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The De Minimis Rule

The de minimis rule is a common law principle that applies to stop the law from intervening where matters are trivial. The de minimis rule applies in both civil and criminal matters. In criminal matters, the de minimis rule may prevent an offence from being proven where it is technically made out but its effect is insignificant. Examples are where an assault can be made out, but the actual contact was only a gentle prod, or where theft occurs of a few cents. In civil matters, the de minimis rule may be found to apply where facts argued by different parties are minor or where a fact is made out, but it has contributed very little to any relevant finding. This article deals with the de minimis rule in civil matters. 

Civil cases and de minimis


There have been several civil cases where the de minimis rule has been found to apply where a court has had to determine whether something occurred to a “material degree”.


A 2007 Federal Court of Australia case, Comcare v Sahu Khan, considered an injury that had occurred in the workplace. The court considered the meaning of a material degree in that context and for the piece of legislation that was applicable, the Safety, Rehabilitation and Compensation Act 1988. The court determined that for something that had happened in the workplace to be considered a factor contributing to an injury, that thing must have contributed to the damage to a material degree. If the contribution were found to have contributed less than to a material degree, the de minimis rule would apply.


Courts have interpreted the Veterans Entitlement Act 1986 in a similar way. The Federal Court considered the meaning of material contribution in the 1989 case of Repatriation Commission v Richard Edward Bendy. It stated that a factor would be deemed to have contributed to an injury if it influenced the course of events and was not so tenuous as to be considered immaterial. Otherwise, the factor would be regarded as de minimis. The Federal Court also found that it did not need to be substantial or significant for something to be considered a contributing factor.


A further Federal Court case of Kattenberg v Repatriation Commission [2002] FCA 412 determined that the contributing factor does not have to cause the injury’s entirety. It is enough for the contributing factor to have made a material contribution. As long as the factor can be shown to have caused more than a trivial contribution, it will not be considered de minimis. It will be deemed to have caused a material contribution.


Copyright law and de minimis rule


There have been conflicting decisions about how the de minimis rule may apply to legal actions for breaches of copyright laws in Australia. The 2009 High Court decision of IceTV Pty Ltd v Nine Network Australia Pty Ltd, affirmed that the breach must be substantial for a breach of copyright to be found to have occurred.


However, in 2010, a Federal Court decision, Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (NSW) [2010] FCAFC 47, found that the song “Down Under” by the band Men at Work had breached copyright. The finding was that aspects of the song Down Under that had been taken from the tune the “Kookaburra Sits on the Old Gum Tree”. This is even though to an ordinary person, the two songs’ similarities may seem minimal and it would seem the de minimis rule should apply.  


Tax law and the de minimis rule


The de minimis rule may also apply to taxation in Australia. Various tax rules have thresholds that need to be met before tax is payable. An amount under such a threshold is considered to be de minimis. For example, online retailers are not required to pay GST in Australia if they sell less than $75,000 worth of product in twelve months. Similarly, online purchases of less than $1,000 from outside Australia are considered de minimis and are not subject to GST.

If you require legal advice or representation in any legal matter please contact Armstrong Legal. 

Kathryn Sampias

This article was written by Kathryn Sampias

Kathryn Sampias has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Journalism. Kathryn was admitted to practice in 2005 and practised law for more than eight years, working both in private practice (mainly in defence litigation for professional indemnity disputes) and in the public service for the Australian Securities and Investments Commission (ASIC) in enforcement.

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