Clark v Macourt: Proper compensation or a one million dollar windfall?

<p>Pacta sunt servanda is a fundamental legal principle, which states that agreements must be kept. Thus, various wrongs, including breaches of contracts, entitle one to the most common remedy at common law: an award of damages. The basic principles that govern the assessment of contract damages are taught to students in every Law School. However, the application of those principles is not always easy because careful attention has to be paid to the individual circumstances of each case. The conclusion that the courts must strive to achieve is compensation of claimants for the actual loss sustained, in order to place them in the same position they would have been in if the contract had been performed. This paper argues that in a recent decision of the High Court of Australia in Clark v Macourt, the claimant was put in a position superior to that she would have been in if the contract had been performed. It summarises and questions the various parts of the decision to show that the million-dollar award over compensated the claimant.</p>

Clark v Macourt: Proper compensation or a one million dollar windfall?

<p>Pacta sunt servanda is a fundamental legal principle, which states that agreements must be kept. Thus, various wrongs, including breaches of contracts, entitle one to the most common remedy at common law: an award of damages. The basic principles that govern the assessment of contract damages are taught to students in every Law School. However, the application of those principles is not always easy because careful attention has to be paid to the individual circumstances of each case. The conclusion that the courts must strive to achieve is compensation of claimants for the actual loss sustained, in order to place them in the same position they would have been in if the contract had been performed. This paper argues that in a recent decision of the High Court of Australia in Clark v Macourt, the claimant was put in a position superior to that she would have been in if the contract had been performed. It summarises and questions the various parts of the decision to show that the million-dollar award over compensated the claimant.</p>

"Directors' duties" imposed below board level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

"Directors' duties" imposed below board level

<p>Recently, the High Court of Australia considered the scope of the term “officer” in a case concerning the breach of a statutory duty under the Corporations Act 2001 (Cth). The equivalent duties prescribed by the New Zealand Companies Act 1993 are owed by an ostensibly narrower class. In considering how New Zealand law would apply to the same facts, this essay discusses the extent to which directors’ duties are, or should be owed by those below directorship level. It concludes that an expansive interpretation of the “director” definition is unnecessary and undesirable, and that explicitly extending directors’ duties to encompass certain senior managers would merely create uncertainties for courts and corporate leaders.</p>

Hidden depths: diversity, difference and the High Court of Australia

There is a growing international emphasis on the importance of diversity in the judiciary and the impact of the individual in decision-making. However, it can be a challenge to gain insight into the individuals who sit on the bench. For instance, there is limited official information about the individuals who sit on the High Court of Australia. One of the rare glimpses provided by the justices themselves is their judicial swearing-in speech. Drawing on a case-study of the swearing-in speeches of High Court justices sitting between 2008 and 2016, this paper illustrates how these speeches can illuminate key demographic information about the judiciary, as well as facets of the individual rarely explored in studies of judicial diversity: personality and values. This study demonstrates how swearing-in speeches can assist with filling information gaps about judicial diversity, and so extend debates about judicial selection.

The Right to Repair: Patent Law and 3D Printing in Australia

Considering recent litigation in the Australian courts, and an inquiry by the Productivity Commission, this paper calls for patent law reform in respect of the right to repair in Australia. It provides an evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115 – as well as the High Court of Australia consideration of the matter in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41. It highlights the divergence between the layers of the Australian legal system on the topic of patent law – between the judicial approach of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and the endorsement of the patent exhaustion doctrine by the majority of the High Court of Australia. In light of this litigation, this paper reviews the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, consumer rights, and competition policy. After the considering the findings of the Productivity Commission, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. It also calls for the use of compulsory licensing, crown use, competition oversight, and consumer law protection to reinforce the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform – particularly in light of 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto. The larger argument of the paper is that there needs to be a common approach to the right to repair across the various domains of intellectual property – rather than the current fragmentary treatment of the topic.

The Engineers Case Centenary: SCOTUS and the Origins of Australia's Scabrous Constitutional Signature

Since the Engineers Case decision in 1920, the role of the United States Constitution in interpreting the Australian Constitution has been diminished, leading to inefficiencies in High Court of Australia (HCA) dealing with constitutional issues. To explain this thesis, the article looks at the 7,657 cases decided by the HCA, from the first case in 1903, to the 31st of August 2020, the centenary of the Engineers Case. The analysis identifies outliers that have much higher complexity (in terms of word-length) than the other judgments. This complexity has one common denominator: comparative analysis with the United States Constitution. The article explains why this common denominator has resulted in such complexity, and concludes with possible research extensions on the roles of the Australian judiciary in embracing SCOTUS jurisprudence when interpreting the Australian Constitution.