Searle v Commonwealth of Australia

Background

1. On 3 August 2010, prior and preparatory to his enlistment but having received a letter naming him as competitive for enlistment in the role of a marine technician, Mr Searle executed an "Acknowledgment of Conditions of Service of Persons Recruited for the General Entry Scheme of the Royal Australian Navy". The terms of this acknowledgment were as follows: "I, Clayton William Searle, having been accepted as competitive for entry as a Marine Technician in the Royal Australian Navy, acknowledge that if offered a position in the Navy, I will have no right after enlistment to change my category. I acknowledge however, that the Navy is not bound nor limited to employing me in my chosen category and that I may be employed in any element of the Navy if the Navy considers such employment to be in its interest. I, Clayton William Searle, having been accepted as competitive for entry as a Marine Technician in the Royal Australian Navy, acknowledge that if offered a position in the Navy, my failure to pass any module of my training, including the swimming test, could lead to my discharge. I, Clayton William Searle, reaffirm that I fully understand and agree to all the conditions of service listed in this letter."
2. On 17 January 2011, Mr Searle signed another document entitled "Acknowledgment of the Requirements of Service for Enlistment in the Royal Australian Navy". Amongst other matters, he acknowledged that: 1. on enlistment to the Australian Defence Force (ADF) he was subject to the rules and regulations and conditions of service prescribed during the recruitment process; 2. he was committing himself to an Initial Minimum Period of Service of four years; 3. he may be required to perform combat or combat related duties or peacekeeping services during his service in the ADF; 4. he would, unless his service was otherwise terminated, be required to serve in the Standby Reserve Force of the Navy for a minimum period of five years following his service in the Navy; 5. as a member of the ADF he was required to comply with directions and orders given to him by persons in the ADF who had the legal authority to issue such directions and orders; 6. whilst accepting and agreeing to serve in the ADF as a Marine Technician, from time to time his service may mean that he had to undertake duties, tasks and roles which were outside the strict bounds of that employment; 7. he may be required to serve either within or beyond the territorial limits of Australia; 8. he understood that no civil contract was created or implied between a member of the ADF and the Crown or the Commonwealth.
3. The final acknowledgement noted above was consistent with reg 117 of the Defence (Personnel) Regulations 2002 (Cth) (Defence (Personnel) Regulations) which relevantly provided that no civil contract of any kind was created with the Crown or the Commonwealth as a result of the enlistment of an enlisted member.
4. Mr Searle's enlistment commenced on 17 January 2011, he having made an affirmation of allegiance in accordance with reg 24 of the Defence (Personnel) Regulations on that date: see also reg 25. He was then aged 18. It should be noted in this context that reg 95 of the Defence (Personnel) Regulations at all relevant times provided that an enlisted member may apply to the Chief of the enlisted member's service to resign from the ADF not less than 12 months before the proposed date of effect of the resignation or within a lesser period determined by the Chief of the enlisted member's service. Regulation 97(1) provided that the Chief may refuse an enlisted member's application to resign if it was made in time of war or defence emergency. The significance of these references for present purposes relates to the question whether the Training Contract was supported by consideration moving from Mr Searle: see [157]-[163] below.
5. As the primary judge recorded: "[14] Immediately after enlistment [Mr Searle] was transferred to HMAS Cerberus, a Naval training facility on the Mornington Peninsula in Victoria. He underwent approximately ten weeks of Recruit School comprising physical training, general instruction about the Navy and weapons training. There were numerous other recruits undergoing this initial phase of training at the same time including between fifteen and twenty who had been accepted into the Navy as Marine Technicians ('MTs'). [15] When Recruit School concluded on 1 April 2011 [Mr Searle] commenced Initial Technical Training in the Engineering Faculty at HMAS Cerberus. This continued until 31 October 2011. [Mr Searle] was trained in a class with instruction given in modules, each dedicated to the use of certain tools or the functioning of a particular piece of machinery. [Mr Searle] passed each module and moved on to the next. [16] In June 2011 [Mr Searle] and the other MT recruits in training were asked by officers of the Engineering Faculty staff to sign a Training Contract. On 20 June 2011 [Mr Searle] signed such a Contract and a Mr Palmer signed on behalf of the Navy..."
6. In his affidavit of 5 July 2017, Mr Searle recounted the circumstances in which he came to sign the Training Contract: "64 In the days prior to 20 June 2011, I heard rumours from other trainees that we were going to be required to sign 'trade papers'. 65 On 20 June 2011, I was in class undertaking an ITT course. A runner came into the classroom and said words to the following effect: The following classes need to go to the theatre room after class. We are signing contracts this afternoon. The runner then read out classes which included my class, MT289-Bravo. 66 After class, along with my classmates, I went into the theatre room at HMAS Cerberus, which was full with the various Marine Technician classes at ITT … 67 … 68 As we entered the theatre room, everyone from my class was then handed a copy of a document with the title 'Training Contract' which had parts of that document already completed. The Engineering Faculty staff member said to us words to the effect: This is your Training Contract. They're your trade papers. 69 The contract was marked with 'sign here' and 'date here' tabs. The copy that I was handed had already been signed and initialled by Ty Palmer on behalf of the Navy, and included a 'commencement date' of 4 April 2011, which was the date that I started ITT. 70 Present in the theatre for this meeting were Ty Palmer, Justine Windsor, the Chief of the Engineering Faculty and a few other senior staff members whose names I now do not recall. 71 Ty Palmer did most of the talking during the session and I recall that his speech included words to the following effect: You are here to sign your training contracts. Take a few minutes to read through your training contracts and if you have any questions, don't hesitate to ask. When you are reading through, make sure that the contract that you were handed has your correct commencement date at question 3. It should be the date you started your ITT. There is a tab at the question. When you have finished reading the contract, fill in the parts which have not yet been completed, sign the first page, and sign your initials at the bottom of every other page. 72 Following Ty Palmer's speech, I read through the Training Contract from start to finish. The contract was one of the first contracts that I had ever had to sign in my life, and I read it carefully. I did not have any issues with the content or wording of the contract and I could not see anything wrong with it. The reference to a Certificate IV in Engineering in question 1, and to the period of 48 months at question 4, were consistent with the training that I already understood the Navy was going to provide to me. I saw the document as a more formal legal document which, in part, set out the training that the Navy was to provide to me. I was happy to agree to the obligations which the Training Contract said that I needed to perform.
7. The Training Contract recited that: "This contract forms a legally binding agreement between an employer and employee for the training of Apprentices and Trainees leading to a nationally recognised qualification. In signing this contract the parties are bound by the obligations detailed below and the legislation of the State or Territory in which this training contract is to be registered" and contained an express acknowledgment by the parties that it was legally binding.
8. The State in which Mr Searle's Training Contract was registered was Victoria and the legislation that was effectively incorporated into the Training Contract was the Education and Training Reform Act 2006 (Vic) (the ETR Act). Parenthetically, it may be noted that the constitutional legitimacy of the Commonwealth subjecting itself to State legislation in this way was considered by the High Court in Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410; [1997] HCA 36.
9. Training contracts of the kind entered into by Mr Searle were a means by which the Navy and service personnel could take advantage of a much larger Commonwealth-sponsored apprentice training scheme conducted in cooperation with the States by which nationally accredited qualifications could be obtained from registered training organisations (RTOs) and financial contributions to tools and equipment relevant to particular trades secured.
10. Under the heading "Training Contract Obligations" in the Training Contract, the employer agreed to: "a) employ and train the apprentice/trainee as agreed in our Training Plan and ensure the apprentice/trainee understands the choices that he/she has regarding the training b) provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee while at work, in accordance with the Training Plan c) make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan d) provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract e) release the apprentice/trainee from work and pay the appropriate wages to attend any training and assessment specified in our Training Plan f) meet all legal requirements regarding the apprentice/trainee, including but not limited to, occupational health and safety requirements and payment of wages and conditions under the relevant employment arrangements g) repay any payment I receive that I am not entitled to h) work with our RTO and the apprentice/trainee to make sure we follow our Training Plan, keep training records up-to-date, and monitor and support the apprentice/trainee's progress; and i) let the relevant State/Territory Training Authority and the RTO know within five working days (or when the local State/Territory legislation requires, if this is different) if our Training Contract has become jeopardised."
11. In terms of Mr Searle's obligations under the Training Contract, those were that he would: "a) attend work, do my job, and follow my employer's instructions, as long as they are lawful b) work towards achieving the qualification stated in our Training Contract c) undertake any training and assessment in our Training Plan."
12. No point was taken on appeal that the references in the Training Contract to the Department of Defence (in effect the Commonwealth) being Mr Searle's "employer" had any significance notwithstanding the terms and effect of reg 117 of the Defence (Personnel) Regulations noted at [33] above and [85] below.
13. The Training Contract was lodged with the Department of Education and Early Childhood Development of Victoria pursuant to s 5.5.12(1)(a) of the ETR Act. The Department wrote to the Navy on 7 July 2011 confirming that the Training Contract with Mr Searle had been registered. A letter substantially to the same effect was sent by the Department to Mr Searle on or about 12 September 2011.
14. Agreements could be under the ETR Act if they provided for training of employees in accordance with "approved training schemes". In the Act these agreements were referred to as "training contracts". By s 5.5.2 of the Act, the Victorian Skills Commission was empowered to approve a "specified training scheme" by publishing a notice of a determination in the Victorian Government Gazette. On 12 February 2009, the Commission published in the Gazette approval of a long list of specifications for competency-based training, including the Certificate IV in Engineering. Accordingly, the specification for the Certificate IV national qualification, MEM40105, became an approved training scheme in Victoria. This was the qualification referred to in Mr Searle's Training Contract. The Training Contract specified 48 months as the "[n]ominal term of the Training Contract".
15. Sections 5.5.4 and 5.5.5 of the ETR Act relevantly provided: "5.5.4 State training and employment provisions Schedule 4 has effect. Note Schedule 4 sets out training and employment conditions for trainees not covered by the National Training Wage Award. 5.5.5 Training and employment agreements to accord with Schedule 4 (1) A provision of a training contract or an employment agreement or any other contract of employment to which an apprentice is a party is of no effect to the extent that it provides a term or condition of employment that is less favourable to the apprentice than one applicable under Schedule 4. (2) An employer must not enter into, or purport to enter into a training contract or an employment agreement or any other contract of employment with an apprentice that provides a term or condition of employment that is less favourable to the apprentice than one applicable under clause 6(1) of Schedule 4. Penalty: 100 penalty units. (3) If a training contract or an employment agreement or any other contract of employment to which an apprentice is a party does not at any time comply with a term or condition of employment applicable under clause 6(1) of Schedule 4, it must then, for the purposes of section 160 of the Long Service Leave Act 1992, be taken to have effect as if it did. (4) A training contract or an employment agreement or any other contract of employment entered into by an employer in contravention of subsection (2) is not, for that reason only, illegal, void or unenforceable."
16. In addition, cl 4 of Sch 4 to the ETR Act provided that: "4 Training conditions (1) The employer must during the duration of the training contract provide a level of supervision that is in accordance with that agreement and the approved training scheme. (2) Training must be directed at enabling the apprentice to attain the standards of skill and knowledge required by the approved training scheme to be attained by persons undertaking the scheme."
17. Subclause 5(5) provided that: "An apprentice must not work shiftwork unless the apprentice and the employer have agreed that satisfactory provision is made for approved training under the relevant approved training scheme. Training for shiftwork employees may be applied over a cycle in excess of a week but must average over the relevant period no less than the amount of training required for non-shiftwork apprentices."
18. As the primary judge noted, it was by a combination of express terms in the Training Contract signed by Mr Searle and provisions of the ETR Act that the Contract purported to bind the Navy to train Mr Searle to attain a Certificate IV and to devise and agree with him a Training Plan under which that could be achieved. As noted at [20] above, the primary judge held (and it was not in contest) that the Navy took no step to propose, negotiate or agree a Training Plan with Mr Searle or to satisfy the training requirements of the Certificate IV in Engineering.
19. The evidence before the primary judge disclosed that, by October 2012, the Navy had decided no longer to sign up servicemen or women to training contracts of the kind entered into by Mr Searle. The reason for this appears to have been an assessment by the Navy that the attainment of a Certificate IV in Engineering in the 48-month timeframe contemplated by the Training Contract was not achievable and did not align with what was described as the "original MT2010 career continuum". MT2010 was a reference to a program devised by the Navy in 2010 for the training of personnel who, like Mr Searle, had enlisted as Marine Technicians. It required, inter alia, a period of "on the job" training with a posting to a ship as berths became available after an initial onshore training phase.
20. As for Mr Searle and the training he did receive, after an initial period at HMAS Cerberus in Victoria, in late October 2011 he was posted to the Fleet Support Unit at HMAS Kuttabul in Sydney where he remained until September 2012. As the primary judge recorded (at [42]): "At this facility he was given very little work to do. He estimates that he was assigned on average only one job per fortnight. Consequently he had very few opportunities to complete any of the competencies in the MT2010 log and made very little progress towards attaining his EHWC Phase 1 or his Marine Systems Technician qualification under the Navy's MT2010 scheme. He sought out work but little was available. At HMAS Kuttabul [Mr Searle] completed courses of instruction conducted by the Navy whilst he waited for work opportunities or for posting to a ship."
21. On 17 September 2012, Mr Searle was posted to HMAS Melbourne and remained with that ship for 19 months until April 2014 during which time the vessel was deployed to waters near the Middle East for some months and at other times was alongside. In the 19 months of this posting, he completed the requirements of the MT2010 Log to qualify as a Marine Systems Technician. During Mr Searle's service on HMAS Melbourne, as the primary judge recorded, he also advanced his experience and training towards completion of the EHWC Phase 1 requirements, which in due course he satisfied.
22. In January 2014, whilst still serving aboard HMAS Melbourne, Mr Searle lodged a request for discharge to take effect in January the following year. The primary judge recorded (at [45]) that Mr Searle was "frustrated by the lack of training or experience he received relative to a trade qualification which he could use in the civilian workforce upon leaving the Navy".
23. After his HMAS Melbourne deployment, Mr Searle was offered training for a Certificate III in Refrigeration which would take two years. This required him to revoke his request for discharge which he agreed to do and subsequently commenced the course on 28 February 2014. This included an initial four months of coursework at HMAS Cerberus, then some months of further coursework at the Ultimo Campus of the New South Wales Technical and Further Education College, followed by 12 months of "workplace consolidation".
24. Mr Searle completed his coursework for the Certificate III in Refrigeration in September 2014, and then was posted to HMAS Kuttabul for two months and then to HMAS Newcastle from January 2015. In December 2014, he applied to be discharged from the Navy in 12 months' time, and was discharged on 19 December 2015.

