2. In Sharp v. Deputy Federal Commissioner of Taxation 88 ATC 4184, Burchett J. took the major considerations on application for leave to appeal to be:

1. Whether in all the circumstances the decision is

attended with sufficient doubt to warrant its being

reconsidered by the Full Court.

2. Whether substantial injustice would result

if leave were refused supposing the decision to be wrong.

These factors are interdependent. As his Honour said:

"They bear upon each other, so that the

degree of doubt which is sufficient in one case may be

different from that required in another. Ultimately a

discretion must be exercised on what may be a fine balancing

of considerations."

3. In the present case the proceedings were commenced on 8 April 1988. They relate to events said to have occurred in September and October 1982. There have been numerous interlocutory motions and delays. I do not propose to set out a detailed chronology of the events, for the question of delay or prejudice to the respondent if leave were to be granted and the trial dates vacated was not addressed in argument on the motion.

4. The judgment dismissing the motion for leave to amend turns largely upon a consideration of the law as stated in Waltons Stores. In support of his application for leave to appeal, counsel for the applicant referred to additional authorities which, it is said, cast doubt upon the correctness of the decision refusing leave to amend and indicate that a broader approach to the question of estoppel by conduct may be possible. Reference was made to the observations of Deane J. in Foran v. Wight [1989] HCA 51; (1989) 168 CLR 385 at 435 where his Honour said:

"...I am now prepared to take the step which

I refrained from taking in Walton Stores and to accept that

the doctrine of estoppel by conduct extends, as a matter of

general principle, to a representation or induced

"assumption of fact or law, present or future" (cf. Moorgate

Mercantile Co Ltd. v Twitchings ((1976) QB 225 at p 242)).

Once it is recognised that promissory estoppel is properly

to be seen as no more than an emanation of the general

doctrine of estoppel by conduct (see Waltons Stores), there

remains no valid reason in principle why that general

doctrine should not apply to a representation of future

fact. Nor is there any valid reason why that general

doctrine should be inapplicable to a case where the

representation relates to the state of the law. In that

regard, the distinction between a representation of fact and

a representation of law is, in the context of the principles

constituting the doctrine of estoppel by conduct,

essentially illusory unless one subscribes - and I do not -

to the view that the law has no factual existence at all."

This observation was said to negative the proposition, implicit in the judgment on the motion for leave to amend, that the estoppel must be founded upon an assumed legal relationship between the parties. In Foran v. Wight (supra) the estoppel upon which Deane and Dawson JJ. relied was founded upon a statement by the vendor of certain land that it would not be able to settle by the contracted date. There was an implied intimation that the vendor did not require tender of the purchase price on the due date. The assumption in question went directly to the legal relationship between the parties. In adopting the wider view that he did, his Honour referred to the judgment of Lord Denning MR in Moorgate Mercantile Co. Ltd. v. Twitchings (1976) 1 QB 225 at 242. It is important to see the context of the dictum there relied upon. At 241 - 242 his Lordship said:

"Estoppel is not a rule of evidence. It is

not a cause of action. It is a principle of justice and of

equity. It comes to this: when a man, by his words or

conduct, has led another to believe in a particular state of

affairs, he will not be allowed to go back on it when it

would be unjust or inequitable for him to do so. Dixon J.

put it in these words:

"The principle upon which estoppel in pais is founded

is that the law should not permit an unjust departure by a

party from an assumption of fact which he has caused another

party to adopt or accept for the purpose of their legal

relations."

Sir Owen said so in 1937 in Grundt v. Great Boulder

Proprietary Gold Mines Ltd. [1937] HCA 58; (1937) 59 CLR 641, 674.

5. In 1947 after the High Trees case (Central London Property Trust Ltd. v. High Trees House Limited (1947) KB 130), I had some correspondence with Sir Owen about it: and I think I may say that he would not limit the principle to an assumption of fact, but would extend it, as I would, to include an assumption of fact or law, present or future. At any rate, it applies to an assumption of ownership or absence of ownership."

6. The representation in that case was by a finance company to a prospective purchaser of a motor vehicle from another party, that the vehicle was not encumbered to the finance company. This could be seen as a representation going directly to the legal relationship between the finance company and the proposed purchaser, namely that the finance company had no claim to the ownership of the vehicle.

7. In Commonwealth v. Verwayen (1990) 64 ALJR 540 at 560, Deane J. set out what he saw as the conceptual basis and operation of the doctrine of estoppel by conduct including the following proposition set out in paras. 7 and 8 that:

"7. Estoppel by conduct does not of itself constitute an

independent cause of action. The assumed fact or state of

affairs (which one party is estopped from denying) may be

relied upon defensively or it may be used aggressively as

the factual foundation of an action arising under ordinary

principles with the entitlement to ultimate relief being

determined on the basis of the existence of that fact or

state of affairs. In some cases, the estoppel may operate

to fashion an assumed state of affairs which will found

relief (under ordinary principles) which gives effect to the

assumption itself (e.g. where the defendant in an action for

a declaration of trust is estopped from denying the

existence of the trust).

8. The recognition of estoppel by conduct as a

doctrine operating consistently in law and equity and the

prevalence of equity in a Judicature Act system combine to

give the whole doctrine a degree of flexibility which it

might lack if it were an exclusively common law doctrine.

In particular the prima facie entitlement to relief based

upon the assumed state of affairs will be qualified in a

case where such relief would exceed what could be justified

by the requirements of good conscience and would be unjust

to the estopped party. In such a case, relief framed on the

basis of the assumed state of affairs represents the outer

limits within which the relief appropriate to do justice

between the parties should be framed."

In the present case, the assumed state of affairs relied upon is that the applicant would obtain a certain represented sales figure and that the respondent "would not withdraw from the market in the short term". Neither of these assumptions, if true, would give rise to any cause of action. I was referred to other passages from Verwayen in the judgments of Mason CJ. at 546, Dawson J. at 564 and McHugh J. at 585. None of the passages referred to, in my opinion, support the proposition that the proposed pleading is tenable. I adhere to my opinion that there is no reasonable cause of action disclosed on the proposed pleading.

8. As to the effect of the decision on the applicant, I am satisfied that if I were wrong there would be a possibility of injustice in that a cause of action otherwise available to the applicant would not be heard. There are causes of action relied upon under the Trade Practices Act, in negligence and for breach of contract. So far as the claim for relief under the Trade Practices Act is concerned, the point is taken in the defence, and there is a real question, that it may be statute barred. If that be right, then the applicant is thrown back essentially on the plea of negligent misstatement and breach of contract.

9. I have given anxious consideration to this matter, having regard to the possibility that my previous decision may be incorrect. In all the circumstances, however, I am satisfied, notwithstanding the further matters put to me by the applicant, that having regard both to the merits of the appeal and to the question of possible injustice to the applicant, this is not a case in which leave to appeal should be granted, and the applicant's motion will be dismissed.

10. In addition to seeking leave to appeal, the motion also sought an order that the respondent comply with orders made on 22 November 1990 and 13 December 1990 for filing and service of an affidavit of specific discovery. The affidavit was in fact filed on 7 January 1991. In the circumstances I will hear the parties as to the costs of the motion. The question whether the trial dates should be vacated because of matters arising from the inspection of documents specifically discovered will be addressed on a separate motion foreshadowed by Mr Wheatley. It does not arise in the context of this motion, having regard to my decision on the matter of leave to appeal.