- Strict Liability

- Absolute liability
- Strict and Absolute liability and the Charter
Reference re Motor Vehicle Act, SDC
396-404
Wholesale Travel Group Inc, SDC 383390, 409-416

Canadian Criminal Law

History and Scheme of Criminal Law in Canada:
- Federal matter in Canada- Historically has to do with Quebec,
when it was conquered, the Brits imposed British law, after a few
years they gave back Quebec French civil law, but not criminal
because they wanted to maintain the English line of crime, in order
to keep the French Quebec in line.

3)

Onus: On P to prove elements 1-3 on a balance of probability

Quigley v Commonwealth

ELEMENTS OF AN OFFENCE
1. General principles
- Principles of fault
- Principles of proportionality
2. Actus Reus and Mens Rea
- The concepts
- Forms of Mens Rea: Subjective and
Objective
Sault Ste Marie, SDC 374-383
Hundal, SDC 531-537 (judgment of
Cory J only)
- Voluntariness as the Mental Element in the
Actus Reus
Theroux, SDC 365-366
3. Classification of Offences
- True Crimes: Presumption of Mens Rea
Beaver, SDC 368-374
Pappajohn, SDC 596-608
- Regulatory Offences: Strict and Absolute
liability
Sault Ste Marie, SDC 374-383
4. Mens Rea and the Charter
- The Proportionality Principle
- The Subjectivity Principle
Vaillancourt, SDC 434-443
Martineau, SDC 455
Hundal, SDC 531-537 (judgment of
Cory J only)
4. Partial Mens Rea
- The Symmetry Principle
- Predicate offences
- Partial Mens Rea and the Charter
DeSousa, SDC 558-566
Creighton, SDC 567-574
4. Strict and Absolute liability

Required Elements:
1) Cause of Action an act which causes harm, whether
intentional or not, not being a breach of duty arising out of a
personal relation or contract, and which is either contrary to
law, or an omission of a specific legal duty, or a violation of an
absolute right. For most torts, mere proof of the cause of action
entitles a plaintiff to at least nominal damages.
2)

Causation Traditional test is for P to prove that harm would

not have occurred but for the tort Barnett v Chelsea
Hospital. However, is generally used as a rule of thumb
Alexander v Cambridge Credit Corporation Ltd. It may also
take into consideration new intervening acts (novus actus
interveniens) Haber v Walker. There five problems with but
for test:
a) Identifying correct defendant Fairchild v Glenhaven
Funerals
b) Proving probabilities OK when applied to past events,
but issues arise when applied to future probable events
Hotson v East Berkhsire AHA
c) Contributory Negligence of P Leads to last opportunity
rule; as an exception, P can recover from D, if s/he had last
opportunity to prevent damage. Also may lead to agony of
the moment rule; if P panics at the last second, P can still
recover. March v Stramare
d) Concurrent Causes Joint tortfeasor is someone who
works with another to commit fraud on someone else;
Concurrent tortfeasor are individuals who act differently,
but at the same time.
e) Successive Causes A second event does not prematurely
curtail extent of liability Baker v Willoughby; but with
concurrent causes, they both pay theyre proportion of the
loss, especially if you can prove that it affects your
fortunes in the future. This comprises one of the
4)
vicissitudes of life Faulkner v Keffalinos.
If question is post 2002, mention that but for is reinforced by:
Civil Liability Act 2002, s.11
(1) A decision that a breach of duty caused particular harm
comprises the following elements
(a) the breach of duty was a necessary condition of the
occurrence of the harm (factual causation)

Remoteness the need to balance the just expectation of

compensation on the part of P, and the unfairness of the burden
of disproportionate liability placed on D when something
unexpected happens. Two tests were used to measure this:
a) Polemis tests referred to as direct causation test. Here,
D was liable for all damages flowing directly from the
wrongful act. Traditionally, applied under cases of
nuisance.
b) Wagon Mound test for actions in negligence, PC applied
a new test of reasonable foreseeability

Scope of Foreseeability developed in negligence, but

may also apply to trespass and nuisance. Polemis however,
still applies to deceit, malicious falsehood.
According to the Egg-Shell Skull rule, the tortfeasor
takes his/her victim as they find them. If P had more
serious injury due to previous injury, then D can
claim it was not foreseeable. Therefore serves an
exception to the reasonable foreseeability test.
Foreseeability applies to kind of damage, not extent
Hughes v Lord Advocate.
Unusual types of Harm
Pure psychiatric harm originally no damages for
nervous shock Coultes v Victorian Rlwys. Eggshell skull rule shouldnt apply under circumstances
of nervous shock; since you can only claim loss for
what person of normal fortitude would claim. Tame
v New South Wales.
Pure economic loss Traditionally no recovery of
pure economic losses caused by negligence (e.g. loss
of income, profits, interest). In subsequent UK cases,
to be liable you must be in business of giving advice
or represent special skill & competence.

Civil Liability Act 2002, s.11

(1) A decision that a breach of duty caused particular harm
comprises the following elements
(b) it is appropriate for the scope of the liability of the
person in breach to extend to the harm so caused
(scope of liability)
Mitigation P has a duty to take reasonable steps to mitigate
the loss. Onus of proof on D. Cost of mitigation is recoverable
as damages. You must have also taken reasonable steps
judged by person in Ps circumstances Glavonjic v Foster.
In personal injury cases for instance, D might have damages
reduced if s/he proves that P refused medical treatment which
would have alleviated the harm. In defamation, D may mitigate
damages by an offer of amends via. publishing an apology.

If I can claim damages (Assessment)

5)

Griffiths v Kerkemeyer, s.59 of CLA (only get market

price of what theyre doing)

f)

Loss of expectation of life Such damages are awarded

for the loss of prospective happiness in the period by
which the injured persons life has been shortened
Benham v Gambling.

g)

Wrongful birth, conception, life

i) Wrongful Birth By parents of child born with
congenital defects Velvers v Connolly.under causation
theory, if you can prove you would have gotten
abortion, then doctor was negligent and so you can
claim.
ii)Wrongful Conception By parents of healthy but
unplanned child Cattanach v Melchior. Civil liability
statues, eg. S49A & 49B.
iii) Wrongful Life By disabled child Hamilton v
Stephens.

Damages (Quantum) Issues focus on:

b)

Damages for personal injury and defamation are assessed at the date
of judgement.
Once-and-for-all rule periodic payments cannot be given,
and a second claim cannot be made for continuing damage
Fitter v Veal. However, there are four exceptions:
1)
2)
3)
4)

In rare cases, an appellate court my substitute its own

award after hearing evidence of something which has
altered the basis of the award of the court below.
If there are diff causes of action, once-and-for-all rule
does not apply, even if the causes of action arise out of the
same event Brunsden v Humphrey
Where the tort is a continuing one (ie. recurring nuisance
or trespass)
Where there are many statutory exceptions ss 22-26 of
CLA 2002

To calculate, the amount P is losing after income tax (net

value per week at the date of trial), and apply that figure
to the period for which the wage or salary loss is likely to
continue.
In negligently inflicted personal injury cases, the court is
required to disregard earnings above a limit fixed at
three times average weekly earnings in all jurisdictions
except Tasmania, where it is 4.25x AWE. Courts will then
discount it by 5% at the date of verdict, and reduce the
sum by 5-20% to take account of the vicissitudes of life
(ie. possible periods of unemployment, leave, illness,
accident) Tadorovic v Waller

Special Damages refers to an amount awarded for monetary

loss actually suffered and expenditure actually incurred up to the
date of judgement.
1)

2)

Personal Injury cases examples include out-of-pocket

expenses such as medical and surgical fees paid or
payable, ambulance and hospital expenses Sherman v
Evans, and loss of income up to the date of the verdict.
Compensation for lost earnings or lost capacity, which are
calculated on basis of pre-accident after tax-earnings. If
part-time/not working, assessed on those, unless you can
show that you would have returned to work. Calculation is
relative easy for pre-trial loss, but difficult for post-trial.
Civil Liability Act caps how much you can claim by 3x
average weekly earnings.

