Top 200 Cases

Question 1

There must be an error before an appellate court may overturn a discretionary ruling.

Answer 1

House v The King (1936) 55 CLR 499

Gambling while bankrupt – 3 months hard labour – necessary for efficient litigation.

Question 2

The court may dismiss a case summarily if “manifestly groundless”.

Answer 2

General Steel Industries v Comm’r for Railways (1964) 112 CLR 125

Patent for railway car – Crown immune under Patents Act 1952 (Cth) – requires “great care”.

Question 3

Legislation must be interpreted according to the text, context and purpose of the statue, viewed as a whole.

Answer 3

Project Blue Sky v ABA (1998) 194 CLR 355

Inconsistent sections – 50% Australian content, NZ free-trade – read as whole, international obligations superior.

Question 4

An unexplained failure to call evidence may lead to an inference it would not have assisted.

Answer 4

Jones v Dunkel (1959) 101 CLR 298

Truck collision – defendant driver not called – P’s evidence “more readily accepted”.

Question 5

Ambiguity is necessary before surrounding circumstances can aid interpretation of a contract.

Answer 5

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Injunction to limit work – contract frustrated – controversy over Mason J’s “true rule”.

Question 6

The more serious the allegation, the stronger proof required.

Answer 6

Briginshaw v Briginshaw (1938) 60 CLR 336

Alleged adultery – serious accusation – weak evidence of confession to investigator.

Question 7

A failure to consider all relevant factors makes the administrative decision void.

Answer 7

Minister of Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Grant to aboriginal tribe – didn’t consider detriment to mining operations – decision invalid.

Question 8

Judicial review should not overzealously scrutinise unhappy phrasing in a decision’s reasons.

Answer 8

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Refugee claim rejected – persecution fear not well-founded – ‘decision’, not reasons, under review.

Question 9

Courts have more latitude than tribunals to make mistakes.

Answer 9

Craig v South Australia (1995) 184 CLR 163

No legal representation – trial judge stayed – incorrect, but not “jurisdictional error”.

Question 10

The High Court has entrenched jurisdiction to review for jurisdictional error.

Answer 10

Plaintiff S157 v Commonwealth (2003) 211 CLR 476

Privative clause – but s 75(v) - seperation of powers.

Question 11

To be reviewable under the AD(JR) Act, decisions must be final or substantive.

Answer 11

Australian Broadcast Tribunal v Bond (1990) 170 CLR 321

Licence shareholder misconduct - helped decision licence holder not ‘fit and proper’ – stops pre-mature judicial review.

Question 12

A decision maker must give an opportunity to respond to adverse information.

Answer 12

Kioa v West (1985) 159 CLR 550

Alleged illegal immigration ringleader – no opportunity to respond – natural justice / procedural fairness.

Question 13

Appellate courts can only set aside findings of fact if glaring improbable or erroneous.

Answer 13

Fox v Percy (2003) 214 CLR 118

Car and horse collided – which was on wrong side of road – skid marks proved trial judge wrong.

Question 14

Estoppel is available for a gratuitous promise made outside a contractual relationship.

Answer 14

Commonwealth v Verwayen (1990) 170 CLR 394

Represented would not rely on limitation period – withdrawn – 4 (estoppel), 2 (waiver).

Question 15

The successful party is usually entitled to costs, but it is a matter of discretion.

Answer 15

Ohlack v Richmond River Council (1998) 193 CLR 72

Endangering koalas – public interest, arguable case, community concern – plaintiff lost, but no costs order.

Question 16

Late, unexplained leave to amend pleadings may be refused on “case management” grounds.

Answer 16

Aon Risk Services v ANU (2009) 239 CLR 175

New defence on Day 4 – no explanation for delay – public confidence requires efficient use of public resource.

Question 17

A decision can be quashed if so unreasonable no reasonable person could have made it.

Answer 17

Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223

Children under 15 not permitted on Sunday – must be “overwhelming” – not made out.

Question 18

“But for” is relevant to causation, but it is ultimately a matter of common sense.

Answer 18

March v Stramare (1991) 171 CLR 506

Intoxicated driver – negligently parked truck – both a cause.

Question 19

Breach of duty requires asking:

(1) was the risk foreseeable?
(2) what would a reasonable person have done in response (given likelihood, seriousness, cost and other duties)?

Answer 19

Wyong Shire Council v Shirt (1980) 146 CLR 40

Deep water sign - intended as border - water actually shallow.

Question 20

To imply a term into a formal contract, it must be (1) reasonable and equitable (2) necessary for business efficacy (3) obvious (4) capable of clear expression (5) consistent with written terms.

