The Defence of Joint Illegal Enterprise

James Goudkamp, ‘The Defence of Joint Illegal Enterprise’ (2010) 34 Melbourne University Law Review pp.425-451.

28 Pages Posted: 26 Feb 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2010

Abstract

The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.

Keywords: tort, negligence, defences, illegality

JEL Classification: K13

Suggested Citation

Goudkamp, James, The Defence of Joint Illegal Enterprise (2010). James Goudkamp, ‘The Defence of Joint Illegal Enterprise’ (2010) 34 Melbourne University Law Review pp.425-451.. Available at SSRN: https://ssrn.com/abstract=2737610

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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