Future economic loss and lost earning capacity A P in an

action in negligence is not entitled to recover damages for
loss of earning capacity unless they show that the earning
capacity was diminished as a result of the negligence, and
that they have suffered an actual economic loss or loss of
earnings Medlin v State Government Insurance
Commission (professor injured by motor vehicle accident,
and forced into early retirement because pain and
suffering hindered his ability to perform at his best).

Like most general damages, estimate based on past history

of employment, skills and abilities, chances and
disabilities likely to be experienced (vicissitudes of life)
Wynn v NSW Insurance Corp. Where life will be shorter
because of injury, you can only claim excess over
expenditures since living costs would be lowered
Sherman v Evans.
c)

Defamation Libel (publication in permanent form) is

actionable at common law w/o proof of special damage. In
most Australian jurisdictions, slander is now actionable
without proof of damage

Domestic Services & Support Damages for lost capacity

to perform domestic household services Hodges v Frost.
You can also claim for loss of support where injury causes
breakdown in relationship/marriage (must prove
relationship would have continued) Hines v
Commonwealth

NON-ECONOMIC LOSS (see Quantum Tables)

General Damages may be presumed to be the direct, natural
probable consequence of the tortious wrong. They are not
capable of precise math calculations;
calculations and are awarded not just
for the period before the verdict, but future as well.

d)

1) Personal injury cases

a)

Future Medical Expenses and Gratuitous Services P

entitled to recover as general damages the future costs of
hospital, medical, nursing services - Sherman v Evans,
and home care even if they are offered gratuitously

e)

Loss of amenities and enjoyment of life Awarded both

objectively for the actual loss suffered, and subjectively
for the plaintiffs sense of the loss. Thus, where P is likely
to be unconscious until death, the amount awarded will be
small in view of the lack of understanding of the loss
Skelton v Collins
Pain and suffering: past and future P entitled to be
compensated; courts mean actual physical or mental pain
Skelton v Collins

h)

Wrongful death If potential P died, cause of action died

with them; nor any claim for wrongful death by relatives.
It was later amended in 1846 by Lord Campbells Act
(UK), followed in all Australian states. Provisions include
survival of actions for the estate of the deceased, and
actions by certain relatives for wrongful death.
i) Survival of actions cause of action survives, but
excludes: loss of future earning capacity, pain &
suffering (including disfigurement), loss of amenity
and loss of expectation of life. This leaves,
medical/hospital expenses incurred before death, loss
of earning capacity until death & funeral expenses.
ii) Wrongful death claims According to s17 and s18
Supreme Court Act (Qld), D shall be liable to an
action brought by estate for benefit of spouse, parent
and child proportioned to the injury resultingto the
parties respectively. Divided amongst parties in such
shares as jury shall direct.

2) Loss of an opportunity or chance general damages may be

available, provided chance was not negligible or speculative
Malec v J C Hutton Pty Ltd. Courts reluctant for recovery of
lost chance in medical negligence cases, but will make
exceptions Rufo v Hosking.
3) Defamation usually assessed at large (ie. loss of reputation,
injured feelings, bad or good conduct by either part, or
punishment) Broome v Cassell & Co Ltd.
4) Collateral benefits and set-offs
a) Workers Comp - As a general principle, shouldnt be
compensated twice for same loss (e.g. cant get damaged for
lost earning capacity if getting sick pay or gratuitous wages
from employer). There are two exceptions however
Redding v Lee; 1) insurance contract taken out before loss
occurred, if payable irrespective of any legal claim, 2) gifts

b) Other benefits - Workers compensation payments deducted if

action for damages is against employer, but is not deducted if
work related injury not caused by fault of employer. The
Social Security Act provides for discontinuation of benefits
after compensation is paid.
5) Interest on damages Historically, interest too remote, but CL
& legislation changed this. Supreme Court provided a rate of
6% in personal injury claims, but doesnt apply to future losses
and non-economic losses.
i) Deduction for PNV In awards for future, P gets lump
sum; however it is received based on current value, since
adjustments need to be made on inflation and income tax.
The Supreme Court Act (Qld) allows for 5%.

ii) Taxation Courts use after tax amount when calculating

lost earning capacity Cullen v Trappell. Damages for noneconomic loss (paid and suffering, loss of amenities, etc)
are not taxable Income Tax Assessment Act (Cth)
Aggravated Damages given to compensate the P when the harm
done to him by a wrongful act was aggravated by the manner in
which the act was done Uren v John Fairfax & Sons Pty Ltd
Exemplary Damages intended to punish the D, and presumably to
serve one or more of the objects of punishment moral retribution
or deterrence. Uren v John Fairfax & Sons Pty Ltd
DAMAGES IN CONTRACT
Elements:
1) Cause of Action Usually a breach. Termination is not required
for P to claim damages unless there is an anticipated breach, or
expectation for loss of bargain damages Sunbird Plaza Ltd
Mahoney

recover for any normal business profits that would have

arisen naturally from the breach H Parsons (Livestock) Ltd
v Uttley Ingham & Co.
b) Second Limb test is contemplation. Can it reasonably be
assumed to be within parties actual
knowledge/contemplation of special circumstances
Panalpina International Transport Ltd v Densil Underwear
Ltd.
4) Mitigation P not entitled to compensation for loss which could
have been avoided. S/he must have taken reasonable steps; but
need not embark on risk ventures Lucy v Commonwealth
(employer did not have to pay full salary because during that
period, employee could have gotten another job). Burden of proof
on D to prove failure to mitigate.
If the defendants breach enables the plaintiff to obtain benefits
not otherwise available, the plaintiffs gain reduces the
defendants liability British Westinghouse Electric &
Manufacture Co Ltd v Underground Electric Railways Co of
London
Where, prior to due date for performance, it is clear D will not
perform (anticipatory breach), innocent party must exercise
choice to affirm or terminate contract. If they terminate, they
have an immediate duty to mitigate their loss Shindler v
Northern Raincoat Co Ltd,, but if they affirm, no duty to mitigate
arises because the contract is not at an end. White & Carter
(Councils) v McGregor (put advertisements on side of litterbin,
paid other party for space).
Quantum of damages may differ between affirmation and
accepting repudiation. If buyer accepts anticipatory breach, the
buyer may in attempt to mitigate loss, buy substitute goods. If
goods drop in value by date of performance, buyer will still
recover as damages the higher cost, as long as their mitigation
attempt was reasonable. In affirmation however, because there is
no duty to mitigate, P does not need to consider offers of
alternative performance White & Carter Ltd v McGregor..

expenses for food poisoning). Historically, mental distress,

hurt feelings, loss of reputation, etc, not claimable Addis v
Gramophone Co Ltd (P only awarded for loss of salary).
i) Mental Distress Exception Denning LJ suggests an
exception in Jarvis v Swans Tours Ltd
b)

c)

Damage to Reputation Ruled out in Addis v Gramophone

Co Ltd (held to be recoverable only in tort for defamation),
but examined in Flamingo Park Pty Ltd v Dolly Dolly
Creations Pty Ltd.
Ways of calculating amount
i) Expectation Interest Common method, usually measured
by profit element of what P would have received if
performed property. Usually calculated by reference to
market value - Cth v Amann Aviation
ii) Reliance Interest If reasonable incurred after contract,
but before breach McRae v Cth Disposals Comm If D
thinks youve entered into a poor contract, then onus is on
them to prove they would not have experienced recovery
of expenses Cth v Amann Aviation
iii) Restitution Interest Claim to get back what you have
performed. D has a benefit in circumstances where it
would be unjust to allow D to retain it at Ps expense
Heywood v Wellers (solicitors fee returned for bad
handling of case)
iv) Indemnity Interest Similar to tort claim for expenses
arising directly or naturally from the breach which are not
part of the contract or necessary for performance
(consequential damages) Woolsworths Ltd v Crotty
(damages awarded where defective light bulb resulted in
death, no tort established since no negligence was alleged
or proven).
Double Recovery You cannot claim two at the same
time, but it is possible to claim both expectation and
reliance damages McRae v Commonwealth Disposals
Commission

