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Thomas, Rt Hon Justice --- "An Endorsement of a More Flexible Law of Civil Remedies" [1999] WkoLawRw 2; (1999) 7 Waikato Law Review 23


AN ENDORSEMENT OF A MORE FLEXIBLE

LAW OF CIVIL REMEDIES

BY RT HON JUSTICE THOMAS[*]

I. “A BASKET OF REMEDIES”

In this article I pursue the thesis that, having found the defendant in breach of a common law or equitable obligation, the judge should be able to select the most appropriate remedy to redress that breach. The judge should be free to do this irrespective of the historical chains which have hobbled the development of a realistic and responsive law of remedies. I will argue that, while inevitably enlarging judicial discretion, the concept can be advanced in a principled manner. The flexibility and pragmatism which are its integral features can abide principle without succumbing to the inhibitions inherent in undue conceptualisation.

The thesis is not novel. It is frequently referred to as the “basket of remedies” approach. Having held the defendant liable, the judge has at hand a basket containing all the remedies which the common law and equity have yet devised. From that basket he or she selects the remedy which will best meet the circumstances of the particular case. The picture conjured up is, perhaps, unfortunate. With liability out of the way, the judge is envisaged, partly obscured by the bench, humped over a large hamper-like basket busily fossicking around for a likely remedy. To some, the procedure seems to lack even the structure of a supermarket shopping list.

But it would be immature to be deterred by such imaginings. To avoid any pejorative connotation, however, I will adopt the clumsier phrase “appropriateness of remedy principle”.[1] Properly formulated, the principle will ensure that the administration of justice is promoted. The ancient maxim (without reference to which no text on the law of remedies would seem complete), “where there is a right there is a remedy”,[2] becomes “for every wrong there is an appropriate remedy”. The aim of a developed legal system, as well the dictates of justice, must surely be to ensure that, where there is a wrong, there is not only a remedy but also a remedy which is the most appropriate remedy to redress the particular wrong. A law which permits a wrong to be met with a less than appropriate remedy is necessarily imperfect and certainly inferior to a law which requires a wrong to be met with the most suitable remedy.

Existing common law and equitable conceptual categories tend to be historical rather than functional. They remain remnants of a time when each legal remedy was administered under a separate writ and, still later, a time when law and equity were administered in separate courts. But while the courts have generally sought to manipulate the rules derived from these historical categories to achieve just and functional results, the vocabulary and the conceptual categories remain. They have become dysfunctional.[3] As Professor Maxton has succinctly said: “There is nothing in the nature of wrongs per se which demands that remedies for them should bear any relation to their jurisdictional origin”.[4] What is recommended in this article is a more functional approach in which the choice of remedy proceeds on the basis of a variety of criteria directed at ascertaining the most appropriate remedy in the particular circumstances of the case. The question of remedy would become a substantive issue in itself.

The recommended approach borrows heavily from Canadian jurisprudence where it has been developed largely in the context of cases involving unjust enrichment.[5] Once a cause of action in unjust enrichment has been accepted in that jurisdiction, it does not follow that a remedy is awarded pro forma. The question of the most appropriate remedy is dealt with as a substantive issue.[6] Thus, Canadian Courts will consider whether a proprietary or a personal remedy is the more appropriate. But there is no reason why other matters should not be addressed, such as whether a gain-based or loss-based remedy is the most suitable form of relief.[7] Essentially, with the divide between law and equity diffused, the question whether a remedy is legal or equitable need never arise.

By far the most forceful exponent of the appropriateness of remedy approach is Hammond J, and it is appropriate to pay a tribute to his extensive research, scholarship and writings on the subject.[8] Advocating that what is required in principle is that the courts have at their disposal a suitable range of declaratory, preventive, coercive, compensatory and restitutionary remedies, Hammond J contends that the apparent breadth of choice available at present is not, by the time the law gets to work on the problem, a full choice at all. As with other commentators, he affirms that the reason is historical. Judicial remedies in both private and public law did not develop systematically, they “just grew”. He follows Corbin, who half a century ago suggested that “[the remedial] decree of the court should be moulded to suit the facts of each case as justice may require”.[9] So it is that Hammond J asks: “If we were drawing up a remedies scheme de novo, would we not include a ‘basket’ of all the potential modes of relief, and leave it to a court to select that which is most appropriate in a given case?”[10]

II. OF RIGHTS AND REMEDIES

For the purpose of this article, other than to clarify one point, I do not need to enter upon the elaborate debate as to the nature of “rights” and “remedies” and the relationship between them.[11]

One school of thought holds to what is sometimes called the “monastic” view.[12] Rights and remedies are perceived to be entirely congruent. Remedies merely serve to implement substantive rights so that the right must dictate the remedy. In essence, the remedy is not separate and apart from the right. Thus, for example, there is no such thing as a “right to reputation” in the abstract, but rather a right to a particular remedy in the event that a person’s reputation is unjustifiably besmirched.[13]

