By clause 2 the term of the agreement expires on 31 August 1996 so that its practical effect is that it is now only to operate for one further playing season. I should at this point note that it appears that the arrangements with the Eastern Suburbs Club in respect of each of the Defendants permits the termination of the respective Playing Contract for each of the Defendants in the event that a Court should determine that the Penrith contracts are enforceable.

The principal obligations for the provision of services by the player are contained in clause 3. Because of its importance, I quote that clause in full:

The Player will (a) whenever and wherever reasonably required, during the playing season(s) of the New south Wales Rugby League Limited ("the League"), well and faithfully and to the best of his ability and skill play the Game for the Club in such team and grade as the Club shall from time to time specify; (b) report promptly for, and participate fully in, all pre-season and post-season Games and all training sessions conducted by, or participated in, by the Club; (c) play the Game in a sportsmanlike manner and in accordance with its rules; (d) obey all reasonable directions of the club relating to training for and playing the Game; (e) undergo drug testing if and when requested to do so by the Club or the League; (f) agree to be bound by and observe the provisions of the Memorandum and Articles of Association and Rules of the Club, the League and the Australian Rugby Football League Limited ("the Australian Rugby League"); (g) act dress and behave in public in a professional manner; (h) not play in any Rugby League Football match other than for the Club or in a representative match sanctioned or approved by the League or the Australian Rugby League (except with the express prior written consent of the Club); (i) join and remain a member of the Club throughout the period of this Agreement; (j) complete the New South Wales Rugby League Player Registration Form; (k) participate in all activities required by the Club or the League for the promotion of the Game and in particular: (i) punctually attend public functions organised or supported by the Club or the League; and (ii) punctually attend appointments arranged by the Club or the League to make appearances in public or on radio or television.

PROVIDED that such participation under this sub-clause shall, if required by the Club, be not more than four hours in any one month AND PROVIDED FURTHER that such participation shall not interfere with the usual occupation of the Player. Any fee payable to the Player by the League for such participation shall be negotiated between the Player and the League."

The definitions in clause 19 are relevant to the foregoing clause. Thus words have the meanings assigned to them in the Memorandum and Articles of Association of the League and "the Rules" mean "the Rules and Regulations of the League". "The Game" means "the Game of Rugby League Football". All definitions are "except where inconsistent with the context".

Clause 4 contains the provisions for payment, read with Schedule 1. Significantly, the remuneration applicable both to Mr Fittler and Mr Sing is not remuneration based on paragraph 1 of Schedule 1. That provides for a payment per Premiership Competition Match. Premiership Competition means "the New South Wales Rugby League Premiership Competition presently conducted by the League or any competition subsequently replacing the same" see clause 19. Rather the remuneration is what is termed a "playing fee" within clause 4(2) rather than the premiership competition match fees referred to in clause 4(1). I should add that the Playing Contract uses upper and lower case for the defined term "Premiership Competition", for no apparent reason.

That fee was in the case of Mr Fittler $115,000 in 1994, $150,000 in 1995 and $155,000 in 1996; see paragraph 2 of Schedule 1.

Paragraph 3 of Schedule 1 insofar as it deals with playing fees rather than the premiership competition match fee presupposes that a figure has been stated in column 1 of paragraph 2 though in fact no such figure is stated. Thus paragraph 3 may not have any application in the present circumstances.

However, paragraph 4 of Schedule 1 does appear to have application. It divides the remuneration by way of playing fee (or if applicable, premiership competition match fee) as to 88.46% for remuneration for actually playing "in all matches of the Premiership Competition in which the Player is selected by the Club or as a sick leave payment in respect of matches in which the Player is unable to play because of injury or illness sustained during the Premiership Competition", with the remaining 11.54% being paid leave made up of 5 weeks holiday leave and 1 week long service leave respectively.

Paragraph (5) of Schedule 1 appears not to be relevant since the relevant column has not been completed. Paragraph 6 provides as follows: "Payment for any matches played, other than premiership competition matches shall be determined at the sole discretion of the Club."

It appears from material submitted by Mr Levy in a memorandum of 2 February 1996, agreed between the parties that no player at the Penrith Club under the existing Playing Contracts receives remuneration solely by way of Premiership Competition Match fees. However, the more junior players receive a combination of playing fee plus Premiership Competition Match fees, the latter of smaller amount than the playing fee, around a range of $1,000 to $3,000. Mr Sing illustrates that. However, over a season, those Premiership Competition Match fees are cumulatively, not insignificant.

Finally, there is a reference also to remuneration in clause 28, where each player receives on a pro rata basis a share in 50% of the total prize money received from the pre-season competition such as the Challenge Cup/Sevens Competition, being in each case League sponsored competitions.

There is another provision of the Contract, clause 8, dealing with the consequences for apportionment of the Playing Fee which ordinarily is payable in two equal half-yearly instalments. This apportionment arises if, as clause 8A provides, "prior to the commencement of the Premiership Competition in any year" ... "the Club shall form the opinion that" the Player has failed to recover from an injury earlier sustained so as to become unfit to play the Game for the Club in consequence of such injury. In those and analogous circumstances, depending on a medical examination in accordance with the procedures laid down with clause 8, the player, where judged unfit to play, at the Club's election suffers a termination of the agreement discharging the Club from liability but requiring the Club nonetheless to pay a pro rata portion of the playing fee accruing to the player "from the date on which the Player commencing training with the Club for the season to the date on which this agreement is terminated", see clause 8A(b).

The Defendants contend that under the Super League arrangements, it is clear that this apportionment procedure could not apply since training is all year round and there is no longer any reference point in the Premiership Competition relevant to the Super League games as such. Thus the Defendant contends that the apportionment clause could in those circumstances not have the intended operation, this being to the detriment of the player.

So far as the references to Premiership Match fees in paragraph 1 of Schedule 1 are concerned, the Penrith Club contends that they have no significance so far as Messrs Fittler and Sing are concerned because they are not paid on a Premiership Competition Match fee basis. That is not however correct so far as Mr Sing is concerned as he is paid by a combination of Playing Fee and Premiership Match fees. In any event for both Defendants, it is clear enough that the apportionment of the Playing Fee referred to earlier in paragraph 4 of Schedule 1 is predicated upon playing in all matches of the Premiership Competition in which the Player is selected by the Club. These provisions would simply have no application in a context where no participation occurred in the Premiership Competition. Since the apportionment is necessary to meet the statutory obligations to pay holiday leave and long-service leave, the apportionment is of considerable significance, as otherwise the Penrith Club would not be in compliance with those statutory obligations unless separately agreed. There was no evidence of any such separate agreement for any player.