2) Causation But for test also used Reg Glass v Rivers

Locking Systems. However, courts now recognise that, when
v) Loss of an Opportunity or Chance difficult to prove
considering multiple causes or intervening events, the test is
An
innocent
party
may
affirm
the
contract
by
seeking
specific
chance would have occurred; difficult to quantify
inadequate.
performance
instead
of
accepting
the
repudiation
by
terminating
amount. In contract, courts generally treat it as a loss
a) Contributory Negligence If P is negligent, this may satisfy
the contract.
caused by the breach and take a guesstimate of the
the court that the chain of causation between the defendants
amount that the lost chance is worth Howe v Teefy
breach of contract and the plaintiffs loss has been broken
If I can claim damages
(prior to contract ending, race horse trainer pulled out;
Lexmead (Basingstoke) Ltd v Lewis.
jury awarded 250 since the loss of winning was too
b) Intervening Events Whether an intervening event breaking
5)
Damages
(Amount)

Assessed
at
date
of
breach,
but
flexible

variable).
the chain of causation between the Ds breach of as a cause
Johnson v Perez. Interest on damages from time they occur until
has been held to be determined by a consideration of whether
judgement executed (CL & Statue). If damage awarded would
6) Introducing a special case misrepresentation remedies for
the event was reasonably foreseeable by the D Monarch
be taxable (eg. Profit), courts would award gross amount without
untrue statements may induce the contract without being a term.
Steamship Co Ltd v Karlshamns Oljefabriker A/b
deductions.
May also depend on state of mind; could have been innocent,
negligent, or fraudulent. Negligence becomes fraud when there
3) Remoteness Hadley v Baxendale test
a) Non-economic loss No punitive or exemplary damages in
is a reckless indifference as to the truth of the statement. If a
a) First Limb test is reasonable foreseeability. Would a
contract.
Physical
injury
caused
by
breach
of
contract
is
reasonable person wouldnt believe it, it would be negligence.
reasonable person have foreseen it as a natural consequence
generally translated into an economic loss (eg. Hospital
(whether or not the parties themselves foreseen it). You can

RESTITUTION
Restitution usually involves unfair situations; seeking return of
something you perform, thus reversing a gain. Unjust enrichment is
when there is a receipt by D of some benefit or gain, at expense of P,
where unjust of D retains it.

d) Recovery of money acquired by tort available where amount

acquired by tortfeasor is greater than loss suffered by victim
Lamine v Dorrell. Waiver of tort has been allowed in cases of
trespass to goods, goods obtained by deceit, and in trespass to
land involving the removal and sale of coal.

plaintiffs acts, a realisable financial gain McKeown

v Cavalier Yachts Pty Ltd.
*Only when there has been no request or free-acceptance

Measure of Restitution
Quantum meruit & valebat Quantum meruit (as much as he
a) Actions for money had and received In actions for money had
deserved) lies to recover reasonable remuneration for services
and received, the measure of restitution is simply the amount of
Some restitution claims arise without contract. If contract exists, it
money had and received by the defendant.
governs relationship. Where a contract is discharged, unenforceable supplied by the plaintiff to the defendant; Quantum valebat (as
much as it was worth) lies to recover a reasonable price for goods
or void, there may be a claim in restitution. However, there can be
b) Actions for quantum meruit
no double recovery (ie. full expectation plus full restitution) Baltic supplied by the plaintiff to the defendant.
i) Cases of request and free acceptance Ordinary measure of
Shipping Dillon
a) Request and free acceptance an obligation to pay for a nonrestitution in quantum meruit claims will be the fair value of
gratuitous benefit only arises if the defendant either requested
the benefit provided (eg. Remuneration calculated at a
Elements
the benefit, or freely accepted it Sumpter v Hedges. Free
reasonable rate for work actually done or the fair market value
1) Receipt by the defendant of a benefit;
acceptance occurs when the defendant as a reasonable man,
of materials supplied). The time for valuation is when the
2) at the plaintiffs expense; and
should have known that the plaintiff who rendered the
benefit was conferred Pavey & Matthews Pty Ltd v Paul.
3) in such circumstances that it would be unjust to allow the
services expected to be paid for them, and yet D did not take
ii) Case of incontrovertible benefit If the recipient simply does
defendant to retain the benefit
a reasonable opportunity open to him to reject the proffered
not want the service, it is irrelevant to him or her that a market
services.
value can be ascribed to the service. However in cases of
Money Had & Received To recover money paid by
incontrovertible benefit, where D has made, in consequence of
a) Duress
b) Unenforceable contracts In contracts that are unenforceable,
the plaintiffs acts, a realisable financial gain, recovery should
restitution might be available Pavey Matthews Pty Ltd v
be limited to the defendants actual benefit, as distinct from
b) Mistake
Paul (courts agreed that contract wasnt enforceable since it
the reasonable value of the plaintiffs performance BP
- basis of action is unjust enrichment ANZ v Westpac
wasnt in writing (s45 of Builders Licensing Act), but you
Exploration Co (Libya) Ltd v Hunt (No 2).
- Issue is now causation David Securities v Cth Bank (initially
could still claim on quantum meruit for services done, and
held to be mistake of law, but HC moved away from this
goods supplied)
Defence
distinction; Bilbie v Lumley merely states that a voluntary
i) Illegal contracts any contract found to be illegal will
a) Change of position Where D has in good faith acted (changed
payment made in satisfaction of an honest claim is
deny an opportunity to seek restitution Sutton v Zullo
their position) in reliance on benefit received & would be unfair
irrecoverable. Therefore, no distinction between mistake of
Enterprises (unlicensed building work carried out)
to insist on them giving it up. Most commonly applied in cases
law and mistake of fact).
of mistake payments Australia and New Zealand Banking
i) The effect of carelessness provided the criterion of
c) Contracts discharged for breach The terminating party may
Group Ltd v Westpac Banking Corp.
causation is satisfied, carelessness on the part of the
elect between an action for breach of contract and an action in
Elements:
payer is not a bar to restitution Kelly v Solari.
restitution Renard Constructions (ME) Pty Ltd v Minister
i) D acted in good faith defence not available to a
for Public Works (P accepted the repudiation, terminated the
wrongdoer or where the D acted with knowledge of
c) Recovery of money for a total failure of consideration Refers
contract, and made restitutionary claim for quantum meruit for
the payers mistake State Bank of NSW v Swiss
to performance of promise. It is money paid under contract
work that was carried out unpaid).
Bank Corp. (A bank which receives a mistaken
before termination. Usually you can claim damages, but
i) Position of defaulting party where a contract has been
payment and disburses it can only bring itself within
restitution available if total failure of consideration takes place.
discharged for breach or repudiation, a restitutionary
the change of position defence if it shows that the
i) Concept of consideration HC has recognised that failure
claim for quantum meruit is not generally available to
time of the disbursement it knew or thought it knew
of consideration is not confined to failure of contractual
the defaulting party in respect of non-monetary benefits
more than the fact of receipt standing alone).
performance. A retailer is entitled to restitution of
conferred under the contract, unless there has been free
ii) D acted in reliance on the payment not available
payments if consideration for them has totally failed
acceptance of those benefits by the terminating party
where D has simply spent the money received on
Roxborough v Rothmans of Pall Mall Australia Ltd.
Sumpter v Hedges (courts held no claim for work done,
ordinary living expense Palmer v Blue Circle
ii) Partial Failure of consideration Consideration must be
since D has no option but to accept the benefit, but valid
Cement (BC paid P workers comp under mistake of
total; there is no right to restitution where the failure of
claim for materials used by D that he left behind)
law, and claimed it back, but P had spent the money
consideration is partial Baltic Shipping Co v Dillon.
ii) Principle of Incontrovertible benefit - No right to
on ordinary living expenses; courts applied rule in
iii) Severability of consideration where the consideration is
restitution if the benefit was conferred gratuitously. By
David Securities v Cth Bank)
severable, compete failure of part may form a ground for
way of exception to this general rule, P may succeed in
b) Other restitutionary remedies instances where court orders
recovering a proportionate part of the money paid for it
quantum meruit if D has incontrovertibly benefited
return of wrongdoers benefit to plaintiff for legal wrongs:
Roxborough v Rothmans of Pall Mall Australia Ltd. If you
from Ps non-gratuitous services; two circumstances in
breaches of duty of honesty, equitable obligations
can sever the contract and the contract remains, you can
which this may occur are if 1) a reasonable person
intellectual property rights
collect for restitution; however if you cant sever it without
would conclude that he has been saved an expense
interference with contractual relations
the contract still remaining, then the whole contract
which he otherwise would necessarily have incurred
injury to reputation
becomes void.
or 2) where he has made, in consequence of the

RESCISSION

2)
Accounts of Profits are an order that requires defendant, under the
supervision of the court, to account to the plaintiff for the profits of a
wrong.