Proceedings at first instance

1. In its defence to the amended statement of claim, the Commonwealth pleaded that the Training Contract was a nullity or invalid or otherwise unenforceable as Mr Searle had no contractual relationship with the Commonwealth pursuant to such document or otherwise. The Commonwealth said that the relationship between Mr Searle and the Commonwealth was governed by s 61 of the Constitution, the Defence Act 1903 (Cth) (Defence Act) and regulations promulgated thereunder, including reg 117. The Commonwealth further said that the Training Contract could not establish a relationship of employee and employer between Mr Searle and the Commonwealth when there was not one at common law.
2. The Commonwealth did not plead in terms that the Training Contract was void because of a lack of power to enter into it. In particular, the Commonwealth did not plead that the Training Contract was ultra vires because it effected an impermissible fetter on the discretion of Naval Command. An argument put on that basis did not emerge until the conclusion of the hearing and the filing of closing written submissions. Even then, it was only briefly articulated as follows: "A contract cannot, despite its binding nature, fetter the government's ability to carry out is programs and policies. A government or government body cannot bargain away the important powers that the legislature has conferred upon it. Mason J in Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 74-75 expressed the principle on the basis that the public interest requires that neither the government nor a public authority can by a contract disable itself from performing a statutory duty or from exercising a discretionary power in a particular way in the future."
3. The argument was sought to be met by counsel for Mr Searle in part by reference to a later part of Mason J's judgment in Ansett to the effect that, in circumstances (as here) where the repository of the relevant statutory power, namely the Chief of Navy, was not a party to the Training Contract, the contract could be enforced by way of a claim for damages even though it may not be made the subject of an order for specific performance or injunctive relief. Damages were the only relevant contractual relief being sought by Mr Searle.
4. The Commonwealth's argument was also sought to be met by submissions to the effect that the Training Contract did not in fact fetter the discretion of Naval Command because "[n]othing in the relevant clauses of the Training Contract purports to prevent any officers of the Navy from giving lawful commands to [Mr Searle]".
5. Reliance was also placed on NSW Rifle Association Inc v Commonwealth [2012] NSWSC 818; 293 ALR 158 (Rifle) in support of the proposition that any contractual fetter upon executive discretion would have to be clearly and expressly stated before a court would construe a contract as fettering the discretion, and that that was not so in the present case. It was then submitted that, as the provisions in the Training Contract did not purport to prevent the due exercise of a superior officer's power to give lawful commands to Mr Searle, the provisions of the Training Contract were not void but were to be read as subject to a superior officer's power to give lawful commands to Mr Searle: see L'Huillier v Victoria [1996] 2 VR 465 at 481.
6. The primary judge's reasoning in relation to the fettering argument was set out at [117]-[125] of his judgment as follows: "[117] The considerations which inform the principles expounded by Mason J in Ansett Transport Industries v Commonwealth are fully engaged in relation to the Training Contract. By that Contract the Commonwealth purported to promise an enlisted serviceman that he would be trained in the subjects described therein, referable to the Certificate IV syllabus and, in effect, that this training would be given priority. Thereby a restraint was purportedly placed upon his superior officers with respect to orders [Mr Searle] might be given on topics such as how and in what skills he would be trained and when and to what extent he should perform other duties which would displace or defer training. Such a fetter on the command function of Naval officers would be particularly detrimental to the public interest given the direct bearing it would have upon national security. [118] As technology and equipment develop effective command requires that officers who have responsibility for ensuring capability of the MT category must be free to change the content and scheduling of their training. Depending upon the exigencies of conflicts and urgent deployments, for example for disaster relief, commanding officers may need to suspend training and direct MTs to other duties. A Training Contract having the effect of impeding Naval officers' freedom of decision-making and command in these respects would compromise their ability to achieve efficiency in their service. [119] It is not to the point that one might comb through the Certificate IV syllabus and find units which would correspond with Naval training under the MT2010 scheme. Nor does it matter that the Navy and [Mr Searle] might adopt as [Mr Searle's] Training Plan under the Contract a program which would also satisfy personnel of the MT Category Sponsor and of the Competency Management Cell. The impermissible fetter upon Naval officers' command is brought about by the Contract purporting to establish, for the specification and scheduling of a sailor's training, a regime other than the free decision-making from time to time of the responsible officers. [120] There are further ways in which the Training Contract would, if given effect, restrict naval command. First, by force of ss 5.5.4 and 5.5.5 of the Education and Training Reform Act the terms set out in Schedule 4 of the Act are incorporated in the Training Contract. Clause 5(5) of Schedule 4 makes this provision: 5(5) An apprentice must not work shiftwork unless the apprentice and the employer have agreed that satisfactory provision is made for approved training under the relevant approved training scheme [ie Certificate IV]. Training for shiftwork employees may be applied over a cycle in excess of a week but must average over the relevant period no less than the amount of training required for non-shiftwork apprentices. [121] 'Shiftwork' is not defined in the Act. Its ordinary English meaning is wide enough to embrace the standing of watches by the crew of a vessel at sea. Clause 5(5) of the Schedule is thus an additional and specific purported fetter on the command of the officers of any ship to which [Mr Searle] might be posted. [122] Secondly, s 5.5.8(1)(b) of the Education and Training Reform Act stipulates that an employer who employs an apprentice under a training contract: (b) must allow the apprentice to comply with the approved training scheme [ie Certificate IV] without hindrance if that scheme or any part of that scheme is conducted during normal working hours. [123] Section 5.5.8(1)(b) is a penal provision contravention of which is punishable by fine. The Act is expressed to be binding upon the Crown, including in right of the Commonwealth. It is not necessary to reach a conclusion whether this penal section would be enforceable against the Commonwealth because it is replicated in contractual obligations assumed by the Navy as 'employer' in the Training Contract itself. See for example par (d) quoted at [107] above. Those obligations, requiring continuance of [Mr Searle's] progress through the Certificate IV syllabus, would be inconsistent with the authority of the Chief of the Navy to post a member of the service to a place outside Australia or to a position outside the Navy: see reg 42 of the Defence (Personnel) Regulations. [124] The Contract obligations also have the effect of fettering the command of superior officers who may require [Mr Searle], as an MT sailor, to join a boarding party, or to engage in some other aspect of combat, or to assist (other than through performance of normal duties) in the operation of the ship to which [Mr Searle] is posted. The Commonwealth's contractual undertaking to allow [Mr Searle] to pursue his Certificate IV unhindered would require that such commands not be given and would constitute them actionable breaches if they were. [125] Two other differences between the parties' mutual obligations under the Training Contract and their rights, authorities and obligations according to common law and statute require mention. Clause 5(1) of Sch 4 (providing for termination of the apprentice's employment on notice) and cl 6 (prescribing the wages payable to an apprentice in accordance with the National Training Wage Award) are inconsistent with the Regulations for termination of service and for rates of pay, respectively. Although the Commonwealth pointed out these conflicts in its submissions it did not identify a doctrine of law according to which inconsistency of this nature would avoid the entire Training Contract, rather than just the individual terms which conflict with the Regulations. The provisions of the Contract which place it beyond the Commonwealth's power to bind itself are those which purport to interfere with the authority of officers to command an MT sailor's training and his performance of other duties. The very core of the Training Contract, the purported obligation of the Navy to prioritise training of the plaintiff for his Certificate IV, is of this nature."
7. The primary judge's analysis served to highlight the ways in which he considered there was an incompatibility between the Commonwealth's contractual undertaking in the Training Contact and the exigencies of Naval Command. His Honour's conclusion was neatly summarised at [8] of the judgment where he said: "I find that the Training Contract purported to have the effect of fettering [Mr Searle's] commanding officers in what they could order him to do, both with respect to the nature of training they might require him to undertake and with respect to the performance of other duties which might interrupt his training. I hold that it was beyond the power of the Commonwealth to fetter Naval officers in their command of an enlisted sailor by such a contract. The Contract was beyond the power of the Commonwealth to make and it is void."
8. His Honour did not make reference to Mr Searle's contention that, even if there were a fetter on the relevant discretion, this should be accommodated not by treating the Training Contract as void but simply as not specifically enforceable such that a potential remedy in damages remained available. In fairness to his Honour, because of the far from satisfactory manner in which the Fettering Doctrine argument emerged (both in terms of its timing and the scant detail or discussion which attached to the submissions concerning it), the primary judge did not have the benefit of the rather fuller argument on the matter presented in this Court.

Grounds of appeal and notice of contention

1. Three grounds of appeal were formulated on behalf of Mr Searle. One, closely aligned to the arguments set out at [57]-[59] above, was that: "The primary judge erred in failing to find that the Training Contract did not constitute an impermissible fetter upon the exercise of the power of military command, including the specific powers identified at J [101], because the circumstance that the Commonwealth might have been liable for damages consequent upon a breach of the Training Contract did not preclude, inhibit or stultify the exercise of that power."
2. This ground is dealt with at [73]-[156] below.
3. A second ground was that the primary judge erred in failing to find that the Training Contract was supported by consideration. This ground is dealt with at [157]-[163] below.
4. The third ground was that the Training Contract was in fact authorised by, inter alia, the Appropriation Act (No 1) 2010-2011 (Cth) (Appropriation Act) which made available funding for certain benefits available to trainees and apprentices such as Mr Searle who had signed training contracts with their employees with the consequence that the Training Contract was not void or ultra vires (even if its effect was potentially to fetter the future exercise of discretion by Naval Command).
5. This ground of appeal was ambitious and, in some respects, problematic.
6. It was ambitious because, as was frankly acknowledged by Mr Searle's counsel, it had not been put at first instance and it could not be advanced without the admission of further (but not fresh) evidence that had not been before the primary judge. Accordingly, Mr Searle needed to demonstrate that there were special grounds that warranted such an indulgence. To this end, he filed an amended notice of motion by which he sought leave pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW) (Supreme Court Act) to adduce further evidence. Section 75A(8) of the Supreme Court Act precludes the receipt of such evidence when the appeal is after a hearing on the merits "except on special grounds".
7. Whether or not special grounds were established which justified the reception of the further evidence is considered at [169]-[186] below.
8. This final ground of appeal was problematic because it was predicated on acceptance of the argument (not contested by the Commonwealth) that an appropriation act could itself supply legislative authority to expend the moneys appropriated for expenditure. This is a large and potentially controversial constitutional question: see, for example, Victoria v Commonwealth (Australian Assistance Plan Case) (1975) 134 CLR 338; [1975] HCA 52 at 396 where Mason J pointed out that the Commonwealth did not have "unlimited executive power" and that it was not the case that "statutory appropriation provides lawful authority for the engagement by the Commonwealth in particular activities. An appropriation … has a limited effect"; see also Pape v Federal Commission of Taxation (2009) 238 CLR 1; [2009] HCA 23 at [111], [178], [320], [601]-[602] and the discussion by Professor Stellios in Zines's The High Court and the Constitution (6th ed, 2015, Federation Press) at 384-394. The question was expressly left open in Williams v Commonwealth (No 2) (2014) 252 CLR 416; [2014] HCA 23 at [52]-[55] (Williams (No 2)).
9. In addition to the three grounds of appeal advanced by Mr Searle, the Commonwealth seeks to challenge by notice of contention the primary judge's contingent assessment that, if the Training Contract was binding on the Commonwealth, Mr Searle's damages were $60,000.
10. I deal first with the argument that the Training Contract did not in fact constitute an impermissible fetter on the power of the Naval Command.

Ground 1: did the Training Contract impermissibly fetter the discretion of Naval Command?

1. This issue calls for a consideration of: 1. the nature of Naval Command; 2. the nature and true extent of the Fettering Doctrine; and 3. whether or not the Training Contract in fact fettered the discretion of Naval Command including whether the potential award of damages for breach of the Training Contract would have an impermissible fettering effect.

The nature of Naval Command

1. The primary judge referred to China Navigation Co Ltd v Attorney-General [1932] 2 KB 197 (China Navigation) in which the history of the relationship between the Crown, the armed forces (specifically, the Army) and Parliament was examined. His Honour noted the reference in that decision to the recital to an Act of 1661 (13 Charles II, c 6) by which Parliament acknowledged the Crown's prerogative of command of the forces. This recital had been expressly preserved in subsequent enactments and still represented the common law position in England in 1932. The recital was in these terms: "Forasmuch as within all His Majesty's realms and dominions, the sole supreme government, command and disposition of the militia, and of all forces by sea and land, and of all forts and places of strength, is, and by the laws of England ever was, the undoubted right of His Majesty, and his Royal predecessors Kings and Queens of England; and that both, or either of the Houses of Parliament cannot nor ought to pretend to the same …"
2. The common law position from 1661 was summarised by Slesser LJ in China Navigation at 239 as follows: "This short investigation of the history of the relations of Parliament and the army shows clearly that at no time has Parliament derogated from the prerogative with regard to the command of the forces as it was declared in the time of Charles II. It has declared the standing army illegal in time of peace without the consent of Parliament, but has abstained from interfering with the command by the Crown over a legalized army."
3. Section 68 of the Commonwealth Constitution provides that "[t]he command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative." Section 68 also, of course, needs to be read in conjunction with s 61 which relevantly provides: "The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth."
4. In Barton v Commonwealth (1974) 131 CLR 477; [1974] HCA 20, Mason J said (at 498): "By s 61 [of the Constitution] the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by common law."
5. Earlier, in Marks v Commonwealth (1964) 111 CLR 549; [1964] HCA 45, Windeyer J had observed (at 564) that: "Australian military law differs from that of the United Kingdom in an important aspect. The position of the Crown in relation to the Forces is in Australia dependent on statute and not on the prerogative. Doubtless the prerogative powers of the Crown in relation to military defence are constitutionally an attribute of the Crown in right of the Commonwealth, except in so far as they have been superseded by statute: but the Australian Military Regulations are made under the authority given by the [Defence Act] (s 124) and by the same procedures and subject to the same Parliamentary controls as are other statutory regulations. They are made by the Governor-General in Council, not by the Governor-General as Commander-in-Chief exercising a prerogative power on the advice only of a responsible minister. In the United Kingdom the Queen's Regulations are made under the royal prerogative of the command of the army, although recently, since 1955 especially, the area of regulation based on statutory authority has increased."
6. The Defence Act as in force at June 2011 when the Training Contract was executed contained a number of provisions relevant to command of the armed forces. Section 8, entitled "Powers of Minister in relation to Defence Force", provided: "The Minister shall have the general control and administration of the Defence Force, and the powers vested in the Chief of the Defence Force, the Chief of Navy, the Chief of Army and the Chief of Air Force by virtue of section 9, and the powers vested jointly in the Secretary and the Chief of the Defence Force by virtue of section 9A, shall be exercised subject to and in accordance with any directions of the Minister."
7. Section 9, entitled "Command of Defence Force and arms of Defence Force", provided that: "(1) The Governor-General may appoint an officer of an arm of the Defence Force to be Chief of the Defence Force and: (a) may appoint an officer of the Navy to be Chief of Navy; (b) may appoint an officer of the Army to be Chief of Army; and (c) may appoint an officer of the Air Force to be Chief of Air Force. (2) Subject to section 8, the Chief of the Defence Force shall command the Defence Force, and the service chief of an arm of the Defence Force shall, under the Chief of the Defence Force, command the arm of the Defence Force of which he is service chief. (3) It is a function of the Chief of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the Chief of the Defence Force of the Defence Force, and it is a function of the service chief of an arm of the Defence Force to advise the Minister, in such manner as the Minister directs, on matters relating to the command by the service chief of the arm of the Defence Force of which he is the service chief. (5) Subsection (2) has effect subject to section 68 of the Constitution."
8. Subsection 9A(1), entitled "Administration of Defence Force", provided: "(1) Subject to section 8, the Secretary and the Chief of the Defence Force shall jointly have the administration of the Defence Force except with respect to: (a) matters falling within the command of the Defence Force by the Chief of the Defence Force or the command of an arm of the Defence Force by the service chief of that arm of the Defence Force; or (b) any other matter specified by the Minister."
9. Various amendments have been made to ss 8, 9 and 9A of the Defence Act subsequent to entry into the Training Contract but questions concerning whether the Training Contract impermissibly fettered the exercise of the discretion of Naval Command must be assessed as at the time the Training Contract was entered into and thus by reference to the powers of Naval Command at that time.
10. The terms of s 63(1)(f) of the Defence Act should also be noted. That section empowers the Governor-General, subject to the provisions of the Defence Act, to do all matters and things deemed necessary or desirable for the efficient defence and protection of the Commonwealth or any State.
11. At [96] of his reasons, the primary judge held that: "The chain of command from the Governor-General through the Defence Force Chiefs is prescribed by the Defence Act. There is nothing in that Act or in other legislation or regulations which detracts from the breadth of the power of command. So far as concerns the plaintiff as an enlisted man, it is a power to require him at any time to carry out whatever orders his officers might give in furtherance of the interests and objectives of the Navy."
12. One important feature of the relationship between an enlisted sailor such as Mr Searle and the Commonwealth is that no civil contract of any kind is created with the Crown or the Commonwealth as a result of the enlistment of an enlisted member. This is expressly stated in reg 117 of the Defence (Personnel) Regulations which reflected the position at common law: Commonwealth v Welsh (1947) 74 CLR 245; [1947] HCA 14 at 257-257-8 (per Latham CJ), 264 (per Starke J), 268-269 (per Dixon J), 262-3 (per Rich J); Millar v Bornholt (2009) 177 FCR 67; [2009] FCA 637 at [87]. See also Mitchell v The Queen [1896] 1 QB 121 at 122 per Lord Esher MR.
13. Protections or entitlements that might otherwise have been embodied in contractual promises are contained in other regulations and the Act itself. Regulation 87 of the Defence (Personnel) Regulations, for example, sets out procedures and certain protections in respect of terminating an enlisted member whilst s 117B of the Act makes provision, notwithstanding the absence of any contractual relationship, for a member or former member of the ADF to recover moneys due to him or her from the Commonwealth in court proceedings in respect of their service as a member of the ADF. In C v Commonwealth (2015) 234 FCR 81; [2015] FCAFC 113 at [43], the Full Court of the Federal Court noted that: "During the life of the Defence Act the provisions of the Regulations and their predecessors have become progressively more prescriptive in dealing with the terms and conditions on which members of the Defence Force serve. Service at pleasure has, for example, been replaced by termination for cause. Wage rates, leave entitlements and allowances are prescribed by the Defence Force Remuneration Tribunal under Part IIIA of the Act. A consequence of these developments is, as McHugh J held in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 459, that 'when a prerogative power of the Executive Government is directly regulated by statute, the Executive can no longer rely on the prerogative power but must act in accordance with the statutory regime laid down by the Parliament'. See also Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 at 70."
14. It was not suggested in argument that the effect of reg 117 of the Defence (Personnel) Regulations precluded the Commonwealth and Mr Searle from entering into the Training Contract. As already noted, he was an enlisted member of the Defence Force at the time he entered into it and the primary judge's conclusion that no consideration moved from Mr Searle to the Commonwealth - the issue raised by appeal ground two - effectively entails acceptance by the primary judge of the proposition that Mr Searle was bound to enter into the Training Contract.
15. No issue was taken on the appeal with the conclusions of the primary judge at [96], set out at [84] above, as to the nature or breadth of the power of Naval Command. Nor was any issue taken with the primary judge's analysis of the incompatibility or potential incompatibility between the Commonwealth's actual obligations under the Training Contract (including the negative stipulations necessarily implied under that contract) and the exercise of Naval Command to require, as was seen fit: 1. that Mr Searle undertake a different form of training or work towards a different qualification than that contemplated by the Training Contract; 2. that Mr Searle's training be suspended during deployment or for other reasons; and 3. that Mr Searle be engaged in a different service.
16. There is no doubt that the discretionary powers reposed in Naval Command are extremely important. Their importance is highlighted and reinforced by the heavy criminal sanctions that attach to disobedience of a defence member to a lawful command given by a superior officer: Defence Force Discipline Act 1982 (Cth), s 27.
17. It is against this background that I turn to consider the Fettering Doctrine and its effect upon the Training Contract.