The second school of thought is labelled “dualistic”. Rights and remedies are perceived as being wholly different and discrete. A distinction is drawn between an independent and antecedent right and the remedy which the court may then order for a breach of that right. Rights occupy “the world of the ideal” while remedies provide “relief in the world of the practical”.[14] The function of the remedy is to realise a legal norm and make it a “living truth”.[15] In the result, the court is seen to be engaged in very distinct exercises when it adjudicates a right and when it fashions a remedy.[16]

The third view adopts a middle ground rejecting the complete bifurcation of rights and remedies. They are seen as being integrated. Rights are not sharply separable from remedies. Gewirtz, in advancing this view, has suggested that there is a permeable wall between rights and remedies. The prospect of “actualising” rights through a remedy makes it inevitable that thoughts of remedy will affect thoughts of right, and “that judges’ minds will shuttle back and forth between right and remedy”.[17]

The point I wish to clarify is that the appropriateness of remedies approach necessarily requires acceptance of the dualistic analysis. A remedial regime which enables the court to select any one or more of the full range of remedies known to the law presupposes that the question whether there is a breach of a right, that is, the commission of a wrong, may be resolved antecedently and independently of the question of the appropriate relief. The middle way, as alluring as it is in its self-defined moderation, is simply to be seen as a descriptive perception of what presently happens in practice. Judges’ minds do at times “shuttle back and forth between right and remedy”, the right prescribing the remedy and the remedy shaping the right. But this phenomenon is not intrinsic to the law or the practice of the law. It reflects, in large part, the fact that the law of remedies is still in a state of disorder, bearing the imprint of the nineteenth century procedural writs and the historical division between the common law and equity. Hampered by the final vestiges of these ancient forms of action and this jurisdictional divide, and striving, as they will, to do justice in the individual case, judges are necessarily prone to shape the right - or cause of action to which it gives rise - having regard to the remedy which is available. The more flexible remedies available in equity, for example, have resulted in equitable rights or causes of action being utilised to fill in the gaps or deficiencies in the common law.[18]

By far the most striking example of this phenomenon is the development of the fiduciary concept beyond what many jurists and commentators see as its proper boundaries in order to ensure that the remedy of a constructive trust is available to do justice in the particular case.[19] The exercise is innately artificial. Separating remedies from rights, and making available a full range of remedies to enforce any obligation or rectify any wrong, frees the law of the covert mental gymnastics required in shifting back and forth between right and remedy and, in particular, allowing the availability or non-availability of a remedy to infect the definition of a right - or cause of action. In other words, the definition of the right - or cause of action – need not be distorted by furtive regard to the remedy which is perceived to be desirable and just in the particular circumstances of the case.

Accepting the bifurcation of rights and remedies for the purpose of adopting the appropriateness of remedies approach does not pose an obstacle for me simply because the arguments in favour of that division seem unanswerable. In a persuasive article, Hammond J has proffered a number of reasons, and makes an overwhelmingly strong case, for preferring the dualistic view.[20] I do not propose to repeat the arguments he marshals in support of that view. Suffice to say, the persistent objections to the distinction between rights and remedies seem antiquarian today. Both the language and practice of the law involve the invocation of antecedent rights possessing an independent meaning extending beyond the law - and litigation - and divorced from the question of enforcement. In my view, there can be no plausible challenge to the development of a more flexible law of remedies based on the bifurcation of rights and remedies.

III. THE FACTORS CONTRIBUTING TO A MORE FLEXIBLE APPROACH

A number of factors make progress towards a more flexible law of remedies seemingly inexorable. The first and foremost factor is the merging or intermingling of law and equity. This coalition renders separate remedial regimes illogical. Other trends point in the same direction. In New Zealand the courts have been prominent in adopting a substantive interest-based approach in which the substance of duties or obligations is given preference over their conceptual origins. The same substantive approach is evident in the proposal to disregard historical and jurisdictional doctrines and select the most appropriate remedy in the circumstances of the case to redress the particular wrong. The noticeable break-down of the traditional hierarchy of remedies under which compensatory relief enjoyed primacy facilitates the appropriateness of remedy approach. No particular remedy or kind of remedy has an intrinsic weighting in its favour. Finally, the gradual progression of the civil law of wrongs towards an integrated law of obligations requires mention. Such a move must necessarily be accompanied by an integrated set of legal remedies for a breach of any such obligation. I shall deal with each of these factors in turn.

1. The intermingling of law and equity

The Judicature Acts made possible the merging or intermingling of law and equity. With jurisdictional and procedural requirements assimilated, the two discrete bodies of law were prone to become a single coherent body of law. Maitland confidently predicted that the historical links would diminish with the passing of the years.[21] But, as Professor Maxton has observed, the historical bond has proved to be remarkably durable.[22] Lord Simon suggested in United Scientific Holdings Ltd v Burnley Borough Council[23] that the central reason for this durability was “that lawyers, trained in systems which look to precedent and thus foster conservatism, tended to minimise the change which had been made”. I suspect that the learned Law Lord was right. Practising lawyers seem to have a deep and abiding respect for Ashburner’s famous – or infamous – fluvial metaphor; “The two streams of jurisdiction [law and equity], though they run in the same channel, run side by side and do not mingle their waters”.[24]