Finally, the fact that some players depend upon Premiership Competition Match fees as a supplement to their playing fees indicates that at least for them the Playing Contract is predicated upon participation in the Premiership Competition. There is some force in the argument that a Playing Contract which is in standard form but adapted to particular remuneration arrangements of either Playing Fee alone or Playing Fee plus Premiership Competition Match payments, would more probably than not embody the same overall assumption as to participation in Premiership Competition Matches. This is reinforced by the wording of the earlier mentioned apportionment of 88.45%/11.54% and by the pro rata payment arrangements in the circumstances of clause 8, Those of course are universally applicable to all players of the Club.

Clause 5 provides for publicity. Relevantly, clause 5(a) states that: "The Player shall seek all necessary approvals and consents from the League" so far as writing columns for publication is concerned. Clause 5(b) precludes a Player deliberately making any statement or comment "detrimental to the interests, welfare or image of the Game or the League or the Club".

Clause 6 deals with injury insurance and health fund membership and has no particular significance for present purposes.

Clause 7 provides a warranty as to physical and mental condition and again, significantly,any dispute in regard to termination of the agreement for breach of warranty is subject to determination by the Appeals Committee of the League.

I have already referred to clause 8. It is worth noting that it is applicable should the Player suffer a pre-existing injury "prior to the commencement of the Premiership Competition". While the Penrith Club contends that simply provides a convenient time reference point and does not pre-suppose participation in the Premiership Competition, I have already shown how the clause in its provision for apportionment of the Playing Fee pre-supposes participation in at least a seasonal playing competition rather than one like Super League contemplating training the whole year round.

Clause 9 provides for a mechanism to deal with the situation where the Club concludes that "the Player is not playing the Game and training for playing the Game for the Club conscientiously and to the best of his ability and skill".

The determination of the Club is subject to important safeguards from the Player's viewpoint whereby the Player may appeal to a tribunal consisting of one person nominated by the Player, one person nominated by the Club and one person nominated "by the Chairman of the League".

Clearly that latter nomination and the appeal mechanism generally pre-suppose that the League Chairman will continue to effect such nomination. In circumstances where the Club is no longer a participant in the League and in a hostile relationship, it would be quite unreasonable to expect the Chairman of the League to continue to play the role there contemplated.

To this the Penrith Club replies that the Commercial Arbitration Act 1984 (NSW) in s8 provides for a default mechanism in the exercise of power to appoint an arbitrator. Hence the parties must therefore have had that in mind as a fall-back, such that the provision for the Chairman of the League was not so pivotal that the agreement necessarily proceeded only on the assumption of continued relationship with the League, though drafted with that clearly in contemplation.

In clause 10 provision is made for dealing with "misconduct". Clause 10(3)(j) provides for "misconduct" as including: "being guilty of any other form of conduct prejudicial to the Club or the League".

In clause 11, the Player acknowledges that he has had made available to him a copy of the Memorandum and Articles of Association of the Club, the League and the Australian Rugby League together with the Rules and Regulations of the League and that he is aware of the provisions of those documents. Again, this assumes their continued relevance.

Clause 14 provides that all disputes must, as a condition precedent to bringing any action in relation to the same, be referred to arbitration by the Appeals Committee of the League, whose decision on all questions of fact shall be final and binding. Again, an arbitration clause of this sort, being an important protection to parties who may wish to avoid reference to the Court for reasons to do with publicity as well as access to expertise, reinforces the assumption of a continued friendly relationship with the League. Again, the Commercial Arbitration Act 1984 (NSW) in s10 provides a general power of the Court to fill the vacancy. Nonetheless it appears that the parties drafted their agreement on the assumption of a continued relationship with the League, even if such clause had its default provision under the statute.

The confidentiality provisions in clause 15 preclude disclosure of the terms of the agreement to any person or entity "other than the League". Again, this pre-supposes a continued association with the League.

In clause 17 the following provision appears under "Collateral Agreements", "This Agreement embodies all of the terms of the agreement between the parties except those contained in the Memorandum and Articles of Association of the Club and the Rules and Regulations of the Club by which each party agrees to be bound. Each party acknowledges that no representation has been relied upon in entering into this Agreement which has not been expressed herein."

The Defendants contend that when that obligation is read with the relevant provisions of the Memorandum of Association of Penrith Club, this by necessary implication if not explicit express provision binds the Penrith Club in various ways to the Memorandum and Articles of Association and Rules of the League.

Thus under clause 2 of the Memorandum of Association of Penrith Club it is provided that "the Company shall affiliate with the (i) New South Wales Rugby League Limited..."

That provision links with the Memorandum of Association of the League and in particular clause 4(1) which provides as follows: "The League may grant affiliation to any organisation or body of persons formed for the purpose of conducting a competition in the metropolitan area of Sydney, which competition is not confined to terms formed within the boundaries of any one District Club on such terms and conditions as the Board of Directors determine."

It might be said that the supposition or assumption underlying clause 2 of the Memorandum of Association of Penrith Club in its imposition of an obligation to affiliate, is the continuance of amicable relations between the Club and the League rather than the entry into of hostile Super League arrangements.

Reinforcing that association is the requirement of clause 10 of the Memorandum of Association of Penrith Club that no amendment may be made to its Memorandum of Association until approved by the League with a corresponding provision in relation to the Articles of Association in Article 34. Furthermore, any question as to the interpretation of the Articles of Penrith Club must be referred in writing for determination by the League and any inconsistency between the Articles under provision of the constitution of the League is invalid to the extent of the inconsistency; see Article 63. Articles 73, 74 and 75 of the Articles of Association of the League, under the heading "Constitution of Clubs" reinforces the close dependency of Clubs' constitutions to the aims and wishes of the League.

In clause 4 of the Memorandum of Association of Penrith Club are the stated objects of the company. Object 4(b), not expressed however in terms of obligation, is "to enter teams in the Sydney Rugby League Premiership Competition or such other competition or competitions in which the League may invite the Club to participate ".

However, Object (f) of clause 4 is wider in scope and provides: "to establish support, maintain, train, coach and field in Rugby League football matches, teams of Rugby League Footballers and to promote the status of professional Rugby League Footballers, or to assist other parties to such ends and to assist Rugby League Footballers generally."

The Penrith Club points out that such an object would in its concluding words permit not only the fielding of teams by Penrith Club itself, but also assisting other parties and in that sense would permit assistance to an associated entity such as is contemplated in Super League.

To this, the Defendant would reply that whatever scope clause 4(f) might give to assistance of other parties, for Penrith Club to hand over its football operations to AH PE Pty Limited, a company not even presently controlled by Penrith Club, is the carrying out of a purpose not remotely within the Objects permitted by the Memorandum of Association of Penrith Club.

Returning to the specific clauses of the Playing Contract so far as material, clause 20, under "Duties of Player" deals with reporting of injuries and the like as well as promotional activities being precluded that are in conflict with any of the Club's major or minor sponsors. There is no express reference to the League in that clause and indeed clause 20(g) simply refers to "the playing of Games for the Club".

