Edelman J

Steward J
Gleeson J
Beech-Jones J

59.

relevant class of speculative contracts as those where speculation as to the future

is inherent in the bargain.

159 If the Council's submission were correct then there would be little, if any,
scope for the facilitation principle, since the very circumstances in which it usually
operates are those in which the defendant breaches a contract the consequences of
which involved speculation as to the future, thus making it difficult or impossible
for the plaintiff to prove their loss. Amann Aviation itself involved a speculative
contract in the sense that Amann Aviation could only have speculated about the
possibility of renewal of its contract after three years in circumstances where, if
the contract had not been renewed, Amann Aviation would not have recouped its
pre-operational expenditure spent acquiring and fitting out aircraft.227

160 As already noted, it is unsound to make the operation of the facilitation

principle depend on the subjective intentions of the parties as to whether the
expenditure would be recouped under the contract. Similarly, whilst there might
be doubt about the scope of a category of "purely aleatory" contracts,228 it is
unsound to attempt to identify such categories of contracts as ones to which the
principle does not apply. Many contracts involve risk and are in some sense
speculative. It does not assist to attempt to characterise those contracts as "purely
aleatory" or not. The critical issue is the extent to which the breach causes or
increases uncertainty in the innocent party's proof of loss. For example, where the
defendant's contractual breach is a failure to obtain insurance against a known
event then, in the ordinary course, that breach will not have caused or increased
any uncertainty for the plaintiff in proving loss. If the event occurred, and thus the
risk to be insured against materialised, then the plaintiff can recover as though the
insurance had been obtained. If the event did not occur and the risk did not
materialise then the plaintiff has not suffered any consequential loss. On those
scenarios no question arises of the innocent party recovering wasted expenditure,
such as the premium; the breach did not cause or increase the uncertainty of proof
and the facilitation principle has no role to play.

(iii) The facilitation principle is not confined to "essential" reliance

161 The Council sought to rely upon a distinction drawn by Fuller and Perdue
between two different types of reliance interest that could be protected. The
Council argued that if the respondent were to be facilitated in any aspect of its onus

227 (1991) 174 CLR 64 at 130, 157.

228 Compare The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 88,
citing Aldwell v Bundey (1876) 10 SALR 118.