Remedies

This subject has the following teaching availabilities in 2016:

144 hours

Successful completion of all the below subjects:

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student's participation in the School's programs.

The inherent academic requirements for the study in the Melbourne Law School are:

• The ability to attend classes and actively engage in the analysis of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

This subject studies the nature, goals and structure of private law remedies, and is organised around the remedial goals of compensation, perfection, disgorgement, restitution and punishment.

Topics to be covered in the subject will include:

• Compensation (compensatory damages for breach of contract, tort and in equity);
• Perfection (debt, specific performance and injunctions);
• Disgorgement and accounting for profits;
• Restitution (the measure of restitution; rescission; equitable proprietary remedies);
• Punishment in private law (aggravated and exemplary damages);
• Statutory remedies, in particular under the Competition and Consumer Act 2010 (Cth) and Lord Cairns Act.

A student who has successfully completed this subject will have demonstrated an advanced and integrated knowledge of:

• The principles governing the award of private law remedies;
• The leading theoretical debates concerning the appropriateness of remedies awarded in private law litigation; and
• The relationship between rights and remedies across the spectrum of private law.

A student who successfully completes this subject will also have developed specialised cognitive and technical skills enabling them to:

• Apply the principles governing the award of remedies to private law disputes;
• Critically assess proposals for the reform of the law of remedies;
• Produce independent legal writing that is thoroughly researched, tightly edited and that develops arguments in a highly structured way, with a high degree of original content; and
• Communicate complex legal principles, theories and frameworks governing the award of private law remedies and the relationship of these remedies to the private law as a whole to expert and non-expert legal audiences.

Upon successful completion of this subject, students will also have developed a sophisticated understanding of professional standards of conduct required for legal practice in the private law, and in particular understand the critical importance of having an integrated understanding of the private law as a whole.

• Research project 3,000 words (30%);
• Supervised 2 hour exam (70%).

The due date of the above assessment will be available to students via the LMS.

Prescribed text:
Normann Witzleb, Elise Bant, Simone Degeling and Kit Barker, Remedies: Commentary and Materials (6th ed., Thomson Reuters, 2015)("CB")

Recommended text:
Katy Barnett and Sirko Harder, Remedies in Australian Private Law (Cambridge University Press, 2014)

This subject is not available as a breadth subject.

On completion of the subject, students will have developed sophisticated cognitive technical and creative skills in:

• Demonstrating mastery of private law remedies and the relationship between rights, remedies and private law as a whole;
• Understanding, interpreting, comparing and reflecting critically on case law and statute relating to private law remedies from the various Australian jurisdictions and overseas;
• Analysing, comparing and reflecting critically on scholarly commentary from the various Australian jurisdictions and overseas;
• Conducting original research of, reflecting on and synthesising primary case law from the various Australian and comparator jurisdictions; communicating complex knowledge and ideas to specialist and non-specialist audiences; and
• Understanding the effects in professional practice of the choices made between sources of private law rights and, in particular, remedies.