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Remedies Notes

1. THE NATURE OF REMEDIES Reading: Witzleb Textbook – Chapter 1; Wright Textbook – Chapter 1. Critical Choices in Identifying an Appropriate Remedy Levine, Jung and Thomas, Remedies: Public and Private1 The first critical choice is to identify the remedy’s goal. There are many possibilities. One goal might simply be to declare the parties’ rights, to establish as a matter of principle who was right and who was wrong. Another might be to restore the plaintiff to the plaintiff’s rightful position, that is, to the position the plaintiff would have occupied if the defendant had never violated the law. Or, its goal might be to restore the defendant to the defendant’s rightful position, that is, the position the defendant would have occupied absent the violation. A fourth goal might be to punish the defendant for doing wrong. Are there other possibilities? If the various possible goals lead to quite different results, what principles or policies might guide the choice between them? The second choice in defining an appropriate remedy is the choice between a specific and substitutionary remedy. Specific remedies achieve the remedy’s goal in kind, by giving the plaintiff the exact thing to which he or she is entitled. For example, if the goal of the remedy in a nuisance case is to restore the plaintiff to his or her rightful position, a specific remedy would order the defendant to stop the nuisance. Substitutionary remedies operate by giving the plaintiff a substitute – typically, an award of money – equal to the value of the plaintiff’s entitlement. Again, for example, in a nuisance case, a substitutionary remedy might be to give the plaintiff the difference between the value of his land before the nuisance occurred and the value of his land after the nuisance began. What principles should guide the choice between a specific and a substitutionary remedy? The third choice has to do with how to implement the first two choices in crafting the remedy. If the goal is returning the plaintiff to his or her rightful position, how does the court go about deciding what the rightful position is in a particular case? And, if the remedy is to be substitutionary, how does the court decide how much money is an adequate substitute? The fourth choice is how to enforce the remedy. If the defendant does not cooperate, what can and should be done? 1

David Levine, David Jung and Tracy Tomas, Remedies: Public and Private (5th ed) 3. 1

Remedies Notes

The cause of action is the right that you have. Every single wrong is not actionable, such as emotional wrong. Claiming remedies: 1. Cause of action 2. Need to know what are of law that the cause of action falls under (common law or equity) a. Common law and equitable actions have their own rules. Theorists divide the notion of case law into two rights: -

Primary rights – their rights Secondary rights – what has been breached The problem with these kinds of rights is that you’re always looking for a wrong that has been done in breach of their right. 2

Remedies Notes

First thing to do in a case, as what is the cause of action and has the P’s right been breached? -

Exactly what type of right is it? Narrow the problem down.

There are two ways to calculate damages: depends on the nature of the right being breached -

Contractual damages Tortious damages

Which remedy to claim? Depends on the right that was breached, i.e. equitable rights breaches mean equitable remedy. Generally speaking, at common law, you only get money.

Common law and equity, two streams of the law offered two different remedies, the procedural rules for getting the remedies were different as well. -

Common law gives monetary remedy when breach is proved, you are entitled to damages; Equity remedies are all discretionary. You can ask the judge for an equitable remedy. o Based on different ideas; you claim exactly what you have lost and the court will award it to you.

Traditional view: Monist: The dominant UK view about using remedies for different situations. It does not need to be changed Dualist: allowed to get whichever remedy that is the best for the situation. Middle: should apply for whatever the remedy is, the default position would be whatever the normal remedy is – if you can prove that the situation is different, then you should be able to change.

Specific performance: equitable remedy, that says that damages isn’t good enough so we can compel the person to perform the contract. Crossover from common law and equity.

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Remedies Notes

Nuisance: it is a tortious and common law action: courts have been able to apply injunctions. Common law remedies begin with damages: what did the P lose? Equity looks at gain-based relief to begin with: what gain has the D made from the breach?

Statue Law -

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Competition and Consumer Act 2010 (Cth) o Misleading and deceptive conduct and has a huge range of remedies that a judge can choose from.  Can rescind contracts; can give money; issue injunctions; etc. National Consumer Credit Protection Act 2009 (Cth) o Incorporates the National Credit Code – huge range of remedies contained in Chapter 4.  Fines; injunctions; compensation orders; declaring void deeds; varying and refusing to enforce them; supply specific services to the P.

Categorising remedies: Look at the trigger for legal action, not the history of where the cause of action comes from. So, wrongdoing is the trigger for trots and equitable wrongs, but ‘consent’ is the basis of contract and trusts.

Fusion: Why can’t we give an equitable remedy for a common law wrong?  overseas do it.

Remedial fusionists: -

Forget where it came from, the right remedy has to be given. It is fusing the remedies, not fusing the two strings of law. Only occasionally available in Australia. The problem arises when we have to think about when we change the nature of the persons’ remedy, are we changing the nature of their rights?

WRONG REMEDIES AWARDED Seager v Copydex (1967) UK

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Remedies Notes

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Lord Denning – Property and Equity case – breach of confidence in a commercial arena. Denning awarded common law damages to the P, normally equitable compensation. He should have been confined to equitable remedies because he was in an equitable jurisdiction. Equitable compensation is used in order to put the person back in the position he would have been if the damage hadn’t occurred, but here, in awarding common law damages, the amount of money awarded was based on reasonable compensation for the use of the confidential information – two very difference ways of assessing the award. o If it’s reasonable compensation then the court will decide what is reasonable, it’s about what your ‘ought’ to receive.

