Edelman J

Steward J
Gleeson J
Beech-Jones J

49.

breach of contract was that it was "quite impossible to place any value on what the
Commission purported to sell".173 Dixon and Fullagar JJ (with whose conclusion
McTiernan J concurred) said that following proof of the wasted expense due to the
breach of contract the plaintiffs had a "prima-facie case". They said that "[t]he
burden is now thrown on the Commission of establishing that, if there had been a
tanker, the expense incurred would equally have been wasted":174

"It is the breach of contract itself which makes it impossible even to

undertake an assessment on that basis [of valuing a non-existent tanker]. It
is not impossible, however, to undertake an assessment on another basis,
and, in so far as the Commission's breach of contract itself reduces the
possibility of an accurate assessment, it is not for the Commission to
complain."

138 The reference by Dixon and Fullagar JJ to a "prima-facie case" describes

the facilitation of the discharge of the plaintiff's legal onus of proof rather than a
positive shift of a legal onus of proof to the defendant.175 Dixon CJ, Webb, Fullagar
and Taylor JJ later said of a plaintiff's "prima facie case" in the context of the
doctrine of res ipsa loquitur that the prima facie case would succeed "unless
[alternative] facts are proved ... In this sense, and in this sense alone, the defendant
may, perhaps, be said, to carry an onus".176 As Gleeson CJ and McHugh J said of
the same doctrine, "the principle is not a distinct, substantive rule of law, but an
application of an inferential reasoning process [in which] the plaintiff bears the
onus of proof ... even when the principle is applicable".177

139 In summary, the facilitation of the plaintiff's proof arises in cases where the
defendant's breach of an obligation results in uncertainty and difficulty of proof of
loss for the plaintiff, who has incurred expenditure in anticipation of, or reliance

173 (1951) 84 CLR 377 at 411.

174 (1951) 84 CLR 377 at 414.

175 See also Ng, "The Onus of Proof in a Claim for Reliance Damages for Breach of
Contract" (2006) 22 Journal of Contract Law 139 at 153; Winterton,
"Commonwealth v Amann Aviation Pty Ltd 25 Years On: Re-examining the
Problem of Pre-breach Expenditure in Contract Law", in Degeling, Edelman and
Goudkamp (eds), Contract in Commercial Law (2016) 333 at 338.

176 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 120-121.

177 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 132-133 [22]. See
also at 163 [110].