Elements:
1) The prescence of a vitiating factor in the formation of the
contract In equity, contracts can be rescinded for innocent
Grounds for Awarding An Account of Profits
and fraudulent misrepresentation, mistake, duress, undue
a) Breach of trust and fiduciary duty Where the defaulting
influence, unconscionable dealing and breach of fiduciary duty.
trustee or fiduciary has caused a loss, the appropriate remedy
is an award of equitable compensation. Where the trustee or
2) An election to rescind the contract An election to affirm a
fiduciary has made a gain, he or she must account for all
voidable contract extinguishes the right to rescind. Conversely,
profits made by reason of the breach of trust or fiduciary
an election to rescind a voidable contract extinguishes the right
duty Warman International Ltd v Dwyer. FD imposed (in
to enforce the contract according to its terms, including any
Equity) in close and trusting legal relationships, eg.
accrued right to damages or specific performance of the
Solicitor/client, agent/principal. Damages often insufficient to
contract. An election, once made, is irrevocable Sargent v
discourage breach, so Equity award profits.
ASL Developments Ltd
3)

Restitutio in integrum, the restoration of both parties to

their respective precontractual positions The principle
restriction upon the availability of rescission is the requirement
of putting the parties in the position they were in before the
contract. The main reasons for impossibility of restitutio in
integrum are the destruction or deterioration of property that
has passed under the voidable contract, or the subsequent
acquisition by a bona fide third-party purchaser of property that
has passed under the voidable contract.
a) Concurrent jurisdiction of CL & Equity
i) equitable principles effectively prevail
ii) Discretionary remedy consider 5 bars to rescission
1) Affirming contract words or conduct or estoppel
2) Lapse of time
3) Where restitution no longer possible
4) Where innocent third party acquired an interest for
value
5) Limited bar where contract fully executed on both
sides Seddons case (involved sale of land and
company shares, only shares have been executed
(registered), can no longer claim rescission)

b)

Breach of intellectual property rights This includes

copyrights, trade marks, patents, etc. Account of profits may
be awarded in the auxillary jurisdiction of equity against the
infringer of an intellectual property right, subject to three
considerations;
1) an account will normally be awarded as ancillary relief
to an injunction, but not otherwise;
2) the account is limited to the profits derived from the
defendants knowing infringement of the plaintiffs
rights; and
3) an account is a discretionary remedy that is subject to
equitable defences.

Remedies may be available when;

Exclusive Jurisdiction

Any time a normal equitable remedy

Auxiliary Jurisdiction

Difficult to say (but so far only passing off other IP rights)

Breach of Contract traditionally not available but an account

of profits can be awarded for breach of contract, but only in
exceptional circumstances - AG v Blake (although information
b) If fraudulent, substantial restitution only Alati v Kruger
Blake was to publish no longer confidential, he had breached a
(sale of business included a transfer of goodwill, stock-insurviving contractual duty not to publish such a work without
trade and assignment of a lease. Purchaser later sought
the authorisation of the Crown; therefore liable to account to
rescission on the basis of fraudulent misrepresentations
the Crown for all profits from the publication). However, this
made by the vendor as to the income of the business.
ruling was rejected in Hospitality Group Pty Ltd v Australian
Vendor argued that restitutio in integrum was impossible,
Rugby Union Ltd
but HC rejected it)

c) Restitution on terms Vadasz v Pioneer Concrete

(appellant sought rescission of the guarantee because it
was induced by the misrepresentation that his liability was
confined to the companys future indebtedness. HC
allowed rescission, but in respect of the companys past
indebtedness only).
ACCOUNT OF PROFITS

Assessment
a) Breach of trust and fiduciary duty in exclusive jurisdiction
of equity, the general rule is that a trustee or fiduciary must
account for the entire profit made by reason of the breach of
trust or fiduciary duty. There are 6 considerations to this rule:
1)
an account of profits is not penal in nature, therefore a
trustee or fiduciary will not be required to account for
more than he or she has received from the breach of
duty.

3)
4)

5)

6)

b)

Where a trustee or fiduciary has acted without honesty

in making a profit, he or she may be granted an
equitable allowance from the profit as remuneration for
his or her work and skill.
Where a trustee makes a profit entirely by the
misapplication of trust money, the beneficiary will be
entitled to the entire profit.
Where a trustee makes a profit by the misapplication of
trust money mixed with other money, the beneficiary
will generally be entitled to a proportionate share of the
profit.
Where property has been purchased entirely or partly
by the misapplication of trust money, the trustees
obligation to account is not postponed until the trustee
chooses to sell the property and realise the profit.
Where a business, as distinct from a specific asset, is
acquired and operated in breach of fiduciary duty, it
may be appropriate to allow the fiduciary a proportion
of the profits Warman International Ltd v Dwyer.

Infringement of intellectual property rights two issues of

importance arise;
1)
Identifying the defendants costs attributable to the
manufacture and sale of the infringing goods
2)
Making an apportionment of the resulting profit
between that part of the profit that is attributable to the
defendants infringement, and that part of the profit the
defendant is entitled to keep.
a) Deductions onus of proof is upon D to establish
which costs are attributable to the manufacture and
sale of the infringing goods. D may deduct costs of
material, costs of wages and any other costs are
soley referable to the manufacture and sale of the
infringing goods Dart Industries Inc v Dcor Corp
Pty Ltd. In cases of unused capacity, no deduction is
allowed because the expenses would have been
incurred in any event Colbeam Palmer Ltd v Stock
Affiliates Pty Ltd.
b) Apportionment a person who wrongly uses another
mans industrial property patent, copyright, trade
mark is accountable for any profits which he makes
which are attributable to his use of the property
which was not his Colbeam Palmer Ltd v Stock
Affiliates Pty Ltd.
SPECIFIC PERFORMANCE

Specific performance directs a party to an agreement to perform the

agreement Zhu v Treasurer of the State of New South Wales.
Elements
1) an agreement if contract is uncertain, or if no contract has
been formed or the contract has been rescinded or terminated,

2)

3)

the remedy will not be available Tanwar Enterprises Pty Ltd

v Cauchi (contract for sale of three adjoining parcels of land
was terminated by vendors)
a) doctrine of part performance object is to always
enlarge part performance into complete performance,
usually applied to oral contracts which fail to comply
with a statutory requirement that they must be in writing
or executed in a formal manner Maddison v Alderson
b) alternatives to part performance difficulties of
applying a strict part performance test in order to obtain
specific performance has to some extent been
ameliorated by other remedies and actions such as
equitable restitution and constructive trusts.

d)

a breach or threatened breach of the agreement by the

defendant - Plaintiff must prove that the defendant has not
performed the contract according to its terms (ie. non-delivery
of a chattel or the refusal to execute a transfer of land). The
order for specific performance may be postponed until the time
for performance arrives.)