Clause 24, dealing with the suspension of a player, is predicated upon the suspension of the player by various League committees, namely the Judiciary Committee, the Drugs Judiciary Committee or the Appeals Committee".

Clause 26 of the Playing Contract contains an agreement by the player which precludes the player entering into discussions to play the Game for any other club. This is with an exception in paragraph (a) whereby the Club is not to withhold consent once the Club "has completed its premiership competition commitments for that year". I note here that the reference to "premiership competition" is in the lower case, though there is nothing to suggest that that indicates an intention to denote any other competition than that conducted by the League. It certainly would not suggest the Super League competition carried on in hostile competition with the League.

Clause 26(b) precludes the earlier prohibition from applying in the case of the 1995 season with any of the four new clubs who had then joined the Premiership Competition in that year, again predicating the arrangements upon the Premiership Competition.

Finally, attached to the Playing Contract and entered into pursuant to clause 3(j), is what is called the "Players Registration Form". Under it, the player agrees "to be bound by the provision of the Memorandum and Articles of Association and Rules of the League Limited" and "to undergo the prescribed tests as laid down by the League Drug Control committee if requested to do so". There is also an authorisation "to the League" to use the name and photograph of the player for the purpose of promotion of the game subject to remuneration being paid by the League for such use.

Finally, the player agrees "to make myself available for selection for representative teams and acknowledge that if I am selected for but withdraw from such teams or make myself unavailable for such selection I will not be able to play for my Club in any game in which I would not have been able to play had I been a member of such representative teams ".

That last provision is closely linked to the Rules of the League which, in Rules 7 and 8 earlier referred to, prohibit a club from refusing to issue a clearance for a player or from entering into a contract or agreement with the player which precludes the player from playing or training "with any Australian, State, State of Origin, Country of Origin, Combined Metropolitan, Group or Inter-Group Team ...".

It is not disputed that the representative games their referred to are operated under the auspices of the League and thus pre-suppose a continued association with the League.

The Penrith Club contended that references to "the Game" in the Playing Contract was simply defined in clause 19 as "the game of Rugby League Football". However, the Defendant contends that when considered in the context of the various references to the League and the express obligation of the Player to comply with the provisions of the Memorandum and Articles of Association of the League, as well as the subordination of the Club to the League in its Club's Memorandum and Articles of Association all pointed to an underlying factual matrix whereby "the Game" was to be understood as the game as administered by the League. Thus clause 3(b) of the Objects of the League are: "to foster and control the game of Rugby League Football throughout the state of New South Wales and the Australian Territory and generally to take such action as may be considered conducive to its best interests ".

The Penrith Club contends that the references in clause 3 support the notion that this is a Playing Contract of a simple play and pay kind, with no necessary requirement that the play be in the Premiership Competition conducted by the League. Thus clause 3(h) in its prohibition on playing in any Rugby League football match other than for the Club "or in a representative match sanctioned or approved by the League or the Australian Rugby League" is itself subject to the parenthetical exception where this is "with the express prior written consent of the Club". That is said by the Penrith Club to reinforce, along with the definition of the game as not specifically related to the game as conducted by the League, the notion that the Playing Contract, while designed to cater for participation in the Premiership Competition conducted by the League, can also operate without participation in that competition. The provisions of the Playing Contract to which I will later refer, making reference to the League, are, according to the Penrith Club, to be read as simply applicable while the Penrith Club is playing in the Premiership Competition. The Plaintiff emphasises that if the League does not accept the application of the Club to play in the League, that, of itself, could not be expected to terminate the obligations of the Player to the Club or the Club to the Player. Such obligations of the Player as refer or relate to the Premiership Competition or the League would simply be waived or rendered inapplicable, according to the Plaintiff.

One difficulty with this contention is that there is in fact a definition of "the Game" in the Articles of Association of Penrith Club itself, to which the Penrith Club is bound both by the force of its own constituent documents and by clause 17 of the Playing Contract. "The Game" is there defined as "the game of Rugby League Football played in accordance with the laws laid down by the International Rugby League Board as amended to meet local requirements". Significantly, clause 19 of the Playing Contract provides both the simple definition of the Game as "the game of Rugby League Football" whilst earlier states that "Words have the meanings assigned to them in the Memorandum and Articles of Association" (meaning those of Penrith Club). The latter may reasonably provide a gloss on the later simple definition of the Game which is in no way inconsistent with that simple definition.

To this is to be added the provisions dealing with disciplinary matters under the rules of the League contained in Rules 27 to 35. The linkage between those disciplinary provisions in the Rules and the provisions dealing with misconduct and the integrity of the game in clause 10 of the Playing Contract is clearly evident.

I will return to that contention, after considering the other provisions of the Playing Contract and their interaction with the relevant constituent documents of both the Penrith Club and the League, as well as the Rules applicable to the League which accompany its constituent documents. That is in order to ascertain whether, there is a breach of an implied, or express and implied term, that the Penrith Club will either apply to continue in the League, or will continue in the League, as a player in the Premiership Competition. I will alternatively consider whether the Playing Contract would be frustrated in the event that the Penrith Club did not participate in the Premiership Competition or did not participate, and in addition participated in the Super League Competition.

THE LEGAL QUESTIONS 125. There were two preliminary questions requiring prior decision dealt with in my two judgments of 30 January 1996. The first was whether the decision of the Appeals Committee of the League of 22 December 1995 operates as an estoppel per rem judicatem, so precluding the Penrith Club from asserting that the Playing Contracts which it seeks to enforce have not been validly terminated.

The second was whether any decision by such Committee on any questions of fact in the course of making its determination operates as an issue estoppel so as to preclude Penrith Club from controverting such decision in this Court.

In my two judgments of 30 January 1996 I concluded that Penrith Club was not so precluded from asserting that the Playing Contracts which it seeks to enforce have not been validly terminated (being the dispute referred to the Appeals Committee and determined in favour of the Defendants). I next concluded that any arbitral decision on any questions of fact did not preclude Penrith Club in this Court from asserting to the contrary in this Court or submitting further evidence. As it happens, there was no material dispute before me on many of the factual matters so decided.

The legal questions which remain, substantially as formulated by the parties, are set out below.

Question 1 -Whether, on the proper construction of each of the Playing Contracts, including clause 17 and the Memorandum and Articles of Association of Penrith Club, and to the extent relevant, the Memorandum and Articles of Association and the Rules and Regulations of the League, Penrith Club was under an express or implied term obliged to participate in the League Premiership Competition presently conducted by the League? Question 2 - If question 1 is decided in favour of the Defendants, whether in the events that happened Penrith Club repudiated its contract such repudiation being accepted by the Defendants, or whether, in any event, if the contract has not been validly terminated, Penrith Club is entitled to equitable relief whilst it threatens to breach the contract? Questions 3 - In the alternative or in addition, whether the conduct of Penrith Club more particularly described below, breached a term which was express (alternatively, partly express and partly implied) that the Defendants would be employed by the Penrith Club until 31 October 1996 to play Rugby League football (a) for Penrith Club; (b) in the League Premiership Competition.

