tooheys Ltd & Another v Carlton and United Breweries Ltd & Anor (1987) 10 NSWLR 468 when he said at 487:

"Terms implied by the application of the business efficacy test are terms unique to the particular contract under consideration; they depend upon the express terms of that contract and the relevant surrounding circumstances. Terms implied by law, on the other hand, are, or at least are relevantly for these proceedings, terms which, prima facie, are to be implied in all contracts of a particular class. As I will seek to show, whether the implication is excluded requires regard to be had to the express terms of the contract and to the relevant surrounding circumstances of the case, but the prima facie implication depends upon the contract falling within the class in respect of which the law has decided that particular terms should be implied. Although the distinction between the two classes of implication has not been and perhaps is still not universally appreciated, classes of contract in respect of which terms will be implied by law, and the terms which will be implied, have in many cases been long established. Typical classes are contracts between master and servant, for the sale of goods, for the provision of work and materials and between landlord and tenant. However the classes of contracts in which the law will imply terms are not closed; the difficult question is to determine what test should be applied before the courts imply such a term for the first time."

I suppose a common example in this Court of an implied term which is a legal incident of a particular class of contracts is the term implied in a contract of employment to the effect that an employer will take reasonable care not to expose the employee to the risk of foreseeable injury. See Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; [1957] AC 555 at 579.

Had the term set out in proposed ground 4B been in issue at trial, the first question would have been whether the contract made between the appellant and the respondent belonged to a class of contracts in respect of which the law has in the past, implied such a term as an incidence of the nature of the contractual obligations. However, the answer to that question does not finally determine whether a particular term should be implied into a particular contract as a matter of law. In Castlemaine Tooheys, Hope JA said, at 487 - 488, that another question that might be asked is whether the term sought to be implied is necessary in contracts of the class to which the subject contract belongs in the sense that without it, the whole basis of the contracts in the class would be rendered futile. Finally, after a review of the cases, Hope JA at 488 raised the question of whether reasonableness as well as necessity had to be established before a term would be implied by law.

The contract in this case was not in a standard form. It was unique. This contract was not one which was readily recognisable as belonging to a class of contracts in respect of which the law has customarily implied any term. Had the term set out in proposed ground 4B been pleaded, the respondent would have been entitled to know before going into evidence, the facts and circumstances upon which the appellant relied in order to establish that this contract fell into a class of contracts, the nature of which is such that the law implies a term that the parties must "negotiate in good faith with a view to overcoming any delays in the project development." Similarly, the respondent would have been entitled to the same particulars had the appellant relied upon necessity and reasonableness to sustain the implication. Further, had the existence of the implied term set out in proposed ground 4B been an issue at trial, it is impossible to say that evidence admissible as "factual matrix" evidence would have been the same as that actually admitted at trial, even though the proposed term is said to arise by implication of law alone. See Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 1989; Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (supra).

Preistley JA discussed all these issues at length in Renard Constructions (ME) Pty Ltd v Minister for Public Works (supra) at 261 - 262, and with respect to the meaning of necessity, his Honour said at 261 that "... necessity has the sense of something required in accordance with current standards of what ought to be the case, rather than anything more absolute ...". Of course, Renard Constructions (ME) Pty Ltd v Minister for Public Works concerned a standard form building contract, quite different from the unique agreement made between the parties in this case. Priestley JA reached the conclusion that the law did imply a term that the powers conferred by the contract had to be exercised reasonably. He took the view that the term was implied ad hoc and by law. With respect to the latter, his Honour considered that implication was necessary in the sense that it was required by current standards in contracts of this class. He went on to observe obiter dicta at 263 - 264:

"Good Faith. The kind of reasonableness I have been discussing seems to me to have much in common with the notions of good faith which are regarded in many of the civil law systems of Europe and in all States in the United States as necessarily implied in many kinds of contract. Although this implication has not yet been accepted to the same extent in Australia as part of judge-made Australian contract law, there are many indications that the time may be fast approaching when the idea, long recognised as implicit in many of the orthodox techniques of solving contractual disputes, will gain explicit recognition in the same way as it has in Europe and in the United States."

Mr Tree submitted that the contract between the parties in this case did fall within a class of contracts which, by reason of their nature, the implied term for which he contended was to be implied by law. Mr Tree referred us to the above passage in the judgment of Priestley JA and the American Restatement (Second) of Contracts, par205 which provides that "every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement." That is not part of the common law of Australia and, even if it was, the term said to be implied by the proposed new ground 4B of the notice of appeal does not accord with it. Mr Tree submitted that:

(a) a legal incidence of every contract is the implication of a term that each party will act in good faith in its performance and its enforcement; and (b) the implied term set out in proposed ground 4B constitutes such an implied term merely applied to the facts of the case at hand.

I would reject this submission. The term said to be implied by law in proposed ground 4B assumes an obligation on the part of the party not in default to overcome a delay regardless of its cause. The proposed implied term does not merely impose an obligation to act in good faith, but goes two steps further by seeking to impose an obligation to act in good faith in a particular way and to achieve a particular end. That is a far cry from the implication of a general term in all contracts to act in good faith even if that was part of the common law of Australia.