Yet, judicial indications to the contrary have been evident for many years. In 1977 Lord Diplock made so bold as to say; “the waters of the confluent streams of law and equity have surely mingled now”.[25] The same attitude is to be found in the decision of the New Zealand Court of Appeal in Coleman v Myers[26] of that year. The appellants pleaded negligence, breach of fiduciary duty, and fraud against the respondent. Restitution was the primary objective, but damages were sought in the alternative. On the cause of action for negligence only damages could be awarded. Recission, and with it restitution, was available for breach of fiduciary duty and fraud. Although the respondents resisted rescission and sought to minimise damages, they did not argue that monetary compensation or damages could not be awarded for breach of fiduciary duty. Cooke J (as he then was) observed that, since the fusion of common law and equity, any argument to the contrary would be an unattractive technicality.[27] But, as no such argument was advanced by counsel, the point did not need to be taken further. Inevitably, of course, the point was taken further. In Hayward v Giordani[28] the same judge opined that the law of unjust enrichment, as well as the principles of equity, had not ceased developing and that the function of the courts must be to develop common law and equity so as to reflect the reasonable dictates of social facts, and not to frustrate them.

The theme gathered force in Van Camp Chocolates Ltd v Aulesbrooks Ltd.[29] In that case it was alleged that the defendants improperly used commercial information. Reverting to its perceived historical genesis, counsel argued that the Court did not have jurisdiction to award damages for past breaches of the obligation of confidence. In rejecting the argument, Cooke J responded that it should not matter whether the award is described as damages for tort or equitable compensation for breach of duty.

Cooke P took the opportunity to advance the cause in Day v Mead.[30] Both negligence and breach of fiduciary duty were alleged against a solicitor. The trial judge had found that there had been a breach of fiduciary duty and this finding raised the question whether contributory negligence applied to such a breach. Cooke P held that the courts were not restricted to the remedies of injunction or account, neither of which would meet the circumstances of the case. In the style of Lord Denning, Cooke P cited his earlier dicta in Coleman v Myers and Van Camp Chocolates Ltd v Aulesbrooks Ltd, and stated that the Court had accepted that, independently of Lord Cairns’ Act, damages or equitable compensation can be awarded for past breaches of a duty deriving historically from equity.[31]

The New Zealand position was further crystallised with the decision of the Court of Appeal in Aquaculture Corporation v New Zealand Green Mussel Co.[32] That case again involved a claim for breach of confidence. The notion that it was open to the court to apply the most appropriate remedy made its overt entrance. The plaintiff claimed that the improper disclosure of confidential information had damaged its commercial prospects. Cooke P was not prepared to let the uncertain historical and jurisdictional origins of the action for breach of confidence prevent the Court from providing a suitable remedy. He said:

For all purposes now material, equity and common law are mingled or merged. The practicality of the matter is that in the circumstances of the dealings between the partners the law imposes a duty of confidence. For its breach a full range of remedies should be available as appropriate, no matter whether they originated in common law, equity or statute.[33]

Finally, reference may be made to the forthright comments of Tipping J in New Zealand Land Development Co Ltd v Porter.[34] Tipping J argued that there is no longer any value, except for historical purposes, in seeking to distinguish or keep conceptually separate common law damages and damages in equity, whether under Lord Cairns’ Act or otherwise. The court, he said, should now award such damages as are a proper and fair reflection of what the plaintiff has lost by reason of the failure of the defendant to perform the contract. It no longer matters whether the damages are called common law or equitable damages. Any residual distinction has now gone and perhaps serves more to confuse than to assist. Let us, the learned judge enjoined, carry the fusion of law and equity into the area of damages.[35]

These cases, beginning with no more than a hint of things to come and developing into explicit recognition of the view that a full range of remedies should be available for a wrong, irrespective of whether the wrong lay in common law, equity or statute,[36] provided the foundation for the remarkable projection of that view pursued by Hammond J to which I have already alluded. With the objective of bringing about a sea-change in remedial law he has arrayed an armada of arguments, the most judicially comprehensive of which is to be found in Butler v Countrywide Finance Ltd.[37] No judge has appreciated more avidly and expressed more articulately than him that the choice of remedies for civil wrongs has become historical and dysfunctional.

However, to focus solely on developments in New Zealand, and ignore the progress made in Canada, would be incomplete. Canadian Courts have displayed meagre respect for the niceties of legal history. As already intimated, the need for remedial flexibility has been particularly evident in the development of the cause of action in unjust enrichment. Dickson J said in Pettkus v Becker[38] that it would be undesirable, and indeed impossible, to attempt to define all the circumstances in which an unjust enrichment might arise. The great advantage of ancient principles of equity is their flexibility. The judiciary, he said, is able to shape these malleable principles so as to accommodate the changing needs and mores of society in order to achieve justice.

McLachlin J pursued this theme in an extra-judicial article. She observed that judges are no longer content to apply the rules and, Pontius Pilate-like, wash their hands of the result. Judges, she said, rather want to do justice. She quoted Lord Denning in Re Vandervell’s Trusts (No. 2),[39] to the effect that every unjust decision is a reproach to the law or to the judge who administers it. If the law should be in danger of doing injustice, then equity should be called in to remedy it. Equity was introduced to mitigate the rigour of the law. Increasingly, therefore, McLachlin J concluded, the Canadian Courts are realising that it is not enough to focus merely on equitable principles; they “must also work toward reconciling equity with the common law to create a single, coherent doctrine of civil remedies”.[40] The logic of this reconciliation is plain to see if only because the divide between law and equity was always inherently irrational.

