Criminal Liability

Someone does something that causes harm to other person,

harmful act = crime. Incur criminal liability.
Crime: harmful act or omission that will lead to the state
commencing criminal proceedings and seeking to have offender
punished. Lead to prosecution
Prosecution: legal proceedings brought by the state against a
person accused of having committed a crime ; criminal action

Tortious Liability

Tort: harmful act, other than breach of contract, giving the victim
the right to sue for compensation, e.g. trespass, negligence,
defamation, and nuisance
Tort = civil wrong ; act that causes harm to another person and
gives that person the right to commence litigation to recover
compensation/civil remedies

Tortious liability

Criminal liability

Objective

Remedy

Punishment

Action commenced by

Plaintiff (Victim)

Crown (State)

Standard of proof

Balance of probabilities Beyond all

reasonable doubt

Outcome

Win or lose

Guilty or not
guilty

A harmful act may be both a crime and a tort

Tort law is primarily case law

Contractual Liability

Contract: agreement between 2 or more persons that is legally

enforceable
Primarily concerned with provision of remedy to the victim.
Contractual liability only arises if contract exists between the
plaintiff and the defendant

Statutory Liability

Harmful act, in addition to being a crime/tort/breach of contract may

contravene 1 or more statutes
Statutes: law made by parliament ; legislation or act of parliament

Vicarious liability

Liability for the conduct of another

Arises most frequently within relationship of employer & employee
If employee undertaking AUTHORISED work in an unauthorised or
wrongful manner, employer vicariously liable (Century Insurance Co
Ltd v Northern Ireland Road Transport Board).
However if employee is acting outside scope of their employment,
employer not vicariously liable (Deatons Pty Ltd v Flew).
Employer not vicariously liable for conduct of independent
contractor
Independent contractor: person contracted to provide services, but
not an employee

Deliberately causing harm to person or property

Criminal liability

Criminal offences include:

o Offences against a person, e.g. murder, manslaughter,
assault, sexual offences & kidnapping
o Offences against property, e.g. stealing, robbery, burglary,
forgery & corporate crime
o Offences against public order, e.g. treason & sedition
o Offences against administration of the law and public
authority, e.g. perjury & destroying evidence

Indictable offence
o Serious criminal offence, e.g. murder, manslaughter, rape or
robbery
o Committal proceeding: preliminary proceeding held in a lower
court to determine if there is sufficient evidence to justify full
criminal trial, if yes proceed to higher court before judge &
jury

Summary offence
o Less serious criminal offence, e.g. common assault, traffic
offence, being drunk & disorderly

o Tried before a magistrate

Criminal guilt

Person cannot be found guilty of crime unless these can be

established:
o a wrongful act (actus reus)
o a guilty mind ; intention & foresight, knowledge or awareness
(mens rea)

Criminal defences

Burden of proof is on the Crown (state)

Defences include:
o Self-defence: Under appropriate circumstances, use of force
can be used in self-defence or in the defence of another
person/property. Force must be reasonable & not excessive.
Not available if defendant acted after danger has
passed/motivated by revenge
o Insanity: Argue some form of mental illness meant that they
were unable to form the requisite criminal intention. If not
found not guilty on grounds of insanity, may be held in
custody at psychiatric institution, only released when no
longer mental ill
o Etc. (Pg. 170-171)

Tort of trespass

Trespass: tort committed when 1 person interferes directly with the

person/property (real or personal) of another
Includes:
o Trespass to land
o Trespass to goods
o Trespass to the person
Actionable per se, no need for plaintiff to prove actual loss/damage
to commence civil action. Necessary to prove interference was
intentional/negligent, not accident (Stanley v Powell).

Trespass to land

Tort committed when 1 person interferes directly with land in the

rightful possession of another
Committed if:
o X interferes with Ys exclusive possession of land
o Xs interference is direct
o Xs interference is either intentional or negligent

o No consent by Y or lawful justification for interference

Does not have to have physical contact with land; interference with
airspace above land will result in trespass (Kelsen v Imperial
Tobacco co).
Not only owner has right to sue others, as long tenant in rightful
possession of land can sue for trespass of land, including the owner
if enter without lawful excuse/permission (Gifford v Dent).
Person not invited to property, may not be trespasser. If path or
driveway leading to entrance of building is unobstructed, entrance
gates unlocked, no sign or other indication that visitors are
forbidden entry, there is implied grant of permission by occupier of
property in favour of members of the public to use/communicate
with patch or make a delivery to a person in the building (Halliday v
Nevill).

