Category Archives: Defences

R v Dudley and Stephens (“Lifeboat case”) (1884) 14 QBD 273 | 9 December 1884

ON 9 DECEMBER 1884, the Queens Bench Division of the High Court of Justice delivered R v Dudley and Stephens (1884) 14 QBD 273.

In 1848, Sydney Barrister John Henry Want purchased an English 52 foot yacht, “The Mignonette”. Want arranged for the yacht to be sailed from England to Australia by Tom Dudley (Captain), Edwin Stephens, Edmund Brooks and Richard Parker.

On 18 May 1884, Mignonette set sail from Southampton to Sydney. On 5 July, somewhere near the Cape of Good Hope, the yacht was struck by a wave and sank. The crew abandoned ship to the lifeboat with only turnips and water.

On 29 July, the lifeboat was rescued by “The Montezuma”. The crew of the Montezuma discovered that Richard Parker had been eaten by Dudley, Stephens and Brooks. The survivors were taken to Falmouth, Cornwall, where they were interviewed about incident. Dudley and Stephens made statements to the effect that on about 25 July, Parker was close to death so they decided to kill him so they could, as well as eat his flesh, preserve his blood to drink. Brooks denied being party to the killing but admitted to eating part of Parker.

Dudley and Stephens justified their actions out of necessity to preserve their own lives. They maintained that this justification was an ancient custom of the high seas.

Dudley and Stephens were charged and tried. The matter ended up before the Queens Bench of the High Court in London.

Dudley and Stephens were convicted of murder. The court held that the law did not recognise a defence of necessity, either in precedent nor morality.

Per Lord Coleridge CJ:

“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…..”

“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’”

Dudley and Stephens were sentenced to death. In response to public pressure, the Government commuted the sentence to a 6 month term of imprisonment on the grounds that the trial court had withheld the verdict of manslaughter from the jury. Dudley and Stephens were released from prison on 20 May 1885.

John Henry Want later became the Attorney General for New South Wales from 1894 to 1899.


Sydney, Australia

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Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39 | 5 September 1990

ON 5 SEPTEMBER 1990, the High Court of Australia delivered Commonwealth v Verwayen (“Voyager case”) [1990] HCA 39; (1990) 170 CLR 394 (5 September 1990).

In 1964, the Australian Navy ships Melbourne and Voyager collided whilst performing exercises off Jervis Bay. Hundreds of servicemen were injured and 82 died.

Verwayen was one of the many servicemen who claimed damages for personal injury against the Commonwealth. His action was brought many years after the limitation period expired.

Verwayen’s solicitor acted for a number of servicemen. In another claim, the solicitor was assured in writing by the solicitor for the Commonwealth and the Minister of Defence that the Commonwealth would not be invoking the limitation defence. In other words, the Commonwealth would not be defending the case on the basis that the proceedings were barred because they were commenced after the expiry of the three year time limit.

The solicitor sought the same assurances from the Commonwealth before commencing Verwayen’s proceedings.  The assurances were subsequently given after the proecceings were issued and the Commonwealth filed a defence pleading that the Commonwealth did not owe a duty of care because the harm occurred in combat exercises. The Commonwealth did not plead the limitation defence.

About 18 months after the proceedings were issued and 14 months after the defence was filed, the Commonwealth filed an amended defence pleading the limitation defence.

By a majority of 4:3, the High Court held that the Commonwealth could not plead the limitation defence.

Deane and Dawson JJ held that the appeal be dismissed applying the principle of estoppel by conduct. Both inferred that Mr Verwayen had prepared and prosecuted his action in reliance upon the representations made by the Commonwealth. The Commonwealth’s conduct raised an equity that could only be accounted for by holding it to the assumed state of affairs.

Toohey and Gaudron JJ held that the appeal be dismissed because the Commonwealth had waived its right to rely upon the defence.

Mason CJ, Brennan, Deane, Dawson and McHugh JJ were of the view that reliance upon a representation was fundamental to the establishment of an estoppel, but only Deane and Dawson JJ held that an estoppel could be applied in this case.


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Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 | 1 September 1981

ON 1 SEPTEMBER 1981, the High Court of Australia delivered Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (1 September 1981).

A party may be estopped (ie barred) from litigating a claim that could have been litigated in previous proceedings if it was unreasonable for the claim not to have been so litigated or if the new proceedings would result in an inconsistency with the earlier decision.


Sydney, Australia

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Smith v Charles Baker & Sons House of Lords [1891] UKHL 2 | 21 July 1891

ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).

The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).

On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.

The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.


Sydney, Australia

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Petelin v Cullen [1975] HCA 24 | 17 July 1975

ON 17 JULY 1975, the High Court of Australia delivered Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975).

Petelin owned land at Liverpool. He spoke little English and could not read English. Cullen through his agent sent Petelin $50 with a letter seeking his agreement to extend an option to purchase land for a further 6 months. Cullen’s agent then saw Petelin and asked him to sign to the letter that he received the $50. Petelin signed the letter believing he had signed a receipt, not an option.

Cullen sought an order for specific performance in the Supreme Court of NSW. The Supreme Court dismissed the action on the grounds that Petelin had made out the defence of non est factum. The NSW Court of Appeal then overturned the Supreme Court decision, ordering specific performance.

The High Court allowed Petelin’s appeal, overturning the Court of Appeal’s decision and dismissing Cullen’s action for specific performance.

The High Court found that Petelin was entitled to the defence of non est factum as he believed that he had signed a receipt, was not careless and that in any event, Cullen was not an innocent person without knowledge or reason to doubt the validity of the signature.

To make out a defence of non est factum, the defendant must show:

  • that he or she signed the document in the belief that it was radically different from what it was in fact, and
  • that (at least as against innocent persons) his or her failure to read and understand the document was not due to carelessness.

There is a heavy onus on the defendant to show that he or she believed the document to be radically different from what it was in fact.


Sydney, Australia

1300 00 2088

Westpac Banking Corporation v Channel 8 Holdings Pty Ltd (No 2) [2014] NSWSC 912

ON 8 JULY 2014, the NSW Supreme Court delivered Westpac Banking Corporation v Channel 8 Holdings Pty Ltd (No. 2) [2014] NSWSC 912.

The court extended a reference for pro bono assistance to the defendant for the preparation and conduct of the hearing as the defences pleaded involve some degree of technicality and require legal knowledge.


Sydney, Australia

1300 00 2088

Brodie v Singleton Shire Council

ON 31 MAY 2001, the High Court of Australia delivered Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512.

The ruling abolished the common law immunity of highway authorities from liability for injury, loss or damage caused by their own non-feasance in Australia.

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