Before a plaintiff can obtain compensation for harm suffered due to any wrong, they need to attribute the harm to the defendant’s wrongful conduct. Broadly, the defendant’s conduct must be a cause of the harm. There is usually a double inquiry here – first, into whether there was a factual historical link between the wrong and the harm (‘factual causation’) and second, a value judgment on whether liability for the harm ought to be imposed upon the defendant (‘legal causation’ or ‘scope of liability’).

Attributing responsibility is sometimes part of establishing liability (for example, for wrongs actionable only on proof of damage, such as negligence), but for wrongs which are actionable per se, it is a matter of remedy.

While the rules on attribution of liability are not the same for every wrong, there are significant similarities. The cases detailed in this chapter illustrate key commonalities and differences across the various wrongs in the rules governing attribution of responsibility. More detail of the specific rules used to attribute responsibility for the individual wrongs is found in the specific chapters on those wrongs.

This chapter deals with accounts of profits and other forms of gain-based relief. The rationale for accounts of profit have been said to be deterrence and prophylaxis.

The placement of reasonable fee awards in this chapter may be regarded as controversial. ‘Reasonable fee’ refers to a court-ordered monetary award reflecting what the plaintiff would have asked for to permit the defendant’s wrongdoing. They are generally awarded for intellectual property breaches, proprietary torts and breaches of negative covenants. The rationale for these awards is unclear, but Barnett and Harder have argued such awards are gain-based, so we place them in this chapter.

The damages dealt with in this chapter have a vindicatory aspect, in that the court recognises the importance of the plaintiff’s rights by making an award.Exemplary damages explicitly punish the defendant for the wrong in question. They are also said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong.

Aggravated damages aim to compensate the plaintiff for distress caused by the nature of the defendant’s breach. They have been said to protect the dignitary interest of the plaintiff, and/or to be a form of damages for distress.

Vindicatory damages are a novel head of damages said to allow for a substantial award of damages in the absence of loss if a right has been violated. It has been argued that they should be extended to breaches of private law rights in some instances. As we will see, the High Court of Australia has argued against these awards being a category of their own in Australia.

A restitutionary remedy is imposed when a defendant unjustly gains at the plaintiff’s expense (whether money, services, or goods). The defendant must give back what he gained (or the monetary value thereof). This chapter, following the principles text, will deal with personal restitutionary remedies for subtractive unjust enrichment. The history of unjust enrichment is dealt with by the principles text. The law on this topic must be treated with care in an Australian context. (See the excerpt from Roxborough v Rothmans of Pall Mall Australia Ltd in Chapter 1.)

This chapter argues that our subjective experiences ߝ how we experience the world and understand ourselves within it ߝ are just as closely governed as our objective conduct, discussed in the last chapter. Whether they realise it or not, contemporary teachers are expected to play a significant role in this form of regulation. After all, teachers are now not simply responsible for transmitting a given curriculum and keeping children in line; they are de facto psychologists, responsible for the mental health, regulation and development of their pupils.

[31.1] Australia’s international obligations are not enforceable through legal action by a person in Australia unless those obligations are incorporated into domestic legislation. If a statute does incorporate all or part of an international agreement, then, subject to a contrary intention in the statute, it is a principle of interpretation that the words in the statute are presumed to bear the same meaning as they do in the international agreement. However, even where a statute does not incorporate text from an international agreement, Australia’s international obligations may still influence the interpretation of domestic legislation. A long-established common law principle provides that, in cases of ambiguity, a construction of a statute that is consistent with Australia’s international obligations should be preferred to a construction that is not. This refers to Australia’s obligations at the time of enactment of the domestic legislation.

[24.1] The legislative history of a statute includes the extrinsic materials relating to that history. Pre-parliamentary materials and parliamentary materials are a significant category of those extrinsic materials. There is a common law principle that permits access to extrinsic materials. As well, each state and territory has provisions in their respective Interpretation Acts governing consideration of extrinsic materials. These statutory and common law gateways to extrinsic materials coexist, although their requirements vary.

[36.1] Statutory powers confer authority that enables a person or body to do what would otherwise be illegal or ineffective. They do so in two broad ways: by conferring discretions and imposing duties. This chapter focuses on the meanings of ‘may’, ‘shall’ and ‘must’ and on a question of characterisation that often arises in relation to them: namely, should the words be characterised as conferring a discretion or as imposing a duty, at least in certain circumstances?1

[20.1] Chapter 13 explained how Acts are structured, identified their various components (such as preambles, titles, headings and examples) and explained whether each component is treated as part of the Act. This chapter deals with the role that those components play for interpretative purposes, whether treated as part of the Act or not. Collectively the components help explain the scheme of the Act.

This chapter argues that the issue of ‘truth’ has played a foundational role, not only within the discipline of philosophy but also within many different aspects of Australian culture. However, there seems to be little agreement on what it really is, and while some philosophers contend that truth is a meaningless concept ߝ a linguistic mirage ߝ most would argue there’s something of importance there ߝ but what is it?Even if we struggle to determine the real nature of truth ߝ as we did with the real nature of right and wrong in Chapter 15 ߝ at least we structure our culture, our knowledges and our school curricula around stuff we know to be unequivocally true … or do we? Arguably, many of the assumptions we make, often derived from five centuries of European colonialism, do not stand up to close scrutiny. They are often ‘truths’ that suit particular interests of the powerful, and subtly act to reinforce their worldview.

[2.1] Contemporary statutory interpretation law involves, broadly, consideration of the statutory text, taking account of its full context and having regard to its purpose. These three concepts have loosely existed in statutory interpretation law for centuries, providing the basis for determining the legislative intent of a statute to varying degrees. This chapter considers the relatively recent history of these key concepts, starting at the beginning of the 20th century. Having some basic knowledge and understanding of this recent history enhances understanding of contemporary concepts and provides historical context to the current law and older cases. Following federation in 1901, Australia continued to be bound, and influenced, by English law. The English approach to interpretation placed considerable emphasis on the grammatical meaning of text, with limited regard to context and purpose.

Parts IV–VIII explore the so-called rules of interpretation, better known as the interpretative criteria of the law. When the criteria are manifested in a particular statutory context they provide indications of meaning and are known as interpretative factors. Part IV begins with the criteria that may be manifested in the text or provision, and in the remainder of the Act concerned.