The 'Good Faith' Controversy in Australian Commercial Law: A Survey of the Spectrum of Academic Legal Opinion

Abstract

In academic debate the question is frequently asked as to whether the implied obligation of good faith has any place within the common law of contract in Australia, and if so, does it apply to all commercial contracts or only to some? For example, recent contributions to the good faith debate include a speech given in 2006 by Mr Justice Robert McDougall of the New South Wales Supreme Court on The Implied Duty of Good Faith in Australian Contract Law. Another recent survey is a paper by Geoffrey Kuehne published in the University of Western Australia Law Review on Implied Obligations of Good Faith and Reasonableness in the Performance of Contracts: Old Wine in New Bottles. In the speech given by Mr Justice McDougall, he argues that the contractual duty of good faith is here to stay 'barring avulsive change on the part of the legislature or the High Court' and that 'it is likely to be developed by accretion over the years, as our understanding of the concept - both as to its contractual source and its content - deepens through further decisions'.