e)

common law damages would be an inadequate remedy for

breach no remedy provided where there is an adequate law
remedy Adderly v Dixon. Contracts for the sale of land, works
of art and intellectual property are regarded as specifically
enforceable, whereas contracts for the sale of goods, animals,
stocks, shares, securities, payment of money, and provision of
personal services are not (unless exception basis exist)
a) Land damages are inadequate because substitutes
cannot be readily found; applies to airspace above land
Adderly v Dixon
b) Money SP of a contract to pay money will not be
ordered because damages will be adequate, however
there are two exceptions; 1) if a purchaser can obtain SP
then the vendor can also obtain SP, and 2) SP is
available if damages will be an inadequate remedy for
4)
the breach (ie. indemnity contracts, security contracts,
and contracts involving both the payment of money and
land) Loan Investment Corp v Bonner.
i) Doctrine of Privity if D refuses performance,
the third-party beneficiary cannot obtain a
remedy because it is not a contracting party.
However, the plaintiff may seek specific
performance even though the beneficiary is a
third party Coulls v Bagots Executor and
Trustee Co Ltd (courts ruled that wife was a
third-party beneficiary who would not be able to
specifically enforce a contract of which she was
not a party to).
c) Goods contracts for the sale of goods are not
specifically enforceable. If the article is of unusual
beauty, rarity and distinction, damages will be
inadequate where:

iii) the defendant is guilty of fraud or unconscionable

Supply of the chattel is severely interrupted mere
conduct.
fact that supply is temporarily low will not be
c) Hardship courts will be reluctant to order SP if it will
sufficient to attract equitys jurisdiction Cook v
cause undue hardship or unfairness to the D (ie. unfair or
Rodgers (evidence showed that if car not supplied
low purchase price for the D vendor, land purchased by the
under the contract, plaintiff would considerable
D would be subject to forfeiture, order would expose D to
difficulty in obtaining a substitute; however SP
prosecution, or D would be required to run a business at a
refused)
loss)
ii) Necessary for the plaintiffs business Dougan v Ley
d)
Unclean Hands remedy may be refused if plaintiff has
(Dougan agreed to sell his taxi cab and the licence to
unclean hands, but not all such conduct will disentitle them
operate it to Ley; Dougan later refused. Ley sought
to relief Official Trustee in Bankruptcy v Tooheys Ltd.
SP since the number of taxi cabs in NSW was
e) Whole contract should be enforced the whole contract
limited; SP granted).
should be specifically enforceable Bridge Wholesale
Intellectual Property agreements to assign copyright
Acceptance Corp (Australia) Ltd v Burnard.
are specifically enforceable, but if the agreement
f) Continuing Supervision SP may be refused if the court is
contains unnecessary or oppressive terms, they must
required to continually supervise its order, however it is not
be justified before they can be enforced. If they are not
an absolute defence Patrick Stevedores Operations No 2
justified, the contract may be rescinded. A contract
Pty Ltd v Maritime Union of Australia.
assigning or licensing the right to use a trade name, trade
g)
Futility courts will not order SP if the D can terminate the
mark or other indicia is SP Jabuna Pty Ltd v Hartley.
contract at will Iambic Pty Ltd v Northwind Holdings Pty
Goodwill and business assets a contract for the sale of
Ltd (order of SP of a contract to sell shares in a private
the goodwill of a business may be specifically enforced,
company where the purchaser could no longer afford the
if consistent with the general principle, damages will be
agreed price not held to be futile)
inadequate Pasdonnay Pty Ltd v SDS Corp Ltd.
h)
Delay, acquiescence and laches delay will not bar relief
Personal services and employment courts will not
unless it would result in the defendant or a third party being
order specific performance, since it would involve the
prejudiced Fitzgerald v Masters (SP granted because
courts constant supervision, might compel unwilling
laches was absent); In Lamshed v Lamshed (SP refused
parties to maintain personal cooperative relations; and
because the defendant had agreed to sell the property to an
would be difficult to enforce because performance of
innocent third-party purchaser).
personal service contracts involve matters of personal
opinion and taste. C H Giles & Co Ltd v Morris
Stocks, shares and securities SP if damages will be an *IF ELEMENTS OF SPECIFIC PERFORMANCE CANNOT BE
SATISFIED, TRY FOR INJUNCTION
inadequate remedy (ie. shares in a private company or
vendor owns all the shares in the company and is
INJUNCTIONS
anxious to retain them)

i)

f)

g)

there is no discretionary defence or denial disentitling relief

even if above elements are satisfied, the court may refuse SP
in its discretion.
a) Ready and willing at all time, the party seeking SP should
be ready and willing to perform the substance of the
contract. If D ignores the matter, P need not show evidence
that he or she is ready and willing Mulkearns v Chandos
Developments Pty Ltd. Usual way of proving that P is not
ready and willing is to show that he or she is in breach,
however only a breach of an essential term will suffice
Mehmet v Benson.
b) Mutuality If you are seeking a remedy, courts wont give
it to you unless courts are able to enforce specific
performance against you as well. A court is reluctant to
order specific performance unless it is available to both
parties. However, not available to D where:
i) P has already performed his or her obligations
ii) P has not performed his or her obligations but the
court is satisfied this breach can be adequately
compensated for in damages; or

Typical injunction is the negative injunction; it restrains or forbids

the defendant from engaging in a wrongful act such as breaching a
trust, trespassing on land, passing off goods or services as those of
another, infringing a patent or breaching a contract.
contract
Exclusive Jurisdiction
Elements
1) have an equitable cause of action an injunction will lie to
restrain a breach of a fiduciary obligation or a breach of a trust;
it will also issue against third parties who deal with the trust
property.
i) Confidential information an injunction will almost certainly
lie against a person who receives confidential information,
such as a trade secret, and is threatening to make an
unauthorised use of such information. If injunction is to be
obtained here, it will be in equitys auxiliary jurisdiction.
ii) Persons right to work - equity developed a doctrine
protecting a persons right to work, irrespective of whether

2)

that person was a party to the contract which threatened or

curtailed that right Buckley v Tutty
satisfy the court that in its discretion it should grant the
injunction REFER TO SPECIFIC PERFORMANCE

Auxiliary Jurisdiction
Elements
1) Cause of Action injunctions are granted to enforce existing
rights; they are not a mechanism for creating new rights
Curro v Beyond Productions Pty Ltd.
i) Quia timet injunctions lie to restrain threatened or
apprehended legal wrongs; not necessary to prove that the
common law action has crystallised Supreme Court Act
1970 (NSW) s66(1)
ii) Proprietary Rights plaintiffs right must be in the nature
of property. A right which constitutes or will constitute a
cause of action is sufficient irrespective of whether property
is protected Victoria Park Racing v Taylor. Not all injuries
to property are forbidden by law Moorgate Tobacco Co
Ltd v Philip Morris Ltd (No. 2). Damage to intellectual
property is allowed (published comment); injunctions will
be refused if such exposure is protected by defences such as
justification and free speech Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd.
iii) Defamation injunctions, particularly interlocutory
injunctions, restraining the publication of defamatory
material are only granted in very clear cases Chappel
v TCN Channel Nine Pty Ltd.
iv) Malicious Falsehood where evidence of actual damage is
absent, injunction will be granted if malice in the
publication is established Swimsure (Laboratories) Pty
Ltd v McDonald.
v) Negligence no reported case where an injunction has been
granted to restrain negligent conduct, but can be granted
under s66 of the Supreme Court Act 1970.
vi) Nuisance will lie to restrain a threatened or a continued
nuisance such as a nuisance caused by noise Kennaway v
Thompson.
vii) Inducing a breach of contract and interference with contract
will lie to restrain an intentional interference with contract
Zhu v Treasurer of the State of NSW
vii) Contract will lie to restrain a breach of contract, but
generally this is subject to the rule that the term to be
enforced must be negative in substance, rather than positive
Doherty v Allma
2) that damages would be an inadequate remedy One way of
proving the inadequacy of damages at law is to show that the
defendants wrong or threatened wrong will cause irreparable
harm or injury to the plaintiff, or third person - Irving v Emu &
Prospect Gravel & Road Metal Co Ltd.. Damages may be
inadequate and the injury irreparable, if the goods have a
peculiar value to the plaintiff.
3) that the court in its discretion should grant the injunction