The conduct in question 3 (as formulated by the Defendants), is that on 3 May 1995 Penrith Club entered into an agreement (Exhibit DX5) with News Limited, Star League Pty Limited and AH PE Pty Limited whereby AH PE Pty Limited would participate in the proposed Super League Competition, and thereafter Penrith Club evidenced its intention that it would not itself employ the Defendants to participate in the ARL Premiership Competition or in any other Rugby League competition in 1996, but would use its best efforts to ensure the success of AH PE Pty Limited in the proposed Super League Competition, using players released by it or otherwise induced by it to be employed by AH PE Pty Limited for that purpose.

I foreshadowed that I would consider this question on the alternative basis that requirement (a) alone may suffice. Question 4 - Even if the relevant Playing Contracts have the meaning for which Penrith Club contends, namely that on their proper construction Penrith Club was not obliged to participate in the Premiership Competition:

(a) The entry by Penrith Club into the agreement of 3 May 1995 with News Limited, Star League Pty Limited and AH PE Pty Limited (Exhibit DX5) and/or (b) The announced intention of Penrith Club to participate in the Super League Competition and not the Premiership Competition of the ARL and the League, which I shall refer to collectively as "the Leagues "; and/or (c) The means of such participation and/or (d) The conduct of Penrith Club from August 1995 to seek to ensure the success of AH PE Pty Limited in the Super League Competition.

were events which frustrated the contract and discharged both parties from further performance. Question 5 - Alternatively whether, if no frustrating event has yet occurred or will occur until Penrith Club carries out its announced intention to participate in the Super League Competition, then no injunction should be granted to enforce a contract for which there is real prospect that it may later be discharged by frustration.

Question 6 - If the foregoing questions are decided in favour of Penrith Club such that the Playing Contracts remain on foot and with no real prospect that they may later be discharged by frustration, whether Penrith Club is disentitled to equitable relief by way of injunction because: (a) Of laches; (b) The grant of an injunction would place the Defendants in breach of their Loyalty Agreement with the Leagues entered into on 3 April 1995; (c) The grant of an injunction would compel the Defendants either to forgo their chosen occupation or to carry out a contract of personal services; or (d) Such relief would sanction a failure by Penrith Club to act in accordance with its corporate objects and assist threatened acts of Penrith Club which may be done otherwise in pursuance of its corporate objects, such failure being the failure to participate in the Premiership Competition, and such threat being the threat to participate in the Super League Competition.

These issues and events are to be considered against the terms of the relevant Playing Contracts earlier described and, so far as permissible, their factual matrix.

I deal first with Questions 1, 2 and 3 together as it is convenient to group these under the heading "Repudiation and Breach of Contract". I then deal with Questions 4 and 5 under the heading "Frustration", followed by Question 6 under the heading "Discretionary Grounds for Denial of Injunction". Repudiation and Breach of Contract - Questions 1 to 3

At paragraph 48 of the decision of the Appeals Committee of 22 December 1995 it is concluded "That the parties to the Playing Contract intended that each player would Play for the Club in the NSWRL Premiership Competition in the form then being conducted by the NSWRL. In our view, the words used by the parties to the contract

impose a corresponding obligation upon the Club to participate in the Premiership Competition ".

The arbitrators evidently did not rely upon the doctrine of frustration but rather the further finding that by the actions taken by the Penrith Club it evinced an intention not to be bound by the Playing Contract to participate in the League's Premiership Competition; see paragraph 57(VI) of the decision.

I am not of course bound by that conclusion or the basis for it. The proper starting point is an examination of the express terms of the Playing Contract. As is said by Mason J in Codelfa Construction Pty Limited v State Rail Authority [1982] HCA 24; (1982) 149 CLR 337 at 352 concerning surrounding circumstances:

"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed "

In the present case, the claimed ambiguity relates to the references to the League and the Premiership Competition in the Playing Contract; in particular whether they bespeak the obligation earlier posited of the Penrith Club, to participate in that competition or merely operate so long as the Penrith Club in fact participated in that Premiership Competition, such that the Penrith Club could waive their application to the Player if it did not.

One can take it that in a standard contract of this sort, not materially varied, prior negotiations would centre only on price.

The express terms of the Playing Contract are replete with references to "the League" and to "the Premiership Competition" and contain no express provision to the effect that Penrith Club was obliged to participate in the League Premiership Competition. However, I am satisfied that, as in Codelfa (supra) at 354, the assumption that the Penrith Club would participate in that Competition was clearly "a matter which was in the common contemplation of the parties yet was not a contractual provision actually agreed upon, for the simple reason that it was a matter of common assumption ".

That it was a matter of common assumption is borne out by the acknowledged fact that at the time the Playing Contracts were entered into there was no other competition than the League's Premiership Competition and that competition had been conducted by the League since early this century. However, to say that something "was a matter of common contemplation between the parties is not enough in itself to justify the implication of a term ... . It must appear that the matter of common contemplation was necessary to give the contract business efficacy and that the term sought to be implied is so obvious that it goes without saying." Codelfa at 354 per Mason J.

Was that matter of common contemplation such as to justify the implication of a term as necessary to give the contract business efficacy? When reference is made to the contract itself, there are some indications that the contract is flexible enough, to permit the player to compete in at least an occasional rugby league football match which might be other than for the Club or other than in a representative match, sanctioned or approved by the League or the Australian Rugby League. Thus clause 3(h) of the Playing Contract provides a parenthetical exception where the player obtains the express prior written consent of the club. Indeed clause 3, in terms, makes no reference to playing in the Premiership Competition as such. However, it is fair to say that the whole structure of the contract, its references to "grade" in the principal provision employing the Player in clause 3(a) and to the League there and throughout and in particular concerning the League's role in such matters as drug testing, dispute resolution, approvals and consents to publicity and to the other provisions relating to remuneration to which I have earlier referred, as well as the linked constituent documents and rules of the Penrith Club and League, all emphasise the common assumption that the player will participate in League sanctioned matches and in particular the Premiership Competition and other representative games. This is even if, in theory, some of those provisions at least were waivable by the Penrith Club, where rendered inapplicable, such as if the Club were excluded from the Premiership Competition by the League.

These provide a strong basis for at least the common assumption or common contemplation that the Penrith Club would participate in the Premiership Competition. However, as the Plaintiff emphasises, it could only do so in the state of affairs applicable to such contracts contemplated prior to the commitment agreements, by applying to the League for a favourable exercise of the League's discretion in that regard.