Trespass to goods

Tort committed when 1 person interferes directly with personal

property of another
As long as plaintiff have rightful possession of goods, does not have
to be owner
Committed if:
o X interferes with Ys possession of goods
o Xs interferences is direct
o Xs interference is wither intentional or negligent
o No consent by Y or lawful justification for the interference
Conversion
o tort committed when 1 person wrongfully deals with the goods
of another in a way that is inconsistent with their ownership or
rightful possession
o intentional and not merely negligent
o occurs when defendant wrongfully takes goods belonging to
plaintiff with the intention of keeping them
o occurs when defendant has possession of plaintiff goods but
does something with it without plaintiffs permission
o (Hollins v Fowler) & (Penfolds Wines Pty Ltd v Elliott) ,etc.
(pg.174 footnotes)
Detinue
o Tort committed then 1 person wrongfully detains goods of
another
o Occurs if defendant rightfully has possession of plaintiffs
goods but when plaintiff demands that they return the goods,
defendant unreasonably refuses to do so
o Includes negligence and intentional

Trespass to the person

Tort committed when 1 person interferes directly with the person of

another
Intentional or negligent interference with the person of the plaintiff
3 forms of trespass to the person includes:
o Battery
o Assault
o False imprisonment
Battery
o Tort committed when 1 person unlawfully applies force to
another person
o Intentional or negligent conduct, directly causes contact with
the body of the plaintiff without their consent/lawful
justification
o However, certain level of physical contact is unavoidable
element of daily life (Collins v Wilcock)
o Some level of physical contact, e.g. to get attention, was
generally acceptable in daily life (Rixon v Star City Pty Ltd).
o People who participate in contact sports are deemed to have
consented to physical contact within rules of the game
o Committed if:
X causes some sort of physical interference with the
body of Y
Xs act is direct
Xs act is either intentional or negligent
No consent by Y or lawful justification for Xs act
Assault
o tort committed when 1 person unlawfully threatens another
with imminent physical harm
o so long defendant causes plaintiff to reasonably believe that
they are about to be subjected to a battery, defendant
commits tort of assault
o No physical contact needs to occur; threat of physical contact
enough (Stephens v Myer).
o However if defendant accompanies threatening gesture with
words that make it clear that the plaintiff is in no imminent
danger (Tuberville v Savage)
o If defendant makes threat conditional upon plaintiff complying
with defendants demand, tort is committed (Rozsa v
Samuels)
o Committed if:
X causes Y to develop a reasonable apprehension of
imminent physical contact
Xs act is direct
Xs act is either intentional or negligent

No consent by Y or lawful justification for the act

False imprisonment
o Tort committed when 1 person unlawfully deprives another of
their freedom of movement
o Total deprivation of plaintiffs freedom of movement without
consent or lawful justification
o Not necessary for direct physical interference, but have no
reasonable means of escape (Burton v Davies)
o Restraint can be psychological (Symes v Mahon)
o Not false imprisonment if plaintiff has consented to being
detained
o Committed if:
X causes Y to be totally restrained
Xs act is direct
Xs act is either intentional or negligent
No consent by Y or lawful justification for the act

Defences (Tort of trespass)

Accident The interference was neither intentional nor negligent

(Stanley v Powell)
Consent The plaintiff has either expressly or by implication
voluntarily consented to the trespass (McNamara v Duncan)
Necessity The trespass was necessary to protect life, land or goods
from imminent and real harm (Wilson v Pringle)
o (Southwark LBC v Williams) Homelessness X recognised as a
defence to trespass
Self-defence The trespass (usually to the person) was reasonably
necessary to protect the defendant or another from imminent
physical aggression by the plaintiff, and was proportionate to the
threat (Fotin v Katapodis)
Defence of property The trespass (usually to the person) was
reasonably necessary to protect the defendants land or goods from
imminent harm by the plaintiff and was proportionate to the threat
(Norton v Hoare)