i) Unclean hands Kettles and Gas Ppliances Ltd v Anthony

Hordern & Sons Ltd. (injunction refused where D
innocently passed off its kettles as those of the plaintiff
because the latter had misrepresented to the public that its
kettles were protected by a patent)
ii) Laches and delay onus on the defendant to show that he
or she was prejudiced by laches Lindsay Petroleum Co v
Hurd.
iii) Acquiescence classic acquiescence is where the plaintiff
knowingly accepts an infringement of his or her rights
Orr v Ford.
Interlocutory Injunctions The object of the injunction is to
protect the plaintiff against injury by violation of his right for which
he could not be adequately compensated in damages recoverable in
the action if the uncertainty were resolved in his favour at the trial
American Cyanamid Co v Ethicon Ltd.
General Principles considered by the court
1) there must be a serious question to be tried American
Cyanamid Co v Ethicon Ltd
i) Exceptions in defamation, only granted in a very clear
case, and in an application for a mandatory interlocutory
injunction the plaintiff must establish a high degree of
assurance of success at the final trial.
ii) Decisions on evidence and law courts will have regard to
the evidence and arguments on both sides, but will refuse to
express detailed views, especially on questions of validity
Martin Engineering Co v Trison Holdings Pty Ltd
iii) Defences Plaintiff does not have to show that the
defences available to the defendant are, in effect, so weak
that they would be struck out as unarguably bad.
2) the balance of convenience must be in favour of the grant of
an injunction
Strength of the plaintiffs case if P has a strong case, on the
merits then the balance of convenience is likely to favour P
Irreparable harm or damage P will ordinarily have to
demonstrate that irreparable harm or damage will result if the
interlocutory injunction is refused American Cyanamid Co v
Ethicon Ltd
Delay if delay has allowed the defendant to establish a
business or an enterprise, the balance of convenience will be
against the plaintiff American Cyanamid Co v Ethicon Ltd.
3) the plaintiff must be prepared to give an undertaking as to
damages plaintiff must give an undertaking to the court that
if the interlocutory injunction is later dissolved the plaintiff will
compensate the defendant for any injury or loss caused by the
injunction First Netcom Pty Ltd v Telstra Corp Ltd.

Elements:
1) have a prima facie cause of action must be in the
jurisdiction; not sufficient if the assets are in the jurisdiction,
but the cause of action is in another country.
2) prove that the defendant has assets within the jurisdiction
of the court plaintiff must establish that the defendant has
assets in the jurisdiction Winter v Marac Australia
3) prove that there is a real risk that the defendant is likely to
frustrate the judgement by disposition or dissipation of his
or her assets there must be a real risk that the defendant
will frustrate the judgement, either before or after judgement,
by dissipating his or her assets. If the defendant is fraudulent,
this will allow an inference to be drawn that if he assets are left
in the defendants hands they are not likely to be preserved.
4) persuade the court that the balance of convenience is in the
plaintiffs favour courts will weigh the strength of the
plaintiffs case and the risk that the defendant will dissipate his
or her assets in the balance against other discretionary matters,
such as delay and full and frank disclosure Cardile v LED
Builders Pty Ltd.
5) give an undertaking to pay any damages suffered by the
defendant or a third party in the event that the order was
wrongly given
Mandatory Injunctions directly orders a person to do something
(positive injunction), as opposed to the more commonly used
negative injunction. Can be granted in final and interlocutory forms;
There are two types;
1) Restorative requires the defendant to repair the consequence
of his or her wrongful act Redland Bricks Ltd v Morris
2) Enforcing identical to specific performance; compels the
defendant to do something which he or she has promised to do
for consideration. Courts are reluctant to grant a mandatory
injunction in a case where specific performance would not be
available Businessworld Computers Pty Ltd v Australasian
Telecommunications Commission.
Anton Piller Orders directs the defendant to allow the plaintiffs
representative to enter the defendants premises and search for and
seize evidence, such as documents or goods, supporting the
plaintiffs action or potential action. The element of surprise is
critical in ensuring that the evidence is not destroyed Long v
Specifier Publications Pty Ltd

Elements:
1) have an extremely strong prima facie case Anton Piller KG
v Manufacturing Process Ltd.
2) establish that serious irreparable damage will be suffered
the damage, potential or actual, must be very serious for the
Mareva Orders restrains the defendant or potential defendant
applicant Anton Piller KG v Manufacturing Process Ltd.
from disposing of his or her assets which may be required to satisfy 3) have convincing proof that the defendant possesses
the plaintiffs claim. It is available against any defendant who
incriminating documents or goods and there is a likelihood
threatens to place his or her assets beyond the reach of the plaintiff
or real possibility that the defendant will destroy them in
Cadura Investments Ltd v Rototek Pty Ltd.
deciding whether there is a likelihood of destruction of the
incriminating documents or goods, the court is entitled to take

into account the usual practices of pirates of copyright and the

like Lock Inernational plc v Beswick
4) provide various undertakings including an undertaking as
to damages plaintiff should also give undertakings that the
order will be explained clearly to the defendant and that the
defendant will be advised of his or her right to obtain prompt
legal advice before the order is executed PMSI Group v
Wilson
5) convince the court that in its discretion it should grant the
order equitable discretionary matters such as delay,
acquiescence and unclean hands will need to be taken into
account.
a)
Disobeying the order: contempt anton piller is not a
search warrant, so forced entry by the plaintiffs solicitors
is not permitted. If the defendant fails to comply with the
order, this will expose him or her to proceedings for
contempt Anton Piller KG v Manufacturing Process Ltd.
b)
Privilege against self-incrimination defendant can raise
the defence of self-incrimination where the production of
documents to the plaintiffs solicitors is likely to
incriminate the defendant in a crime Warman
International Ltd v Envirotech.
c)
Dissolving the order the plaintiff is under an obligation
to bring under the notice of the Court all facts material to
the determination of his right to that injunction; failure to
do so is the most common ground for dissolving an Anton
Piller order Thomas A Edison ltd v Bullock.
EQUITABLE COMPENSATION AND DAMAGES
Exclusive Jurisdiction

valuation by another party of the property proposed to be mortgaged c) Meaning of wrongful act
Brickenden v London Loan and Savings Co.
i) Wentworth v Woolabra HC held that s 68 is exclusively
preoccupied with private rights and that the section was not
Causation in equity is not susceptible to the formulation of a single
intended to authorise the award of damages for breach of a
test. It is necessary to identify the purpose of the particular rule to
statutory prohibition which manifests no intention to create a
determine the appropriate approach to issues of causation Maguire
private cause of action for damages. (refused claim for
v Makaronis.
damages)
In Day v Mead, the client was held responsible for his own loss after
the defendant solicitor had failed to disclose information of material
interest to the plaintiff which resulted in a failed investment.
Concurrent and Auxiliary Jurisdictions
In modern jurisdiction of equity to award damages in respect of
common law and other wrongs is based largely upon statutory
provisions that follow Lord Cairns Act. Where the court has power:
a)

b)

to grant an injunction against the breach of any covenant,

contract or agreement, or against the commission of
continuance of any wrongful act; or
to order the specific performance of any covenant, contract or
agreement the Court may award damages to the party injured
either in addition to or in substitution for the injunction or
specific performance.

Damages are available if the court has jurisdiction to grant specific

relief, but declines to do so because of discretionary considerations
Jaggard v Sawyer

Matthews v ACP Publishing Pty Ltd distinguished Wentworth v

Woolahra Municipal Council for the reason that section 35(5)
is not concerned with public rights
ii) Equitable damages are always a discretionary remedy, and that
discretion includes the issue of which wrongs may give rise to
an award of damages.
iii) Applying the maxim aequitas sequitur legem (meaning equity
follows the law), common law restrictions upon remoteness of
damage are applied in the concurrent and auxiliary
jurisdictions of equity. Secondly, there is no necessary
difference between the common law and equity as to the date
for assessment of damages, because both remedies are
governed by compensation principle.
Assessment of damages requires two qualifications: 1) damages
in the concurrent and auxiliary jurisdictions may be reduced or
declined because of equitable discretionary considerations that
may not be relevant at common law, and 2) damages may be
awarded under Lord Cains Act and its equivalents where no
damages can be awarded at common law.