Indeed that state of affairs, to the extent it may be called in aid in interpreting contractual provisions of ambiguous effect, emphasises that participation in the League Premiership Competition was not a right on the part of the Club but a privilege granted in the discretion of the League. Thus the Plaintiff contends that it might not be unreasonable for the contract to contemplate a state of affairs where such participation was not enjoyed. However, when a close analysis is made of the detailed provisions of the Playing Contracts to which I have just referred including remuneration provisions and their apportionment (in the circumstances for example of clause 8 and in relation to holiday leave pay and long service leave pay), no other conclusion can be reached but that the Playing Contracts proceeded on the common assumption of participation by Penrith Club and the Player in the Premiership Competition. There is of course further reinforcement of that conclusion when regard is had to the fact that the Player subjects himself via the Player's Registration Form executed pursuant to clause 3(j) of the Playing Contract to the Memorandum and Articles of Association and Rules of the League, whilst both Club and Player agree to be bound under clause 17 of the Playing Contract by the Memorandum and Articles of Association and Rules and Regulations of the Penrith Club. I have earlier described the various provisions of those constituent documents and Rules and Regulations and how they reflect a common assumption that "the Game" referred to in the Playing Contract, though simply defined as "the game of Rugby League Football" in clause 19, is clearly understood as the game as currently regulated in all its aspects including rules, discipline and grades by the League and the ARL. This is especially when regard is had to the earlier mentioned definition of the Game in Penrith Club's own Articles of Association, whose definitions are incorporated by clause 19 and whose observance both parties undertake in clause 17, where these constituent documents of the club are referred to as "collateral agreements"

When that concept of "the Game" as "governed by the laws laid down by the International Rugby League Board as amended to meet local requirements" is contrasted with the description of the game to which I have earlier made reference as embodied in the Star League documentation including both Heads of Agreement and Deed of Indemnity and the associated Super League Standard Terms, it could not have been within the common contemplation of the parties under the Playing Contracts that the game would be played under Super League conditions and with the radically different features which I have earlier set out - radically different for both Club and Player.

But was the matter of common contemplation to be elevated to an implied term, as being both necessary to give the contract business efficacy and "so obvious that it goes without saying"? I adopt here the more precise test for implying a term as stated by the majority judgment in B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40; (1977) 52 ALJR 20 and adopted by Mason J with the concurrence of the other members of the High Court in Secured Income Real Estate v St. Martin's Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 at 606. The conditions to be satisfied are: (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.

A fundamental difficulty with the implication of a term simply obliging Penrith Club to participate in the League Premiership Competition, as distinct perhaps from applying to participate, is that such participation is not in the control of the Penrith Club, certainly not at the time the Playing Contracts were entered into. That depended upon the Penrith Club first applying annually and second, that application being granted. While a later contractual arrangement with the League, to which I have earlier referred in my Judgment, entered into towards the end of 1994 and subsequently expanded in February 1995, gave Penrith Club certainty until 1999 as to its participation, those events do not pre-date the contract or provide part of its factual matrix at the critical time. Thus to assume an obligation on the part of the Penrith Club in favour of the player that it would do that which was not in its power unassisted to bring about, pre-supposes that Penrith Club was prepared to take the commercial risk of having to pay the player even if the League were to exclude Penrith Club from the Premiership Competition and the opportunity to earn revenue through its participation. There was of course no contemplated Super League at the time the relevant Playing Contracts were entered into so that no alternative source of revenue could have been in the contemplation of the parties. Thus it must be questioned whether such a term in those circumstances would even be "reasonable and equitable".

It is true that a number of provisions of the contract to which I have referred, such as arbitration or drug testing, depend in a practical sense upon participation in the League in one way or another. Also that it would only be reasonable to expect that the League would co-operate in their implementation in circumstances where Penrith Club was not itself, and by its own actions, taken outside the League. Thus none of those provisions could be expected still to operate in circumstances where Penrith Club did not play in the Premiership Competition under the umbrella of the League, especially if this were the result of its own actions. Thus obligations imposed upon the Player such as to obtain approvals from the League for publicity under clause 5(a) might be waived by Penrith club where not applicable or appropriate because of those changed circumstances. Likewise, reference to "the commencement of the Premiership Competition in any year" such as found in clause 8A may, in theory, be explained as simply using these as convenient time reference points. Even the dispute provisions in clause 14 and the earlier "best effort" provisions in clause 9, contemplating as they do arbitration by the League or participation by the Chairman of the League in a tribunal, could still work by application of the default provisions of the Commercial Arbitration Act 1984 (NSW); see in particular ss8 and 9.

However, the remuneration provisions to which I have earlier made reference, though deleting the Premiership Competition Match fees in paragraph 1 of Schedule 1 nonetheless still proceed on the express basis that there is to be participation in the Premiership Competition; see paragraph 4 of the first schedule and note also the apportionment provisions in clause 8 to which I have made earlier reference. There is also some significance in the fact that other players who enter into these Standard Form Playing Contracts sanctioned by the League who are more junior, are paid in part by Match Fees which are clearly those of the Premiership Competition. It would be an unexpected result that Penrith Club would only have in contemplation participation in the Premiership Competition in relation to some players who are receiving Premiership Competition Match Fees but not others who are not.

However, while it might be said that the Playing Contract lacks business efficacy at least in the remuneration context in circumstances were implication of such a term to be denied, it does not follow that the parties must have intended such a term to be implied. It is at least equally possible that they did not turn their minds to the possibility of non-participation.

Then when one turns to the requirement that the implied term must be so obvious that "it goes without saying" there are further difficulties. Is the implied term to be simply an obligation to make application for admission to the Premiership Competition each year? In that case, what happens to the practical working of the contract if that application is refused? Or is the obligation to go further and actually achieve participation each year, in which case why would Penrith Club wish to place itself at risk in circumstances where there was no Super League in contemplation when the Playing Contracts were entered into?

I conclude that the situation here is very similar to that which led Mason J in Codelfa at 355 to conclude: "Even so there remains an insurmountable problem in saying that 'it goes without saying' that had the parties contemplated the possibility that their legal advice was incorrect and that an injunction might be granted to restrain noise or other nuisance, they would have settled upon the term implied by the Court of Appeal or that implied by the Arbitrator and by Ash J at first instance. I doubt whether the fiction of treating the parties as reasonable andfair makes the problem any less difficult. This is not a case in which an obvious provision was overlooked by the parties and omitted from the contract. Rather it was a case in which the parties made a common assumption which masked the need to explore what provision should be made to cover the event which occurred In ordinary circumstances negotiation about that matter might have yield anyone of a number of alternative provisions, each being regarded as a reasonable solution.

