The High Court has unanimously allowed an appeal against part of a judgment of the Full Federal Court of Australia, holding that in a case where a defendant had terminated an agreement by deceptive means, the balance of probabilities showed that the defendant would not have used lawful means. The burden of proof thus shifted to the defendant to show that it would in fact have used lawful means, which it failed to establish.
The case involved Securency Pty Ltd (now called CCL Secure Ltd), a company incorporated as part of a 50-50 joint venture between the Reserve Bank of Australia and Innovia Films Ltd, which produced polymer banknotes. They sought to expand the market for polymer banknotes to other countries. They entered into an agreement with Dr Benoy Berry to assist them in their efforts to bring polymer banknotes to Nigeria. Dr Berry and his company GSC entered into an agreement to act as Securency’s agent in negotiations with the Nigerian government. A term of that agency agreement was that Dr Berry and GSC would be entitled to a 15% commission on the net invoiced sales of opacified polymer to the Nigerian government. The agency agreement was to be automatically renewed every two years, unless terminated in accordance with the agreement. Continue reading