The divide is all the more irrational to the extent that it provides duplicating or closely parallel remedies. Professor Burrows paused in the course of his admirable text to point out that, while it is essentially true that only equitable remedies are available for equitable wrongs, it is also true that the same or similar functions are performed by remedies in tort and contract.[41] In respect of proprietary estoppel, for example, the primary remedies are orders to convey land and declarations of right over another’s land, and these correspond to the contractual remedies of specific performance and declaration respectively. In other cases, monetary awards corresponding to compensatory damages have been secured for a plaintiff by way of, for example, an equitable lien or a conditional possession order. Burrows goes so far as to say that, if proprietary estoppel were to be treated as a breach of contract giving rise to solely contractual remedies, the range of remedial functions would barely differ. For breach of fiduciary duty, of which the prime example is breach of trust, the main remedies are accounting for loss (otherwise referred to as equitable compensation), the prohibitory injunction and an account of profits. The first of these corresponds, he suggests, directly to compensatory damages, while the last two are also remedies for torts, albeit that an account of profits and other restitutionary remedies are yet only available in relation to certain torts. Again, Burrows asserts, no wide gulf exists between judicial remedies awarded for torts and those for breach of fiduciary duty, so that to treat breach of fiduciary duty as a tort giving rise to purely tortious remedies would produce little change in the range of remedial functions.

While I incline to think that Professor Burrows may have overstated his point, closely parallel remedies of this kind are self-evidently confusing and an impediment to the development of a single, coherent doctrine of civil remedies. Equitable obligations will necessarily overlap with other heads of liability. Indeed, in practice it is frequently difficult to determine whether a fact situation should be governed by the law of contract, the law of tort, or the law of trusts.[42] The intermingling of law and equity virtually guarantees overlapping liability and is a situation which equity has long accepted. Moreover, concurrent liability is now accepted in contract and tort.[43] With such overlapping and concurrent liability, the need for a single rational system of remedies to avoid remedial discrepancies and anomalies is readily apparent.

2. The substantive interest-based approach

As befits a jurisdiction which has been to the forefront in endorsing and giving substance to the fusion of law and equity, the New Zealand Courts have also been prominent in emphasising the substance of the plaintiffs’ claimed interest in preference to a formalistic and historical analysis. This has been called the substantive interest-based approach.[44] The substance of the duties or obligations is given preference over their conceptual origins.

The substantive interest-based approach is nowhere more clearly articulated than in the judgments of Cooke P and Tipping J in Lockwood Buildings Ltd v Trustbank Canterbury Ltd.[45] The learned judges indicate that the substance of the right claimed by a plaintiff is where the cause of action is to be found and then accurately articulated, rather than in the historical formulation of the cause of action which often brings with it unhelpful baggage.[46] Cooke P commented that, at the present day, the historical derivation of the cause of action is less important than an identification of the substance of the right. Tipping J added that the assimilation of trespass and case, which he favoured in that case, accorded with the modern practice which is to look more at substance than at form. The learned Judge revisited the issue in Bank of New Zealand v New Zealand Guardian Trust Company:

Historically the law has tended to place emphasis on the classification of the relationship giving rise to the obligation. But more recently, for certain purposes at least, there has been a shift of emphasis from the classification to the nature of the obligation, or duty, as it is usually called. Thus the nature of the duty which has been breached can often be more important, when considering issues of causation and remoteness, than the particular classification or historical source of that duty. What matters is not so much the historical source, be it equity or the common law, fiduciary duty or tort, but rather the nature and content of the obligation which has not been fulfilled. For example, duties of care are owed both in equity and at common law. But as a matter of policy it will not usually be appropriate, if the nature and content of the duty are the same, to have different approaches to causation and remoteness, according to its historical source.[47]

The same approach is evident in England in the insightful contributions of Lord Browne-Wilkinson in Henderson v Merrett Syndicates Ltd,[48] White v Jones[49] and Target Holdings Ltd v Redferns.[50] In the first two cases Lord Browne-Wilkinson drew attention to the close connection between tortious obligations and equitable obligations. In the last case he identified the remedial similarities between these two heads of liability.[51] The learned Law Lord’s observations are perhaps evocative indications that the point has been reached where, certainly in respect of obligations of care which cover the same or very similar conduct, and although developed separately at common law and equity, the substance of those obligations matters more than their particular historical origin.[52] Under such a regime the focus will be on the real nature of the pre-existing relationship between the parties, the assumption of responsibility by the defendant, the reliance of the plaintiff on the defendant’s undertaking, and the detriment suffered by the plaintiff.[53]

Again, the progress made in Canada cannot be disregarded. The developing approach is well indicated in the judgment of La Forest J in Hodgkinson v Simms.[54] It reveals a desire to:

strive to treat similar wrongs similarly, regardless of the particular cause or causes of action that may have been pleaded. The courts should look to the harm suffered from the breach of the given duty, and apply the appropriate remedy.[55]

3. The breakdown of the traditional hierarchy of remedies

A further factor favouring the acceleration of the appropriateness of remedy approach is the gradual but inexorable break-down of the traditional hierarchy of remedies. Historically, the range of remedies available has been distinctly ordered. Compensatory relief has enjoyed primacy. Specific relief is theoretically available only if damages to compensate for the wrong are inadequate. Declaratory relief tends to follow where other forms of relief are, for one reason or another, not available.