a) Jurisdiction to award damages

RECTIFICATION
Tendency of modern authorities has been to treat everything as a
Monetary compensation awarded in the exclusive jurisdiction of
matter of discretion, hence increasing the scope to award equitable
equity is called equitable compensation
Rectification proceedings in equity are usually commenced after one
damages Wentworth v Woollahra Municipal Council.
of the parties insists on relying on the document according to its
In cases where one has breached their fiduciary duty by failing to
written terms. The plaintiff who seeks rectification has to displace
If a grant of specific relief was impossible when proceedings
disclose a conflict of duty and interest to their client, the liability of
that presumption or hypothesis. Maralinga Pty Ltd v Major
seeking relief were commenced, and remained so, there is no
the defaulting fiduciary is to compensate the plaintiff by putting
Enterprises Pty Ltd.
jurisdiction to award equitable damages McMahon v Ambrose.
him in as good a position pecuniarily as that in which he was before
However, if a contract was capable of specific performance when
the injury Nocton v Lord Ashburton.
Elements
proceedings seeking relief were commenced, the court does not
1) there is a written instrument applies to all written contract,
lose is jurisdiction to award damages in substitution for specific
The defendant is not responsible for damage not caused by the
except the articles of association of a company and wills.
performance if performance of the contract becomes impossible
wrong or to pay by way of compensation more than the loss suffered
2) there was a mistake by the parties as to its contents or its effect
during the pendency of the litigation Johnson v Agnew
from such wrong. Target Holdings v Redferns. By contrast, where
a) Common mistake granted only in exceptional cases such as
the defaulting fiduciary has made a gain, the appropriate
an incorrect omission or inclusion of a word or words. Both
b) Discretion to award damages
restitutionary remedy in equity is an account of profits Target
parties had to mistaken about the content or form of the
Once there is a requisite jurisdiction to award equitable damages,
Holdings Ltd v Redfern.
document. A mistake about its effect is insufficient
there are three possible outcomes
Maralinga Pty Ltd v Major Enterprises Pty Ltd
1) neither damages nor specific relief may be awarded
When a party, holding a fiduciary relationship commits a breach of
2) damages may be awarded in addition to specific reliance
his duty by non-disclosure of material facts, which his constituent is
b) Exchange of contracts where, as a matter of formality, two
Grant v Dawkins
entitled to know in connection with the transaction, he cannot be
written counterpart contracts are exchanged, but one contains
3) damages may be awarded in substitution for specific relief
heard to maintain that disclosure would not have altered the
a mistake, rectification is available; however will be refused if
Johnson v Agnew. However, even where specific relief is
decision to proceed with the transaction, because the constituents
the parties intention is to be bound only by an exchange of
available, damages in substitution may still be available
action would be solely determined by some other factor, such as the
identical contracts Sindel v Georgiou
Shelfer v City of London Electric Lighting Co

c) Construction and rectification not all mistakes require

2)
rectification. Difficulties and ambiguities on the face of the
document (obvious typos and grammatical errors, spelling
mistakes, deletions, and insertions, can often be corrected
simply as a matter of interpretation). Interpretation should be
reserved for resolving ambiguities on the face of the
document, whereas rectification is appropriate where the
meaning of the document is clear, but it fails to express the
true intention of the parties Dcor Blinds Gold Coast Pty Ltd 3)
v Dcor Blinds Australia Pty Ltd.
d) Unilateral mistake Traditionally, it is available where the D
is guilty of equitable fraud or unconscientiously takes
advantage of a mistake in the agreement Maralinga Pty Ltd
v Major Enterprises Pty Ltd. There are two qualifications to
this:
i) D must have actual rather than constructive knowledge of
Ps mistake Leibler v Air New Zealand Ltd
ii) It is an unconscionable conduct Tutt v Doyle
3)
a)

b)

c)
d)

4)

the parties intention as to what the instrument should have

contained was common or concurrent at the time of execution;
and
Continuing concurrent intention must be shown that the
written instrument does not reflect the true and concurrent
intention of both parties at the time of execution of the
document or at the time the document came into force Slee v
Warke
Antecedent contract unnecessary an antecedent contract was
often oral in nature. Under modern law of rectification, an
effective antecedent contract is no longer required to enforce
by rectification Montgomery v Beeby
Intention must be actual rectification ensures that the
contract gives effect to the parties actual intention Codelfa
Construction Pty Ltd v State Rail Authority of NSW
Evidence P must displace the hypothesis arising from
execution of the written instrument, namely, that it is the true
agreement of the parties; there must be a convincing proof
that the written document fails to give effect to the parties
intention Stormriders Pty Ltd v Copperart Pty Ltd
the courts discretion should be exercised in favour of granting
relief relief may be refused by courts discretion if there has
been acquiescence, delay, laches, unclean hands or estoppel.

DELIVERY UP
Delivery Up is a remedy by which documents or other goods are
delivered to the custody of the court for the purpose of cancellation
or destruction. It has two main areas of practical application; 1)
relation to ineffective legal documents, and 2) relation to goods that
infringe, or may be used to infringe, intellectual property rights.
1)

DECLARATIONS
Not really a remedy declares validity of a right or legal point.
Statutory reform now gives power to grant declarations without
other relief. Most cases concern public law disputes
Elements
1) court has jurisdiction to grant the declaration traditionally
the only true jurisdictional limitation upon the remedy is
exclusion by statute Forster v Jododex Australia Pty Ltd

plaintiff has locus standii to seek the declaration you cant

get a declaration re validity of a contract if youre not a party.
Most examples are from public law Aust Conservation
Foundation v Cth (ACF failed to comply with Environment
Protection (impact of proposals) Act; it had commented on
draft environmental impact assessment, without noticeable
effect; it alleged its members rights of access would be
affected)
there is no discretionary ground for refusing the declaration
traditionally, the courts have warned against treating
discretionary factors that have resulted in refusal to grant the
remedy as being jurisdictional limitations Forster v Jododex
a) Hypothetical Questions not generally granted if there is
no specific dispute involving legal rights and obligations
(eg. An order that offences created by statute are invalid or
unconstitutional) Aus Boot Trade Employees Fed v Cth
(legislation that homosexuality was unlawful); but in
Croome v Tasmnia (Court ruled legislation was invalid as
Croome was a homosexual, therefore not hypothetical)
b) Lack of Utility a declaration is likely to be refused where
the remedy will produce no foreseeable consequences for
the parties. Church of Scientology Inc v Woodward.
However, it is only available as final judgement, not a
stepping stone Neeta (Epping) v Phillips.
c) Relevance of equitable defences equitable defences,
especially unclean hands and refusal to do equity

2)

TRADE PRACTICES ACT

Commonwealth Act passed in 1974; applies only to corporations or
individuals doing certain activities (eg. Cross border trade). It is
supplemented by similar legislation in S&Ts. Main parts of the Act
(part iv, iva and v) deal with restrictive trade practices,
unconscionable conduct, and consumer protection. Part vi deals with
enforcement and remedies.
Examples of Substantive Provisions
S52 shall not in trade or commerce engage in conduct that is
misleading or deceptive or likely to mislead or deceive
S51AA shall not, in trade or commerce, engage in conduct that
is unconscionable within the meaning of the unwritten law, from
time to time, of the State and Territories
TPA Remedies

Penalties s.76 & 77 allow civil penalties

Damages s.82 & 67 allow damages

Rescission s.75A uses rescission but refers to right to

terminate from that time onwards
- s.87(2)(ba) court may refuse to enforce provisions of a
contract