Tort of Nuisance

Tort committed when 1 person indirectly interferes with another

persons use and enjoyment of private or public land
Nuisance: act by the defendant that indirectly interferes with
plaintiffs use and enjoyment of private or public land

2 forms of nuisance
o Private nuisance
o Public nuisance

Nuisance = indirect interference with plaintiffs use and enjoyment

of land
Trespass to land = direct interference with land in possession of
plaintiff

Private nuisance
o Tort committed when 1 person indirectly interferes with
another persons use and enjoyment of PRIVATE land
o Interference does not need to be committed from defendants
land; can be committed from the street or airspace above land
o Committed if:
X interferes with Ys use and enjoyment of private land
Y has an interest in that land (Owner or tenant)
Y suffers actual harm or damage
Xs interference is indirect
Xs interference is wither intentional or reckless
Xs interference is sustained and unreasonable
o E.g.
Destruction of plaintiffs vegetation by noxious fumes
(St Helens Smelting Co v Tipping)
Blocking of a watercourse causing flooding to plaintiffs
property (Thorpes Ltd v Grant Pastoral Co Pty Ltd)
Etc. (pg. 177)

Public nuisance
o tort committed when 1 person indirectly interferes with
another persons use and enjoyment of public land
o entitled to bring legal action against defendant for public
nuisance if can show they suffered loss over and above loss
caused to members of the public generally (Walsh v Ervin)
o More likely to lead to prosecution under criminal law or
proceedings brought by Attorney-General on behalf of
community
o Committed if:
X interferes with Ys use and enjoyment of public land
Y suffers actual harm or damage over and above that
suffered by members of the public generally
X interference is indirect
Xs interference is either intentional or reckless
Xs interference is sustained and unreasonable
o Interference = unreasonable when something is done by the
defendant which is unnecessary for the conduct of their

business; when defendants business premises are inadequate

or unsuitable to hold crowds; or defendant failed to use
reasonable means to minimise/prevent damage to plaintiff
(Silservice v Supreme Bread Pty Ltd)

Defences (Tort of nuisance)

Consent by the plaintiff plaintiff consented to the nuisance,

either expressly or by implication (Kiddle v City Business
Properties Ltd)
Statutory authority legislation exists that permits defendant
to engage in the harmful conduct (Cohen v City of Perth)
Contributory negligence harm suffered by plaintiff was at
least partially the result of the plaintiffs own carelessness

Tort of Defamation

Tort committed when 1 person publishes to a 3rd party, in a spoken

or written form, a statement about another person that would
damage the reputation of that person
Committed if:
o X makes a statement about Y that is defamatory
o Statement identifies Y
o Statement is published to someone other than Y
Plaintiff MUST establish 3 things to bring action against defendant
(Defamation Act 2005 (Vic)):
o Defendants statement about plaintiff was defamatory
o Defendants statement identified the plaintiff
o Defendants statement was published to a 3rd party
Only living plaintiff can sue for defamation
Corporation can sue for defamation if:
Not-for-profit organisation
Fewer than 10 employees
Defendants statement about plaintiff was defamatory
o Interpreted by courts as:
Makes ordinary people think les of the plaintiff
Causes people to shun or ridicule the plaintiff
Causes the plaintiff to be excluded from society
o Defamatory imputation may be expressed clearly in statement
OR implied by innuendo (Bjelke-Peterson v Warburton)

o Defendants intended meaning = irrelevant; court decides if

statement capable of being defamatory according to its
ordinary & natural meaning (a question on law), and then
decides in the circumstances was in fact defamatory (a
question of fact).