The nature and true extent of the Fettering Doctrine

1. In the introductory section of these reasons, I referred to various descriptions of the Fettering Doctrine as being "exceedingly vague and far-reaching", "unsettled" as to its extent and "ill-defined": see [11], [12] and [14] above.
2. The doctrine is one that is treated by the academy in both public law and contract law texts: see, for example, as to public law, M Allars, Introduction to Australian Administrative Law (1990, Butterworths) at [5.90]-[5.94] (Allars); HWR Wade and CF Forsyth, Administrative Law (11th ed, 2014, Oxford University Press) at 277-281 (Wade & Forsyth); M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) 5.240-5.290; P Craig, Administrative Law (8th ed, 2016, Sweet & Maxwell) at 18-024-18-038 (Craig); see, for example, as to contract law, N Seddon, Government Contracts: Federal, State and Local (6th ed, 2018, Federation Press) at 512-513(Seddon); M Aronson and H Whitmore, Public Torts and Contracts (1982, Law Book Co) at 194-202 (Aronson & Whitmore); Greig & Davis; JW Carter, Contract Law in Australia (7th ed, 2018, LexisNexis Butterworths) at [15-60] (Carter); NC Seddon and RA Bigwood, Cheshire & Fifoot Law of Contract (11th Australian ed, 2017, LexisNexis Butterworths) at 18.30; JD Heydon, Heydon on Contract (2019, Lawbook Co) at [20.630] (Heydon).
3. Viewed through the prism of public law, the Fettering Doctrine has been conceived of in terms of power or authority, viz. was the Minister or governmental contracting party authorised to enter into a contract either to fetter or which had the effect of fettering the future exercise of executive discretion. An early example of the doctrine being applied in this way is the decision of the High Court in Watson's Bay & South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268; [1919] HCA 69 at 277 (Watson's Bay).
4. Viewed through the prism of contract law, the Fettering Doctrine may be conceptualised as a consideration of public policy (which may render the contract void or unenforceable because it is contrary to that public policy) or as a matter relevant to a determination of the parties' respective intentions to enter into contractual relations and/or the manner in which a contract falls to be construed: see, for example, the decision of the Victorian Court of Appeal in L'Huillier v State of Victoria (1996) 2 VR 465 at 481 and 484 per Callaway JA (with whom Charles JA agreed) but cf at 470 per Brooking JA (L'Huillier); Heydon at [20.630].
5. The Fettering Doctrine has excited considerable academic attention and debate in many jurisdictions including Australia, England and Canada: see, for example, the various texts and articles referred to by Mason J in Ansett at 74; the texts referred to in [92] above; and, for example, D Rose, "The Government and Contract" in PD Finn (ed), Essays on Contract (1987, Law Book Co) 233 (Rose); ACL Davies, "Ultra Vires Problems in Government Contracts" (2006) 122 Law Quarterly Review 98 (Davies); KM Hayne, "Government Contracts and Public Law" (2017) 41 Melbourne University Law Review 155 (Hayne). It has also produced judicial decisions which are difficult to reconcile or which are in some degree of tension. Even as great a judge as Lord Radcliffe confessed to a want of "sufficient ingenuity" to reconcile conflicting strands of authority in this area: see British Transport Commission v Westmorland County Council [1958] AC 126 at 151 (Westmorland).
6. Examples of decisions that are difficult to reconcile can be found in cases that have come before ultimate appellate courts in both the United Kingdom and Canada. Thus, Wade & Forsyth (at 227-228) draws attention to the decisions of the House of Lords in Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623 (Ayr) and Birkdale District Electric Supply Co Ltd v Southport Corp [1926] AC 355 (Birkdale), whilst Professor Hogg in the fourth edition of his text (PW Hogg, PJ Monahan and WK Wright, Liability of the Crown (2011, Carswell at 325-329) draws attention to the contrasting decisions of the Supreme Court of Canada in Wells v Newfoundland [1999] 3 SCR 199 (Wells) and Pacific National Investments Ltd v Victoria (City) [2000] 2 SCR 919 (Pacific National) (see also Pacific National Investments Ltd v Victoria (City) (No 2) [2004] 3 SCR 575).
7. What underlies the debate and difficulties attending the Fettering Doctrine is the existence of two competing considerations: on the one hand, the importance of a Minister, government department or public authority remaining free to act in the future in the public interest and for the public benefit by reference to relevant considerations at the time a particular prerogative or executive power is to be exercised and, on the other hand, the desirability of government being able to contract and of contractual counterparties having confidence that their bargains will be honoured. As Wade and Forsyth have put it, there will often be situations where a public or governmental authority or the executive "must be at liberty to bind itself for the very purpose of exercising its powers effectively": Wade & Forsyth at 280.
8. Sir Anthony Mason explained in Ansett at 74-75 that: "Public confidence in government dealings and contracts would be greatly disturbed if all contracts which affect public welfare or fetter future executive action were held not to be binding on the government or on public authorities. And it would be detrimental to the public interest to deny to the government or a public authority power to enter a valid contract merely because the contract affects the public welfare. Yet on the other hand the public interest requires that neither the government nor a public authority can by a contract disable itself or its officer from performing a statutory duty or from exercising a discretionary power conferred by or under a statute by binding itself or its officer not to perform the duty or to exercise the discretion in a particular way in the future." A similar tension was observed by McColl JA in Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 at [4] (Peregrine); see also Seddon at [5.12].
9. Reflecting the different perspectives of public and contract law, where contracts or provisions of contracts have been held to be void by reference to impermissible fettering, that consequence is sometimes expressed in terms of a lack of power or contractual capacity to enter into the contact in the first place. On other occasions, it is expressed not in terms of a lack of power or contractual capacity but rather that the contract (or a particular contractual provision) is contrary to public policy and void or invalid for that reason: Commissioners of Crown Lands v Page [1960] 2 QB 274 at 292 per Devlin LJ (Page).
10. That the public law and contract law analyses do not necessarily represent two sides of the same coin may be seen, for example, in the approach of those judges and academics who argue that the policy tensions highlighted in the passage from Ansett cited above are best resolved by courts withholding remedies of specific performance and injunctive relief for contracts which in fact have a fettering effect but preserving an action for damages for the benefit of the contractual counterparty. Such an approach necessarily eschews an analysis which entails a conclusion that the relevant contract is void or unenforceable, for no action for damages can lie in respect of a void contract. I consider the force of this approach more fully at [115]-[131] below.

Uncertainty as to the ambit of the doctrine

1. Perhaps the most extreme and unqualified articulation of the Fettering Doctrine was that proffered by Rowlatt J in Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 at 503 (The Amphitrite) where his Lordship said that "[i]t is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State" (emphasis added).
2. The facts of The Amphitrite are instructive. During the Great War, Swedish shipowners of the SS Amphitrite, aware of the possibility of their ship being detained in British ports, sought and obtained assurances from the British Legation at Stockholm that, in the event the vessel was put in trade between Sweden and England, she would be allowed free passage without being detained. Rowlatt J proceeded on the basis that the assurance had been proffered "with the highest authority with which it could be given on behalf of His Majesty's Government". Notwithstanding this assurance, the vessel having discharged her cargo and proceeded to Hull to load coal for the return voyage, the shipowners received notice that loading facilities were withdrawn and that clearance would not be granted unless application was made through the Swedish Shipping Committee. The vessel was detained and eventually sold to mitigate further loss. The owners sued for damages.
3. Immediately before the passage from the decision which I have extracted at [101] above, Rowlatt J, said: "All I have got to say is whether there was an enforceable contract, and I am of opinion that there was not. No doubt the Government can bind itself through its officers by a commercial contract, and if it does so it must perform it like anybody else or pay damages for the breach. But this was not a commercial contract; it was an arrangement whereby the Government purported to give an assurance as to what its executive action would be in the future in relation to a particular ship in the event of her coming to this country with a particular kind of cargo. And that is, to my mind, not a contract for the breach of which damages can be sued for in a Court of law."
4. In Ansett (at 74), Mason J observed that Rowlatt J's statement of the Fettering Doctrine in The Amphitrite has been criticised on the basis that it is expressed too generally, and endorsed that criticism. Similarly, Aickin J referred to the doctrine having been stated in "so sweeping a manner": Ansett at 113. In Hayden at 543, Gibbs CJ said that the statement of the Fettering Doctrine in The Amphitrite was "too wide".
5. One of the earliest critics of the doctrine, at least as articulated by Rowlatt J, was Sir William Holdsworth who, in the course of an extended book review ("A Case Book on Constitutional Law" (1929) 45 LQR 162 at 166), wrote of the sentence from The Amphitrite emphasised in [101] above: "This is a very sweeping proposition; and it is remarkable that neither in the arguments nor in the judgment were any cases cited in support of it. It was supported partly on the analogy of the undoubted rule that the Crown has no authority, except under statutory powers, to employ any person except on the terms that he is dismissible at the pleasure of the Crown - a slender foundation for such a great superstructure; and it was admitted that the rule did not apply to commercial contracts. This admission shows that the ambit of the rule (it if exists) is to the last degree vague. What, for the purposes of this rule, will be deemed to be a commercial contract? May not a commercial contract, e.g. a contract to supply munitions of war, 'hamper the Crown's action in matters which concern the welfare of the State'?"
6. Other extended critiques of the result in The Amphitrite, the width of the doctrine it appears to state and the distinction sought to be drawn between undertakings of the kind made in that case and "commercial contracts" are made by JDB Mitchell, The Contracts of Public Authorities (1954, Bell) at 27-32, 52-65 (Mitchell) and by Professor Hogg, both in the first edition of Liability of the Crown at 129ff and in his article "The Doctrine of Executive Necessity in the Law of Contract" (1970) 44 Australian Law Journal 154 at 154 in which he described The Amphitrite as producing "... a result which was highly unjust to the contractor". Dr Seddon has also pointed out that the effect of the contract being void is very unsatisfactory because, at least in some cases, it will not become clear that this is the case until the government or public authority acts or decides to act in a manner which is inconsistent with it: Seddon at [5.18]; see also Mitchell at 65.
7. Criticism as to the width of the statement of principle in The Amphitrite has come from contract lawyers and public lawyers alike. Thus, Professor Carter has described it as "too broadly expressed" (Carter at [15-60]) whilst Professor Craig goes further, describing it as "too extreme" and "unnecessarily draconian": Craig at 18-038.
8. The concern to limit the operation of the Fettering Doctrine is actuated not only by recognition of the fact that contracts are an important, sophisticated and instrumental tool for transacting business (including the business of government) but also because an overbroad fettering doctrine would be prone to abuse or cynical invocation by government or public authorities seeking to escape from obligations which were deliberately and solemnly undertaken. The issue is not new. Two hundred years ago, Chief Baron Richards repudiated an attempt to set aside a contract entered into with the Navy Board for the purchase of stores on behalf of the Navy in Riga during the course of the Napoleonic Wars on the basis that the contract was injurious to the public because the commission was greater than the service required and provided: Attorney-General v Lindegren (1819) 6 Price 287 at 304-305.
9. It is both obvious and important that the Fettering Doctrine should not be able to be used as a "pretext" for escaping such bargains: Wade & Forsyth at 281. That is especially so in the context of a legal system which places a premium on holding parties to their contractual undertakings: see, for example, Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39 at 445 ("… it being the policy of the law that the parties who have made a contract should be kept to it"); Hayden at 573 ("… public interest in the enforcement of contractual rights"); Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 at [135] ("[t]he fundamental value protected by the law of contract is that … bargains are to be kept"); Baltic Shipping Company v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ ("[t]he general policy of the law is that people should honour their contracts. That policy forms part of our idea of what is just.").
10. There is force in Dr Seddon's observation that "[i]f governments are to use contracts for public purposes then they must abide by the rules they have chosen to use. They do, after all, have other ways of achieving public purposes": Seddon at [5.12]. Indeed the position might be thought to be a fortiori given the government's identity and what might be styled its public personality: see Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 195-197.
11. In this context, there may also be a degree of tension, at least in a practical sense, between a decision of the executive or a governmental authority to invoke the Fettering Doctrine and the "well-settled" expectation of the Crown's compliance with the "highest standards" when dealing with its subjects: Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558 per Mahoney JA, citing Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333; [1912] HCA 69 at 342. See also Northern Territory v Skywest Airlines Pty Ltd (1987) 48 NTR 20 where Kearney J observed, at 46, that: "In general, and for good reasons, a government rightly regards itself as bound to carry out a contract it has lawfully and properly entered into, when the other party is not in breach. The reasons are rooted in common sense and good government - in general, in a proper concern to protect the public revenue against unnecessary and unwarranted loss, to preserve the government's reputation for integrity and to retain its credibility, particularly with the business community."
12. Professor Allars characterised the matter in the language of "the rule of law", stating that the operation of the Fettering Doctrine "would appear to cause inevitable damage to one of the ultimate values served by the rule of law, reciprocity between government and governed": Allars at [5.92].

