71116 Remedies
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): 70317c Real Property
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
Description
This subject principally flows on from 70311 Torts and 70211 Contracts, focusing on the remedies available for those common law causes of action. The subject introduces students to equitable and statutory remedies for misleading and deceptive conduct under the Australian consumer law. Accordingly this subject compares and contrasts common law, and equitable and statutory remedies, demonstrating how a particular interest may be protected by the law in several ways.
This subject links with the private law subjects studied in a law degree. The interests protected by tort, contract and real property, which together provide the general legal foundation for modern private law, overlap, therefore interference with these interests may be protected by more than one right or remedy.
A fundamental objective of the study of remedies is to consider the various court-ordered remedies that may be sought by a person who has been wronged and comparatively evaluate them. The study of remedies is concerned with choices available and considerations which inform them.
Damages are generally available 'as of right', and unconditionally, for common law and statutory wrongs. Selection from the 'smorgasbord' of statutory remedies available for deceptive trade practices is conditioned on the court's view of appropriateness, an inquiry which is broader-ranging than exercise of the equitable discretion.
This subject not only provides a conceptual foundation for considering and analysing the various remedies available for rights to be studied later in the degree; coverage of the statutory deceptive trade practices action also provides a stepping stone from rights developed by judges and studied early in the degree to the statutory rights to be studied later in the degree (eg corporate and commercial law, and most electives).
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Identify, evaluate and appropriately describe and apply the various private law remedies available at common law, in equity and under statute. |
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| 2. | Critically and comparatively evaluate the historical, practical, strategic and jurisprudential differences between remedies available at common law, in equity and under statute. |
| 3. | Make and justify informed choices about particular remedies, select and apply an appropriate remedy recognising when its application to different wrongs will differ. |
| 4. | Develop a logical and balanced written argument, with reference to primary and secondary materials, to support a doctrinally and/or theoretically sound conclusion |
| 5. | Locate relevant primary and secondary materials through guided doctrinal research, and evaluate, synthesise and organise the competing arguments and perspectives therein |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (4.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Teaching and learning strategies
Strategy 1: Doctrinal Learning in Lectures
Students are expected to prepare for lectures by reviewing the set reading for each lecture. Attendance at lectures is strongly encouraged. The lectures cover the principal judicial remedies for legal (common law and statutory) wrongs and the principles governing their application. This doctrinal learning complements students’ prior study of common law actions by identifying and analysing the remedial responses to the rights of action studied in the Torts and Contracts subjects. It also prepares students for the later study of statutory wrongs by exploring concepts and issues arising in deceptive trade practices. By considering the differing origins, purposes and application of judicial remedies, the lectures will enable students to analyse the practical and theoretical choices underpinning a remedy.
Strategy 2: Comparative Analysis & Evaluation in Seminars
Students will prepare for these interactive discussion groups by attending lectures and doing the set reading. The seminars will focus on particular remedies and the choices available to the courts and parties. We will discuss and apply an analytical framework for applying a common remedy in different contexts, and for applying different remedies in a common context, to facilitate comparative analysis and evaluation. For many justiciable invasions of personal interests there are alternative remedies, and for many remedies there are alternative approaches. In order to advise clients and obtain the best outcome for them it is an essential skill to be able to identify the alternatives, compare their strengths and weaknesses and evaluate their arguability. Class discussions will also consider how the case law has applied the doctrinal principles covered in the lectures and address and explore students’ questions and observations in a group setting, providing feedback on students’ developing understanding.
Strategy 3: Collaborative Problem Solving
Drawing on their developing knowledge and understanding and an analytical framework, students will consider hypothetical factual scenarios together, typical of those presented by a client. Problem solving will involve, identifying and articulating the relevant issue(s) and then developing informed arguments to support optimal outcomes. Students are expected to familiarise themselves with the facts of the question before class (prepared answers are not required), in order to focus and streamline the discussion.
Strategy 4: Feedback
Both formal and informal feedback will be provided consistently throughout the semester.
Informal feedback will be provided in lectures and seminars where students can test their understanding of the readings that they have done in preparing for the lecture or seminar. A discussion board will be available to ask further questions about principles which will be answered by academics and students.
Subject Delivery:
One single-hour introductory lecture, nine two-hour lectures and seven two-hour seminars.
Lectures: The lectures cover the doctrinal foundations of remedies for personal injury, tort, contract and deceptive trade practices. Students need to review the set reading before the lectures. Lectures will be recorded.
Seminars: The seminars run as interactive discussion groups, based around set questions. Class participation will be assessed. Students need to complete the required preparation (readings, consider seminar questions) before the seminar. The seminars will not be recorded.
