Edelman J

Steward J
Gleeson J
Beech-Jones J

26.

67 Although there was some disagreement between the parties about the effect
of the decision in The Commonwealth v Amann Aviation Pty Ltd,101 the
respondent's reliance on the principle that permits facilitation of its proof of the
position that it would have been in if the contract had been performed is broadly
consistent with the reasoning of Mason CJ and Dawson J, as well as Deane J, who
spoke of the principle as a "presumption" in favour of the plaintiff, with Brennan J,
who spoke of it as a "reversal of the onus", and with Toohey J and Gaudron J, who
spoke of it as placing an "evidentiary onus" on a defendant. The description
"facilitation principle" emphasises that the principle is not rigid. All the
circumstances must be considered and the strength with which the principle applies
to facilitate a plaintiff's proof by treating reasonably incurred, but wasted,
expenditure as likely to be recouped will depend upon the extent of uncertainty
caused or increased by the defendant's breach. In this case, there was considerable
uncertainty as a result of the Council's breach. The principle was correctly applied
by the Court of Appeal. The appeal should be dismissed with costs.

Background

The Council awards a tender for development of the airport

68 The appellant is a local council which owns land on which the Cessnock
Airport is located. The Cessnock local government area, as described by the
Council, is "within relatively easy driving distance from Sydney, Newcastle and
the Coast" and includes the Hunter Valley wine growing area, "Australia's oldest
wine region and one of the most famous". The wine industry employed 2,500
people and the region recorded 737,240 visitors in 1994.

69 In 1998, the Council requested expressions of interest for the development

and management of the airport. The Council explained in the request that the
airport was located in the "rapidly developing Vineyards area of the Lower Hunter
Valley" and that it was one of only two airports in the lower Hunter Valley. The
Council said that it considered the airport to have "significant potential to
accommodate expanded operations for light RPT/Commuter, charter, general
aviation and sports aviation traffic".

70 The request for expressions of interest contained a "Cessnock Aerodrome

Development Plan". In that development plan, the Council explained that among
its proposals was a lengthened runway to accommodate significantly larger, long-
range aircraft, an upgrade of terminal facilities for regular passenger and charter

101 (1991) 174 CLR 64 at 87-89, 94, 106, 126-128, 131, 142, 156. See also Berry v CCL
Secure Pty Ltd (2020) 271 CLR 151 at 169-170 [29].