Mutual Trust and Confidence and Good Faith

Abstract

Abstract This chapter examines the English and Australian emergence and present operation of the duties of mutual trust and confidence and good faith, primarily in respect of employment contracts, but with reference to their potential broader application to contracts for the performance of work. The chapter adopts a substantially similar methodological approach as Chapter 3, tracing the historical origins and current status of both duties in England and Australia, as well as highlighting the peculiar divergences between jurisdictions. It opens with an examination of the origins and current status of the implied duty of mutual trust and confidence in England, and then recounts the possible rise of the mutual trust and confidence duty in Australia, followed by its definite fall following the High Court of Australia’s decision in Commonwealth Bank of Australia v Barker. The mutual trust and confidence duty’s potential application beyond employment in both England and Australia receives dedicated attention. A similar historical analysis of the implied duty of good faith is then engaged in by considering its origins and current status, both in England and Australia. The chapter finishes by canvassing the potential application of a good faith duty beyond employment in contracts for the performance of work in respect of both jurisdictions.