Digital Pulse v Harris (2002) Australia -

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The employees set up their own company and diverted their employers’ business to their company. The judge first awarded exemplary damages, he said “it’s not right. Just because the cause of action is equitable, he can’t award exemplary damages” ; no precedent for it. Award of exemplary damages (punishment damages) in an equitable cause of action. Exemplary damages are a punishment. Equity does not award punishments. Decisions reversed in the Court of Appeal; the exemplary damages negate with how equity works. Equity has its own rules for awarding compensation and other remedies, and they differ from common law rules about its damages in a lot of areas, like causation, and remoteness. The argument was that you shouldn’t just take one and apply it, because the foundation of rules on which its rests could be very different.

Attorney-General v Blake (UK) -

F: Blake was a British secret agent from 1944-1961. He was jailed for 42 years after being caught spying for the former Soviet Union. Blake, now 83, escaped from Wormwood Scrubs in 1966 and fled to Russia. He wrote an autobiography, he was given an advance of 60,000 pounds from the publisher, with another 90,000 to be given to him after the book was published; the government took legal action to stop him receiving a payment of 90,000. European judges ruled his human rights had been “violated”

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because of the amount of delays to the nine-year case and to award him 5,000 pounds. The only cause of action that would work for this guy is breach of contract. When he joined the secret service, he signed a contract of confidentiality. With breach of contract, the British government has to say how much they have lost in pounds. They have not lost anything monetary. Award of an equitable remedy (account to profits – whatever the person made out of what they did, we reel it back from them) in a common law action (breach of contract). HoL allowed this remedy. But giving an account of profits for a breach of contract actually puts the plaintiff in a better position that they would have been if the contract had been performed properly – can that be right? The British government got 90,000 pounds – much more than if Blake had performed his contract. There is a mutation of what the government is allowed to get per their right.

DEFINING REMEDIES Remedies as cures – What are remedies? Remedy is a “cure”. It is a response to relieve a person of a predicament caused by the D, who has done wrong or is threatening to wrong the P. D’s wrong P’s when they act in contravention of some legally-recognised duty that they owe them. Legal remedies are usually judicial, in the sense that they depend on a court of law issuing an order in legal proceedings requiring the D to do so, or refrain from doing, some act, such as pay a monetary sum to the P. P’s are sometimes entitled to “help themselves” without referring the matter to the court – expedites relief and minimizes cost. Alternative Dispute Resolution, such as conciliation and mediation still may be adopted instead of approaching the court. Remedies as Secondary Rights – Can they be distinguished from primary rights? A remedy is also a “right”, can impose a duty upon the D to pay damages, or to perform a contract, etc. Such duties are referred to as “secondary rights” because they are brought into being for the protection of another, prior legal right that the plaintiff has. It is considered as “secondary rights” by John Austin (1790-1859) – one of the founders’ of English positivists jurisprudence. -

In most systems of law, a vast number of primary rights and duties are not separated from secondary: the PR is not described in a distinct and substantive manner, but it is created or imposed by a declaration on the part of the legislature. In some cases, the law which confers or imposes a PR or duty, is contained by implication in the law which gives the remedy, or which determines the punishment. 6

Remedies Notes

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The essential part of every imperative law is the imperative part of it: that is the injunction or prohibition of some given act, and the menace of an evil in case of non-compliance. It helps to better protect and enforce the primary rights and duties.

Remedies as responses to wrongs and other claims – Is it true to say there are rights without remedies? Yes. Austin regards secondary rights as response to “injuries” or “wrongs”. Also regards the law of remedies as possessing a coherence that justifies its independent study. Remedies don’t always have to respond to “wrongs”, can also respond to other claims. It is a restitution against unjust enrichment.

Professor Birks: -

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Crucial difference between a wrong and a not-wrong. The label “wrong” operates as a license to the law to mistreat the wrongdoer. The entitlements which the law can accord to the victim of a wrong are, so to say, at large, at least until the range has been narrowed by authority, statutory or otherwise. By contrast, not-wrongs leave very little room for choice, because they offer no general license to mistreat the D. A claimant who puts in issue an unjust enrichment, such as mistaken payment, makes no case for, say making the D make good his consequential loss. Defines “wrong” as “all conduct, acts or omissions, whose effect in creating legal consequences is attributable to its being characterized as a breach of duty”. A not-wrong is any event giving rise to a legal response that does not consist in a breach of duty. A wrong includes torts, breaches of contract and the breach to certain equitable duties, such as breaches of fiduciary duty and breaches of confidence. The list of wrongs is neither certain, nor closed, continues to expand. The conduct - on whether it amounts to a wrong or not is beyond the scope of a book on remedies. The decision involves weighting up competing arguments about personal autonomy, moral paternalism and economic efficiency. The main types of remedial response to wrongs are compensation, restitution, disgorgement and punishment. It is a response to the P’s loss. o “The widespread choice of compensation for loss reflects a policy choice, not a legal necessity. There is no measure of response logically dictated by the nature of a civil wrong”. o Corrective justice can also justify restitutionary responses to wrongdoing, provided that the restitutionary remedy does not leave the P better off than they originally were, in terms of their rights.