Delimiting the doctrine

1. Whilst it is generally accepted that the Fettering Doctrine should not be given too broad a sphere of operation, where conceptual difficulty has been encountered is in the delimitation of the scope or ambit of the doctrine.
2. There are various ways in which it has been or may be suggested that the scope or ambit of the doctrine could be limited or, to paraphrase Lord Radcliffe in Westmorland at 149, a far reaching general proposition of law, valuable in itself, could be cut down to a proportion that is manageable. These include by reference to: 1. the nature of the power to which the statutory or executive discretion attaches. Thus in Ansett, Mason J (at 94) referred to the "general principle of law that a public authority cannot preclude itself from exercising important discretionary powers …" (emphasis added). His Honour did not, however offer any guidance or criteria in that case for identifying which discretionary powers were of sufficient importance to engage the doctrine. In a similar (but similarly elusive vein), Mitchell (at 60 and 65) advocated confining the operation of the doctrine to the fettering of powers "fundamental to the purpose and existence of the authority in question". Seddon would draw the line at "policy level decision making": Seddon at [5.12]. In Birkdale (at 372), Lord Sumner deployed the discrimen of inconsistency with a public body's "statutory birthright" as marking the boundary for the reach of the doctrine, but this attracted the criticism of Lord Radcliffe in Westmorland at 155-156 who said: "The birthright of a statutory corporation includes all those powers and rights with which it is thought proper to invest it at its creation: and I do not think it easy for a court of law to decide merely by the nature of the thing which of those powers are inalienably entailed and which can be disentailed and disposed of by ordinary grant." 1. the character of the discretion involved, namely whether it is one which, on its proper construction, may only be exercised once such that it is spent when exercised, as opposed to being exercisable from time to time: see Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 per Gummow J (Kurtovic). Such a discretionary power, once exercised, will not be capable of being exercised again and so no question of fettering will arise: cf L'Huillier at 469-470 per Brooking JA and 479 and 484 per Callaway JA; 2. the nature of the contract involved, for example, whether it is commercial or governmental. This, as has been seen, was a distinction which was drawn in The Amphitrite. However, such a distinction may be a fine or difficult one to draw and it is one that has attracted criticism: see, for example Mitchell at 28; Aronson & Whitmore at 199-200. In Ansett, Aickin J (at 113) referred to the distinction drawn in The Amphitrite as "not one that leaps to the eye". 3. the nature and degree of fettering involved or, as it is sometimes expressed, the degree of incompatibility between the exercise of the executive power, on the one hand, and the honouring of contractual obligations on the other hand. On this approach, fettering which is slight or unlikely to be significant would not invalidate the contract: see, by analogy, Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 18 (Quin). So also, perhaps, if the fettering is "non-specific": Heydon at [20.630] In Commonwealth v Hooper (1992) Aust Contract R 90-010 (Hooper), Priestley JA (with whom Samuels and Handley JJA agreed) rejected an argument advanced on behalf of the Commonwealth in reliance on The Amphitrite, expressing the opinion that he did "not think it [was] accurate to say that the contractual obligation [was] in any real sense a fetter, or exert[ed] any pressure, upon either the Commonwealth Parliament or any of their members in regard to legislation which may be proposed to Parliament" (emphasis added); see also Suttling v Director-General of Education (1985) 3 NSWLR 427 at 449 (Suttling). On this analysis it would only be if there were a "likelihood" or "probability" that the existence of a contractual right would interfere with the statutory duty that the contract would be treated as void: see Westmorland at 144, 147-148, 160; see also Davies at 107 where a balancing of the extent or degree of any fettering against the importance of the statutory discretion being exercised in a particular way is advocated; 4. construing contracts as subject to an implied term that the contractual obligations undertaken by the government or public authority are subject to the exercise of discretionary public powers: see, for example, Page; Manock v South Australia (1979) 83 LSJS 64 at 73 referred to in Seddon at [5.21]. The difficulty with this argument is that it may render any contractual promises by the executive illusory; alternatively, the posited implied term may not meet the relevant tests for a term implied by fact (see BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283) or law (see Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 at [28]-[29], [56]-[62], [113]-[114]). It was for this reason that Denning J in Robertson v Minister of Pensions [1949] 1 KB 227 at 231 refused to imply a term to preserve the Crown's ability to exercise a discretion in the future in a manner inconsistent with the express terms of the contract; 5. restricting the remedies available to the innocent contracting party so that the contract in question may not be enforced in a way that results in the executive in fact being fettered in the exercise of the relevant discretion, if and when the occasion arises to exercise it, but still preserving the right to an action for damages. This approach is more nuanced than others which carry the crude, often overbroad and instinctively unfair consequence of a contract being treated as void. It is an approach which arguably best reconciles the competing policy considerations identified at [97]-[98] above. This approach is considered more fully below.

A remedy in damages?

1. Senior counsel for the Commonwealth candidly volunteered on more than one occasion in the course of submissions that the argument, viz. that the Commonwealth was not bound by a document containing terms and conditions which it had executed and styled the "Training Contract", was "unattractive", and so it is.
2. This is not a matter of mere "embarrassment" (although the embarrassment must be acute in circumstances such as the present case where the Commonwealth chose to emphasise, in the agreement signed and sued upon by Mr Searle, under the heading "Training Contract", that it was a "legally binding agreement" and that "[i]n signing this contract the parties are bound by the obligations detailed below": see [37] above). More significant than any embarrassment, however, is the fact that parties who contract with governments or public authorities ought to be able to have confidence that obligations undertaken by the relevant government or public authority to them in return for valuable consideration will be honoured. And this, as Callaway JA pointed out in L'Huillier at 480, is itself in the government's and ultimately the public interest: "The ability to conclude a binding contract, which ex hypothesi is in the public interest or otherwise a proper exercise of power at the time, confers benefits not only on the other contracting party but also on the repository of the power. If governments had no such capacity, it would often be impossible to secure the services of those best qualified. They would choose a binding and lucrative engagement in private enterprise in preference to an unenforceable promise by the Crown."
3. To like effect, Professor Hogg has written: "But it is only by entering into contracts that the Crown can carry out those of its purposes which require the assistance of the private sector. Indeed, if the doctrine were frequently relied upon, it would ultimately react against the Crown by destroying its credit. The Crown benefits no less than private individuals from the principle that contractual undertakings should be reliable." ("The Doctrine of Executive Necessity in the Law of Contract" (1970) 44 Australian Law Journal 154 at 155).
4. This observation was endorsed by Bastarache J in his dissent in Pacific National at [123] where he reflected that "[i]f municipalities are not held to their contractual obligations, their impaired credit would cause them to pay higher prices for everything obtained by contract."
5. It is the concededly "unattractive" character of the argument deployed by the Commonwealth in the current case that has led a number of commentators and some judges to suggest, as I have noted at [114(6)] above, that a contract which, if performed, would fetter the future exercise of an executive discretion should not be treated as void or invalid but simply should not be specifically enforceable or capable of attracting injunctive relief for breach or threatened breach of an implied negative stipulation in it. On this approach, an action for damages may lie for any breach of contract by the government, governmental or public authority if it subsequently exercised a discretionary power in a manner inconsistent with or in a way that made it impossible to comply with contractual obligations previously and solemnly undertaken.
6. Professor Holdsworth was an early advocate of this approach. In his critique of The Amphitrite already referred to, he said (at 166) that: "It seems to me that if in such a case, or in any other case where there is a clear contract, the Crown deems it to be for the welfare of the State to break its contract (which may well happen) it ought to pay damages. No doubt this obligation to pay damages might be the ground of severe criticism upon and censure of the Ministers who had entered into such a contract. No doubt the rule laid down in this case would tend to free them from this criticism and censure. But it seems to me that the later consequence goes far to show that the rule is wholly opposed to the common law principles which underlie our constitutional law."
7. Writing in the Australian Law Journal some 40 years later ((1970) 44 ALJ 154 at 155), Professor Hogg put the matter with great clarity; "The question is whether the best which the law can do to resolve these conflicting policies is to sacrifice one to the other, which is the effect of The Amphitrite. The answer is that a better solution lies ready to hand; and that is frankly to recognize that the Crown occasionally has to break a contract in the public interest … however, it should pay damages to the injured party, assessed in the ordinary way. A liability to pay damages would not prevent the Crown from taking action which was required in the public interest; it would simply require the Crown to pay the true cost of the action taken. In order to preserve its freedom of action only one immunity is needed by the Crown, and that is immunity from the remedies of specific performance and injunction, which really would fetter its future executive action. If it is objected that even the payment of damages could impose such a crushing burden as itself to fetter future executive action, the answer is that this seems unlikely to be so, except in a most unusual situation; and, if that unusual situation did arise, then the deliberate decision to expropriate private rights should be made and implemented by parliament, if necessary by retrospective legislation, and the government should take the political consequences." (Footnotes omitted)
8. This analysis was given significant support in Mason J's judgment in Ansett which, although in dissent, has been widely accepted as the leading and most thorough discussion of the topic in the High Court, as was noted in Peregrine at [4]. In an extended passage on which senior counsel for Mr Searle placed considerable reliance and which appears to have drawn on Professor Hogg's consideration of the broader conceptual questions involved, Mason J said (at 76-77): "Different considerations will apply when the contract is one to which the government is a party and the contract relates to the grant of a licence or privilege which under the law depends upon the exercise of a statutory discretion by an officer who is not a party to the contract. In these cases at least it has been suggested that the free and unfettered exercise of the discretion is sufficiently preserved if the validity of the contract is upheld, provided that it is enforceable only by way of action for damages and not by order or injunction. Such an outcome, it is said, would work a reasonable compromise between the desirability of recognizing the binding nature of contracts and the need to preserve the free and unfettered exercise of the discretion. The assumption which underlies this approach is that the contract is one which the government is authorized to make, that it is not expressly or impliedly prohibited by statute or, if you like, incompatible with the statute. The contract might, like the agreements in this case, be made with express statutory approval. In this event an undertaking that the discretion will be exercised in a particular way and a potential liability for damages for its breach, though they may or will cause the repository of the discretion to exercise it in the particular way promised, have statutory backing with the consequence that the contract stands on a more secure footing. Where statutory approval for the making of the contract exists and the contract contains an undertaking that the statutory power will be exercised in a particular way, there is no room for the notion that the undertaking is invalid on the ground that it is an anticipatory fetter on the exercise of a statutory discretion. The contract, assuming it to be within constitutional power, is valid and the undertaking is free from attack. There is in such a case the initial question: Does the statute which approves the making of the contract expressly or impliedly amend, for the purposes of the contract, the pre-existing law providing for the exercise of the discretion? The statute may impose on the repository of the discretion a duty to exercise it in conformity with the undertaking or it may leave him with a discretion to arrive at some other result. If it be the former, then the contracting party may be able to compel the government and the person in whom the discretion is vested, though it has been relevantly converted into a duty, to comply with the undertaking. If it be the latter, then the undertaking if it is enforceable will be enforceable by an action for damages only." (Emphasis added)
9. Whilst the distinction drawn by Mason J in this passage between the government as a party to the contract, on the one hand, and a statutory officer in whom is reposed the discretionary power, on the other hand, has itself not escaped criticism (see, for example, Rose at 242; Seddon at [5.22]), the value and attraction in this more nuanced form of analysis is that, on the one hand, the government or governmental authority or public authority would not be constrained in its future actions (because the contract in question may not be specifically enforced) whilst, on the other hand, an innocent contracting party could have its expectation interest protected by the award of damages.
10. Aronson & Whitmore at 202 states that it is "obvious" that contractual remedies should be available whilst Renfree inclined to this view: HE Renfree, The Executive Power of Commonwealth of Australia (1984, Legal Books) at 474. On the approach to which Mason J lent his support in Ansett, the contracting parties' rights are to a certain extent overridden insofar as they are treated as not being susceptible to a decree of specific performance or enforceable by injunction but they are not disregarded: see Mitchell at 65. This approach was supported by McHugh JA in Suttling at 449.
11. Importantly, such an approach involves an acceptance both that the contract in question was in power and not contrary to public policy but that circumstances had arisen or may arise which make or may make its specific enforcement inappropriate, those circumstances being the need for the government or governmental or public authority to act in a manner inconsistent with earlier contractual undertakings.
12. Further support for this approach may be found in the judgment of Gleeson CJ, sitting at first instance in the then Commercial Division of the Supreme Court of New South Wales, in Hooper v Commonwealth (16 November 1990, unrep). That case involved proceedings brought on behalf of the Australian Gas Light Company to vindicate contractual rights it claimed to have against the Commonwealth and the Pipeline Authority. The Chief Justice noted that the dispute arose out of circumstances that involved a reversal, after about 15 years, of certain government policies concerning ownership and control of commercial undertakings. The Chief Justice, under the heading "Remedies", wrote: "AGL is entitled to a declaration of right reflecting the conclusions expressed above as to the nature and extent of its contractual rights against the Commonwealth and the Authority. However, it also claims injunctive relief to protect those rights, and this gives rise to a difficulty. As I have already mentioned, AGL accepts that it is within the legislative power of the Commonwealth Parliament to enact legislation divesting the Authority of the pipeline and putting the pipeline into the ownership of some third party. The fact that this may be inconsistent with contractual obligations binding on the Commonwealth does not affect the power of the Commonwealth Parliament, although it may expose the Commonwealth to liability for damages." (Emphasis added) The unsuccessful appeal from this decision has already been noted: see [114(4)] above.
13. Some commentators (for example, E Campbell "Agreements about the Exercise of Statutory Powers" (1971) 45 Australian Law Journal 338 at 340; Rose at 242) have suggested (as indeed it was suggested in the present case) that the prospect of an award of damages may itself operate as a fetter on the relevant discretion. This argument was accepted by Ipp J (with whom Malcolm CJ and Wallwork J agreed) in City of Subiaco v Heytesbury Properties Pty Ltd (2001) 24 WAR 146; [2001] WASCA 140 at [53] (Subiaco): "It is true that some have expressed the general view that it would be unfair to enable government (local or otherwise) to act inconsistently with contractual obligations it has deliberately undertaken, and, in that event, contracts fettering executive discretion should be upheld to the extent that government should be held liable for damages. The proposition so advanced is: 'So long as the remedies of specific performance and injunction … are withheld, the ordinary law adjusts the conflict between public purposes and private interests quite satisfactorily' (see Hogg, The Doctrine of Executive Necessity in the Law of Contract, (1970) 44 ALJ 154 at 159). I do not agree with these views, however, as, in my opinion, the knowledge that exercising statutory powers in the public benefit might render government liable to large sums of damages would be an effective practical fetter on its freedom of action. It is for this reason that I have above expressed the opinion that, were the City to be liable for damages for breach of contract in consequence of actions taken by it when exercising its statutory town planning powers for the public benefit, those powers would be prejudiced."
14. An analogy was sought to be drawn by the Commonwealth with the High Court's refusal to recognise an action for false imprisonment in a military context on the basis that it would be destructive of defence discipline: see Haskins v Commonwealth (2011) 244 CLR 22; [2011] HCA 28 at [67].
15. Questions of degree may be involved not only in terms of the extent of any fetter but by reference to the size of the damages or potential damages. It is perhaps not without significance that in the passage I have cited from Ipp J's judgment in Subiaco his Honour referred to "large sums of damages" (emphasis added). So much appeared to be accepted by the Commonwealth insofar as [68] of its submissions acknowledged that "[i]n some cases, a right to damages might be compatible with a statutory discretion, in other cases not."
16. As shall be seen in the present case, it is difficult to understand how the prospect of a modest (and in the context of defence expenditure, miniscule) award of damages to a 22-year-old sailor could in any practical or in any "real sense", to quote Priestley JA in Hooper, fetter the exercise of Naval Command. The position may, of course, vary from case to case, depending on the facts and the evidence and in a case where it is held that the prospective size of damages would, in truth, generate a material fetter on the future or proposed exercise of discretion, the contract may be held to be contrary to public policy and unenforceable to that extent.
17. Alternatively, in such a circumstance, the executive could seek to invoke the closely related doctrine of "executive necessity" which permits the executive to renounce a contract that was otherwise valid and binding in the exercise of executive authority. In this context, Major J, delivering the judgment of the Supreme Court of Canada in Wells, quoted with approval (at 219) the following observations of Professor Hogg: "I acknowledge the possibility that, on rare occasions, the Crown may feel compelled by considerations of public policy to break a contractual undertaking. If there were no doctrines of executive necessity, the ordinary law of contract would apply, and would require the Crown to negotiate with the other party for a variation or release, or to pay damages for its breach of contact. That is surely the right result. It provides compensation for the injured contractor. It requires the public purse to bear the cost of the change of public policy. It is conceivable that a case might arise where the government cannot accept the decision of a court holding the Crown liable for breach of contact. For example, a court might award damages that were so high as to place an intolerable cost on a desired public policy. The solution to this case is legislation. The Parliament or Legislature has the power to cancel a contract, and this power is not limited by any obligation to pay compensation." See also, in relation to the doctrine of "executive necessity", L'Huillier at 480 per Callaway JA and the decision of White J in Rifle at [57]-[96].