This hierarchy of remedies has meant that, at least prima facie, legal remedies have been regarded as primary and equitable remedies as secondary. Equity advanced to remedy the gaps and deficiencies in the common law and equitable relief was predicated on the inadequacy of legal remedies.[56] Admittedly, the inflexibility of this hierarchical order has been mitigated by the readiness of the courts to hold that the legal remedy is inadequate.[57] But this hierarchical approach is logically unsound. There is no good reason why the availability of one remedy should depend on the inadequacy of another remedy. Irrespective of the apparent adequacy of another remedy, the preferred remedy should be that remedy which in all the circumstances is the most appropriate. Indeed, however fully compensatory damages may be, damages remain a substitution for more specific or performance-based relief. Damages are only fully adequate if the injured party can use them to replace the specific thing that he or she has lost.[58] Moreover, as a rule it is more likely that the injured party will, if at all possible, prefer the implementation of his or her rights to obtaining a replacement for that implementation. If anything, the hierarchy should be inverted and specific relief should be treated as being the primary form of relief.[59] The essential point, however, is that there is no sound reason or justification for retaining the hierarchical approach to remedies.[60]

In his usual vigorous style, Professor Birks has described this primacy as the “false monopoly of compensation”.[61] In large part he attributes the subterranean persistence of the dogma that all non-compensatory awards for civil wrong somehow offend the nature of private law to the views of the House of Lords in Rookes v Barnard,[62] affirmed in Cassell & Co v Broome.[63] Although concerned with punitive damages, the underlying notion which emerged from these decisions was that in the law of civil wrongs the plaintiff’s loss is the proper measure of damages and that anything outside that measure is somehow anomalous. Although immune to some of the criticisms of punitive damages, gain-based awards fall foul of this notion. As Birks comments, this interpretation deprives the law of its normativity and abdicates to the criminal law all the business of deterrence and retribution.[64]

Birks rightly concludes that it cannot be right to portray a restriction to compensation for loss as other than a choice which some systems happen to prefer. He endorses the thrust of Lord Wilberforce's dissenting judgment in Cassell & Co v Broome to the effect that legal systems do with the law of civil wrongs and remedies whatever seems to them to be useful and wise. Birks takes heart from the report of the Law Commission (Eng) Report, Aggravated, Exemplary, and Restitutionary Damages,[65] which supports the practice of gain-based awards, that is, restitutionary damages.[66] In all, there should be no reluctance to abandon the notion that the law of remedies is anomalous whenever it permits a remedy which is not compensation for loss. Compensatory relief must necessarily lose its “false monopoly”.

4. The emerging law of obligations

It would be a serious oversight to ignore the evolution, glacial in speed though it may be, which is taking place in the law towards an integrated law of obligations in which we will speak of the essential obligation rather than a duty in tort, contract, or equity. The evolution is evident in the court’s acceptance of the intermingling of law and equity for it cannot but lead to an appreciation, as suggested by the doyen of trust lawyers, Professor Donovan Waters, that there is little or no value to be gained in duplicating obligations.[67] No firm lines of demarcation between the tortious, contractual, fiduciary or equitable obligations are required. The court’s willingness to extend equitable concepts to foreclose perceived inadequacies in the law, to do justice in the instant case and meet the reasonable expectations of the community, is indicative of this underlying progression towards a broadly based law of obligations.[68] It is also evident in the substantive interest-based approach touched upon above in that the recognition of the substance of the interest allegedly injured must necessarily lead to the substantive expression of the obligation.

The slow progression towards an integrated law of obligations has a symbiotic relationship with the appropriateness of remedy principle. As obligations meld and lose their historical classification, and with it their doctrinal character, it becomes pointless to retain those same historical classifications and doctrinal concepts for the purpose of the law of remedies. As causes of action in tort, contract and equity increasingly overlap and become concurrent, the substantive obligation must emerge and, having emerged, will logically wish to command an open choice of remedies. The futility of developing an integrated obligation hitherto involving, say, causes of action in tort and equity, only to restrict the remedies to those available in, say, tort, is patent.

The symbiotic nature of the development arises from the fact that, once it is accepted that the courts will have at hand a full range of remedies to redress an established wrong, it would be pointless, unless there is some particular reason, to persist with the historical demarcation between the duties in contract, tort and equity. Establishing, for example, that the defendant is only liable in tort or contract will avail the defendant nothing if the court can then impose a traditional equitable remedy as the most appropriate remedy for the injury suffered by the plaintiff.

