Sample of IRAC in Australian Business Law/Tort Law


Tort Law in Australia consists of the common law and legislations that address the issues of civil wrongs committed on individuals. Private individuals may sue other individuals or the state for misconduct.[1] The case of Jon and Brienne is important in applying the laws of tort in Australia. The two friends who lived together performed several acts which caused nuisance and trespass; but they were also aggrieved persons on certain circumstances including false imprisonment and public nuisance. Brienne and Jon are liable for civil wrongs and misconduct against their neighbors Sam and Arya, and against “We GOT Collectibles” store.


The issue in the case is whether Jon and Brienne have committed civil wrongs under common law and relevant legislations. The court would seek to establish whether Sam and Arya and the “We GOT Collectibles” art store can sue the two persons for misconduct based on the law of tort. Another issue is whether Jon committed civil wrongs that may lead to civil liability when he threw tins to the homestead belonging to Sam and Arya, and when he jumped out of the art store’s window. The court would also wish to establish the remedies available for the civil wrongs committed by the parties.


The rules that may be applied in the case are tort laws found in relevant legislation and common law cases. Tort is literally defined as a wrong, and in law, it refers to the misconduct or wrong that leads to civil liability for which the aggrieved party is entitled to claim damages.[2] Some of the torts that are recognized in Australian law are: defamation; negligence; nuisance; trespass to the person; trespass to goods; and trespass to land. For the purpose of the current case scenario, the torts of trespass and nuisance may be applied.

A trespass to land may also occur when a person causes some physical interference with another person’s property deliberately, negligently and without permission. Thus, trespass not only occurs by entering the property physically; but also by introducing harmful objects into another person’s property, e.g. spraying insecticides. A person can be sued in court for trespass without a proof of damage or harm, as long as the trespass was intentional and direct.[3] One of the legislations applicable to the tort of trespass is the Access to Neighboring Land Act 1992 which allows people who wish to carry out work on their land to access neighbouring land with permission for connected purposes.

False imprisonment is relevant to the current case; it refers to the illegal obstruction or restrain of movement or deprivation of freedom.[4] Some of the actions considered as false imprisonment are: locking a person in a room without consent, taking people hostage in robbery, confiscating property of value, detaining a person and preventing him from leaving, and medicating someone without their consent for the purpose of restraint.

One of the defenses in false imprisonment is valid arrest by police in ordinary duty as long as there is a probable cause for wrongdoing. For example, law enforcement agencies and property owners generally have the right to detain individuals if they have probable cause to believe that the person committed, or is involved in a crime. In State of New South Wales v Le, the Court ruled that police officers have the right to stop and detain people for the purpose of checking documents in their ordinary lines of duty.[5] A shopkeeper also has the privilege of lawfully detaining a person who is reasonably suspected for shoplifting as long as they have a probable cause to believe that the person is likely to commit crime. The penalty of false imprisonment in Australia includes damages for injuries or emotional suffering. Thus, the plaintiff is awarded monetary damages if the defendant is found guilty.

In Letang v Cooper, the trespass to person occurs when there is an intent for a person to interfere with another person’s individual rights.[6] Unlike the UK law, the Australian tort law does not require the proof of intent for trespass on a person. In the case of Williams v Milotin, the plaintiff who was riding a bicycle was hit by a truck, and the truck driver was charged with negligent trespass.[7]

Another form of tort is nuisance. Private nuisance occurs when a person interferes with another person’s right to enjoy the use of their land substantially and unreasonably.[8] A nuisance can occur without proof of direct or intentional interference.[9] Nuisance occurs only in relation to ordinary and reasonable use of land, and excludes intrusions to a person’s views and privacy.[10] The court establishes the substantiality and unreasonableness of an act or omission by considering the surrounding situations and the standard of comfort that the owner expects from the use of his or her land.[11] The court also seeks to establish whether the perpetrator was reasonably able to prevent the interference by way of precaution.[12] A good example of nuisance is addressed in Munro v Southern Dairies Ltd where the defendant kept horses on dairy premises without proper stables, leading to discomfort in neighbouring houses by way of noise, smell and flies.[13] Public nuisance also occurs when someone does something that could endanger the property, morals, health, comfort and lives of the public.[14] The remedy for nuisance in Australia is payment of damages.[15] An injunction is also available to prevent the defendant from repeating the act that caused the nuisance.


One of the legal issues of the case is Jon’s unpermitted use of Sam and Arya’s swimming pool. Sam is liable for intrusion or trespass because under Australian common law a person who enters another person’s private property without permission is a trespasser who is liable for damages caused. As suggested by Stanley v. Powell, the victim can sue the trespasser as long as the intrusion is direct and intentional. Jon was contracted to mow the land, but he intentionally and repeatedly uses the occupiers’ swimming pool without the owners’ consent. Thus, John is liable for using the swimming pool, and the remedy is to pay for damages receive an injunction to stop using the swimming pool as required in common law.

Jon also threw tins to Arya and Sam’s land, causing both nuisance and trespass. According to the applicable laws, objects can cause physical trespass, so John is liable for physical trespass through his tins. Furthermore, Jon is liable for nuisance caused by the tins on private land. Jon would certainly exercise reasonable precaution to avoid throwing the tins to private land as required in common law, but he failed to do so. The tins fell on Sam and Arya’s prized garden bed, depriving the owners the comfort of using their property. The nuisance also caused emotional discomfort because Sam and Arya were upset by the repeated disrespect from Jon. Brienne aided Jon to throw the tins by giving him moral support; hence she is also liable. Jon can pay damages in form of money determined by the court, and receive court injunction to stop the behaviour causing nuisance.

When they entered an art store, Jon and Brienne acted suspiciously by inspecting the items of the store from shelf to shelf. The owner of the store had the right and reasonable cause to suspect the two people for possible crime and theft based on his experience of people who practice shoplifting. In fact, Brienne murmured about stealing the Russian sculpture, confirming the owner’s suspicions. Therefore, imprisonment or detention of Jon and Brienne was justifiable, and the owner of the store had a defense against liability.

Jon would argue that he was imprisoned in the washroom without his consent when he tripped and lost consciousness. However, closing the door of a washroom is normal, and it could not be considered as an attempt to deprive Jon of his freedom. Furthermore, the windows were left open, and he used them to gain his freedom. In Bird v. Jones, the Court ruled that partial obstruction does not constitute false imprisonment.[16] Thus, Jon who was locked in a room with open windows without any instruction for him to stay in the room shows an impartial, and unintended imprisonment. Thus, the owners of the store are not liable for false imprisonment.

When Brienne hit an art piece and lost consciousness on his way out of the art store, he was given blood transfusion to rescue his life despite his religious beliefs. The court would argue whether Brienne’s right to religious beliefs were infringed.

There is no nuisance in this case because Australian common law does not include a person’s views and beliefs in tort. However, the art piece placed by the Council in a public space outside the art store causes public nuisance. According to Ball v Consolidated Rutile Ltd, public nuisance occurs when a person’s action deprives the public of comfort, health, and live. The placement of a sharp object in public space demonstrates endangerment of people’s health and comfort. Thus, the Council is liable for injuries and damages caused, and injunction to remove the art piece from public space.


Jon and Brienne are liable in tort for causing nuisance and trespass on private property, both in Sam and Arya’s house, and in the art store. They are liable to pay for damages and receive injunction to stop the nuisance and trespass. The art store’s managers are not liable for false imprisonment because they had reasonable cause to believe that Jon and Brienne were acting suspiciously; and the Council is liable for public nuisance by endangering the health and lives of the public.

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