Summary of position

1. It is very difficult if not impossible to reconcile all of the cases in this area, both within and across jurisdictions and over time. The starting point in any case must involve an examination of the statute (or prerogative) by reference to which the power relied upon to enter the contract is exercised. As Rich J observed in New South Wales v Bardolph (1934) 52 CLR 455 at 496, "when the administration of particular functions of government is regulated by statute and the regulation expressly or impliedly touches the power of contracting, all statutory conditions must be observed and the power no doubt is no wider than the statute contemplates".
2. Plainly enough, where a particular contract is expressly authorised by statute, as a majority of the High Court held in respect of the "two airlines" agreement in Ansett, the fact that a discretion is fettered by the contact does not make it ultra vires. Indeed, the contract in such a case will expressly be intra vires although, as Hayne has pointed out extra-judicially, it will remain subject to legislative override (Hayne at 178-180) subject to any arguments, at least in the Commonwealth sphere, attracting s 51(xxxi) of the Constitution; see also, for example, Camberwell City Council v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at 184.
3. In some cases, the legislation conferring statutory power will, on its proper construction, not authorise a particular contract or will only authorise a decision to which the contract purports to give effect to be made at a particular time and/or by reference to particular considerations which will only be known at a particular time. When a statute "prescribes a mode of exercise of the statutory power, that mode must be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down": Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533.
4. Many of the cases concerned with local councils or authorities entering into agreements concerning planning or development (for example, Ayr; Watson's Bay; Ransom & Luck Ltd v Surbiton Borough Council [1949] Ch 180) or agreements with regard to future payment of Council rates (for example, Peregrine) or rezoning (Pacific National) may be explained on this basis.
5. But in other cases, legislation will be sufficiently general to authorise a Minister, governmental or other public authority or official to contract without there being any relevant or express limitation on the scope of the discretionary power. As Gummow J observed in Kurtovic at 214: "In the exercise of powers derived from statute, a public authority may enter contracts or transfer property and will, in general, be subject to the ordinary private law rules dealing with contract, tort and property. In Australia, there is a consistent legal tradition to that effect, commencing with the entrepreneurial activities of the colonial governments."
6. In Ansett, Aickin J (at 113), with whom Barwick CJ (at 61) agreed, said that it was plain that "even without statutory authority the Commonwealth in the exercise of its executive power may enter into binding contracts affecting its future action".
7. In the present case, senior counsel for the Commonwealth acknowledged that it was common ground that "there is power to enter contracts with respect to the Defence Force. Whether it's buying submarines or cars or pencils or land or all sorts of things, or potentially even contracts with service people, we are not making the argument that that can't be done." He identified the potential sources of such power as including ss 8, 9 and 63(1)(f) of the Defence Act.
8. When a broad grant of power has been conferred on the executive or a public authority which includes power to enter into contracts, it is a recipe for uncertainty to read that power down by reference to a doctrine such as the Fettering Doctrine, the boundaries and proper sphere of operation of which have eluded and defied strict and satisfactory definition (see [101]-[115] above) and which may legitimately be seen as compromising or undermining other important considerations of public policy and legal values (see [109]-[112] and [116]-[118] above). Further, reading a limitation into a broad conferral of a power which includes a power to contract so it becomes a power only to enter into contracts which do not fetter a future exercise of discretion is contrary to established principles of statutory interpretation.
9. In BE Australia WD Pty Ltd (subject to a Deed of Company Arrangement) v Sutton (2011) 82 NSWLR 336; [2011] NSWCA 414, Campbell JA observed, at [182], that where a power is granted to an administrative decision maker and no express limitations are imposed on the power, "[t]he power is unconfined except to the extent of any limitations imposed by the subject matter, scope and purpose of the statute". His Honour referred to a number of cases in support of this proposition, including Swan Hill Corp v Bradbury (1937) 56 CLR 746; [1937] HCA 15. That case concerned the scope of a municipal by-law prohibiting building without council approval. The by-law did not impose any express qualifications on the discretion of the council to grant or deny approval. Dixon J stated, at 758, that, in respect of such provisions, it must be "concede[d] to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it". See also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21 at 505 (per Dixon J).
10. This is consistent with the principle of statutory interpretation that if general words are used they should be given their plain and ordinary meaning unless the contrary is shown: see Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17 (per Dixon J). As noted by Pearce and Geddes, "words of wide signification may well be limited by their context … [but] the courts have tended to require such a limitation to be demonstrated": see DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths) at [2.24].
11. Contracts the entry into which is authorised in a general sense by legislation and therefore within power and therefore valid may still have the effect of fettering an executive discretion, if specifically enforced by a decree of specific performance or in a negative sense by the grant of an injunction. Both of these remedies are, of course, discretionary and may be withheld in circumstances where it is not in the public interest to grant such a remedy. As Mason J observed in Hayden at 557, a court may refuse a remedy on the ground of public policy; cf South Australia v Commonwealth (1962) 108 CLR 130; [1962] HCA 10 at 141.
12. That public policy and the public interest are relevant considerations in the exercise of discretion to withhold equitable remedies may be seen in the judgment of French J (as he then was) in Toal v Aquarius Platinum Ltd [2004] FCA 550, who stated, at [62], that: "There is no novelty in the consideration of public interest in relation to the discretion to grant or withhold specific performance. In considering whether to exercise the discretion to grant an injunction the court is under a duty to consider the interests of the public - Miller v Jackson [1977] 1 QB 966 per Cumming-Bruce LJ (at 988)."
13. In Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681, Lord Wilberforce stated (at 692) that: "… it is necessary to take into account that the plaintiff is acting on behalf of the public and in the public interest. It is necessary therefore to base the granting or denial of equitable relief on broader grounds than would normally apply as between private citizens."
14. Where a contract is not specifically enforced or enforceable by decree or injunction, it is difficult to say that the contract effects a fetter on the exercise of an executive discretion unless an award of damages or potential award of damages in itself had or has that effect. In this context, questions of degree may need to be considered but the fettering of discretion by an otherwise intra vires contract would, in my opinion, need to be very significant indeed before a court should hold such a contract to be unenforceable as contrary to public policy, and thus precluding an action in damages: see Hayden at 559. The public policy considerations underpinning the Fettering Doctrine would need to be balanced against the generally important public policy of upholding contractual bargains and the interests of certainty for those contracting with governments or governmental authorities: see [109] and [116]-[118] above.
15. In expressing these views as to the availability of an action for damages consistent with the discussion at [115]-[131] above, I would not confine the availability of damages only to those cases referred to by Mason J in Ansett where the discretion in question is reposed in a particular officer who is not him or herself a party to the contract. I do not consider that the analysis depends upon the maintenance of what may be a fine, elusive and or serendipitous distinction.

The Training Contract did not fetter Naval Command

1. As noted at [132] above, the starting point must be an examination of the Commonwealth's legislative power to enter into the Training Contract.
2. As also noted above, senior counsel for the Commonwealth submitted that the Commonwealth had a broad power to enter into contracts, including major procurement contracts. The various sources of power he pointed to are not, in terms, subject to any limitation other than that referable to the subject matter area to which they relate and the express terms of the grant. Thus, s 63(1)(f) of the Defence Act permitted the doing of all matters and things deemed necessary for the protection and defence of the Commonwealth.
3. The Commonwealth did not in terms submit that the subject matter, scope or purpose of the Defence Act had the effect that the otherwise general power to contract was limited by the Fettering Doctrine. Rather, adopting the same analysis as the primary judge as set out at [60] above, the Commonwealth's argument seemed to be that if there were some potential inconsistency between contractual undertakings and future possible directions by and in the exercise of Naval Command, that inconsistency amounted to a fettering of discretion with the necessary consequence being that the contract was ultra vires and void.
4. Such an approach seems to me, however and with respect, to have the vice of reasoning backwards. The analysis must begin with a consideration of the power being exercised to enter into the relevant contract rather than analysing the relevant contract in order to assess whether there was an absence of power by reason of the contract's possible effect on a future exercise of executive discretion if the contract were specifically enforced. For example, a long term multi-million dollar procurement contract may include an undertaking to acquire warships which Naval Command at some point in the future might consider no longer suit the strategic needs or purposes of the country. It is not an attractive proposition to conclude that the original contractual undertaking was ultra vires because it fettered the discretion of Naval Command as to future strategic choices.
5. It must be surmised that, when the Navy, through the Department of Defence, authorised entry into the Training Contract, it considered that such training would be of significant benefit to the Navy and ultimately for the protection and defence of the Commonwealth. It was a valid exercise of power. It was not void or ultra vires for want of power.
6. Furthermore, Mr Searle's Training Contract did not purport to fetter the discretion of Naval Command, and it is difficult to see how a contractual undertaking to an 18-year-old sailor to provide him with engineering training over a four-year period could seriously be said to have done so. Certainly it could not be said "significantly" to have hindered the exercise of the relevant discretion in the public interest (cf Quin at 18) or to fetter Naval Command "in any real sense": Hooper.
7. The Commonwealth did not seek to argue that the Training Contract was subject to an implied term that left it free to redirect Mr Searle's course of training or to suspend it for operational reasons, and this was not considered by the primary judge. Such terms, if capable of being implied, would necessarily qualify the obligations under the Training Contract said to have been breached. But as I have said, the Commonwealth made no such contention and indeed positively resisted any such suggestion at [75] of its written submissions. The question of breach, if the Training Contract is not void, is to be assessed by reference to the Commonwealth's express and unqualified obligations under the Training Contract. As I have noted at [20]-[21] above, there is no issue in the present case that the Training Contract was breached.
8. To the extent, because of operational exigencies that may have arisen after entering into the Training Contract, Naval Command required Mr Searle to undertake a different training course or be deployed abroad in a manner that made it impossible for the Training Contract to be performed, either at all or as contemplated by its terms, it would have been open to and appropriate for a court asked for a decree of specific performance to decline to enforce the Training Contract. Similarly, it would be open to a court to withhold injunctive relief in aid of an implied negative stipulation in the Training Contract to restrain Naval Command from acting as it saw fit in the national interest. The ability to withhold relief in such circumstances through the exercise of judicial discretion minimises the risk of any undue fettering of important executive discretions whilst at the same time preserving the contractual rights of counterparties to government contracts.
9. Plainly enough, on the facts of the present case, Naval Command felt no constraint in changing its views as to what training was appropriate, and directing servicemen and women, including Mr Searle, to undertake a different level of training from that which would have led to a Certificate IV in Engineering. No evidence was led to the effect that the possibility that the Commonwealth might be exposed to a claim for damages acted as a practical fetter or source of inhibition on Naval Command. Such evidence, had it been led, would of course have been subject to cross-examination and, as I have indicated at [130] above, it is difficult to understand how the prospect of a very modest award of damages could in any real or practical sense have operated to fetter the exercise of Naval Command.
10. For the above reasons, in my opinion, the Training Contract was not ultra vires or void, nor am I satisfied that an award of damages would have fettered or would fetter the future exercise of the discretion reposed in Naval Command. For these reasons, subject to the Training Contract being supported by valuable consideration, Mr Searle was entitled to damages for breach of contract.

Ground 2: did Mr Searle provide consideration for the Training Contract?

1. At [126] of his reasons, the primary judge held: "It is not necessary to decide whether the Training Contract is also unsupported by consideration from [Mr Searle]. If that had to be decided I would conclude that there was an absence of consideration. As the plaintiff was bound to carry out any and all training, work experience, coursework, study and other duties as directed, he promised nothing additional by the obligations he assumed as listed at [108] above. He would only work towards achieving the Certificate IV in Engineering if directed by those in charge of him to undertake the necessary competencies. If they did so direct him he was bound to carry out the order irrespective of the Training Contract."
2. This conclusion was consistent with the Commonwealth's submission that all the training obligations purportedly assumed by Mr Searle under the Training Contract were already imposed upon him by virtue of his enlistment, and as such no consideration moved from Mr Searle: see Collins v Godefroy (1831) 1 B & Ad 950 at 956-957.
3. Whilst it may be accepted that part of Mr Searle's undertaking on enlistment was to undertake training at the Navy's direction, it is necessary to recall that the Training Contract was for a four-year period, and while executed on 20 June 2011 the commencement date for the apprenticeship was stated to be 4 April 2011. That difference is not, however, relevant. What is relevant is that Mr Searle had only, as a result of his enlistment, undertaken to serve with the Navy (and to undertake training as part of that service) for a four year period. This was his initial minimum service period (see [18] and [32] above) and would run until 17 January 2015. The Training Contract would run, however, until 4 April 2015. By executing it, therefore, Mr Searle was necessarily undertaking to remain in the Navy (as indeed he did) for a period which exceeded the initial minimum service period for which he had signed up on 17 January 2011.
4. Given that his contractual promise exceeded in terms of its duration his pre-existing statutory duty to serve, which I am prepared to assume included a duty to undertake such training as the Naval Command directed, Mr Searle furnished sufficient consideration to render the Training Contract binding upon the Commonwealth.
5. The Commonwealth contended that Mr Searle's enlistment was in truth for an unlimited duration and that four years was simply the minimum time he had committed to serve. Even if that be so, Mr Searle, by executing the Training Contract, was necessarily promising to serve for a minimum period which exceeded that for which he had initially undertaken to serve as a minimum term, so that the Commonwealth's argument as to the true duration of his enlistment goes nowhere. Mr Searle had a statutory right to tender his resignation (on giving 12 months' notice) which would have entitled him to leave the Navy after four years. Through his promise to discharge his obligations under the Training Contract, he was effectively foregoing his right to resign for the period by which that contract's duration exceeded his initial four-year minimum term of service obligation: see Currie v Misa (1875) LR 10 Exch 153 at 162 ("some forbearance … undertaken by the other"); Bolton v Madden (1873) LR 9 QB 55 at 56.
6. That Mr Searle might have been able to continue serving on a rolling basis after that period at his discretion (accommodating the requirement for 12 months' notice) should not obscure the fact that he had not, otherwise than by the Training Contract, bound himself to serve any longer than four years from the date of his enlistment.
7. For these reasons, in my opinion, the Training Contract was supported by consideration.