The test for terms implied in fact was authoritatively stated by the Privy Council in BP Refinery (Westernport) Pty Limited v Shire of Hastings (1942 - 1991) 180 CLR 266 at 283 to be as follows:

"..., for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."

That proposition has subsequently been endorsed by the High Court of Australia on several occasions (see, eg, Codelfa Construction Proprietary Limited v State Rail Authority of New South Wales (supra) at 347) although recently in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422, it was indicated that the formula laid down by the Privy Council applies only to formal contracts complete on their face, and that the rigid approach there set out does not necessarily apply to informal contracts in which cases it may be necessary to arrive at some conclusion as to the actual intention of the parties before considering any implied or imputed intention. See also Hawkins v Clayton (1988) 164 CLR 539 at 573. With respect to the business efficacy test, Mr Tree set out the following matters in his written submission that he said showed that the test was satisfied:

"10 Whether or not such a term ought be generally implied as a matter of course in commercial contracts (absent the urgings of business efficacy), may be left to another day because here there are extraordinary circumstances surrounding the contract which necessitates such a term being implied on the grounds of business efficacy. Those circumstances are: (a) the unprecedented concept behind the development (a 'green field development') of utilising chip logs to obtain flitches; (b) the amount of the appellant's capital actually and potentially at risk in the project; (c) the minimal or non-existent risk to the defendant in the project; (d) the content and context of the negotiations preceding the execution of the contract, (AB(1)94-AB(2)492) and particularly the express indication to the respondent by the appellant's agent Gutterige Haskins & Davey on 1 June 1995 (AB(2)401) that the milestones were then 'very approximate and will depend on responses of Government Departments, other Authorities and the community to the DP & EMP'; (e) the reference to the milestones in the contract document as warranties on the part of the plaintiff (AB(3)561) which were expressly contemplated as potentially variable by agreement (AB(3)564); (f) the defendants own advertence to and understanding of causes of delay (AB(2)405, 422-424); (g) the necessity for other governmental approvals for the project, including development approval, building approval and the like; (h) the necessity for the parties to negotiate and reach agreement upon the specification for a new category of log not then listed in the Forestry Regulations."

This submission underlines the strength of the respondent's opposition to the amendment of the notice of appeal. Mr Williams submitted that the respondent disagreed with much of what was set out in par10 of the appellant's written submissions (supra), and if those matters constituted the facts and circumstances from which the implied term was said to arise, he most certainly would have sought particulars prior to trial, interrogated, sought discovery and adduced evidence at the trial. Mr Williams submitted that the respondent has been denied this opportunity which now makes it unfair for the appellant to argue the matters it seeks to argue by proposed grounds 4A and/or 4B. I would accept that submission. Generally speaking, with respect to a claim about what evidence might or might not have been adduced at the trial had an issue raised for the first time on the appeal been an issue at the trial, I respectfully draw attention to the following passage from the judgment of Shepherd J in Wingate Marketing Pty Ltd and Another v Levi Strauss & Co and Another [1994] FCA 1001; (1994) 121 ALR 191 at 215:

"It is always difficult for counsel, and almost impossible for judges, to say with any certainty how a case would have been conducted if a point not relied on below had been taken at the original hearing. The court must pay great attention to what counsel say about the matter. In the present case counsel for the respondents has stated that he would have led further evidence. There is nothing apparently unreasonable or improbable about that being the course that would have been taken."

For these reasons I would dismiss the application to amend the notice of appeal.

The novel "good faith" concept contended for by Mr Tree, whilst capable of statement with beguiling simplicity, can never be a pure question of law as he contends, because even its most ardent proponents appear to recognise that "good faith" is incapable of abstract definition and can only be assessed as being present or absent if the relevant facts are known or capable of being known -- a little like "proximity" in the law of negligence.

It is plain, therefore, that counsel for the respondent must be right when he says that no sensible determination of the existence or non-existence of relevant "good faith" could be made in the present case unless the alleged requirement of "good faith" which in terms goes beyond the express terms of the contract and the implied terms as alleged in the pleadings, had been alleged and particularised, so as to enable the respondent to consider and, if necessary, call evidence additional to that which was given at the trial.

An application to amend a notice of appeal is not permitted as a matter of course. To permit an amendment to the grounds of appeal of the kind requested by the appellant, whether in the original form or the second, attenuated, form put forward by Mr Tree, seems to me to create a difficulty for the respondent of the kind acknowledged in Halsbury's Laws of Australia, par325-11580 which should result in the appellant's application to amend being refused.

Whether this line of reasoning will flow over into a consideration of, and consequent rejection of, grounds 4 and 5 of the appeal, remains to be seen, if and when those grounds are pursued during the hearing of the appeal.

In my opinion, the application to add the new ground 4A, in either of its alternative forms, has not been shown to be one in respect of which new evidence of the kind adumbrated by Mr Williams, would not have been relevant to, and possibly determinative of, the issue in question in favour of the respondent. Accordingly, I would refuse the application because to do otherwise would clearly disadvantage, and work an injustice to, the respondent.