Cooper v Westpac General Insurance Ltd

Cooper and others (the appellants) appealed to the Full Court of the Federal Court of Australia against a decision of Tamberlin J concerning their liability for damage caused by fire to premises leased from Westpac General Insurance Ltd (the respondent). The dispute centred on whether the appellants, as tenants, had intentionally or negligently caused the fire, or permitted it to occur, thereby breaching their lease obligations.

The Full Court was required to determine whether the principle of *res ipsa loquitur* applied to establish the appellants' liability, and whether an inference under *Jones v Dunkel* could be drawn against the appellants for failing to call certain witnesses. Further, the court had to consider the scope of the lease covenant requiring the appellants to leave the premises in substantially the same condition as at the commencement of the lease, fair wear and tear excepted, and the respondent's own covenant to maintain the premises in good repair.

The Full Court reasoned that the principle of *res ipsa loquitur* was not applicable because the cause of the fire was not exclusively within the appellants' control, and there was no evidence to suggest negligence on their part. The court also found that a *Jones v Dunkel* inference was not available as the failure to call certain witnesses did not necessarily point to an adverse inference against the appellants. The court concluded that the respondent had not discharged its onus of proving that the appellants had breached their obligations under the lease, particularly in light of the respondent's own covenant to maintain the premises.

Consequently, the Full Court upheld the appeal, setting aside the orders of Tamberlin J. The claim by the respondent against the appellants was dismissed with costs, and the respondent was ordered to pay the appellants' costs of the appeal.