Ground 3: alternative authorisation argument

1. Mr Searle's remaining and third ground of appeal, as I have noted at [66] above, sought to uphold the Training Contract by reference, inter alia, to s 8 of the Appropriation Act. In addition, it relied upon reg 9 of the Financial Management and Accountability Regulations 1997 (Cth), the Skilling Australia's Workforce Act 2005 (Cth) (SAW Act), the Australian Apprenticeships Incentives Program Guidelines (AAIP Guidelines), the Australian Quality Training Framework (AQTF), and the Commonwealth-State Agreement for Skilling Australia's Workforce.
2. The argument sought to be propounded by reference to these documents was elaborate and complex. For present purposes, it suffices to summarise it in the following way: on a proper construction and reading of the Acts, regulations and documents referred to in the previous paragraph, the following conclusions should be drawn: 1. it was the policy of the executive, as expressed in and authorised by the Appropriation Act, the AAIP Guidelines, the SAW Act and the AQTF standards, that training be provided by, amongst other entities, RTOs administered by the Commonwealth and that the Commonwealth be able to enter into training contracts with Australian apprentices so that they might access the benefits made available under the AAIP Guidelines; 2. the power of military command conferred by the Defence Act is subject to the command in chief of the Governor-General, acting on the advice of his or her Ministers, and thereby limited by the policy of the executive; and 3. accordingly, the Training Contract did not operate as a fetter on the power of military command and should be enforceable by an action for damages, even if not by an order for specific performance or by an injunction.
3. These conclusions are taken from Mr Searle's notice of appeal. In oral argument, the combined effect of the Acts, regulations and documents referred to in [164] above was said to be to authorise the Training Contract in a sufficiently express way that the case was analogous to the "two airlines" agreement the validity of which was upheld in Ansett. On this basis it was sought to be contended that there was no impermissible fettering of the discretion of Naval Command.
4. Senior counsel for Mr Searle frankly conceded that this argument was dependent upon the admission of further evidence that had not been before the primary judge. Accordingly, Mr Searle had to bring himself within s 75A(8) of the Supreme Court Act and demonstrate "special grounds" in order to obtain the Court's leave to adduce this evidence in order to permit the argument to be made. To this end, there was simultaneously before the Court on the hearing of the applications for leave to appeal an amended notice of motion seeking leave to adduce further evidence. The three items of evidence Mr Searle sought to tender in support of this argument were the AAIP Guidelines, the AQTF and the 2005-2008 Commonwealth-State Agreement for Skilling Australia's Workforce.
5. In support of the amended notice of motion, Mr Searle read an affidavit of Stewart Alan Levitt sworn 6 February 2019, the solicitor on the record for Mr Searle.

Special grounds

1. Section 75A of the Supreme Court Act relevantly provides: "(7) The court may receive further evidence. (8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the court shall not receive further evidence except on special grounds."
2. Applications for the admission of further evidence on appeal after a hearing on the merits have frequently been considered by reference to the judgment of Clarke JA (with whom Sheller JA agreed) in Akins v National Australia Bank (1994) 34 NSWLR 155 (Akins). At 160, Clarke JA said: "Although it is not possible to formulate a test which should be applied in every case to determine whether or not special ground exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) the evidence must be credible."
3. In Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [14], Heydon JA (as he then was) noted that the Akins "tests" derived from decisions such as McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70 and Greater Wollongong City Council v Cowan (1955) 93 CLR 435; [1955] HCA 16 and cited the following passage from the earlier of these two decisions: "The grounds upon which the court proceeds in granting the remedy have been settled by practice but they have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end."
4. The interest and importance of finality as itself an element of justice is also illustrated in the High Court's later decisions in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 and Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, both of which were referred to in this Court's recent decision concerning s 75A(7) and (8) in Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73 (Comlin). The grounds for admission of further evidence are required to be "special" because such admission necessarily undermines the high value of finality.
5. A recent decision where special grounds were made out was Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in liq) v Battaglia [2018] NSWCA 67; 125 ACSR 171 (Battaglia) where the further evidence was held to be "credible and highly probative" and found likely to undermine a critical conclusion by the primary judge which was central to the decision under appeal.
6. Nine points should be made about the well-known passage from Akins extracted at [170] above, with regard to this Court's power to admit further evidence pursuant to s 75A(7) and (8) of the Supreme Court Act: 1. notwithstanding the connotation of the language "three conditions need be met", Clarke JA was not formulating a "test" and expressly said so; 2. the formulation is not to be regarded as a gloss on the statutory language: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [6]-[27], [135]-[136] (Phoenix); 3. even working within the language of the Akins formulation, not every one of the conditions needs necessarily to be satisfied for the evidence to be admitted: Tjiong v Tjiong [2012] NSWCA 201 at [168] (Tjiong); 4. the second of the Akins conditions may operate differentially depending on the circumstances: Comlin at [14]; 5. the Akins formulation is not an exhaustive statement and the categories of case which may be thought to generate "special grounds" are not closed: see, for example, Norris v Routley [2016] NSWCA 367 at [12] and [32]; 6. other considerations in addition to those referred to in Akins that may be germane to a determination of special grounds include: (a) the circumstances in which the relevant issue to which the further evidence relates arose (for example, whether the issue was introduced late into the case or had only been raised obliquely or even by "ambush"); (b) the constitution of the proceedings (for example it may be relevant if the proceedings were representative in nature and that the claims of others in the class may be affected by whether or not the further evidence is admitted); (c) the extent and clarity of the further evidence; 7. the discretion under s 75A(8) is not, however, unfettered (Phoenix at [11], [136]) and the requirement for "special grounds" reflects the importance that the law places on the value of finality; 8. to constitute "special grounds", the circumstances must be "sufficiently out of the ordinary or exceptional": Tjiong at [165]; 9. even if "special grounds" are made out, the Court retains a residual discretion whether or not to admit the further evidence. Relevant to the exercise of this residual discretion will be the overriding purpose of the Civil Procedure Act: see s 56.
7. These points are not intended to deny the utility of the frequently cited observations in Akins. As Spigelman CJ said in Phoenix at [11], decisions such as Akins, "identify principles which have been identified in the case law to guide the formulation of the judgment for which s 75A(8) provides." Each case must, however, be decided on its merits ultimately by reference to the statutory test.
8. The Court did not rule on the application to adduce further evidence at the time of the hearing and argument was conducted by reference to the further evidence that was sought to be adduced as though leave had been granted. This was a practical course as the strength of the argument on which the further evidence was based was itself relevant to the consideration of the application and, in particular, to the second of the "conditions" stated in Akins. Thus, it was sensible to have that material before the Court, at least in a notional sense, in order to assess the merits of the application for leave to adduce further evidence.

The argument and evidence in support of leave

1. At [56] of these reasons, I noted the somewhat unsatisfactory and belated way in which the Fettering Doctrine was introduced into the case, namely in a single paragraph in the Commonwealth's written submissions filed only a matter of days prior to final addresses. It was not a legal issue that had previously been flagged by way of pleading or in opening submissions. As will also be evident from the extended discussion of the authorities earlier in these reasons, it is a doctrine that raises issues of considerable complexity and controversy.
2. The late introduction of the Fettering Doctrine into the case supplies the context in which Mr Searle seeks to make out his case of "special grounds" and for leave. Thus, Mr Levitt, in his evidence in support of the application, having said (with complete justification) that he did not understand the Defence filed on behalf of the Commonwealth to expose the issue, continued: "Although the three documents now sought to be relied upon could have been obtained with reasonable diligence for tendering at the trial had they been thought to have been relevant, there was no occasion to obtain them for use at the trial since the Commonwealth had not articulated its case in a manner that would have caused the applicant's legal representatives to apprehend their potential relevance to the proceeding below. Upon reviewing the defendant's closing written submissions, and after speaking with Mr Kidd SC and Mr Imlay about the matter, I caused three employed solicitors in my office immediately to commence research for any material that gave legislative authorisation for the training contract so as to negative any suggestion that the training contract was a fetter on the Commonwealth's executive power. My staff were then unable to locate any material to assist in the limited time available. Accordingly, counsel for the plaintiff was not able to submit at trial that the plaintiff would have run a different evidentiary case had the defendant given an earlier indication of its reliance of the proposition that the training contract was a fetter on the executive power of the Commonwealth."
3. Notwithstanding the late introduction of the Fettering Doctrine into the case, it is to be noted that senior counsel for Mr Searle at the trial did address the argument, including in written submissions filed in reply and to which I have referred at [57]-[59] above. No application was made for an adjournment of the proceedings or for leave to file any further written submissions or to adduce any further evidence either prior to the hearing of final addresses or in the four-month period during which judgment was reserved.
4. It is also apparent from later paragraphs of Mr Levitt's affidavit that the search for what is now sought to be tendered as the "new material" did not commence until a week after judgment was delivered on 3 July 2018, and that that search was made in the context of considering potential appeal grounds. The Commonwealth characterises the identification of the further evidence sought to be tendered as simply the product of the labours and initiative of fresh counsel briefed in the matter. There is, in my opinion, some force in this observation and although the argument based upon the Fettering Doctrine only emerged late in the day, the Commonwealth had always pleaded, albeit in an unparticularised way, the invalidity of the Training Contract.
5. As to the second of the Akins considerations, namely whether the proposed further evidence is such that there is a high degree of probability that there would be a different verdict, in some cases, such as Battaglia, that conclusion can be readily drawn from the nature of the evidence in the context of issues in the case. In other cases (such as the present), the significance of the further evidence and its likely impact on the decision at first instance is far more difficult to assess, and really requires very full argument to gauge its potential significance.
6. Having had the benefit of both written and oral submissions from both the Commonwealth and Mr Searle in relation to the significance of the proposed further evidence, I did not form the impression that it created a "high degree of probability" of a different verdict. For reasons that follow, I am content to describe my reaction to the evidence in impressionistic terms only because there was a compelling discretionary reason tending against its admission. That reason was that the argument sought to be made by reference to the further evidence had, underpinning it, a large constitutional assumption, namely that an appropriation act could itself be the source of power or authorisation for particular executive action. This was a question which, as the Commonwealth properly pointed out, had been expressly left open by the High Court in Williams (No 2) (see [70] above).
7. The Commonwealth was in agreement with Mr Searle that an appropriation act could authorise particular expenditure by the executive although its position was that the Act relied on by Mr Searle which was said to expressly authorise the Training Contract did not do so. But the consequence of the Commonwealth's agreement with Mr Searle that, as a matter of principle, an appropriation act could authorise particular executive action was that there was no contradictor before the Court on this important and yet unresolved question of constitutional importance.
8. In light of the well-known principle that constitutional questions should not be decided where it is unnecessary to do so (see, for example, Lambert v Weichelt (1954) 28 ALJR 282 at 283; Wurridjal v Commonwealth (2009) 237 CLR 309; [2009] HCA 2 at [355]; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 251 CLR 322; [2013] HCA 53 at [148]; Duncan v New South Wales (2015) 255 CLR 388; [2015] HCA 13 at [52]; Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 at [32]) and in view of the conclusions to which I have come in relation to the validity of the Training Contract and that it was supported by consideration, it would not, in my opinion, have been appropriate to entertain Mr Searle's argument which had, as its premise, an important, uncontradicted and unresolved question of constitutional law.
9. Whilst I am mindful of what the High Court said in Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] as to the desirability of intermediate appellate courts resolving all questions, that observation was not expressed as a "universal rule" and one situation where, in my opinion, an intermediate appellate court might not consider it appropriate to answer all questions is where one or more questions concern federal constitutional issues that are not necessary to resolve in order to dispose of the appeal. That is a fortiori where there is no contradictor.
10. It follows in my opinion from the foregoing reasons that sufficiently strong grounds for the admission of further evidence foundational to Mr Searle's third ground of appeal have not been made out. In any event, I would have been inclined to reject the reception of the evidence in the exercise of the discretion conferred by s 75A(7) for the reasons stated at [183]-[184] above.