The difficulty which I have with the implication of the term here is much the same as the difficulty that Lord Reid had in

Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; (1956) AC 696 in accepting that the doctrine of frustration rests on an implied term (at 719-721). It is greater because in many situations it is easier to say that the parties never agreed to be bound in a fundamentally different situation which has unexpectedly emerged than it is to assert that in a like situation the parties have impliedly agreed that the contract is to remain on foot with a new provision, not adverted to by them, governing their rights and liabilities.

My reluctance to imply a term is the stronger because the contract in this case was not a negotiated contract."

The present situation is precisely one where I conclude that the parties made a common assumption which masked the need to explore what provisions should be made to cover the event which occurred, namely the Penrith Club choosing not to participate in the Premiership Competition of the League but rather electing to support a competing competition set up by Super League.

It follows that the answer to Question 1 is "No". It also follows that Penrith Club did not breach the express or implied term referred to in Question 1 and thus did not repudiate its contract in the manner claimed by the Defendants, with the result that the purported acceptance of that claimed repudiation did not terminate the Playing Contracts.

Alternative Express, or Express and Implied, Term 153. However, that still leaves the alternative term said to be either express or alternatively partly express and partly implied, referred to in Question 3. This was put by the Plaintiff as to the effect that the Defendants would be employed by Penrith Club until 31 October 1996 to play rugby league football:

(a) for Penrith Club; (b) in the League Premiership Competition

154. I have earlier concluded that I do not consider that there is an obligation express or implied upon Penrith Club to participate in the League Premiership Competition. From this it follows that the cumulative requirement in (b) above is not satisfied.

155. As I had foreshadowed to Counsel in argument, I would also consider the possibility that any express, or express or implied term, was limited to one which required that the Defendants would be employed by Penrith Club until 31 October 1996 to play Rugby League Football for Penrith Club. That is to say, that Penrith Club would be in breach of such a term if it entered into arrangements which required the relevant players to cease to play for the Penrith Club. It will be recalled that the Super League arrangements which I have earlier described, contemplate, not that Penrith Club will play Super League Football but rather will participate through a separate company, AH PE Pty Limited, associated with but not presently controlled by Penrith Club. AH PE Pty Limited will employ all the footballers who are to be made available by Penrith Club for this purpose who are released to the extent necessary from their Playing Contracts to do so.

There is of course no express provision in the Playing Contract that the Club will provide the opportunity to the footballers who are contracted to it to exercise their special skills and talents by providing match opportunities. However, as was said in Curro and Anor v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 342: "Ordinarily an employee cannot demand to be given work and the obligation of the employer is limited to payment of the agreed remuneration. Turner v Sawdon and Co (1901) 2 KP 653. As Dixon J said, this is an application of the principle that 'they also serve who only stand and wait': see Automatic Fire Sprinkers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 467. However, there is a well established exception to this general rule in the case of actors and others in a similar position who are vitally interested in opportunities to perform or exercise a skill or talent in public."

157. There was ample evidence before me to the effect that the opportunity to play football at the highest standard was of vital concern to each of the Defendants. Their opportunity to obtain additional remuneration through endorsements, for example, or otherwise to obtain the benefit of publicity (see clause 5 of the Playing Contract) and to obtain selection in representative games were all dependent upon the ability to play in top-rate competition. And clause 3(a) of the Playing Contract expressly provides that they will play "for the Club", not for some other legal entity. This latter obligation is "whenever and wherever reasonably required, during the playing seasons of the New South Wales Rugby League Limited".

158. Applying the tests for an implied term of this sort, for Penrith Club to enter into arrangements with Super League not only precluding the Club from providing the teams itself for first class games but merely procuring the opportunity to play through an associated entity, and then under conditions radically different from those under the Playing Contract is, in my judgment, a clear anticipatory breach of the Playing Contract. Perhaps one of the most significant matters in which the Super League arrangements differ is that Super League contemplates that the player be full-time playing football. Whereas, clause 3 in its final proviso expressly provides for the benefit of the Player that "such participation shall not interfere with the usual occupation of the Player".

159. I have already concluded that it is not for the Defendants to have to demonstrate that more flexible arrangements than those to which Penrith Club have legally committed themselves would accommodate the critical terms of the Playing Contract in favour of the players to which I have earlier made reference. Furthermore, it is simply not credible that the Defendants should be required to assume that the Super League Standard Terms would be varied to accommodate the Playing Contracts or that Penrith Club would be excused from its fundamental obligations to support Super League by releasing its players to the extent necessary.

160. Thus, summing up, I consider that the relevant implied term in the present case is that the Penrith Club will continue to be in a position to field its own teams for Rugby League football so that players remain employees of the Club in playing rugby league football and have the opportunity to play rugby league football in the best teams that the Club can field. It may well be that such an implied term, while of the kind necessary to give business efficacy to a particular contract, and otherwise satisfying the requirements for its implication, is also one which is a legal incident of a particular class of contract, namely one of employment, personal to the parties; Codelfa at 345, Liverpool City Council v Irwin [1976] UKHL 1; (1977) AC 239 and Viscount Simons in Lister v Romford Ice and Cold Storage Co Ltd [1956] UKHL 6; (1957) AC 555 at 576.

161. I further conclude that there is an express provision of the Playing Contract (clause 3) which requires that participation "shall not interfere with the usual occupation of the Player". Clearly the Super League arrangements would do so. Thus I conclude that entry by Penrith Club into the Super League arrangements with their contractual obligations upon both Penrith Club and any player that participates in them, constitute an anticipatory breach of the Playing Contract. I am satisfied that the breaches are in each case sufficiently serious that they would give rise to a right to terminate and thus amount to an anticipatory repudiation of the Playing Contract. This in turn gives rise on the Player's part to a right to accept that repudiation and thus terminate the contract. Whilst the basis upon which the Players have claimed that the contract is repudiated differs from the repudiation which I have concluded has occurred, nonetheless such repudiation suffices to justify the denial of any injunction to the Plaintiff since readiness and willingness to perform on the Plaintiff s part could not be established; see generally Carter Breach of Contract second edition 1991 at 228-233 and the authorities there cited.

Frustration - Questions 4 and 5 162. I have earlier concluded that whilst it is not appropriate to imply a term that on the proper construction of the Playing Contracts, Penrith Club was obliged to participate in the Premiership Competition, nonetheless continued participation was the common assumption upon which the parties entered into the Playing Contracts. The question therefore arises whether, in the events that have happened, the performance of the contract is so radically different from performance in the circumstances which the contract contemplated, that the contract has been frustrated; Davis Contractors Limited v Fareham Urban District Council [1956] UKHL 3; (1956) AC 696 at 728-729 per Lord Radcliffe and at 719-721 per Lord Reid.

Frustration no longer depends on any theory of implied term; Codelfa at 355.