Answer 20

BP Refinery (Westernport) Pty Lyd v Shire of Hastings (1977) 180 CLR 266

Decentralisation scheme - preferential local rates - implied term that sucessor company could benefit.

Question 21

Unconsciousble departure from a promise can be estopped, in essence enforcing the promise.

Answer 21

Walton Stores v Maher (1988) 164 CLR 387

Sent contract - was told mere formality - when demolition 40% done withdrew.

Question 22

A party will be estopped from raising issues it unreasonably failed to raise in earlier proceedings.

Answer 22

Port of Melbourne Authority v Anshun (1981) 147 CLR 589

Injured worker – both liable – Port didn’t rely on contractual indemnity first time.

Question 23

It is unconscionable conduct to take unfair advantage of a special disability.

Answer 23

CBA v Amadio (1983) 151 CLR 447

Son misrepresented limit – no independent advice – bank knew, took guarantee anyway.

Question 24

Fiduciary and contractual relationships can co-exist, but a fiduciary relationship is unlikely in an arms-length deal.

Answer 24

Hospital Products v USSC (1984) 156 CLR 41

Australian distributor – copycat product, stole customers – no fiduciary, but breach of pre-contractual promise.

Question 25

The plaintiff must **clearly justify** extending the limitation period.

Answer 25

*Brisbane South Regional Health Authority v Taylor* (1996) 186 CLR at 541 Unnecessary hysterectomy in 1979 – deterioration in evidence often unobservable – whole quality of justice deteriorates.

Question 26

Prospective economic loss is not actionable, nor does it trigger the limitation period.

Answer 26

*Wardley Australia v Western Australia* (1992) 175 CLR 514 Wardley misrepresented Rothwells' solvency – loss arose when indemnity called – not when indemnity given.

Question 27

A contract means what a reasonable person would take it to mean, after: 1. reading the **text**, and 2. knowing the **surrounding circumstances**, **purpose** and **object** of the transaction.

Answer 27

*Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd* (2004) 219 CLR 165 Toll carried vaccines – damaged – plaintiff did not read exemption before signing.

Question 28

The Australian common law recognises the doctrine of **native title**.

Answer 28

*Mabo v Queensland (No 2)* (1992) 175 CLR 1 Torrens Strait island – continuing possession – not extinguished by annexure to colony of Queensland.

Question 29

Appeal courts should not set aside credibility findings **simply because** the **probabilities of the case** appear to be against it.

Answer 29

*Devries v Australian National Railways Commission* (1993) 177 CLR 472 Back injury – using tie tamper – inconsistent statement from hospital.

Question 30

For informal contract, terms may be implied if necessary for the r**easonable or effective operation** of the contract.

Answer 30

*Byrne v Australian Airlines Ltd* (1995) 185 CLR 410 Baggage handler – pilfering –award terms requiring natural justice not implied into contract.

Question 31

**Intention is not required** for misleading or deceptive conduct.

Answer 31

*Parkdale Custom Built Furniture v Puxu* (1982) 149 CLR 191 Famous 'Contour' range – similar competitor released, but clearly labelled – maybe IP breach, but not MDC.

Question 32

A judge is disqualified if a **fair-minded lay observer might reasonably apprehend** the judge would not bring an impartial mind to the resolution of the case.

Answer 32

*Ebner v Official Trustee in Bankruptcy* (2000) 205 CLR 337 Claw back property for creditors – ANZ a creditor – judge had ANZ shares.

Question 33

An expert **must explain their reasons**, to allow the tribunal of fact to evaluate the opinion expressed.

Answer 33

*Makita (Australia) v Sprowles* (2001) 52 NWSLR 705 Allegedly slippery steps – expert confirmed – but scant reasoning.

Question 34

Leave to **raise a new argument on appeal** will usually not be granted, if evidence could have been given at trial to contradict it.

Answer 34

*Coulton v Holcombe* (1986) 162 CLR 1 Argument over how water should be diverted – overlooked one point at trial – would reduce trial to a “*preliminary skirmish*”.

Question 35

Courts may **stay proceedings** where an accused is **unrepresented**, if it would result in an unfair trial.

Answer 35

*Dietrich v The Queen* (1992) 177 CLR 292 Exhaustive efforts to get legal aid – unrepresented at trial – importance of ensuring *‘fair trial’*.

Question 36

Judicial review concerns the **legality** of a decision, not its **merits**.