Challenge to contingent finding on damages

1. As noted at [71] above, the Commonwealth, by notice of contention, seeks to challenge the primary judge's contingent assessment of Mr Searle's damages. It will be recalled that his Honour would have assessed these at $60,000 had he found the Training Contract to be valid.
2. The primary judge addressed the question of damages against the possibility that his decision as to liability was successfully appealed. Essentially, as Mr Searle did not identify any specific available job for which a Certificate IV was a qualification and for which he would likely have successfully applied if he had held the certificate, the primary judge approached this exercise on the basis of a loss of a chance or loss of an opportunity to secure a higher paying position.
3. That submission necessarily required Mr Searle to establish, as a first step in the process, what level of remuneration the possession of a Certificate IV in Engineering would generate, in order for that to be compared with the level of remuneration Mr Searle in fact received after his discharge from the Navy.
4. The primary judge said (at [140]-[141]) as follows: "The evidence does not establish that a Certificate IV in Engineering is so generally and readily accepted amongst employers in any defined field that an employee holding the qualification would command employment in that field at a salary within a reasonably ascertainable range. The Certificate is to be contrasted with, for example, a practising certificate held by a recently admitted solicitor. It would no doubt be possible to adduce evidence of the range of salaries paid to a solicitor entering his or her first year of employment in a private firm… Mr Leck's evidence did not satisfy me that there exists any reasonably homogenous group of employment positions for which the Certificate IV is a pre-requisite and for which rates of pay are within a consistent band."
5. These difficulties were not the end of the matter, however, and following a methodology set out in the primary judgment at [142]-[146] which was not the subject of any relevant attack by the Commonwealth, Mr Leck, who was a remuneration and human resources consultant called as an expert in Mr Searle's case, produced an estimation of the annual gross salary which he expected would be paid for a job of the generic description which he considered Mr Searle would be eligible to take up if he held a Certificate IV in Engineering.
6. At [150] of his judgment, the primary judge noted that: "If Mr Leck's estimations and projections are accepted, a simple arithmetic calculation can be made of [Mr Searle's] shortfall in earnings, as a result of him not having a Certificate IV, up to the date of trial. Similarly a projection forward can be made on the basis of a current differential of approximately $15,600 per annum."
7. The primary judge was not satisfied on the balance of probabilities that if Mr Searle had been discharged from the Navy with a Certificate IV in December 2015, he would have found a position in the Rockhampton area (where he wished to reside) on the strength of the Certificate from which he could have earned salaries at the annual rates hypothesised by Mr Leck. His Honour noted that there were numerous significant uncertainties inherent in Mr Leck's methodology and was not satisfied on the balance of probabilities that from December 2015 to the date of judgment there would in fact have been any job of the description propounded by Mr Leck available in the Rockhampton area.
8. Critically and consistent with authorities such as Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 349 (Sellars), the primary judge accepted that if Mr Searle had a Certificate IV "it may at least have given him an edge over competitors if there was a job on offer with technical engineering aspects" (emphasis added). His Honour accepted that holding the Certificate "might have been decisive in relation to some jobs, if they were open and advertised" (emphasis added), but the evidence did not satisfy him that there was any such job in Mr Searle's geographic area at the relevant time for which the Certificate would have been so important and which he could and would have applied.
9. At [154], the primary judge inferred from the evidence, taken at its highest, that: "… notwithstanding the lack of a Certificate IV, [Mr Searle's] earning capacity during the two and a half years since he left the Navy is unlikely to have fallen short of what it would have been if he had held the qualification by any more than about $15,000 per annum."
10. His Honour held that it would not be sound to assess damages on the basis that any shortfall was fixed and perpetual. He expressed the view that Mr Searle's experience in the workforce that would accumulate over time would progressively compensate for the absence of the Certificate IV formal qualification. His Honour concluded (at [156]) that: "Thus I can assess damages only on the basis that holding the Certificate IV in Engineering would have accorded some marketability or potential to secure a higher paying job for which the plaintiff has been ineligible without it. The economic value of this potential is amenable to only the crudest numerical estimation. On such uncertain evidence I can award damages only in a nominal lump sum to represent the lost chance, with its indeterminate degree of possibility, that some margin of higher earnings might have been attained. I assess damages on that basis at $60,000."
11. By its draft notice of contention, the Commonwealth contended that the primary judge ought to have dismissed the claim on the basis that, even if there were a breach of contract, it had not been established that any damages (or alternatively, any material damages) were payable to Mr Searle.
12. The Commonwealth's submissions in support of this contention accepted that the task of assessing damages in a case like the present can be difficult but contended that it "remains incumbent on a trial judge to give adequate reasons for reaching any conclusion". The Commonwealth submitted that the primary judge did not meet that standard: "The $60,000 figure appears without explanation, or prior suggestion. It was not a figure advanced by [Mr Searle] nor addressed by the [Commonwealth]. It was not a 'nominal' amount; in the absence of any acceptable evidence such an amount was a windfall. Further, his Honour's reasons are internally inconsistent: he found that the lost chance had an 'indeterminate degree of possibility', but then went on to impliedly determine the degree of possibility."
13. The Commonwealth correctly noted that the onus of proof in respect of damages was on Mr Searle and submitted that "[i]f the evidence was not capable of establishing any real loss, the correct conclusion was that any award of damages should be nominal only."
14. There were thus two elements to the attack on this aspect of the judgment: first, the adequacy of the primary judge's reasons; and, second, the suggested inadequacy of the evidence to establish "any real loss".
15. I do not consider that these attacks were soundly made.

Discussion

1. There are peculiar difficulties associated with the assessment of damages for loss of opportunity and the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts: Sellars at 355. These difficulties are in part accommodated by the approach to the assessment of damages that only requires there to be established on the balance of probabilities that there was loss of an opportunity of some value but does not require it to be shown that the likelihood of that opportunity being realised was greater than 50%: Sellars at 355. Sellars drew on Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 (Malec) where Deane, Gaudron and McHugh JJ said (at 643) that "the future may be predicted and the hypothetical may be conjectured".
2. In Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1994] HCA 54 at 83 (Amann), Mason CJ and Dawson J said: "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can. Indeed, in Jones v Schiffmann Menzies J. went so far as to say that the 'assessment of damages … does sometimes, of necessity involve what is guess work rather than estimation'. Where precise evidence is not available the court must do the best it can. And uncertainty as to the profits to be derived from a business by reasons of contingencies is not a reason for a court refusing to assess damages." (Footnotes omitted)
3. Menzies J's famous observation in Jones v Schiffmann (1971) 124 CLR 303; [1971] HCA 52 was also referred to by Toohey J in Amann at 138. Toohey J also made reference to the observation of Sir Garfield Barwick in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; [1981] HCA 3 (at 636) that "in many cases" damages are "no more than an approximation lacking in mathematical or economic accuracy or sufficiency".
4. The primary judge's finding to which I have referred at [194] above, namely that holding a Certificate IV "might have been decisive in relation to some jobs" corresponds, in my opinion, with the "real possibility" of promotion that the High Court indicated was sufficient to found an assessment of damages in Wynn v NSW Insurance Ministerial Corp (1995) 184 CLR 485; [1995] HCA 53 at 498. Once his Honour had found a loss of opportunity had been suffered, he necessarily had to engage in the difficult task of estimation of future and hypothetical events.
5. It is not essential for a trial judge assessing damages for loss of a chance to nominate a particular percentage of probability to be attributed to the prospect of the chance being realised, and to insist on this would be prone to artificiality. A global approach not requiring the specification of particular percentages or degrees of probability or possibility was endorsed as acceptable by this Court in Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; [1999] NSWCA 323 at [147]. In Malec at 640, Brennan and Dawson JJ said: "… we think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on a hypothetical evaluations defy precise calculations."
6. The Commonwealth's attack on the primary judge's assessment of damages needs to be analysed with the above principles (and the difficulties to which they refer) squarely in mind.
7. In holding that the potential to secure a higher paying job which Mr Searle had lost by reason of the breach of contract was "amenable to only the crudest numerical estimation", the primary judge was simply reflecting the difficulties in the assessment of damages for loss of opportunity that the High Court and this Court have referred to many times over the years. These difficulties and the need for "estimation, if not guesswork" (see Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 196 ALR 257 at [38] per Hayne J) necessarily mean that a judge's reasoning process will be less precise and more attenuated than if he or she were dealing with known rather than hypothetical facts. The assessment of damages in the present case was a difficult task but that was not a reason not to undertake it.
8. The primary judge identified a number of matters that, it may readily be inferred, he took into account in reaching his assessment. First, he had the evidence of Mr Leck which suggested a differential of about $15,000 per annum for a person holding a Certificate IV qualification as opposed to those qualifications held by Mr Searle. Secondly, he took into account the possibility that jobs suitable to that qualification may not readily or always be available. Thirdly, he had regard to the fact that the value of the Certificate IV was likely to diminish over time as Mr Searle acquired and benefitted from practical experience in the workforce.
9. The figure of $60,000 on which his Honour fixed plainly builds on the $15,000 differential to which he had earlier in his reasons referred. The $60,000 figure arrived at plainly takes into account the contingencies and considerations to which his Honour referred in the course of his reasons. It was necessarily an estimate or approximation arrived at after that process. It would not and indeed could not be expected to be scientific or the result of some precise mathematical calculation.
10. Insofar as the Commonwealth submitted that there was an internal inconsistency in the reasoning on the basis of his Honour's reference to the lost chance as having an "indeterminate degree of possibility", all that his Honour was referring to, in my opinion, in using that phrase was the difficulty which attended the assessment of its value. There is no doubt his Honour took this into account in making his ultimate assessment of damages.
11. I would dismiss the Commonwealth's challenge to the assessment of damages by the primary judge.

Cross-application for leave to appeal

1. As noted at [22] above, the proceedings brought by Mr Searle against the Commonwealth were representative proceedings within the meaning of Pt 10 of the Civil Procedure Act. Mr Searle was the representative party for other enlisted servicemen and women who executed similar contracts with the Commonwealth: the "group members". The commencement of representative proceedings is not contingent on group members having identical claims. Rather, it is necessary that the claims of group members give rise to "a substantial common question of law or fact": s 157(1)(c).
2. Under the representative proceedings regime, if it appears to the Court that determination of the common questions will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions: s 168(1). In circumstances where a remaining question concerns only one group member, the Court may determine the remaining questions by allowing that individual group member to appear in the proceedings for the purpose of determining that question: s 169(1). In circumstances where a remaining question concerns some only of the group members, the Court may determine the remaining questions by allowing the establishment of a sub-group consisting of those relevant group members and appointing a sub-group representative party: s 168(2). What follows from a consideration of these provisions is that the object of the representative proceedings regime provided for in the Civil Procedure Act is to have common questions determined together and uniformly, but not necessarily to have claims determined together and uniformly (unless all the questions in relation to those claims happen to be common).
3. Mr Searle, in his representative capacity, initially advanced three claims against the Commonwealth: breach of contract; negligent misrepresentation; and deceit. With regard to the latter two claims, only questions 22 and 23 were identified as common in the second further amended statement of claim. Question 22 pertained to part of the negligent misrepresentation claim and was in the following terms: "Whether the defendant made the Training Representation: a in writing contained on the Defence Force webpage or webpages b in writing contained in the draft Training Contract provided to the plaintiff and the draft Group Member contracts provided to the Group Members?"
4. Question 23 related to the claim in deceit in full and was in the following terms: "Whether by making the Contractual Representation, the defendant engaged in conduct which was deceitful in that the Contractual Representation was false and untrue, the defendant made it recklessly without caring whether it was true or false, and made it with the intention that the plaintiff and the Group Members should act upon it?"
5. On the first day of the six-day hearing at first instance, counsel for Mr Searle conceded that Mr Searle could not make out loss for the purposes of the negligent misrepresentation claim. At the beginning of the second day of the hearing, counsel for Mr Searle expressly abandoned the claims for negligent misrepresentation and deceit.
6. When asked by the primary judge whether there was "still going to be a dispute between [the parties] as to whether at some time whether there can be the addition of a different plaintiff who represents a subgroup that can prosecute negligence and/or deceit claims", counsel for Mr Searle replied: "Yes, there certainly will be. Obviously it was never part of this hearing for other members to have these claims determined, it's not part of the common questions. But in direct answer to your Honour's question, yes, there will be group members who do have and will press subsequently claims for negligent misrepresentation and deceit."
7. The primary judge rejected the Commonwealth's submission that Mr Searle's abandonment of the negligent misrepresentation and deceit claims should dictate that common questions in relation to those claims, namely questions 22 and 23, be answered in the negative. His Honour stated: "I don't want to do that at this stage, I mean, there's not going to be evidence in support of it right from the beginning of the hearing, now. It's clear that negligence and deceit are not being litigated here, there's no way the plaintiff can get a judgment in negligence or deceit, so you're safe in conducting this hearing. If anybody wants to run in a representative fashion, a claim in negligence or deceit, they would have to make the application to join a different plaintiff who represents a group who have such claims. What's wrong with that?"
8. In written submissions filed at the conclusion of the trial, the Commonwealth submitted that it was not necessary to answer questions 22 and 23.
9. The primary judge delivered his reasons for judgment in relation to the contractual claims on 3 July 2018. At a later hearing on 4 October 2018 dealing with, inter alia, the form of answers to the common questions and orders more generally, the Commonwealth contended, contrary to its earlier written submissions, that common questions 22 and 23 be answered "no" and that the proceedings be dismissed. The Commonwealth submitted: "… when [Mr Searle] abandoned [the claims in negligent misrepresentation and deceit], he abandoned them for the group as well... [abandonment] does not have the effect that the group can simply reform under someone else and continue on with a class action in some representative capacity at some later stage."
10. It was further submitted by counsel for the Commonwealth that: "Otherwise you have an absurd situation which is you start a claim in a representative capacity but you're allowed to abandon the claim somehow and in some personal capacity… That's just simply not the way, that would make a mockery of the social utility which is the aim of the representative proceeding provisions in the Civil Procedure Act".
11. The primary judge found against the Commonwealth on this point and declined to answer questions 22 and 23. His Honour held that Mr Searle's abandonment of the negligent misrepresentation and deceit claims had the effect of withdrawing questions 22 and 23 from determination in the hearing: Searle (No 2) at [27]. His Honour also held that Mr Searle's abandonment of those causes of action did not effect an abandonment of those claims on behalf of all group members, explaining (at [29]) that: "[Mr Searle] did not purport to do that, nor did the [Commonwealth] at the time contend that [Mr Searle's] abandonment of his own claims in negligence and deceit had that effect on the position of Group Members. On the contrary the [Commonwealth] explicitly acquiesced in the proposition that with sufficient notice [Mr Searle] could apply for establishment of a subgroup and for the appointment of a representative, which would enable the claims on these causes of action to proceed at a later date."
12. The Commonwealth, by its own summons, sought leave to appeal from that aspect of the decision of the primary judge. The Commonwealth sought a determination by the Court that common questions 22 and 23 be answered in the negative and an order that the proceedings be dismissed. The Commonwealth advanced two discrete grounds for the relief sought: that the primary judge erred in law because he had no power to decide as he did, namely to decline to answer the questions; and, alternatively, that the discretionary exercise of any such power miscarried. This alternative ground runs headlong into House v The King (1936) 55 CLR 499; [1936] HCA 40 difficulties.
13. Senior counsel for the Commonwealth could not point to any authority in support of his contention that the primary judge lacked power to decline to answer a common question which had been formulated for determination at a hearing of representative proceedings. That was not surprising, and the submission as to lack of power is wholly inconsistent with the flexible nature of the statutory provisions relating to class actions generally and to discontinuance of claims more specifically. It was also entirely inconsistent with senior counsel's acceptance that there existed power to amend the terms of common questions.
14. The Commonwealth referred to s 158(3) of the Civil Procedure Act to illustrate that Mr Searle retained standing with respect to the negligent misrepresentation and deceit claims notwithstanding that he ceased to have either cause of action available to him. It was submitted that: "[Mr Searle] was not entitled to self-determine his capacity depending on the circumstances of the proceeding and what suited his or the Group Members' forensic advantage. Were this otherwise a representative plaintiff could pursue claims, ostensibly as a 'representative party' but, if unsuccessful, then seek to quarantine the result by asserting that he/she did not represent the group members."
15. Counsel for Mr Searle submitted that the Court was invited to, and did, confine the trial to the claim for breach of contract - and that this was within the power of the primary judge. It was pointed out, and indeed was common ground, that Mr Searle's abandonment of those claims engaged neither ss 173 or 174 of the Civil Procedure Act.
16. Section 173 of the Civil Procedure Act provides: "(1) Representative proceedings may not be settled or discontinued without the approval of the Court. (2) If the Court gives such approval, it may make such orders as are just with respect to the distribution of any money, including interest, paid under a settlement or paid into the Court."
17. Section 174 of the Civil Procedure Act provides: "(1) A representative party may, with the leave of the Court, settle the party's individual claim in whole or in part at any stage of the representative proceedings. (2) A representative party who is seeking leave to settle, or who has settled, the party's individual claim may, with the leave of the Court, withdraw as representative party. (3) If a person has sought leave to withdraw as representative party under subsection (2), the Court may, on application by a group member, make an order for the substitution of another group member as representative party and may make such other orders as it thinks fit. (4) Before granting a person leave to withdraw as a representative party: (a) the Court must be satisfied that notice of the application has been given to group members in accordance with section 175 (1) and in sufficient time for them to apply to have another person substituted as the representative party, and (b) any application for the substitution of another group member as a representative party must have been determined."
18. These sections in their various requirements for leave of the Court reflect the legislative intention that the interests of group members be protected in representative proceedings from unintended consequences flowing from the actions of a representative party.
19. The Commonwealth's contention also pays insufficient regard to the extent of the Court's general power to do justice in representative proceedings. Thus s 183 of the Civil Procedure Act provides: "In any proceedings (including an appeal) conducted under this Part, the Court may, of its own motion or on application by a party or a group member, make any order that the Court thinks appropriate or necessary to ensure that justice is done in the proceedings."
20. Section 171 of the Civil Procedure Act vests a broad power in the Court in respect of the representative party of representative proceedings. That section provides: "(1) If, on application by a group member, it appears to the Court that a representative party is not able adequately to represent the interests of the group members, the Court may substitute another group member as representative party and make such other orders as it thinks fit. (2) If, on application by a sub-group member, it appears to the Court that a sub-group representative party is not able adequately to represent the interests of the sub-group members, the Court may substitute another person as sub-group representative party and may make such other orders as it thinks fit."
21. This general power of the Court in representative proceedings is both desirable and essential. As Brennan J explained in Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398; [1995] HCA 9 at 408: "It is precisely because of the flexible utility of the representative action that judicial control of its conduct is important, to ensure not only that the litigation as between the plaintiff and the defendant is efficiently disposed of, but also that the interests of those who are absent, but represented, are not prejudiced by the conduct of litigation on their behalf."
22. Chief Justice Gleeson in Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; [2002] HCA 27 at [12] highlighted the broad powers of the Court in representative proceedings: "The legislative policy underlying group proceedings may be open to legitimate difference of opinion, but the primary object is clear enough. It is to avoid multiplicity of actions, and to provide a means by which, where there are many people who have claims against a defendant, those claims may be dealt with, consistently with the requirements of fairness and individual justice, together. The discretionary powers conferred upon the court in dealing with a group proceeding are consistent with that objective."
23. In Johnston v Endeavour Energy [2015] NSWSC 1117, Garling J observed (at [72]) that "[a] particularly important feature [of Pt 10] is that the Court retains control over the proceedings generally and, in particular, over the plaintiff who is the representative party." His Honour in that case stated (at [83]) that s 183 should be given "a generous interpretation" on account of it being: "… the legislative wellspring of the Court's discretionary power to make orders where thought appropriate or necessary in, and thereby control, representative proceedings so as to ensure that justice is done, and to also ensure that large numbers of claims are dealt with consistently and fairly."
24. There was nothing about the primary judge's decision not to answer questions 22 or 23 that was foreign to Pt 10 of the Civil Procedure Act. The representative proceedings regime is concerned with the common determination of common questions only. The regime directly attends to the inevitability in representative proceedings that parts of the proceedings will not be common. As a result, as Garling J put it in Giles v Commonwealth [2014] NSWSC 83 at [110]: "… it needs to be borne in mind that there is no necessary expectation that the representative proceedings will deal with all claims of all group members through to finality although the claims of the plaintiff (or plaintiffs) may be so dealt with. It is a part of the legislative scheme for representative proceedings, that the Court is entitled when it decides that it is appropriate so to do, to order that proceedings be continued individually, or else the individual questions be determined separately."
25. It was not only within power for the primary judge to decline to answer questions 22 and 23 but, in my opinion, entirely appropriate. His Honour's discretion was broad and did not miscarry.
26. For these reasons, I would refuse the Commonwealth's application for leave to appeal against the primary judge's discretionary decision not to answer common questions 22 and 23 either in the negative or at all.

