By Professor Elise Bant
Some may regard the recent High Court of Australian decision in Electricity Generation Corporation v Woodside Energy Limited  HCA 7 (Verve Energy) as a missed opportunity to clarify the doctrine of duress. The basic elements of duress are straightforward: the plaintiff must have been (1) subjected to illegitimate pressure which (2) caused the plaintiff to confer a benefit on the defendant (see Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 45–6 (McHugh JA)). However, the boundaries of the doctrine are highly controversial. Verve Energy seemed to provide the opportunity to examine some of these controversies, in particular the operation and boundaries of so-called ‘economic duress’ and whether ‘lawful act duress’ is anything other than a legal oxymoron.
Why did the High Court not consider duress?
As it was, Verve Energy was decided on contractual principles. Specifically, a majority of the High Court held that the respondent Woodside had not breached any contractual duties to Verve in the light of the Court’s interpretation of key contractual provisions. It was conceded by the parties that this rendered consideration of the duress case unnecessary (at ). This narrow approach to deciding the case, however, leaves the door open for the Court to consider the duress issues afresh, and on the basis of full and proper argument, in due course. In the meantime, the Court of Appeal decision insofar as it relates to duress remains a valuable addition to the body of authority on this important area. Furthermore, certain characterisations of duress made in argument before the High Court that, if accepted, would have substantially altered the nature of duress in Australia, and for the worse, have for the time being been shelved. This again leaves it open to the High Court on another occasion, and in the light of full argument on the points, to reinforce the core nature and operation of duress in Australia.
How did the dispute arise?
The story starts with an explosion at the Apache Energy gas production plant in Western Australia in June 2008, which radically cut the supply of gas to that state’s market. Woodside was the other main gas supplier and quickly found itself in a position where demand outstripped supply. The price of gas skyrocketed. Woodside refused to provide certain ‘supplemental’ gas energy nominated by Verve pursuant to an existing supply contract (the original contract), for an indefinite period. It offered to supply gas to the plaintiff pursuant to new, short term contracts, at a price many times greater than originally payable. Under protest, Verve agreed. Woodside later conceded in proceedings that, during the relevant period, it in fact had sufficient gas to supply the nominated supplemental gas.
Contrary to the view ultimately reached by the High Court, the Western Australian Supreme Court of Appeal unanimously held that Woodside had breached its obligations arising under the original contract to ‘use reasonable endeavours’ to supply the supplemental gas to Verve. The pressure exerted on Verve through the threatened and actual breaches of contract was unlawful and therefore prima facie illegitimate. As the illegitimate pressure had indisputably caused Verve to enter into the short term supply contracts, the essential elements of duress were satisfied.
What is ‘lawful act duress’?
In the course of coming to this decision, the WASCA engaged in a rigorous review of a number of important and contentious points concerning the law of duress. Of particular interest was the treatment of the concept of ‘lawful act duress’. Concern about the inherent uncertainty of this concept had earlier led the New South Wales Court of Appeal in Australia and New Zealand Banking Group Ltd v Karam  NSWCA 344 to reject its existence outright. In a joint judgment, the Court of Appeal in that case limited duress to threatened or actual unlawful conduct. It suggested that if duress in this sense is not made out, an agreement may be set aside for undue influence, unconscionable conduct or on statutory grounds. In particular, statutory provisions such as those found in both the (then) Trade Practices Act 1974 (Cth) and Contracts Review Act 1980 (NSW) were considered to be more precise and thus a preferable avenue to relief. These allow for a contract to be set aside if its requirements are not ‘reasonably necessary for the protection of the legitimate interests’ of the stronger party (see Karam at ). It should be noted that the provisions mentioned in Karam have now been replaced in identical terms by s 21(2)(b) of the Australian Consumer Law, (found in sch 2 to the Competition and Consumer Protection Act 2010 (Cth)) and ss 12CB and 12CC of the Australian Securities and Investments Commission Act 2002 (Cth) in relation to financial services.
In the Court of Appeal decision in Verve Energy, Murphy JA similarly preferred (at ) to restrict duress to cases of pressure that is ‘unlawful or wrongful by some external legal standard’ and cited Karam.