Answer 36

*Attorney-General (NSW) v Quin* (1990) 170 CLR 1 Abolished Court of Petty Session – Quin not selected for new Magistrates Court – *‘merits of [decision]…are for the repository of the power'alone'*

Question 37

In the tort of deceit, **detrimental reliance may be inferred** by entering the contract after the misrepresentation.

Answer 37

*Gould v Vaggelas* (1984) 157 CLR 215 Tourist resort – misrepresented profitability – suffered loss.

Question 38

A court should modify: * hypothetical past damages; or * future damages, by the probability that something would have occurred or might occur.

Answer 38

*Malec v JC Hutton* (1990) 169 CLR 638 Brucellosis – can cause depression and back pain – but 60% chance would have happened anyway.

Question 39

Equity may impose a constructive trust to recognise the **unequal contributions to the blameless failure** of a joint venture.

Answer 39

*Muschinski v Dodds* (1985) 160 CLR 583 Tenants in common – planning approval not given, insufficient funds – discontinued, split, M had contributed 90%.

Question 40

Privative clauses exclude judicial review if the action was b**ona fide and apparently within power**, but not where the action was beyond jurisdiction.

Answer 40

*R v Hickman; E parte Fox and Clinton* (1945) 70 CLR 598 Coal mining Reference Board – made award about truck drivers that occasionally delivered coal – beyond jurisdiction.

Question 41

Unincorporated treaties can give rise to a “**legitimate expectation**”. A decision maker must give a hearing before making any contrary decision to it.

Answer 41

*Minister for Immigration and Ethnic Affairs v Teoh* (1995) 183 CLR 273 Father of three children – heroin trafficker – not given sufficient chance to make submissions on impact to family.

Question 42

Costs are not intended to punish. They are **compensation** for the expense of legal proceedings.

Answer 42

*Latoudis v Casey* (1990) 170 CLR 534 Oakleigh theft of motor car – acted suspiciously, but ultimately no evidence – Magistrate disallowed costs, HCA overturned.

Question 43

**Seriously considered dicta** of the High Court should be followed by lower courts, and intermediate courts of appeal should follow each other unless convinced ‘*plainly wrong*’.

Answer 43

*Farah Constructions v Say-Dee Pty Ltd* (2007) 230 CLR 89 JV to develop land – one party purchased adjacent land to improve prospects of council approval – done with consent.

Question 44

An agreement may be binding notwithstanding it **contemplates later formal documentation**, depending on the intention of the parties.

Answer 44

*Masters v Cameron* (1954) 91 CLR 353 Sale of WA farm – ‘*subject to preparation of a formal contract of sale*’ – no intention.

Question 45

A person cannot be knowingly concerned in a contravention of the ACL unless they have **knowledge of the essential facts**.

Answer 45

*Yorke v Lucas* (1985) 158 CLR 661 Business purchase – false turnover representations – director (Lucas) not aware, made sufficient inquiries.

Question 46

To challenge a witnesses’ evidence, you must put the **grounds of the challenge** to the witness in cross examination.

Answer 46

*Browne v Dunn* (1893) 6 R 67 Letter of retainer – suggested signatures were false in closing – did not put this to witnesses.

Question 47

Every person has a **duty of care** to avoid acts or omissions which could foreseeably injure others.

Answer 47

*Donoghue v Stevenson* [1932] AC 562 Ginger beer – decomposing snail – Lord Atkin’s “*neighbour*” principle.

Question 48

It is an abuse of process to institute proceedings for a **predominantly extraneous purpose.**

Answer 48

*Williams v Spautz* (1992) CLR 509 Fired academic – instituted criminal defamation proceedings – trying to pressure university to reinstate.

Question 49

**Control** distinguishes an **employee** from **subcontractor**, and totality of the relationship.

Answer 49

*Stevens v Brodribb Sawmilling* (1986) 160 CLR 16 Orbost sawmill – injured loading truck – own equipment, hours, free to work elsewhere if no work available.

Question 50

Estoppel representations must be **clear** and **unambiguous**.

Answer 50

*Legione v Hateley* (1983) 152 CLR 406 Purchase of land – requested late settlement – secretary: *‘that should be ok’*

Question 51

Damages put the plaintiff back in the position had the breach not occured.

Answer 51

*Commonwealth v Amann Aviation Pty Ltd* (1991) 174 CLR 64 Quarantine surveillance – wrongly terminated – damages granted assuming would win further contract.

Question 52

Before granting an injunction, the plaintiff must show: ## Footnote (a) they have an arguable case for trial; (b) not granting the injunction will cause damage, even if they later win.