Conclusion and orders

1. For all the foregoing reasons, I would make the following orders.
2. In relation to Mr Searle's amended notice of motion for leave to adduce further evidence, I would refuse leave and order that he pay the Commonwealth's costs of the notice of motion.
3. In relation to Mr Searle's summons for leave to appeal, I would make the following orders: 1. Grant leave to appeal; 2. Allow the appeal; 3. Set aside the order of Fagan J dismissing the plaintiff's claim; 4. Set aside the order of Fagan J ordering that Galactic Litigation Partners LLC is to pay the Commonwealth's costs of the proceedings at first instance including the costs of the Commonwealth's notice of motion filed on 5 October 2018; 5. Order judgment for Mr Searle in the amount of $60,000 with effect from 3 July 2018, plus interest from that date pursuant to s 100 of the Civil Procedure Act; 6. Order that the Commonwealth pay Mr Searle's costs of the proceedings at first instance; 7. Remit the matter to the Common Law Division for the determination of the claims of other group members and the resolution of common questions between claims of all group members.
4. In relation to the Commonwealth's application for leave to appeal, I would refuse leave with costs.
5. That leaves the question of costs of Mr Searle's summons seeking leave to appeal.
6. Whilst Mr Searle has succeeded in his appeal, he has been unsuccessful in his application for leave to adduce further evidence, and that evidence was critical to a ground of his draft notice of appeal to which lengthy written submissions were directed and upon which a large part of the oral hearing in this matter was concentrated. On the other hand, the Commonwealth has been unsuccessful in relation to the challenge to the assessment of damages (as raised in its draft notice of contention) as well as in respect of the appeal more generally.
7. In all of the circumstances of the case, I would order that the Commonwealth pay 70% of Mr Searle's costs of the appeal.
8. BASTEN JA: I agree with the reasons of Bell P, together with his proposed orders. What follows are some further observations on the concept of fettering executive powers. The context is the reliance placed by the Commonwealth on the language of Mason J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth, [1] as a basis for denying the power of the Commonwealth to enter into contracts with persons enlisted in the Navy, so as to allow them to obtain trade qualifications during their periods of service. It is convenient first to identify the context a little further.
9. The matter before the Court involved an application for leave to appeal from the determination in the Common Law Division of a separate question as to the liability of the Commonwealth in damages to the applicant, Clayton William Searle, for breach of contract. The applicant was one of a number of marine technicians employed in the Navy who had entered into "training contracts" in 2011 and 2012. The training was intended to lead to a certificate in engineering. The training was, however, terminated by the Navy without the purpose being achieved. The plaintiff commenced proceedings by way of representative action on behalf of himself and other marine technicians who had lost the opportunity to obtain the intended qualification.
10. The trial judge, Fagan J, upheld the Commonwealth defence that it had no enforceable contract with the applicant, whose claim was therefore dismissed, although the fate of the representative proceedings remains outstanding. The applicant challenged the dismissal of his claim. Further, the trial judge contingently assessed damages in an amount of $60,000, against the possibility that he was wrong to dismiss the claim. The Commonwealth sought leave to challenge that assessment.

Fettering a discretionary power

1. By its nature, the exercise of any discretionary power involves a choice, or a range of choices. To exercise the power in a particular way is to foreclose other options. [2] Although powers may generally be capable of exercise from time to time, [3] an exercise in a way which gives rise to legal rights and obligations may not be capable of further inconsistent exercise. [4] There is, therefore, a sense in which any exercise of a discretionary power may be said to "fetter" the discretion. It is self-evident that government could not operate if there were some broad anti-fettering principle constraining its executive powers, including any power to enter a contract. Indeed, a broad anti-fettering principle would be self-defeating, in that it would itself amount to a fetter on an important power of the executive, to enter binding agreements.
2. Nevertheless, fettering can be illegitimate, but in a quite nuanced sense. To understand the principle it is necessary to have regard to its public law context. Powers should be exercised by administrators consistently, so that like cases should be treated alike. [5] This is a principle of good administration, but it is more than that. It is a principle grounded in a public law value which can be described as an essential element of the rule of law, namely to treat like cases alike, and disparate cases in a way which fairly reflects the points of difference - the non-discrimination principle. [6]
3. One response of government in addressing the need for consistency across multiple decision-makers and, at least potentially, a plethora of determinations, is to formulate policies and directions to govern the exercise of the power. (More recently, and where possible, there are moves to computerise the decision-making process.) But the persons formulating the directions and publishing the procedure manual may not be the officer exercising the power. Decisions may be challenged on the ground that, in applying government policy, the decision-maker has acted "under dictation", or deferred to the direction of others. This ground is described by Aronson, Groves and Weeks as "Improper self-restraints, or the principle against fettering". [7]
4. In The Queen v Anderson; Ex parte Ipec-Air Pty Ltd, [8] a case challenging the refusal by the Director-General of Civil Aviation to lift a prohibition on the import of aircraft, in accordance with government policy, Windeyer J noted that the Director-General "must have regard to the policy of the Government and must exercise his functions accordingly". [9] However he also said of the Director-General: [10] "He is not like a person charged with a duty of determining some question of fact or a person required himself to exercise a discretion according to defined criteria or guided by defined considerations." Windeyer J concluded: [11] "The Director-General is the officer whose written permission must be produced to the Customs. But in my opinion that does not mean that he is to grant or refuse permission according to some view of his own, giving weight or no weight as he chooses to the policy of the Crown. On the contrary, I think his duty is to obey all lawful directions of the Minister under whom he serves the Crown. The Minister is answerable before Parliament."
5. On one view, this approach, as a matter of statutory construction, denied that the Director-General had a discretionary choice. Taking a different view of the relevant statutory scheme, Mason J in Ansett Transport Industries disagreed with the conclusion, without denying the relevance and potentially decisive nature of government policy. [12]
6. The non-fettering principle can be called upon in a range of circumstances and for a range of purposes. Perhaps ironically, given the present context, it was recently discussed by the High Court in a case involving the powers of Naval officers to act in relation to unauthorised entrants found in Australian waters: CPCF v Minister for Immigration and Border Protection. [13] Section 72(4) of the Maritime Powers Act 2013 (Cth) conferred on a maritime officer the power to detain such a person and take the person to a place either inside or outside the migration zone, including a place outside Australia. The Court held that the "chain of command" required that the discretion be exercised in accordance with directions given by the National Security Committee of Cabinet. In explaining that requirement, French CJ stated: "[37] The question whether, absent express power to do so, a Minister can direct a public official, for whom he or she is responsible, in the exercise of a statutory discretion has been the subject of different approaches in this Court from time to time. [14] The answer depends upon a variety of considerations including the particular statutory function, the nature of the question to be decided, the character of the decision-maker and the way in which the statutory provisions may bear upon the relationship between the Minister and the decision-maker. [15] " Some members of the Court in CPCF further held that these factors led to the conclusion that the discretionary element of the power conferred under s 74(2) was vested in a superior officer, and not the officer carrying out the operation. [16]
7. The proposition that the non-fettering principle limits the general power of the Commonwealth to contract with individuals in order to obtain their services or to confer benefits upon them should be rejected. That is because, as noted above, every contract entered into by the government will foreclose the possibility of another contract with a different person, or a contract on different terms. Assuming a valid power to contract, the existence of which the Commonwealth did not dispute, in principle it would be circular and self-defeating to impose such a general constraint.
8. There remains the possibility that, in contradistinction to contracts with third parties, it may not be legally possible to enter into a contract with enlisted members of the armed forces because of the overriding requirement of each to obey the lawful commands of his or her superiors. The scope of the overriding requirement was not explored in detail in argument, but was assumed to include the possibility that service personnel could be deployed anywhere at any time, as the functions of national defence, including peace-keeping operations, demanded. It was contended that the Commonwealth lacked the power to enter into a binding agreement which, for example, required it to provide education or training, or otherwise permit an enlisted person to obtain such education or training, for a specified period. It could direct a member of the forces to undergo specified education or training, and provide financial accommodation for that purpose, but was not contractually bound to continue to do so for the requisite period to complete the course.
9. The justification for such a legal limitation based on necessity was not fully articulated. The existence of a disciplined force may be reflected in a "chain of command", but it does not follow that the Commonwealth does not owe members of the armed forces legal duties; that it owes a duty of care outside active operations (and possibly training simulating active operations) is well-established: Groves v Commonwealth, [17] affirmed in Haskins v Commonwealth. [18] In Smith v Ministry of Defence [19] the UK Supreme Court refused to strike out a claim in negligence arising from the death of soldiers in Iraq, where the negligence was said to arise in the course of training and procurement and hence not to fall within the scope of "combat immunity". [20]
10. If a duty of care is imposed by law for the benefit of members of the defence forces, it is not clear why a contractual duty may not arise, especially as the latter requires a voluntary act on the part of the Commonwealth. Further, there are statutory controls which regulate the operation of the defence forces, including discrimination legislation, [21] which treats enlisted members as Commonwealth employees.
11. It may be inferred that the arrangement of contracts with a large number of marine technicians enlisted in the Navy was directed or approved by someone at a high level of the hierarchical structure of command. It was not contended that there was no intention to enter into a legal agreement. [22] This is, therefore, a case in which the non-fettering principle is sought to be invoked and justified by reference to the "chain of command", to deny the powers of those who may be at the top of the hierarchy to take steps seen at the time to be conducive to the efficient operation of the Navy. The potential breadth of such a legal proposition renders it implausible.
12. The potential breadth of the proposed constraint may, however, be limited by reference to its justification. In Ansett Transport Industries, Gibbs J considered that the width and imprecision of an implied term of the kind sought to be enforced, spoke against its implication. In the present case, the terms are express; an exception in a case of national security requiring a deployment inconsistent with the completion of the training is readily implied. The case is not concerned with any such exception, but the available implication speaks against a total constraint on the power to contract.
13. There is no basis for supporting a conclusion that such a constraint exists.

Endnotes

1. (1977) 139 CLR 54 at 76-78; [1977] HCA 71.
2. Peter W Hogg and Patrick J Monahan, Liability of the Crown (3rd ed, 2000, Carswell), p 228.
3. Acts Interpretation Act 1901 (Cth), s 33(1).
4. See Enid Campbell, "Revocation and variation of administrative decisions" (1956) 22 Monash U L Rev 30, 49; Dennis Pearce, Interpretation Acts in Australia (2018, Lexis Nexis), par 8.16.
5. Plaintiff M64/2015 v Minister for Immigration and Border Protection (2016) 258 CLR 173; [2016] HCA 50 at [54] (French CJ, Bell, Keane and Gordon JJ), [68]-[69] (Gageler J); Rendell v Release on Licence Board (1987) 10 NSWLR 499, 504A-B (Kirby P, Priestley and Clarke JJA).
6. Street v Queensland Bar Association (1989) 168 CLR 461, 571; [1989] HCA 53 (Gaudron J, citing Judge Tanaka in South West African Cases (Second Phase) [1966] ICJR 6, 305-306).
7. M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Law Book Co), Ch 5.5, p 300.
8. (1965) 113 CLR 177; [1965] HCA 27.
9. Ipec-Air at 205.
10. Ipec-Air at 204.
11. Ipec-Air at 206.
12. Ansett Transport Industries at 82-83.
13. (2015) 255 CLR 514; [2015] HCA 1.
14. R v Mahony; Ex parte Johnson (1931) 46 CLR 131 at 145 per Evatt J; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 192-193 per Kitto J; at 200 per Taylor and Owen JJ; at 206 per Windeyer J; Salemi v MacKellar [No 2] (1977) 137 CLR 396; Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 82-83 per Mason J; Bread Manufacturers (NSW) v Evans (1981) 180 CLR 404 at 429-430 per Mason and Wilson JJ. See generally O'Connor, "Knowing When to Say 'Yes Minister': Ministerial Control of Discretions Vested in Officials", (1998) 5 Australian Journal of Administrative Law 168.
15. Bread Manufacturers (NSW) v Evans (1981) 180 CLR 404 at 430 per Mason and Wilson JJ; Wetzel v District Court (NSW) (1998) 43 NSWLR 687 at 688, 692-693.
16. CPCF at [290] (Kiefel J); [361] (Gageler J); [473]-[474] (Keane J).
17. (1982) 150 CLR 113; [1982] HCA 21.
18. (2011) 244 CLR 22; [2011] HCA 28 at [59]-[60].
19. [2014] AC 52, 81.
20. Smith at [92], [94], [95] (Lord Hope).
21. See X v The Commonwealth (1999) 200 CLR 177; [1999] HCA 63.
22. Cf Administration of the Territory of Papua and New Guinea v Leahy (1961) 105 CLR 6; [1961] HCA 6.

Amendments 14 June 2019 - paragraph [119] - changed "contractual rights" to "contractual obligations" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2019