Ironically, precisely the same (objective) requirement of disproportionality between the lawful threat and the demand it supports — which is said to be such a preferable characteristic of the statutory schemes — underlies all cases of lawful, but illegitimate pressure. The cases are explored in detail in James Edelman and Elise Bant, Unjust Enrichment in Australia (Oxford University Press, 2006) 203–8. As was stated by McLure P (Newnes JA concurring) in Verve Energy at :
If the pressure involves an actual or threatened unlawful act, it is prima facie illegitimate. If the pressure is lawful, it may be illegitimate if there is no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supports.
As noted by Edelman and Bant in their examination of lawful act duress (cited above), it will be extraordinarily rare for a lawful refusal by a defendant to enter into a contract with a plaintiff except on certain terms and for legitimate commercial objectives (such as profit), to constitute lawful act duress. On the findings of the majority in the High Court of Australia, that was precisely the case in Verve. Woodside’s refusals to sell supplemental gas to Verve (except pursuant to new short term agreements) were not in breach of the original contract and were given for legitimate commercial motives (see Verve Energy  HCA 7 at –). The result in the decision is thus consistent with McLure P’s analysis and leaves open the possibility for a further and considered examination of the operation of lawful act duress on another occasion.
Are there additional limitations in cases of ‘economic duress’?
Another positive to come out of the non-examination of duress by the HCA concerns the relevance of considerations such as ‘good faith, ‘protest’ and whether the plaintiff had ‘no reasonable alternative’ but to enter into the impugned transaction. These so-called requirements have generally been cited in cases where the pressure was of a commercial nature, for example, where a person has warned that they will be forced to breach a contract unless paid more for their performance. Courts have rightly been concerned not to subject good faith contractual renegotiations to the rigours of the doctrine of duress, particularly where the circumstances forcing the renegotiation are beyond the parties’ control. This has led some courts to conclude that additional limitations must be placed on claims of ‘economic duress’ over and above those that apply in other contexts. The parties in Verve Energy spent much time before the High Court debating these issues, drawing on the opinion of the Privy Council in Pao On v Lau Yiu Long  UKPC 2. Delivering the advice of the Board in that case, Lord Scarman said that
in a contractual situation commercial pressure is not enough … it is material to inquire whether the person alleged to have been coerced did or did not protest; whether, at the time he was allegedly coerced into making the contract, he did or did not have an alternative course open to him such as an adequate legal remedy; whether he was independently advised; and whether after entering the contract he took steps to avoid it.
Should Australian courts adopt the ‘no reasonable alternative’ requirement?
A line of English cases has subsequently identified the ‘no reasonable alternative’ requirement cited by Lord Scarman as an independent element of duress (including B & S Contractors and Design Ltd v Victor Green Publications Ltd  ICR 419; Huyton SA v Peter Cremer GmbH & Co  1 Lloyd’s Rep 620; DNSD Subsea Ltd v Petroleum Geo-Services ASA  BLR 530; and Carillion Construction Ltd v Felix (UK) Ltd  BLR 1). Australian courts have rightly not followed this lead. As Kitto J said in the seminal decision of Mason v New South Wales  HCA 5, ‘the critical question is not whether there was an alternative. It is whether the choice made between the alternatives was made freely or under pressure’. Indeed, as noted in Adam Opel GmbH v Mitras Automotive (UK) Ltd  EWHC 3205 (QB) at , the ‘no reasonable alternative’ argument has a tendency to absurdity. The more egregious a threatened breach of contract, the more likely it is that a court would be prepared to give injunctive relief to prevent its occurrence. It follows that where a plaintiff capitulates to a demand to avoid a threatened and egregious breach, the ‘no reasonable alternative’ requirement will often operate to protect the perpetrator at the expense of the victim. The better view was expressed recently by Christopher Clarke J in Kolmar Group AG v Traxpo Enterprises Pvt Ltd  EWHC 113 (Comm) at : ‘If there was no reasonable alternative, that may be very strong evidence in support of a conclusion that the victim of the duress was in fact influenced by the threat’. The absence of reasonable alternatives is an evidentiary matter only, going to the requirement of causation. It is not a separate requirement. Conversely, the presence of alternatives does not automatically preclude a finding that the illegitimate pressure caused entry into the impugned transaction.
What is the role of protest in duress?
As with the existence of reasonable alternatives, Australian courts have not considered the fact of protest to be an additional requirement in cases of economic duress. Rather, it is merely evidence from which it might be inferred that the exertion of illegitimate pressure did in fact influence the plaintiff’s decision to enter into the transaction. Again in Mason v New South Wales, Windeyer J explained:
A protest at the time of payment may of course afford ‘some evidence, when accompanied by other circumstances, that the payment was not voluntarily made to end the matter’ … But there is no magic in a protest; for a protest may accompany a voluntary payment or be absent from one compelled … Moreover the word ‘protest’ is itself equivocal. It may mean the serious assertion of a right or it may mean no more than a statement that payment is grudgingly made.
