Unformatted text preview: aches of economics and law, but also a recognition that the purposes
contained within the court process are inherently sociological, and based on the notion that justice must be administered between parties essentially at war. The more inherentl
mathematical position of Deane, Gaudron, and McHugh JJ. in Malec, on the whole,
appears more theoretically defensible, although the position of Brennan and Dawson JJ.
may be more practical from the court's perspective. Their approach, based on the
traditional use of estimates of 'likelihood' may make use of an intuitive sense of where
justice is found in a particular case. This approach also preserves a higher level of
discretion for future courts to limit past cases to their facts and give more options to
courts in the future to settle cases without additional unwanted precedential fetters. This approach, although pragmatic, does not provide a defence to the criticism that the
common law is simply not equipped to deal with such mathematically-based difficulties. Bridge pointed out that "the common law ... characteristically buries important points o principle in remedial detail. This may be seen as a conscious shirking by the legal syste
of hard questions that would compel a rigorous and perhaps rigid rationalisation of the institution ,.."69 This criticism may be too harsh. If some defensible probability is g for a future event, it seems likely that the court will assign some value to the expected
loss, even if the assessment of the amount of damages may be nearly impossible. There 67 Malec v J.C. Hutton Pty. Ltd. (1990) 169 C.L.R. 638 per Deanne, Gaudron, and McHugh JJ., citing
Mallet v McMonagle  A.C. 166 at 174.
Malec v J.C. Hutton Pty. Ltd. (1990) 169 C.L.R. 638 at 641 per Brennan and Dawson JJ.
Howe v Teefy (1927) 27 S.R. ( NSW) 301 at 306. 219 is a limit to the ability of the court to entertain such allegations regarding d amages, 71 but
the limit may be flexible. Where the courts are called to assess damages in "loss of commercial opportunity" case it may be more crucially important to differentiate between tort cases, and those foun in breach of contract. A third alternative, cases of lost commercial opportunities fo on statutory causes of action, such as s. 52 of the Trade Practices Act 1974 (Cth), ha been stated to be assessed with the same criteria as tort cases and, therefore, have n been differentiated for that reason. Action founded under a breach of other legislati
example ss. 12BB-12DM of the Australian Securities and Investment Commission Act
2001 (Cth) [ASICA], only typically gives rise to recovery of the "loss or damage"
incurred by any person and, therefore, is not analytically helpful. The courts may be willing to award damages for the loss of a chance to gain a profit f future opportunities assessed according to the likelihood of contract renewal, despit
fact that the defendant is under no obligation to renew the contract. In The
Commonwealth v Amann Aviation14(1992), Amann had won the tender for aerial
surveillance of the northern coastal areas of Australia from the Federal Government. After purchasing several aircraft, and commencing the refit of speed equipment f the surveillance work, Amann was unable to deploy the contracted number of aircraft by the contract deadline. This technically constituted a breach of the contract entitlin
Commonwealth to repudiate the contract. The contract specified that in this event
procedural notice had to be given prior to repudiation. The Commonwealth did not Seguna and Seguna v RTA ofNew South Wales  N S W L E C 147.
Gates v City Mutual Life Assurance Society Ltd. (1986) 160 C.L.R. 1.
Section 12GF(1) ASICA 2001 (Cth) 220 follow the procedure, but instead repudiated the contract with A m a n n , w h o accepted the
repudiation and sued for its losses under the contract. The claim included a large
component for the opportunity of renewing the contract with the Commonwealth, where
Amann would have enjoyed an advantageous position in tendering for renewal had the
contract been performed. The court concluded that the likelihood of Amann being successful in the circumstances was not negligible, and ruled that they could recover fo
the lost chance of renewal. In awarding damages in excess of $5 million, the court
discounted the award because of the chance that the Commonwealth might have
rightfully repudiated the contract in the future. As performance of the contract and the
subsequent chance to perform had been precluded by the wrongful repudiation, the court
held that the burden of proof should fall upon the Commonwealth the prove that the
chance had no value. The Commonwealth could not do this, for the repudiation had
rendered the assessment of the chance for renewal impossible. "It is the breach of contract itself which makes it impossible even to undertake an assessment..."75 The cour
chose to let the risk that the renewal would not eventuate fall upon the party charged
wrongdoing. In Sellars v Adelaide Petroleum NL.76 (1994) the original plaintiffs Adelaide, had
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