76021 Advanced Remedies
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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): 70311 Torts AND 70211 Contracts AND 70517 Equity and Trusts
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Anti-requisite(s): 71116 Remedies
Description
This subject deals with the range of self-help and court-ordered private remedies available to a plaintiff in civil proceedings. It brings together what students have studied or are studying in core subjects such as equity, contract and tort, and electives such as trade practices and intellectual property, into one coherent subject. A plaintiff often has more than one cause of action, and more than one remedy, and complete advice requires a comparison and evaluation of the alternatives. This subject aims to provide an understanding of the remedies available at common law, in equity and under statute, their interrelationship and the practical and theoretical considerations that underpin them.
Following an introduction to the subject and discussion of pre-judgment and self-enforcing remedies, final remedies for civil wrongs and their enforcement are covered, commencing with damages. The nature of damages, nominal damages and compensatory damages are covered, followed by alternative forms of damages based on the defendant's gain rather than the plaintiff's loss. Non-monetary remedies are then covered. These are traditionally equitable: the nature of the equitable discretion is considered, followed by generally available equitable remedies and then contract-specific equitable remedies and their statutory extensions. The subject concludes by considering discretionary damages for civil wrongs and finally damages which do not depend on the commission of any wrong.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | identify, evaluate and apply the various remedies available in private law matters; |
|---|---|
| 2. | critically evaluate the case law and legislation in terms of both legal/equitable principle and public policy; |
| 3. | demonstrate depth of knowledge of aspects of the subject. |
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) - 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 To conduct tutorials in order to provide a framework for, and to engage students in, analysis, evaluation, criticism and problem solving.
Strategy 2 To encourage preparation for and engagement in class by assessing class participation.
Strategy 3 To encourage deeper learning and the development of communication skills by students through class participation and the presentation of research on a remedies topic.
Strategy 4 To require completion of a formal exam to ensure that satisfactory disciplinary knowledge has been attained
Subject Delivery
One three-hour tutorial per week
Tutorial Format and Expectation of Student Participation
Tutorials are discussion groups and students must complete all essential reading before class and participate usefully in class discussions.
Content (topics)
1 Introduction & Outline of Course
2 Interlocutory Relief
• Interlocutory Injunctions, Mareva Orders and Anton Piller Orders
3 “Self-Enforcing” Remedies
• Self-Help (non-judicial) Remedies (tort and contract)
• Declarations
4 Monetary Remedies (“Damages”) I (damages available as of right)
• Nominal Damages
• Compensatory Damages (Personal Injury; Wrongful Life; Wrongful Birth & Death; Defamation; Causation & Chance; Contributory Negligence; Remoteness; Mitigation; Property Damage; Economic Loss; Equitable Compensation)
5 Monetary Remedies (“Damages”) II (“gain-based” alternatives to compensation)
• Account of Profits
• Reasonable Licence/User Fee
6 Non-Monetary Remedies
• Equitable Discretion and Defences
7 Equitable Non-Monetary Remedies
• Final Injunctions
• Specific Recovery of Goods
• Delivery Up of Documents and Goods
8 Non-Monetary Contract Remedies: Equity & Statute
• Specific Performance
• Rectification
• Rescission
• Contracts Review Act & The Australian Consumer Law)
9 Monetary Remedies (“Damages”) III (discretionary damages)
• Exemplary Damages
• Equitable Damages (Lord Cairns’ Act)
10 Remedies Without a Wrong
• Statutory Compensation Schemes
• Restitution for Unjust Enrichment
Assessment
Assessment task 1: General Class Participation
| Intent: | To encourage preparation for, and participation in, class |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 3 This task contributes specifically to the development of the following graduate attributes: 3.0 and 5.0 |
| Weight: | 20% |
| Criteria: | Mere attendance will not be sufficient to pass this component. Students are expected prepare in advancefor the tutorials and to be able to contribute to the class discussion of the weekly topics. The higher marks will be awarded to students who regularly prepare for class and contribute, who respectfully listen to others, and who are able to analyse/criticise the materials. |
Assessment task 2: Research Essay
| Intent: | To give students the opportunity to explore in detail a remedies topic of their choosing |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 3 This task contributes specifically to the development of the following graduate attributes: 1.0 and 5.0 |
| Weight: | 40% |
| Length: | The essay length is 2,000 words (plus or minus 10%). |
| Criteria: | Essays will be marked with regard to the understanding of the topic, the logical organisation of the material, the use of primary and/or secondary materials, critical analysis, individual insight/originality and the ability to engage the audience or reader. |
Assessment task 3: Formal Exam
| Intent: | To assess the attainment of disciplinary knowledge |
|---|---|
| Objective(s): | This task addresses the following subject learning objectives: 1, 2 and 3 This task contributes specifically to the development of the following graduate attributes: 1.0 and 3.0 |
| Weight: | 40% |
| Length: | N/A |
| Criteria: | Students should be able to demonstrate an understanding of the relevant legal/equitable principles and their application; the level of detail provided for each issue should reflect its relative significance |
Required texts
Tilbury, Gilooly, Bant & Witzleb, Remedies: Commentary & Materials (5th, 2010, Lawbook Co) ("TGBW")
Supplementary Materials posted on UTS Online (containing overview of weekly topics and tutorial questions)
Recommended texts
Covell & Lupton, Principles of Remedies (5th, 2012, Lexis Nexis Butterworths)
References
- Wright, Remedies (2010, Federation Press)
- Tilbury, Civil Remedies (1993, Butterworths)
- 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://revofneg.treasury.gov.au/content/Report2/PDF/Law_Neg_Final.pdf
- 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)
- 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
- http://www.lib.uts.edu.au/databases/search_databases.py?subcategory_id=222 (UTS Library Law Databases, including LexisNexis Australia for SCTR, ALR, NSWLR, QdR, VR, NZLR, AllER and Halsbury's Laws of Australia, Legal Online for CLR, FCR, FLR, NTLR, SASR, TasR, WAR and The Laws of Australia, Lexis.com for Canadian and UK cases, Westlaw for UK cases, Hein Online for English Reports 1220 to 1867 and law journals)
- 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)
