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Copyright (c) 2010 Melbourne University Law Review Association, Inc.
Melbourne University Law Review

ARTICLE: THE DEFENCE OF JOINT ILLEGAL ENTERPRISE

2010

Melbourne University Law Review

34 Melbourne U. L.R. 425

Author

JAMES GOUDKAMP *

Excerpt

I INTRODUCTION

In Smith v Jenkins ('Smith'), 1 the High Court recognised a defence of joint illegal enterprise to liability in the tort of negligence. It affirmed the existence of this defence in a series of cases, the most recent and important of which is Gala v Preston ('Gala'). 2 The correctness of this line of authority, which has proved highly influential in several other jurisdictions, 3 is presently being reconsidered by the High Court in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller ('Miller'). 4 It is with this appeal that this article is concerned. It makes two central claims. First, in the event that the Court retains the joint illegal enterprise defence, it should perform radical surgery on it so as to render it less offensive to fundamental principles of tort law. The second contention is that the Court should break with its previous decisions recognising the defence -- all of which are contaminated by serious confusion -- and consign the defence to legal oblivion. It serves no useful purpose and is pregnant with the potential to produce significant injustice.

II THE JOINT ILLEGAL ENTERPRISE DEFENCE IN BRIEF

It is convenient to provide a short introduction to the joint illegal enterprise defence in order to set the scene for the analysis that follows. The defence, which is only available in proceedings in negligence, will be enlivened when the following two-stage test is satisfied:
(i) the ...

 
 
 
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