Specific Performance not mentioned

- s.87(2)(f) can order supply of services if purpose is
compensation

Injunctions s.80 gives court power

- Although discretionary, no need to prove damages
inadequate

Damages
Elements under s.82(1) include:
3) Cause of action wide variety of causes of action supporting
claims for damages under the Act; damages are available for
contraventions of restrictive trade practices (pt IV),
Ineffective Legal Documents remedy is not confined to
unconscionable conduct (pt IVA), industry codes (pt IVB), and
contracts, but extends to other legal documents such as bonds,
consumer protection (pt V) to name a few.
deeds, and negotiable instruments Langman v Handover.
4)
Causation
a) Discretionary grounds for refusal There are four grounds:
i) indicates causal connection practical or common sense
the ineffective nature of the document is apparent on its
approach March v Stramare
face Gray v Mathias
ii) other causes must be reliance on the conduct, but conduct
the document is neither void nor voidable
does not have to be sole cause
the document is only partially void Ideal Bedding Co
iii) contributory negligence I&L Securities v HTW Valuers;
Ltd v Holland
s82(1B) and 87CD
a general equitable defence, such as laches and
5) The damage must not be too remote; and usually but not
acquiescence by the plaintiff exists. However the presence
necessarily the same as for deceit Wardley Australia v WA
of unclean hands on the part of the plaintiff will not
6) The plaintiff should take reasonable steps to mitigate the
necessarily preclude an order for delivery up Vauxhall
damage same principles as CL Murphy v Overton
Bridge Co v Earl of Spencer
Investments
Infringing Goods delivery up and destruction of goods may
be ordered where the manufacture or exploitation of the goods Quantum & types of loss
constitutes an infringement of a patent, a registered design, a
Usual measure as for tort of deceit generally no expectation
registered trade mark, or a copyright Vavasseur v Krupp
loss, but can get loss of opportunity

 Mental Stress recognised psychiatric disorder; awarded in

Steiner v Magic Carpet Tours
Reputation Flamingo Park v Dolly Dolly
Allows structures settlements s87ZC
Remedies under s.87
Damages compared with s.82
- Discretionary vs. a right
- Loss likely to be suffered
- Part of loss
- Reduce or prevent likely loss
Declarations s.87(2)(a) power to declare contract void
Rectification s.87(2) wider powers than CL
- court can vary provisions of a contract or arrangements
- refuse to enforce provisions of a contract
- direct the execution of an instrument varying or terminating an
interest in land
SELF-HELP
Majority of disputes are settled out of court. There is a small
proportion taken to a lawyer, however a small proportion of these
actually get to court. Usually parties respective legal rights provide
backdrop for any settlement. There is a quick look at four things:
1)

2)

3)

Relevenat QLD Legislation

Pre-1995 prior to 1995, there were numerous standard legal
avenues for victims to seek compensation however they were often
more complex and legally expensive and thus were not often
utilised.
Pre-1995 Qld Govt introduced the Criminal Offence Victims Act
(COVA)

Is the compensation likely to be awarded, sufficient to cover legal

costs and still provided the client with a satisfactory return. They
take into account:
a) evidentiary costs
b) court procedure costs
c) professional fees
d) possible deductions

What is Compensable?
Section 19 is where 90% of claims come under

Court Preparation
S24 of the Act provides for applications to the Court for an order
compensating for those injuries. Legal proceedings are
commenced in accordance with the standard procedures of the
UCPR.

What is compensable?
The scheme allows compensation for injury/death only and does
not provide for:
Property loss or damage
Loss of wages or economic loss
Cost of mediation, doctors or hospital costs
Legals Costs s.31
Only personal injuries; does not cover legal costs. Fees will come
out from what you get from client. If you cant get compensations
form anyone else, govt pays for it.

Overview of Process
Applicant is injured during a criminal act by the defendant
Discouragement of self-help legal systems try to discourage Defendant passes through the criminal court system and is
self-help due to obvious policy reasons McPhail v Persons
convicted of the criminal offence
Unknown. Other causes of action discourage self help, eg.
Applicants legal practitioner gathers evidence required to prove
Trespass, conspiracy, tort of inducing a breach of contract, and
the injuries and commences legal proceedings (ie. Criminal
TPA can be an offence to organise a boycott.
Compensation Application)
Remedies & Alternatives Remedies by legal action. There
Application is heard. Defendant may have legal representation.
are a few alternatives indirectly related to dispute (eg. Negative
Judge formulates quantum using injury schedules and awards the
publicity, loss of reputation, loss of credit rating, and moral
sum against the Defendant
pressure)
If the defendant has sufficient assets to satisfy the award, then
Self-Help tolerated by law self defence of person or
enforcements proceedings are commenced against him/her
property; abatement of nuisance (trimming neighbours tree);
If the defendant does not have sufficient assets then upon proof of
eviction of trespasser (reasonable force only); contract
same being obtained the applicant may then apply for an ex(rescission of voidable contract termination of contract of
gratia payment from the Attorney General.
breach of important term)

Legal Practitioner obtains sufficient evidence to prove the

Criminal Offence and the injuries sustained. These may include
Director of Public Prosecutions file, statements, specialist
medical report, psychiatric reports.
Determining Quantum
Judge determines quantum at their own discretion
Top ends of scales provided are reserved for the most serious of
injuries
Cant claim under the same category twice
Maximum total amount claimable is $75,000.00
If injury is not listed in table then select the nearest similar injury
Court Order
The court will make an order against the defendant in the sum
determined; therefore you now have to seek payment of the
award from the defendant. Only if the defendant has insufficient
assets to pay can you then seek the award sum from the
Government.

Application to the Government Under s.32,

The respondent has insufficient assets to pay the compensation
order
Standard application form
Additional evidence required
4) Self-Help by Agreement Alternative dispute resolution
Statutory Requirements
State may pay, from consolidated revenue, all or part of the
clauses (negotiation, mediation and conciliation, arbitration);
Per the Criminal Offence Victims Act 1995
amount requested however current Government policy is to pay
law of security and repossession (pledges and liens, mortgage
Clients must suffer an injury as a result of an offence s19(1)(a)
Court Orders in full
sale); forfeiture of deposit; and liquidated damages clauses
Injury Bodily injury, mental or nervous shock, pregnancy s.20 May take 12 months to process
(agreed pre-estimate of damages) Dunlop Tyre Co v New
Garage
Offence must be a personal offence s19(1)(a)
Application to the Government for an Ex-Gratia Payment
Personal offence an indictable offence committed directly
Under s33, you can claim for criminal activity provided a report
CRIMINAL COMPENSATION
against someones physical body s21
is made
Offender must have been convicted on indictment in either the
People injured either physically or psychologically as a result of a
District Court of Supreme Court s24(1)(a)
Criminal Offence are entitled to make a compensation claim for
GENERAL ASSISTANCE CUES
those injuries. International Convention focused on victims of crime. Time Limit to lodge claim applies Three years from date of
conviction (Standard Personal Injury time limits apply)
There was international pressure on Governments worldwide to
Sample Intro Paragraph for Contracts Question:
implement legislation assisting victims of crime.
Commercial Considerations

This scenario involves a contract between Benjamin and Mary. Ben

requires advice as to how he should proceed in the face of a possible
breach and wants to know what remedies are available to him if the
breach occurs. It appears that his primary avenue would be to seek
damages in contract. The issues here are 1) whether all of the
elements for contract damages are satisfied, 2) what action can
Benjamin take? 3 ) what heads of damage can Benjamin claim under
and 4) alternatively, whether he has a claim for the equitable
remedies of specific performance and/or injunction
In cases of anticipatory breach
Causation but for the defendants wrong, would the plaintiff
have suffered the loss or damage complained of? We have an
admitted breach. If he leaves, they will have some sort of damages
available

Ben must prove the loss was due to the breach (Case)
Balance of probabilities (Case)
But for test (Case) but as a rule of thumb (Case)
Obvious that but for Mary selling to another dealer Ben would
have possession

Course of Action
Anticipatory breach so 2 options:
- Chose to ignore + affirm the contract Shindler v Northern
Raincoat Co Ltd.
- Terminate + mitigate immediately White & Carter Ltd v
McGregor
The nature of the breach means he cannot ignore it so he should
terminate

It appears he has a claim for damages. In order to take action he

must first terminate the contract (Case)

Tutorial 8
If you are not the breaching party, you can claim in restitution in
contract
If you are breaching party, you can only claim restitution under
quantum meruit (as much as he deserved) and quantum valebat.
(as much as it was worth)
You can only claim this if there has been a free acceptance of
benefit Sumpter v Hedges.
Cant claim quantum meruit for work done, or for those things
that became fixed to the land, but can claim for stuff that was
movable
In cases where a contract has been discharged for breach or
repudiation after partial performance, a restitution claim in
quantum meruit by the terminating party may exceed the
contract price.