IV. PROBLEMS LOOM

It would be foolhardy to suggest that the appropriateness of remedy principle will not give rise to problems. Indeed, I consider that, although generally endorsing this approach, commentators on the subject may not have fully confronted the difficult legal issues which will need to be resolved. For myself, I am not daunted by these difficulties. I do not doubt that they are capable of being resolved on a case by case basis with the application of the conventional incremental approach to the development of the law. But they need to be confronted.

It is not possible, however, to carry out a full review of all the potential difficulties. The objective in an article of this kind must be more modest. I shall therefore essay to do no more than outline the nature and scope of the difficulties which will arise following a more overt adoption of the appropriateness of remedy principle.

The two broad but far-reaching consequences of adopting this principle have already emerged in this article. First, any jurisdictional nexus between the right, or cause of action, and the remedy must be severed. Once the remedial exercise to be undertaken by the court is to ascertain and apply the most suitable remedy, the cause of action can no longer dictate the remedy. The right embraced in the cause of action becomes sui generis. Secondly, disparities between the requirements for determining relief at common law and those in equity, in overlapping or collateral causes of action, must be eliminated or reconciled. Requirements embedded in either legal or equitable remedies will not easily yield one to the other and it will not always be clear which should in fact yield to the other. It is, of course, not only the different requirements of the common law and equity which must be reconciled, but also the differing remedial elements of tort and contract.

A number of the particular difficulties which arise under one or other of these broad headings may be highlighted. The first difficulty which springs to mind arises from the fact that legal remedies are available as of right whereas equitable remedies are discretionary. Once liability in common law has been established the legal remedy must be granted, but even though liability has been established in equity the court may decline to grant relief. Consequently, damages of some kind must be awarded for the commission of a tort or for breach of contract where the claim is for damages or the award of an agreed sum. Specific performance or an injunction, on the other hand, can be refused in the court’s discretion. Clearly a coherent scheme of remedies for civil wrongs cannot brook this lack of uniformity. Remedies which presently follow a finding on liability as a matter of law will not necessarily be the most appropriate remedy. The approach will not work if, for example, the court is obliged to award damages where there is a commission of a tort or a breach of contract, when that form of relief is not the most suitable form of relief. It is in the nature of the approach that, while some form of relief may be required, the choice of the most appropriate remedy will involve the exercise of a discretion on the part of the judge.

A second area of difficulty which will need to be resolved lies in the form of relief. Relief at common law is generally compensatory while relief in equity tends to be gain-based aimed at stripping the defendant of his or her profits, such as when an account of profits is taken or a constructive trust is imposed. If the two regimes are to be assimilated for the purpose of selecting the most appropriate remedy, the courts will require a discretion as to whether to grant compensation or decree a gain-based award. For example, as an account of profits would be available for breach of any cause of action, including a breach in tort, there would be no need to treat intellectual property and breach of confidence as discrete areas of the law for which that remedy is available. Wrongdoers who deliberately commit a tortious or any other wrong could be liable to be denuded of their profits. Similarly, in contract, a cynical and manipulative breach of contract might invite a remedy which would strip the contract-breaker of any material gain arising from his or her breach.[69]

It should not be thought that this approach will mean that damage or loss will not need to be proved where proof of damage or loss is an element of liability, as for causes of action in negligence and breach of contract. Rather, it means that, once damage or loss is established, the court can then determine whether compensatory or gain-based relief is the more appropriate and, if the latter, which of the various forms of remedy is the most suitable.

A third area of conflict requiring reconciliation relates to the fact that equitable remedies issue without the requirements of foresight and remoteness which are essential prerequisites for an award of damages at common law. In equity the usual inquiry after a breach is directed to ascertaining whether the loss would have occurred had there been no breach.[70] In common law, on the other hand, the doctrines of causation and remoteness rule – or rule out – the possibility of relief.[71] A standard or uniform approach would seem imperative where the causes of action overlap or are collateral. In such cases, either the requirements of foresight and remoteness stipulated by the common law or the approach adopted to causation by equity will need to prevail. It would seem that the latter more flexible inquiry would be more appropriate to the flexibility inherent in an appropriateness of remedy regime.

Each of the above areas of difficulty imports a discretionary element in the reconciliation of the difficulty. But I do not consider that the introduction of this discretionary element will result in remedial chaos. As Professor Maxton has observed, in most cases the established remedies for wrongs will continue to be the most appropriate remedy in terms of justice and policy, and there are reasons to be confident that the evolving law of remedies will prove workable.[72] It will prove workable, in my view, because it will develop and be applied in accordance with principles which will evolve from particular cases. I will return to these principles in due course.