The truth of this observation and the correspondingly limited role for protest was well expressed more recently by Christopher Clarke J in Kolmar at :
the presence, or absence, of protest may be of some relevance when considering whether the threat had coercive effect. But even the total absence of protest does not mean that the payment was voluntary.
What is the role of good faith in duress?
The final issue to be considered in this post is the relevance of the defendant’s good faith in a claim of duress. This was considered by the parties to Verve Energy to be a key issue before the High Court. But similarly to the facts of protest and ‘no reasonable alternative’, the presence or absence of good faith should be restricted to a supportive, evidential role. This was the approach taken by the WASCA in Verve Energy. In a detailed review of the authorities at –, Murphy JA (with whom McLure P and Newnes JA agreed on this point) rejected Woodside’s argument that threatened or actual breaches of contract might not be illegitimate if made in good faith. The fact that a defendant had acted in bad faith might inferentially support the requirements of illegitimate pressure or causation, but (in the words of McLure P at ) ‘is not a material fact on which the cause of action depends’. It followed that the Woodside’s undisputed belief that it was not acting in breach could not negate the finding of duress.
When duress again comes before the High Court of Australia, it is to be hoped that the core elements of duress — applicable in all contexts, including those of economic duress — will be reasserted and their operation clarified. The test for illegitimate pressure adumbrated by McLure P, which encompasses lawful act duress, is well supported by authority. Indeed, in so far as it draws attention to the very similar approach taken in cognate statutory areas, it actively promotes coherence in the law — recently and repeatedly emphasised by the High Court as an overriding requirement of Australian private law in cases such as Miller v Miller  HCA 9 and Equuscorp Pty Ltd v Haxton  HCA 7. As to the apparent danger of allowing claims of economic duress overly to intrude into commercial negotiations, the law of duress has entirely suitable and existing mechanisms to deal with that problem, without additional and in some cases unjustifiable requirements being introduced into the mix. In particular, as McLure P explained in the Court of Appeal threatened breaches of contract are unlawful and therefore prima facie illegitimate. Where renegotiations of a contract are in play, close consideration of the facts may reveal that the defendant did not threaten to breach the contract, but rather was merely warning of an unavoidable consequence, or making an offer or request. In general, a person issuing a warning has no or little control over the predicted consequences, unlike in the case of a threat. Threats must also be distinguished from requests (where no unwelcome consequence is proposed or consequential upon the request) and offers (in which the proposed consequence is usually welcome) (see Stephen A Smith, ‘Contracting under Pressure: A Theory of Duress’ (1997) 56 Cambridge Law Journal 343). In this context, the presence of reasonable alternatives, protest and the bona fides of the defendant are evidential matters that can helpfully inform the question of whether illegitimate pressure caused the plaintiff to enter into the transaction. They should not be elevated to free-standing requirements of duress.
In concluding this post, what can be accepted as uncontroversial is that, in the event this type of claim again comes before the High Court, the unhelpful language of economic duress should be abandoned. The label has rightly been criticised as suggesting a homogeneous category, whereas cases of economic duress come in countless varieties (see Keith Mason, ‘Economic Duress’ in Simone Degeling and James Edelman (eds), Unjust Enrichment in Commercial Law (Lawbook, 2008) ch 14). Many cases of economic duress involve unlawful threats, such as threats to property (see, eg, Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298) or threats to breach contracts (see, eg, TA Sundell & Sons Pty Ltd v Emm Yannoulatos (Overseas) Pty Ltd (1955) 56 SR (NSW) 323). They can and should be understood by reference to the unlawfulness of the pressure, as explained earlier. Where the pressure is lawful, the question becomes (as explained by McLure P) whether there is no reasonable or justifiable connection between the pressure being applied and the demand which that pressure supports. This clear and principled approach is, it is submitted, the best way forward. Thanks to the outcome in Verve Energy, the opportunity to take that approach remains open in Australia.
AGLC3 Citation: Elise Bant, ‘An Opportunity Saved: Duress in the High Court of Australia: Verve Energy’ on Opinions on High (12 March 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/03/12/bant-verve-energy/>.
Elise Bant is Professor of Law at Melbourne Law School.