Not wrong: Mr McBrien on Monday's show
But according to some of Australia's keenest legal minds, he was robbed.
Playing for $64,000, Mr McBrien, wrongly according to the network, said that five justices sat on a full bench of the High Court of Australia. The correct answer, host Eddie McGuire told him, was seven. But news of Mr McBrien's $32,000 loss has reached Australia's highest court and the ears of Chief Justice Murray Gleeson. The Australian understands the Chief Justice, who did not see the program, reckons Who Wants To Be a Millionaire got it wrong.
While it is correct that seven judges sit on the High Court, the term Full Court or Bench is defined under the Judiciary Act (1903) as a hearing comprising "two or more justices".
Not wrong: Mr McBrien on Monday's show
Mr McBrien had four answers to choose from on Monday night: five, seven, nine or 11. He told McGuire his gut instinct was seven.
But he phoned his friend Kath, whose husband, Ray, had worked in Canberra. Kath told Mr McBrien "Ray says five".
The Nine Network yesterday stood by its decision. A spokeswoman for the network referred to a passage on the High Court website which says: "Cases which involve interpretation of the Constitution, or where the court may be invited to depart from one of its previous decisions, or where the court considers the principle of law involved to be one of major public importance, are normally determined by a full bench comprising all seven justices if they are available to sit".
But University of NSW law professor George Williams said the network was wrong.
"I think in the circumstances he (McBrien) has given one of two possible correct answers," Professor Williams said.
The Dean of Law at the Australian National University, Michael Coper, said that, technically, the correct answer was "more than two".
by Benjamin Haslem