The extent to which the appropriateness of remedy principle would make the different remedial requirements in contract, tort and equity redundant in practice is probably only dimly perceived at present. Under the law of contract, for example, damages are generally compensatory, measuring the plaintiff’s loss on the basis of expectancy. Damages are calculated on a restorative basis in tort. Indeed, restitutionary remedies are at times available. Then, requirements of compensatory damages such as remoteness, contributory negligence, and some kinds of loss such as damages for mental distress and loss of reputation, are treated differently in contract and tort. Exemplary damages can be awarded for certain torts but not for contract.[73] Differences then exist between remedies in tort and contract and in equity. In equity the duty arising under a trust has been considered so sacred and the difficulty of detecting a breach so difficult that equity has been generous in the remedies offered. Rules relating to reasonable expectation of profit, foreseeability and duty to mitigate loss generally do not apply.[74]

The appropriateness of remedy principle will render many of these distinctions otiose when, liability having been established, the judge can select the most appropriate remedy available in contract, tort or equity, irrespective of the basis of liability. But the changes which will be required to the substantive law need not generate a daunting fear. Such changes will occur incrementally on a case by case basis. Nor, when regard is had to underlying principle, will the changes be able to be categorised as fundamental. Lord Browne-Wilkinson captured this point in his speech in Target Holdings Ltd v Redferns.[75] Having referred to the two principles which he saw as fundamental to an award of compensatory damages at common law, that is, that the defendant’s wrongful act must cause the damage claimed and that the plaintiff is to be placed in the same position as he would have been if he had not sustained the wrong, his Lordship continued:

Although, ... in many ways equity approaches liability for making good a breach of trust from a different starting point, in my judgment those two principles are applicable as much in equity as at common law. Under both systems liability is fault based: the defendant is only liable for the consequences of the legal wrong he has done to the plaintiff and to make good the damage caused by such wrong. He is not responsible for damage not caused by his wrong or to pay by way of compensation more than the loss suffered from such wrong. The detailed rules of equity as to causation and the quantification of loss differ, at least ostensibly, from those applicable at common law. But the principles underlying both systems are the same.[76]

An incidental, but certain, casualty of the application of the appropriateness of remedy principle will be the notion of the so-called “efficient breach”. Loosely stated, the proponents of an economic analysis of law suggest that a contracting party is entitled to breach his or her contractual promise and so become liable for damages if it is in his or her economic interest to do so. The notion emanates from a commitment to the view that resources should be directed to their most efficient use, and that the calculated utilisation of the “efficient breach” promotes this objective. Necessarily embedded in the idea is a clear preference for protecting expectancy loss for it is only that basis which makes it at all possible, if indeed it is possible, for the cynical contract-breaker to assess the economic advantage which would result from a breach. Not knowing what remedy will eventuate or, more particularly, not knowing whether the measure of relief will be the expectancy loss or the defendant’s enrichment resulting from the deliberate breach where damages are selected as the appropriate remedy, must prove an effective impediment to the operation of this essentially mercenary concept.

I am unable to bring myself to regret the demise of the notion of the “efficient breach”. It is not a concept that has obtained judicial backing or significant academic support. Indeed, it has been roundly criticised on a number of different grounds. These grounds need not be traversed at length in this article. But it is readily apparent that the notion of an efficient breach undermines the principle of the sanctity of contract and subverts the very certainty in commercial relations which that principle is expected to provide. As Professor Gareth Jones has observed, it would frustrate the natural and reasonable commercial expectations of contracting parties.[77] Jones correctly observes that the notion of the efficient breach assumes that the innocent party can always discharge the burden of proving his or her precise loss when every student of the law knows that this is not invariably the case. It also ignores the transaction costs imposed on the innocent party as a result of the breach, such as the costs incurred in attempting to resolve the contractual dispute or mitigate the loss.[78]

For my part, Buckland’s famous aphorism, “one does not buy a right to damages, one buys a horse”, sums it up.[79] The efficient breach argument discounts the fact that the promisor has failed to do what he or she promised to do, that the promisee paid for that promise and, to add insult to injury, that the promisor then profited from his or her breach.[80] I therefore unashamedly ally myself with those who believe that promises are made to be kept. It is inconsistent with the fundamental nature of the contractual bargain not to recognise that it was open to the promisee to have made a different bargain for a different consideration if the promisor had not made the promise in issue. Logic, apart from considerations of morality, demands that the promisor not be permitted to renege on that promise for his or her own economic advantage. In short, the likely demise of this basically ersatz concept should not deter the courts from advancing a more flexible law of remedies.

V. UNCERTAINTY, CONCEPTUALISM AND PRINCIPLES

The notion that the law can proceed on the basis of the complete identification of the wrong, leaving the remedial response in the discretion of the courts, will be inimical to many lawyers and judges. Academics, in particular, will resent and resist the apparent expansion of judicial discretion.[81] Lack of coherence and certainty will be the feared consequences of such a flexible regime.

The validity of these incipient fears must be questioned. How sensible is it to speak of lack of coherence when it is the very lack of coherence in the law of remedies at the present time which inspires the proposed reform? And how much more uncertainty will be introduced than exists at present? In doubting that the benefits of the perceived consistency in the law of remedies are overwhelmingly strong, Hammond J has pointedly asked, “In the end, can remedies law ever be anything but discretionary?”[82] The critical point which I would add is that much of the uncertainty which presently besets liability would be removed. As indicated above, the substantive interest-based approach would be facilitated. For example, counsels’ doubts as to whether the trial judge can be restricted to finding that there was no breach of contract or, having made that finding, will go further and find a breach of a fiduciary duty, will become superfluous as the courts focus on the substance of the interest in determining liability.