Defendants statement identified the plaintiff

o Defendants statement MUST identify the plaintiff
o Not necessary for plaintiff to be named, so long can be
reasonably identified as referring to the plaintiff
o If entire class of persons has been defamed, e.g. all lawyers
are thieves then an individual who is a member of that
class cannot sue
o Unless class with limited membership, e.g. all lawyers in this
law firm are thieves then may be able to sue

Defendants statement was published to a 3rd party

o Simply means communicated to someone other than the
plaintiff
o Defamation proceedings can be brought against original
publisher and anybody who published or republishes
defamatory material (John Fairfax Productions Ltd v Rivkin)

Defences (Tort of Defamation)

Justification Statement about plaintiff is substantially true

(Defamation Act 2005 (Vic))
Contextual truth Defamatory statement carried, in addition to the
defamatory meanings about the plaintiff, one or more other
meanings that are substantially true, and that the defamatory
meanings did not do any further harm to the reputation of the
plaintiff because of the substantial truth and other meanings
(Defamation Act 2005 (Vic))
Etc. (pg.180-181)

Tort of Negligence

Tort committed when 1 person fails to exercise reasonable care and

causes harm to another person
To succeed plaintiff must establish 3 things on balance of
probabilities:
o Defendant owed the plaintiff a duty of care
o Defendant breached that duty of care
o Defendants breach caused the plaintiff to suffer harm
Committed if:
o X owes Y a duty of care
o X breaches the duty of care
o Xs breach causes Y to suffer reasonably foreseeable harm

Defendant owed the plaintiff a duty of care

o Well established duty of care (DOC):
Motorist owe DOC to other road users (Imbree v
McNeily)
Doctors owe DOC to their patients (Rogers v Whitaker)
Solicitors owe DOC to their clients (Hawkins v Clayton)
Manufactures owe DOC to people who use their products
(Donoghue v Stevenson)
Occupiers owe DOC to people who come onto their
premises (Australian Safeway Stores Pty Ltd v Zaluzna)
Architects owe DOC to people who occupy the buildings
they design (Voil v Inglewood Shire Council)
Etc. (Pg. 185)
Reasonable foreseeability (ONLY IF NO WELL ESTABLISHED
DOC AS ABOVE)
o To establish DOC, must be shown at time of incident, that it
was reasonably foreseeable that defendants conduct could
cause harm to someone in the plaintiffs position (neighbour
principle)
o If not reasonably foreseeable, no DOC established (Bourhill v
Young)
o Not necessary to show defendant foresaw their conduct could
harm plaintiff
o Only reasonable person in the defendants situatuin would
have foreseen the possibility of harm (Champan v Hearse)

Salient features of the case

o Plaintiff must show salient (relevant) features of the case are
consistent with the existence of a duty of care

Means: courts will consider relationships between

parties and other features of the case and then compare
those features with the relevant features of other cases
where a DOC have been found to exist
o Cases: (Sullivan v Moody), (Tame v New South Wales)
o Etc. (pg. 187-188)

Defendant breached that duty of care

o Must establish defendant have breached DOC they owed to
plaintiff
o Was risk of harm foreseeable & significant?
o Failed to do what a reasonable person would have done in the
same circumstances?

Identifying a breach of duty

o Under common law, does not breach DOC unless fail reasonable
person test
o The risk was foreseeable: To establish the existence of DOC, its
necessary to show that the plaintiff being affected by defendants
conduct was foreseeable. To establish breach of DOC, must
show that risk was foreseeable, else defendant has not
breach DOC
o The risk was not insignificant: If insignificant, defendant has not
breached duty of care by failing to take precautions
o Person failed to do what a reasonable person would have done:
Court will take into account of probability of harm, the likely
seriousness of the harm, the burden of taking
precautions, and social utility of defendants activity
Probability of harm:
Low risk (Bolton v Stone)
Obvious risk (Woods v Multi-Sport Holdings Pty Ltd)
Likely seriousness of the harm:
Harm seriousness low, owe lower DOC
Harm very serious, owe higher DOC (Paris v Stepney
Borough Council)
The burden of taking precautions:
Defendant could avoid risk of injury by taking simple
precautions; breach DOC
Defendant could only avoid risk by taking significant,
expensive, and onerous precautions; less likely to
breach DOC (Latimer v AEC Ltd)
Social utility of activity:

