Edelman J

Steward J
Gleeson J
Beech-Jones J

54.

the legal onus of proving loss as borne throughout by the plaintiff, but described
the facilitation principle as one which is concerned with a "practical or evidentiary
onus".202

149 Another difference is that Mason CJ and Dawson J and Gaudron J, but not
Brennan J, relied upon an additional reason for facilitating the plaintiff's legal onus
of proving loss by treating the loss as equivalent to the amount of wasted
expenditure. The additional reason was that "[i]n the ordinary course of
commercial dealings" a party will expect at least to recoup expenditure.203
Mason CJ and Dawson J described this as a "presumption that a party would not
enter into a contract in which its costs were not recoverable".204 That reasoning is
unnecessary to support the facilitation principle and it cannot be accepted.

150 It is not uncommon in the ordinary course of commercial dealings that a

party might make what, in hindsight, turns out to be a bad bargain, so that the party
does not recoup the expenditure made in anticipation of, or reliance on, the
performance by the other party of their contractual obligations. The general, and
sometimes unrealistic, expectation of parties to commercial contracts that their
expenditure will be recouped is not a basis to facilitate the discharge of that party's
legal onus of proving that the expectation was well founded at the time of breach
of contract. Of course, as Brennan J observed, the facts of a particular case might
be sufficient for an inference that the contractual performance of the defendant
would lead the plaintiff to recoup their expenditure.205 But these facts, and this
inference, are for the plaintiff to establish; there is no presumption of fact.

151 In Berry v CCL Secure Pty Ltd,206 Bell, Keane and Nettle JJ synthesised the
commonalities in the reasoning of the judgments of the majority in Amann Aviation
in similar terms. Their Honours described the legal burden of proving loss as
resting with the plaintiff but recognised that an "inference" (leading to an
"evidentiary burden") could arise from the wrongdoer's conduct, consistently with

202 (1991) 174 CLR 64 at 156. See also at 142. See also Berry v CCL Secure Pty Ltd
(2020) 271 CLR 151 at 169-170 [29], 188 [65]-[66].

203 (1991) 174 CLR 64 at 81. See also at 156.

204 (1991) 174 CLR 64 at 87.

205 (1991) 174 CLR 64 at 105.

206 (2020) 271 CLR 151 at 169-170 [29].