Non fulfilment of the common assumption is in circumstances where Penrith Club have replaced their own direct participation in the Premiership Competition under the supervision of the League with an obligation to support the participation by another entity AH PE Pty Limited in the Super League Competition, directly competitive with the League. This is, furthermore, under arrangements whose practical effect is that Penrith Club not only cannot now participate in any League sponsored Rugby League Competition itself but also cannot itself participate in Super League directly. Rather it has transferred its football operation to a licensee presently not under its control, AH PE Pty Limited. In those circumstances, there can be no doubt that performance of the Playing Contract is either not possible, or so radically different from performance in the circumstances which it contemplated, that one would ordinarily conclude that the contract had been frustrated in the events that have happened. This is reinforced by the radically different employment arrangements applicable to players in Super League.

There is however an important distinction between the conventional cases of frustration which arise from some supervening event outside the control of the parties and the present situation where it is the action of the Plaintiff that has led to this radical difference. It is well settled that self-induced frustration cannot be relied upon. But what happens where the party seeking to rely on the frustration is the innocent party who was not responsible for bringing about the circumstances which are claimed to frustrate the contract?

In my judgment, it would be grossly inequitable if a party could shelter behind the fact that it had brought about the frustrating event in order to avoid what would otherwise have been the consequences of such frustration, namely discharge of the contract at the behest of the other party. There is English authority that such an inequitable outcome is not the result. Rather, the innocent party may rely upon the circumstances brought about by the other party to the contract as giving rise to frustration; see F. C Shepherd and Co. Ltd v Jerrom (1987) QB 301; it should follow that the party responsible for bringing about the frustration may not. The case and the underlying principles are discussed in G. H Treitel Frustration and Force Majeure Sweet and Maxwell 1994 at 488-9 which I quote below: "A problem which has given rise to some difference of judicial opinion is that which arises where an employee is prevented from rendering the agreed services because of his imprisonment for a criminal offence. At first sight, it seems clear that the prevention is due to the deliberate act of the employee, so that he should not be able to rely on it as a ground of discharge. This is the position taken in the United States by the Restatement ((97) Para 458, Illustration 5.) and by the Restatement 2d, which gives the example of an employee who is imprisoned for burglary and concludes that he is not discharged but is liable in damages because his inability to perform his part of the contract is due to his fault. ((98) Para 264, Illustration 5.

In England the question of the effect of imprisonment on contracts of employment has arisen (in an indirect and somewhat curious way) in cases in which employees who were told by their employers that their employment had been terminated in

consequence of their imprisonment then claimed compensation for unfair dismissal. ((99) Under the Employment Protection

(Consolidation) Act 1978, Pt. V, as amended by Trade Union and Labour Relations (Consolidation) Act 1992, s.300(2) and Sched. 2 and Trade Union Reform and Employment Reform Act 1993, ss.49 and 51 and Scheds. 8 and 10.) Since dismissal may be unfair without being wrongful, the issue in these cases was not whether the employer was in breach but simply whether the contracts had come to an end as a result of dismissal (i.e. by the employer's acceptance of the employee's breach) or of frustration: on the latter analysis, no question of compensation for unfair dismissal could arise. After some conflict in the authorities, the view has prevailed that in such circumstances the contract comes to an end by frustration rather than by dismissal. The point may be illustrated by reference to F. C Shepherd and Co. Ltd v Jerrom ((1) (1987) QB 301; cf. Harrington v Kent C.C. (1980) I.R.L.R. 353; Hare v Murphy Bros. (1974) I.C.R. 603, 607; contra, Norris v Southampton C.C. (1982) I.C.R. 177. For the question whether the imprisonment is, or can reasonably be supposed to be, sufficiently long to frustrate the contract, see ante, Paras 5-049, 5-050.) where an apprentice who had become involved in a fight between two motorcycle gangs was

convicted of conspiracy to commit assault and sentenced to a period of Borstal training, of which he served 39 weeks. The

employers told his father that they were not prepared to take him back and subsequently resisted his claim for compensation for unfair dismissal on the ground that the contract had been frustrated. It was to rebut this defence that the apprentice argued that there had been no discharge by frustration since the alleged frustration had been self-induced. Acceptance of his argument would have entirely perverted the purpose of the rule that frustration must not be due to the fault of the party relying on it. That purpose is to prevent the party at fault from relying on an allegedly frustrating event (where it is due to his fault) and so to impose a liability on that party. In F.C Shepherd and Co. Ltd v Jerrom the apprentice sought to rely on his own criminal conduct in order to establish a right to compensation for unfair dismissal. The Court of Appeal rightly rejected his claim and held that the contract was frustrated. This is wholly consistent with Lord Sumner's formulation that "Reliance cannot be placed on self-induced frustration" ((2) Bank Line Ltd. v Arthur Capel and Co. [1918] UKHL 1; (1919) AC 435, 452.); for the party relying on frustration was the employer, and he had not induced the frustration.

I should add that I have found no Australian cases dealing with this novel point, and it is not dealt with by statute; see Frustrated Contracts Act 1978 (NSW). However, I adopt what is said as to principle by J W Carter and D J Harland in Contract Law in Australia Butterworths, 2nd edition 1991 at 677:

"Most descriptions of the concept of frustration refer to the absence of default by either Party. ((187) In The Super Servant Two [1989] EWCA Civ 6; (1990) 1 Lloyd's Rep 1 at 8 the statement of the principle refers simply to the person relying on frustration. If the onus were on the party invoking the doctrine to prove that frustration was not self-induced there would, logically, be a need to prove not only the absence of default by that party but also by the other party. ((188) See (1942) AC 154 at 199, 200.) This would be unreasonable and unduly restrict the scope of frustration. For example, a party may rely on frustration, even if the other party is at fault, and claim to be discharged. Proof of the existence of fault should only be required if a claim for damages is also made. It would then be necessary to establish that default amounted to a breach of contract. This analysis is supported by a recent decision of the Court of Appeal holding ((189) See F C Shepherd and Co Ltd v Jerrom (1987) QB 301.) that the sentencing of an employee to a custodial term for criminal conduct may be relied on by the employer as frustrating the contract, even though the delay in performance causing frustration is in a sense caused by wrongful conduct on the part of the employee."

D W Greig and J R L Davis The Law of Contract The Law Book Company 1987 at 1322 correctly identify the reason for confusion: "The notion of self-induced frustration is at times misunderstood. Frustration is an argument put forward by one of the Parties to the contract, as a reason for his failure to Perform. Because of the interdependence of the performance of contractual obligations, if one party is excused, the other is also (see, for example, Jackson v Union Marine Insurance Co Ltd (1874) LR 10 CP 125 at 144 per Bramwell B.; Constantine Steamship case (1942) AC 154 at 163 per Viscount Simon LC). But the point remains that frustration is, in essence, a reason for relief advanced by only one of the parties (and normally resisted by the other; see Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; (1956) AC 696 at 720 per Lord Reid). Thus self-induced frustration refers to the situation in which the party alleging the termination of the contract has brought about the supervening event.