 Defendants activity socially useful? (Watt v

Hertfordshire County Council)

o Lower duty of care

Court may decide that defendant less likely to have
breached their DOC because of:
Their status as a minor (McHale v Watson)
Their inexperience (Cook v Cook)
o Not applicable for drivers, unlicensed or
licensed (Imbree v McNeilly)
o Higher standard of care
If person = expert/professional, owe higher standard of
care (non-delegable duty of care)
E.g. medical specialist
Some situations person will also have duty to ensure all
reasonable care is taken
non-delegable duty of care: cannot avoid liability by
delegating responsibility to another person, although may
not be vicariously liable [Independent contractor] (Kondis v
State Transport Authority)
Duty of employers to provide safe place to work = nondelegable duty of care
E.g. hospital to patients, school to students, occupier
in relation to things on their property and under their
control that could cause harm to others
Only extends to negligent acts, not intentionally harmful
o
o Liability for failing to act
No breach of DOC where physical harm or loss arises as a
result from failure to act (pg. 196)
o
Defendants breach caused the plaintiff to suffer harm
o Court must be satisfied that:
Breach of duty was necessary condition of the occurrence
of the harm (factual causation)
Appropriate for the scope of liability of the defendant to
extend to the harm so caused (scope of liability) (Wrongs
Act 1958)
o
Factual causation
o Defendant is only responsible for harm that was actually caused
by their carelessness
o Did the careless act cause, indirectly or directly, the harm
suffered by the plaintiff?

o But for test, break in the chain of causation? (Yates v Jones)

o Not necessary for plaintiff to establish that defendants
carelessness was sole cause of harm, sufficient to show that the
carelessness was a contributing cause (Cook v ACT Racing Club
Incorporated and the Australian Jockey Club Inc)
o
Scope of liability
o Defendant is not liable for every consequence of their
carelessness
o Was the ACTUAL harm suffered by the plaintiff reasonably
foreseeable?
o If harm suffered is not reasonably foreseeable, defendant will not
be liable for that harm (Overseas Tankship (UK) Ltd v Morts Dock
& Engineering Co Ltd)
o Person who has breached DOC is not responsible for all of the
harm caused by their breach, only those reasonably foreseeable
and not too remote or farfetched (Rowe v McCartney)
o Eggshell skull rule: if plaintiff suffers greater than usual harm
because of a pre-existing vulnerability, the defendant will
nevertheless be liable for the full extent of that harm
o
o Defences (Tort of Negligence)

Voluntary assumption of risk civil defence; if can be established that

plaintiff voluntarily assumed the risk of harm, defendant relieved of ALL
liability
o Plaintiff had full knowledge and appreciation of the risk (Agar v
Hyde)
o Plaintiff freely and willingly agreed to the precise risk that
eventuated
Plaintiff aware reasonably foreseeable harm inherent in the
sport/activity only, not unreasonably foreseeable harm (Rootes v
Sheltoon)
o

Contributory Negligence civil defence; if can be established that

plaintiff contributed in some way to their own loss or injury, liability for
negligence will be apportioned between the defendant and the plaintiff
(Ingram v Britten) (Manley v Alexander)
o Plaintiff may be found completely responsible for their own injury
(Wrongs Act 1958)
o
o Other defences (Tort of Negligence)

Barristers do not owe DOC in relation to work done in court or work

intimately connected with work in court (DOrta-Ekenaike v Victoria
Legal Aid)
Volunteers (Commonwealth Volunteers Protection Act 2003 (Cth))
Emergency service providers
Compliance with standard practise Court decides
Apology
o Applications
o
o Occupiers liability
Occupiers owe DOC to people who come onto their premises
(Australian Safeway Stores Pty Ltd v Zaluzna)
Occupier carelessness must be established (Phillips v Daly)
(Modbury Triangle Shopping Centre Pty Ltd v Anzil) does not extend to
prevent criminal conduct by 3rd parties
Standard of care owed by occupier of commercial premises higher than
occupier of residential premises (Neindorf v Junkovic)
Occupiers owe DOC to trespassers (Hackshaw v Shaw)
o
o Liability of public authorities