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Remedies Notes

THE CONTROL OF REMEDIES Judicial and self-help remedies Most remedies are judicially controlled in the sense that they are contingent on the issue of a court order. There are some remedies, that operate by way of “self-help”, which is to say that the P may invoke them without first having recourse to the judicial process. They include the power and liberty of an individual to enter another’s land, in some circumstances, to abate a nuisance that is taking place on that land. Parties are not difference incentives to manage their legal disputes without resort to the court. ADR is used, and recognised as a branch of study in its own right. Very often, parties will pursue judicial remedies only where ADR is not available or has failed.

Control of judicial remedies A distinct question about control is whether private parties can themselves define the substantive content, or form, of the remedies made by judges under a court order. The issue arises most commonly in contract law, where contracting parties sometimes agree not just their primary contractual performance obligations, but also the secondary rights and duties that will arise if the obligations are breached. The law in principle allows contracting parties to determine the damages payable on a breach of their contract, subject to some important limitations. The law in principle allows contracting parties to determine the damages payable on a breach of their contract, subject to some important limitation.

CLASSIFYING REMEDIES One way of dividing up the law of remedies would be by reference to the various types of event that give rise to them  obligations arising from consent (contract); from tort; from unjust enrichment and from other miscellaneous events.

Firstly, restitutionary, disgorgement, punitive and specific remedies have become more generally available.

Remedies Notes

Secondly, compensation itself has been finding a more prominent place in the scheme of equitable remedies.

THE RELATIONSHIP BETWEEN RIGHT AND REMEDY The exact nature of the relationship between “cause of action” and “remedy” is controversial, they are two opposing views. Traditional view: remedy is a mirror of the P’s cause of action, set by the law as the appropriate response to the right in issue. In short, (primary) “right” and (secondary) “remedy” are congruent. Thus, where negligence and breach of contract generate a claim for damages, the award of damages is designed to restore the rightful status quo and reverse the effect of D’s wrong. The court could order the D to undergo an educational training program if, in all the circumstances, this was the most appropriate response to the D’s negligence or breach of contract.

LEGAL AND EQUITABLE REMEDIES The various nominate remedies that serve to advance the purpose of remedial law may be legal or equitable in origin. Although equitable remedies are available in aid of both equitable rights and legal rights, they are available in support of legal rights only where the legal remedy is “inadequate” in the judgement of a court of equity. It is important to identify what a “fusion fallacy” is likely to involve and why there may be objections of. Types of fallacy: -

1. The idea that a legal remedy can be used in support of an equitable right – that there can be a “crossover of remedies” from law to equity. Nowadays, the crossover of a remedy from law into equity could significantly change the nature of the secondary rights available to P’s and interfere with the goals traditionally pursued by the equitable action. 9

Remedies Notes

o Historical objection was that the courts did not always recognise the equitable rights, so it would have been impossible to provide a common law remedy in support of an equitable right.

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Remedies Notes

2. SELF-HELP REMEDIES Reading: Witzleb Textbook – Chapter 2; Barnett & Harder – Chapter 13. Not every dispute goes to court, time consuming and expensive. There are circumstances when a person has done something to help themselves, the court can overlook the infringement of someone else’s rights. It has to be done correctly and in a proper manner. If you find a trespasser on your property, you ask them to leave and they don’t leave – you are allowed to use reasonable force to remove them. Reasonable force would be considered assault otherwise, but the law will permit you to do that if you are in the process of evicting a trespasser. Two major areas: tort and contract TORT

COMMON LAW Rescission of a contract mostly happens outside the courts; unwinding of the contract

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Trespass to land

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Trespass to goods

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Trespass to persons

Clauses that stipulate if there was a breach, already in the contract:

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Nuisance

stipulating the amount of damages that will arise on breach (liquidated damages clauses): where penalties are likely to apply Stipulating other consequences of breach – e.g. forfeiting an interest Stipulating than an amount is recoverable as a debt rather than damages – this makes recovery easier Stipulating that certain terms are so important that their breach immediately will allow a party the right to terminate the contract Stipulating when or how termination might occur Stipulating that if certain events happen the contract is terminated

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Remedies Notes

Tort Abatement of nuisance Nuisance is a substantial and unreasonable use and interference of someone’s land. If you have an action in nuisance, you have the right to remove the source of problem, to do what is necessary to do the harm (Traian v Ware). -

The abatement must be reasonable, must always use the method of abatement that is the least harmful: Traian v Ware.

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Usually you must give notice that you are going to enter another person’s property to abate the nuisance if that’ what is needed: if you don’t, you might find damages for trespass awarded against you: Traian v Ware.

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You don’t have to give notice where it’s a matter of danger to life or health or it’s unsafe to wait;

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If you have the right to abate you don’t have to wait until you’ve actually suffered damage to abate, but once you have abat...