Answer 52

*ABC v O’Neill* (2006) 227 CLR 57 Convicted murderer – ABC documentary –injunction not to air pending defamation case.

Question 53

A party may recover for **pure economic loss** for negligent advice.

Answer 53

*Hedley Byrne & Co Ltd v Heller* [1964] AC 465 Customer solvency – sought advice from bank – bank disclaimed liability.

Question 54

The public interest immunity balances two principles – safeguarding Australia’s interests, and the truth.

Answer 54

*Sankey v Whitlam* (1978) 142 CLR 1 Loans Affair – private prosecution – no continuing need to withhold.

Question 56

The *Bolam* test has no application in a **failure to warn** case.

Answer 56

*Rogers v Whitaker* (1992) 175 CLR 479 Surgery to correct blind eye – 1 in 14,000 chance of damage to other eye – negligent.

Question 57

A court has a **discretion** to exclude illegally obtain evidence, to prevent condoning illegaility.

Answer 57

*Bunning v Cross* (1978) 141 CLR 54 Clearly drunk driver – skipped preliminary roadside breath test – bought directly to station.

Question 58

**Loss of chance** is actionable damage under the ACL.

Answer 58

*Sellars v Adelaide Petroleum NL* (1994) 179 CLR 332 Draft contract with A to inject capital – induced away – lost chance of favourable contract.

Question 59

Strangers must account for fiduciary property if they: (a) knowingly **receive** it; or (b) knowing **assist** in a breach.

Answer 59

*Barns v Addy* (1874) LR 9 CH App 244 Trustee misapplied property – solicitor drafted deed – but did not suspect wrongdoing.

Question 60

State Supreme Courts have an entrenched power to correct jurisdictional error.

Answer 60

*Kirk v Industrial Court of New South Wales* (2010) 239 CLR 531 Farm manager killed – convicted despite irregularities – ‘*IRC decisions are final’*.

Question 61

Rejecting a genuine compromise and receiving less than it at trial may have cost consequences.

Answer 61

*Calderbank v Calderbank* [1975] 3 WLR 586 Married breakdown – wife offered husband $12,000 house to settle – husband got $10,000 at trial.

Question 62

Courts have a discretion to award costs against non-parties to litigation.

Answer 62

*Knight v FP Special Assets Ltd* (1992) 174 CLR 178 Insolvency dispute – company insolvent – receivers ordered to pay costs.

Question 63

Care should be taken against appeals of fact disguised as alleged errors of law.

Answer 63

*Azzopardi v Tasman UEB Industries* (1985) 4 NSWLR 139 Worker’s knee injury – two year delay in report – Magistrate found not work related.

Question 64

A statute is presumed not to have retrospective application.

Answer 64

*Maxwell v Murphy* (1957) 96 CLR 261 ## Footnote Husband kill by car – wife had twelve months to sue – missed, but legislation extended to six years.

Question 65

Ratification of a treaty empowers the Commonwealth to pass any law necessary to carry it out.

Answer 65

*Tasmania Dams Case* (1983) 158 CLR 1 Franklin Dam – World Heritage site – vigorous national debate.

Question 66

Privilege is not established by any *'formula or ritual' ,*and a court has the power to inspect a document to determine if it is privileged.

Answer 66

*Grant v Downs* (1976) 135 CLR 674 Mental patient escaped - died from exposure - report produced for legal advice, but also for internal inquiry (not 'sole purpose').

Question 67

The government may claim legal professional privilege.

Answer 67

*Waterford v Commonwealth* (1987) 163 CLR 54 Journalist – wanted Treasury projections for welfare spending – government sought legal advice.

Question 68

Apportionment requires weighing; * culpability; and * causative contribution.

Answer 68

*Podrebersek v Australian Iron & Steel Pty Ltd* (1985) 59 ALJR 492 Gas explosion – employee inserted pin unsatisfactorily – 90% responsible.

Question 69

Privilege can be waived by behaviour **inconsistent** with it.

Answer 69

*Mann v Carnell* (1999) 201 CLR 1 ACT Government – shared legal advice with MP – to show litigation against Dr Mann was reasonable.

Question 70

The normal measure of damages for MDC is **tort**.

Answer 70

*Gates v City Mutual Life Assurance Society Ltd* (1986) 160 CLR 1 Mislead about coverage – but received value – no other counterfactual, so no loss.

Question 71

The right to recovery a quantum meruit does not rest on contract, but on **restitution or unjust enrichment.**

Answer 71

*Pavey & Matthews Pty Ltd v Paul* (1987) 162 CLR 221 Oral building agreement – unenforceable – not reliant on contract.