Occupier of public area owe people DOC to warn of foreseeable risk to

persons using the area as intended by public authority (Nagle v
Rottnest Island Authority)
If danger is obvious no DOC (Romeo v Conservation Commission of
Northern Territory)
o
o Bailment (pg. 206-207)

o Negligent Misstatement

The giving of careless advice that leads to economic loss

Defendant gives advice and owes duty of care if:
o Advice was of business or serious nature
o Defendant knew or should have known that the plaintiff
intended to rely on the advice
o It was reasonable in the circumstances for the plaintiff
intended to rely on the advice
If 2 other elements of tort of negligence is also satisfied:
o Defendant breached duty of care by giving careless advice
o Breach of DOC caused harm to the plaintiff
Defendant may owe DOC even if not professional adviser (Rentokil
Pty Ltd v Channon), but not liable if has disclaimer (Hedley Byrne &
Co Ltd v Heller and Partners Ltd)
Even if advice is little more than provision of information (L
Shaddock & Associates Pty Ltd v Parramatta City Council)
Committed if:
o X gives Y business or serious advice
o X knows or should know that Y intends to rely on the advice
o It is reasonable in the circumstances for Y to rely on the
advice
Person giving advice may also be liable to not only the person being
directly advised, but 3rd parties who rely on the advice. Only
established DOC with 3rd parties if: (Esanda Finance Corporation Ltd
v Peat Marwick Hungerfords)
o Defendant knew or should have known that the information or
advice would be communicated by their client to the plaintiff
o Information/advice was likely to lead the plaintiff to enter into
transaction of the kind the plaintiff in fact entered into
o Likely that the plaintiff would suffer economic loss if
information or advice was wrong
Owes DOC to 3rd parties if:
o X gives Y business or serious advice knowing Y will
communicate that advice to Z
o Advice is likely to lead Z to enter into a particular type of
transaction
o Likely that Z will suffer financial loss if they enter into that
transaction and the advice was wrong)
o
o Consequences of causing harm

pg. 218-220

o Contract

legally enforceable agreement

3 requirements to be legally enforceable:
o Agreement between 2 or more persons (parties)
o Both parties intend that agreement to be legally enforceable
o Both parties must pay a price or make a promise
(consideration)
Contracts do not need to be in writing
o

Agreement between 2 or more persons (parties)

o
o Agreement: exists when 2 or more people share an
understanding and intention
o Many are preceded by period of negotiations; Does not exist
until negotiations concluded
o Sometimes existence of finalised agreement can be deduced
from the conduct of the parties (Brogden v Metropolitan
Railway Co).
o Formed only when:
Offeror has made an offer
Offeree has accepted the offer
Offeree has communicated their acceptance to the offer
to the offeror
o Offer: expression of willingness to enter into an enforceable
relationship with the person whom the offer is directed
Can be made in writing
Verbally
Indicated through conduct
Depending on wording of offer, can be accepted by
either first person to respond or by anyone from the
group
No limit to no. of people to whom an offer can be made,
can be made to the world at large (Carhill v Carbolic
Smoke Ball Co).
If offer = accepted, an agreement comes into existence
from that moment
Offer can be = rejected by offeree
If offer = not accepted nor rejected, can be revoked
Can revoke offer even if promised to keep open for
particular period (Dickinson v Dodds)
Unless offeree has provided consideration to keep offer
open, offer cannot be revoked (Goldsborough Mort & Co
Ltd v Quinn)
Creates separate contract; Option created

Offer can lapse after the expiry of a reasonable amount

of time, reasonable depends on circumstances
(Ramsgate Victoria Hotel Co Ltd v Montefiore)
Requests for information Different from making an
offer; Response to a request for information unlikely to
be seen as a offer (Harvey v Facey)
Advertising = invitation to treat, unless worded
specifically as an offer (Carhill v Carbolic Smoke Ball Co)
Catalogues and price lists = invitation to treat (Patridge
v Crittenden)
Display of a product in window or shelves = invitation to
treat (Pharmaceutical Society of Great Britain v Boots
Cash Cash Chemists (Southern) Ltd)
Auctions = call for bids = invitation to treat (Payne v
Cave); May create collateral contract (pg.235)
Online auctions = listing = offer (Smythe v Thomas)
Advertisement calling for tenders = invitation to treat
(Spencer v Harding)
Vending machine = standing offer (Thornton v Shoe
Lane Parking)

o
o Acceptance
Offeree indicates by words or by action they are willing
to immediately enter into legally enforceable contract =
accept offer
Only the person whom the offer was offered to can
accept the offer
If offeree modifies terms of offer in any way = counter
offer
Counter offer = effectively a rejection of the original
offer, which cannot be subsequently accepted (Hyde v
Wrench)
Request for more information in response to an offer is
not = counter offer (Stevenson, Jaques & Co v McLean)
Agreement not complete until offeree communicates
acceptance to offeror (Powell v Lee)
If offeror specifies the way an acceptance must be
communicated, offer not accepted unless in that manner
or an alternative no less advantageous (Tinn v
Hoffmann & Co)
Failure to respond to an offer that is similar to previously
accepted offer, which was also accepted effectively by
silence can mean an indication of acceptance,
agreement can be enforced by either party (Boyd v
Holmes)