Content (topics)
Lectures
- Introduction & Outline of Subject
- Australian Consumer Law (ACL): meaning of “trade or commerce”, “misleading or deceptive” conduct
- ACL: meaning of "misleading or deceptive conduct"; silence and non-disclosures
- ACL: misleading/deceptive conduct (promises, predictions, opinions, future matters); reliance; contribution & contributory negligence
- ACL: assessment of damages
- Legal remedies: causation, remoteness, mitigation, etc
- Legal remedies: assessment of damages
- Equitable remedies: injunctions, specific performance, rectification & rescission
- Restitution
Seminars
- Research refresher
- ACL: Misleading and deceptive conduct 1
- ACL: Misleading and deceptive conduct 2
- Legal remedies 1
- Legal remedies 2
- Equitable Remedies
- Restitution
Assessment
Assessment task 1: Class Participation ??? Comparative Analysis & Problem Solving
| Intent: | The value placed on this task emphasises the importance of self-discipline and self-management in your preparation for classes. It enables students to apply disciplinary knowledge and develop critical thinking, analysis and verbal communication skills through their active and regular contribution to in classes. Participation in seminar discussion is also critical to receiving ongoing feedback on your understanding of the principles. Developing a sound understanding during seminars will better prepare you for the final exam by embedding knowledge sooner, rather than cramming it later. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 15% |
| Criteria: |
Disruptive or rude behaviour will result in loss of marks or a refusal to award any marks at all. |
Assessment task 2: Research Essay
| Intent: | Enable students to apply their research, analytical and written communication skills to presenting an extended written argument that is logical and persuasive. Feedback will be provided in the form of a completed feedback sheet addressing the criteria (below), along with individual comments about the essay from the marker. |
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| Objective(s): | This task addresses the following subject learning objectives: 2, 4 and 5 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0, 4.0 and 5.0 |
| Weight: | 40% |
| Length: | 1200 words |
| Criteria: |
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Assessment task 3: Scenario-based Exam
| Intent: | The legal questions and problems in the exam are designed to mirror the types of complex legal and factual issues that arise in legal practice and build on the application of disciplinary knowledge during seminars throughout the session. |
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| Objective(s): | This task addresses the following subject learning objectives: 1, 3 and 4 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
| Weight: | 45% |
| Length: | 2 hours |
| Criteria: |
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Required texts
Prescribed text
- W Covell, K Lupton and J Forder, Principles of Remedies (LexisNexis, 6th ed, 2015)
- Geoffrey Moore, Deceptive Trade Practices (available directly from Geoffrey Moore).
Seminar Guide - A guide setting out the readings for, and questions for consideration in, the tutorials will be added to the Subject Documents folder on UTSOnline in the Preparation Weeks.
Any Torts and Contract texts you have - Students are also strongly urged, before the commencement of the subject, to skim read the remedies and/or damages chapters of any tort text and any contract text they have.
Key Legislation - Locate and read Parts 1 and 2 of the Civil Liability Act 2002 (NSW), available from the NSW Legislation website (http://www.legislation.nsw.gov.au/) or Austlii (http://www.austlii.edu.au/).
References to readings are in the Weekly Program (above).
Recommended texts
Bant, Witzleb, Barker & Degeling, Remedies: Commentary & Materials (Lawbook Co., 6th, 2015,)
Barnett & Harder, Remedies in Australian Private Law (Cambridge University Press, 2014,)
Wright, Remedies (Federation Press, 2nd ed, 2014,)
Note: a copy of each of these texts is in Library Reserve Collection
References
- Tilbury, Civil Remedies (1993, Butterworths) (a copy of this is in Library Reserve)
- Civil Liability Australia (LexisNexis Australia Online Commentaries)
- Commercial Damages (Legal Online (Lawbook) Online Commentaries)
- Commonwealth, Review of the Law of Negligence: Final Report (“The Ipp Report”) (2002), at http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-of-Negligence
- McGregor, McGregor on Damages (19th, 2014, Sweet & Maxwell UK)
- Luntz, Assessment of Damages for Personal Injury and Death (4th, 2002, LexisNexis Butterworths)
- Luntz, Assessment of Damages for Personal Injury and Death: General Principles (2005, LexisNexis Butterworths)
- Atiyah, The Damages Lottery (1997, Oxford)
- Meagher, Heydon & Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (4th, 2002, LexisNexis Buterworths)
- Spry, Equitable Remedies (9th, 2013, Thomson Reuters) (a copy of this is in Library Reserve)
- Wright & Hepburn, Remedies in Equity: The Laws of Australia (2010, Thomson Reuters)
- Mason, Carter & Tolhurst, Mason & Carter’s Restitution Law in Australia (2nd, 2008, LexisNexis Butterworths)
- E Bant and M Harding, Exploring Private Law (Cambridge University Press, 2001)
- Dietrich, Restitution: A New Perspective (1998, Federation Press)
- Edelman & Bant, Unjust Enrichment in Australia (2006, Oxford)
- J Edelman, Gain-based Damages: Contract, Tort, Equity and Intellectual Property (Hart Publishing, 2002)
Other resources
Topical law journals relating to the subject include, on LexisNexis Australia
- Australian Civil Liability (newsletter) (LexisNexis Australia Online Commentaries)
- Competition & Consumer Law Journal (LexisNexis Australia Online Journals)
- Journal of Contract Law (LexisNexis Australia Online Journals)
- Torts Law Journal and on Westlaw Au (LexisNexis Australia Online Journals)
- Australian Journal of Competition & Consumer Law (Westlaw Au Online Journals)
- Tort Law Review (Westlaw Au Online Journals)
In addition, the following links are useful for research generally - http://www.lib.uts.edu.au/databases/search_databases.py?subcategory_id=375 (UTS Library Law Databases, including LexisNexis Australia for ACTR, ALR, NSWLR*, NTR, QdR*, VR*, NZLR*, All ER and Halsbury's Laws of Australia, Westlaw Au for CLR*, FCR*, FLR, NTLR*, SASR*, TasR*, WAR* and The Laws of Australia, Lexis.com for Canadian and UK cases, Hein Online for English Reports 1220 to 1867 and law journals) - Note, the asterix (*) indicates that the series is the authorised series of law reports for that court
- http://nswca.jc.nsw.gov.au/courtofappeal/Other/Civil_Liability_Act_Annotations/Civil_Liability_Act_Annotation.html (NSW Court of Appeal annotation of Civil Liability Act 2002)
- http://www.austlii.edu.au/ (Australian cases and legislation)
- http://www.bailii.org/ (British cases)
- http://www.canlii.org/en/index.php (Canadian cases)
- http://www.nzlii.org/databases.html (New Zealand cases)