In so adapting contractual principle to achieve a common sense and equitable result, there is one theoretical difficulty to which I should refer. It is one to which none of the text writers make reference, as a difficulty. It is well settled that once the requirements of frustration are satisfied, the effect of the doctrine is to discharge the contract, in the words of Lord Sumner "forthwith, without more and automatically"; Hirji Mulji v Cheong Yue SS. Co. (1926) A. C. 497 at 505. Thus a contract may be discharged, even though both parties continued, for some time after, to behave as if the contract were still in force; Treitel at 498.

However, the essence of this exception to reliance on self-induced frustration is that the party who induced it cannot invoke the doctrine to discharge the contract, but only the innocent party. From this it must follow that for this purpose only, the general rule gives way to the principle that such a situation of frustration discharges the contract, not automatically, but only at the suit of the innocent party.

The other consequence is that discharge for frustration may remove any possibility for suing for breach on the part of the innocent party against the party who brought about the frustration. Consider in this context the case where the very action, or elements of it, which brought about the frustration were also a breach of the contract, as is the case here. It would appear that the innocent party has an election. That party can either sue for breach or alternatively invoke frustration and discharge the contract. The latter course would appear to leave no room to sue for breach save breaches which have already occurred before the time of frustration; see ss7 and 8 of the Frustrated Contracts Act 1978 (NSW) and Carter (supra) at 446: "The significant difference between discharge for breach or repudiation and discharge by frustration is the ability to claim damages. ((73) See Hongkong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd. [1961] EWCA Civ 7; (1962) 2 QB 26; F. C. Shepherd and Co. Ltd v Jerrom (1987) QB 301; and above, Para. 645.) If a frustrating event occurs before any breach has been committed there will be no question of either party claiming damages from the other. Similarly, if the frustrating event occurs before the acceptance ((74) See generally above, Paras 750-777.) of a repudiation of obligation which precedes the time of performance no claim for damages will be available to the promisee. ((75) Avery v Bowden (1856) 6 E. and B. 953; [1856] EngR 889; 119 ER 1119; Peter Turnbull and Co. Pty. Ltd. v Mundus Trading Co. (Australasia) Pty. Ltd. [1954] HCA 25; (1954) 90 CLR 235 at 250, 259; Continental Grain Export Corp. v S.T.M. Grain Ltd. (1979) 2 Lloyd's Rep 460 AT 471.) However, if a breach occurs prior to the frustrating event then frustration does not, at common law, divest the promisee of the right to damages, although the fact that the performance of the contract is subsequently frustrated may be relevant to their assessment. ((76) Cf Watts Watts and Co. Ltd. v Mitsui and Co. Ltd. (1917) AC 227.)"

However, the short answer to any theoretical difficulty on this score, is that the election remains with the innocent party, who can take the impact on any damages claim into account, in choosing between the two courses of claiming for frustration, or claiming discharge for breach. Neither theoretical difficulty should deter the availability of frustration as a remedy, where invoked by the innocent party, as here.

The remaining potential obstacle in concluding that the Playing Contracts are discharged by frustration is that the frustration is prospective rather than immediate. However, we are here dealing not with the anticipated occurrence of a future event but with the anticipated effects of a past event, namely the entry by Penrith Club in May 1995 into the Super League arrangements. The general rule is that the question of discharge is to be determined by reference to the time of the occurrence of the allegedly frustrating event. However, the contract will nonetheless be discharged if at the time a reasonable person would have taken the view that this past event would lead to a sufficiently serious interference with performance to bring about discharge. It is not necessary to wait and see whether such interference actually takes place, or would have taken place if attempts to perform had not been abandoned; indeed the contract will be discharged even though subsequent events show that there would have been no such interference. See Treitel (supra) at 365-6 and Embiricos v Sydney Reid and Co. (1914) 3 KB 45.

Here the consequences of entering into the Super League arrangements are clearly foreseeable and cannot in any event be seriously in dispute. While evidence was given that the Defendants could readily enough re-adapt to the Penrith team, that is not to the point. Under the Super League arrangements they do not play for Penrith Club but for AH PE Pty Limited. But even were that not so, any reasonable person would conclude that the Defendants would inevitably be participating in arrangements so radically different from those the subject of the common assumption between the parties at the time the Playing Contracts were entered into, that those contracts have been frustrated. It follows that performance under them has been discharged so far as the Defendants are concerned, taking them to have so elected.

Discretionary Grounds for Denial of Injunction - Question 6 175. Given my earlier answers to Questions 1 to 5, it is not necessary for me to answer this question. The question is of course directed at whether there are any discretionary bases for denying an injunction to the Plaintiff on the basis that the Playing Contracts remain on foot. I have earlier concluded that in any event because the Plaintiff is not ready and willing to perform an express, or an express and implied term of the contract, an injunction would be denied.

176. It is not necessary likewise that I consider whether any failure by Penrith Club in regard to the Playing Contracts or its actions in entering into the Super League arrangements would contravene its corporate objects.

CONCLUSIONS 177. I conclude that: (1) There was no term, express or implied, in the Playing contracts (including to the extent relevant the constituent documents and rules of the Club or the League) which obliged Penrith Club to participate in the League Premiership Competition presently conducted by the League. (2) It follows that no repudiation of the Playing Contract based on breach of such a term occurred or was capable of acceptance. (3) However the conduct of the Penrith Club did result in it committing an anticipatory breach of a partly express and partly implied term that the Defendants would be employed by Penrith Club until 31 October 1996 to play Rugby League football for Penrith Club; accordingly that Penrith Club would continue to be in a position to field its own teams for Rugby League football so that players remain employees of the Club in playing rugby league football and have the opportunity to play rugby league football in the best teams the Penrith Club can field and so that such participation shall not interfere with the usual occupation of the Player. (4) Such anticipatory breach is sufficiently serious as to give the Players the right to accept such breach as an anticipatory repudiation and thereafter terminate the Playing Contracts. (5) Such anticipatory breach suffices to justify denial of any injunction to the Plaintiff, since readiness and willingness on the Plaintiffs part could not be established.

(6) Subject to the Defendants so electing, the Playing Contracts have been frustrated, in the events that have happened, with the result that both parties would be discharged from further performance. (7) In light of the earlier conclusions I do not need to consider any other basis for denying the Penrith Club entitlement to equitable relief by way of injunction. ORDERS I direct the parties within seven days to submit orders giving effect to this judgment. So far as costs are concerned, prima facie costs should follow the event and thus be awarded to the Defendants in each case. However, if necessary, I will hear Counsel on costs when the matter next comes back before me.