Unilateral contract = contract where acceptance of offer

and its performance by the offeree achieved by the
same act (Carhill v Carbolic Smoke Ball Co)
If reasonable for offeree to reply to offer by post, postal
rule established, offer accepted as soon as letter of
acceptance is posted not when received by offeror
(Henthorn v Fraser)
Does not apply to offers and revocations (Byrne & Co v
Leon Van Tienhoven)
Does not apply to instantaneous communication
(Brinkibon Ltd v Stahag Stahl Und
Stahlwarehandelsgesellscharft mbH)
o **Conditional agreements (pg. 241)

o
Both parties intend that agreement to be legally enforceable
o Parties must intend for agreement to be a contract/legally
enforceable
o Court looks at conduct of the parties from the perspective of
an objective observer through 2 presumptions:
Social or domestic agreements
Or commercial agreements
o Social or domestic agreements
Generally assumed there is no intention to make
agreement legally enforceable (Balfor v Balfor)
Can be rebutted based on particular circumstances
(Wakeling v Ripley)
E.g. seriousness of the agreement, etc.
o Commercial agreements
Generally assumed there is intention for agreement to
be legally enforceable (Edwards v Skyways Ltd)
Can be rebutted by evidence that the parties to the
commercial agreement behaved in such a way that it
was clear they did not intend it to be legally enforceable
(Rose & Frank Co v JR Crompton & Brothers Ltd)
E.g. provided a clause at end of contract
Comfort letter: letter from 3rd party assuring a lender
about borrowers ability to pay load
Can be legally enforceable promise(Gate Gourmet
Australia Pty Ltd v Gate Gourmet Holding AG)
Or non-binding statement of policy & intention
(Kleinwort Benson Ltd v Malaysia Mining Corp Bhd)
Traditional presumptions can be disregarded (Religion)
(Ermogenous v Greek Orthodox Community of SA Inc)
o Preliminary agreements
Pg. 244-245

o Mere puff
Not enforceable if can show not meant to be taken
seriously
Unless worded specifically (Carhill v Carbolic Smoke Ball
Co)

Both parties must pay a price or make a promise (consideration)

o Agreement not contract until both parties have paid/promised
to pay a price
o In form of:
Money
Goods
Service
Undertaking onerous obligation
Refraining from doing something
Promise to do any of these things
o Consideration must move from the promisee, but not
necessary to the promisor (Dunlop Pneumatic Tyre Co Ltd v
Selfridge & Co Ltd)
o Consideration NEED NOT BE ADEQUATE
No need for fair price (Thomas v Thomas)
o Consideration MUST BE SUFFICIENT, cannot be:
Vague promise (White v Bluett), (Placer Development
Ltd v Commonwealth)
Past consideration (Roscorla v Thomas)
Can be rebutted if payer expected legally
enforceable promise to be made at later date
(Ipex Software Services Pty Ltd v Hosking)
Prior legal obligation (Stilk v Myrick)
Unless does something beyond legal or
contractual obligations (Hartley v Ponsonby)
Waiving (pg. 250)
Deeds: Formal contract, not necessary to show
consideration for promise
Practical benefits test (pg. 251)
Promissory Estoppel
According to doctrine of promissory estoppel,
promise enforceable if:
o Promisor intended the promisee to rely upon
a clear and unambiguous promise
o Promisee has relied upon promise by
changing their circumstances, if promise not
kept they suffer material disadvantage
o It would be unconscionable (unfair) for the
promise to be broken
o Used as shield (prevent party from enforcing
their contractual rights) (Central London
Property Trust Ltd v High Trees House Ltd)
o Used a sword (prevent party from denying
contract exists) (Walton Stores (Interstate)
Ltd v Maher)
o