The leading opponent of the appropriateness of remedy regime is undoubtedly Professor Birks.[83] His enmity is evidenced in his response to Professor Davies’ discussion of the Lac Minerals case.[84] Professor Davies considered that there is much to be said for the majority view in that case that, if a ground of liability is established, the remedy which then follows should be the one which is most appropriate on the facts of the case rather than one derived from history or over-categorisation. He said that, while considerable certainty is undeniably to be required in establishing an initial liability, “predictability of remedy need not be accorded so high a priority”.[85] To Professor Birks this view seems a “dangerous doctrine”.[86] Bearing in mind that on different facts the different responses may have wildly different values, it is not clear on what principles a court could possibly choose between them. Choice, if there is to be one, he insists, should be regulated, not by the court in its discretion, but according to settled rules.[87] If the matter is to be left open, the choice would be better left with the plaintiff than with the judge. He holds that the law is not intellectually respectable if, even at the level of remedies, it takes refuge in an inscrutable case to case empiricism.[88]

Professor Davies’ thinking is the more acceptable. Greater certainty is undoubtedly required in establishing liability; and the predictability of remedy, presently more illusory than real in any event, can take second place to achieving that greater certainty in establishing liability. Case by case empiricism can proceed in accordance, not with settled rules as Birks would have it, but with principles which the courts will undoubtedly develop.

Nonetheless, fear of disarray in the law of remedies will continue to inspire a number of commentators to urge that the appropriateness of remedies principle should advance within a more structured conceptual framework. For the most part, conceptualism in the law is not to be frowned upon, but it must be appreciated that in this area the precipitate or excessive introduction of conceptualism will frustrate the objective or essence of the proposed regime. The flexibility which is required will at once become cramped. As Davies has said: “There is no need to pass the facts through further conceptual hoops before a particular remedy is selected”.[89] What is required is not so much conceptualism as the development of a set of principles which will guide the courts in the exercise of determining the appropriate remedy.

No one jurist has done more to articulate the principles which could guide the court’s choice in selecting the remedy than Hammond J. He has collated and discussed these principles in two articles.[90] Admirably, having moved from academia to the bench, he took the opportunity to incorporate the principles in a judgment, Butler v Countrywide Finance Ltd.[91]

It would be inappropriate in this paper to embark upon a critical examination of the principles or considerations which would be relevant to the courts’ choice. It is better, in my view, that the principles or considerations be left to evolve on a case by case basis. The hard facts of particular cases, and counsel’s industry in identifying the factors which favour his or her client’s interests, will ensure a better progression towards a comprehensive set of valid principles than a deliberate attempt to construct those considerations in vacuo and in advance. But a brief reference to the factors identified by Hammond J in his judgment will serve to illustrate how the task of selecting the most appropriate remedy in the circumstances of a particular case can proceed in a principled manner.[92] At the same time the process will serve the objective of encouraging judges to articulate the real reasons for the remedial choices which they make.[93]

The first principle which Hammond J identifies is described as “plaintiff autonomy”, that is, that generally speaking a plaintiff should have the “first choice” of remedy.[94] As he or she is the injured party, the plaintiff should be able to select the remedy. This election, however, while it can be expected to receive due judicial deference, must be subject to the ultimate control of the court. Clearly, a plaintiff cannot, by claiming a right to elect the remedy, be permitted to select that form of relief which would result in him or her being over-compensated. But some weighting must be given to the remedy sought by the wronged party.

Secondly, the relative efficiency in economic terms of common law damages as against equity-based performance remedies is a relevant factor. Hammond J refers to the long-running debate on this subject and observes that it is far from conclusive. Nevertheless, the comparable efficiency of the competing remedies, especially damages as against performance-based remedies, is a necessary consideration.[95]

Thirdly, Hammond J refers to the relative severity of the remedy on the parties. Here the learned judge is adverting to the principle of proportionality. It would, for example, be disproportionate to close down a large enterprise when the damage to the plaintiff is limited.[96] A solution which seeks to avoid disproportionate burdens to either party is to be preferred.

The fourth principle adverted to is the nature of the right being supported by the remedy. Not every “right” has the same strength. Thus, a stronger remedy may be required where the court has a stronger perception of the relevant right. Free speech is cited by Hammond J as an example of a right generally heralded in common law jurisdictions as being a near absolute right. It commands strong responses.[97]

The fifth principle is a related and possibly duplicating factor, described by Hammond J as the “moral view” to be attached to the interests at stake. Accepting that this is an overtly value-laden question, Hammond J founds the need to have regard to this factor on the need for candour on the part of judges. Again, free speech is proffered as an example, the higher value placed on that interest routinely over-riding the plaintiff’s interest in prior restraint.[98]

Hammond J then lists the effect of a given remedy on a third party or the public as the sixth principle. Reference to this factor acknowledges the general public interest in the determination of a remedy in a private law suit. Proprietary remedies in particular may have repercussions for third parties. But the courts have always been acutely sensitive to the impact of their decisions on persons other than the parties before the court.[99] Either under this heading, or under a separate heading altogether, I would include policy considerations bearing on the nature of the remedy. In Daniels v Thompson,[100] for example, the reasoning in both the majority and minority judgment was based on questions of policy.

Seventhly, difficulties in the calculation of damages on the facts of the particular case may be relevant. While Hammond J acknowledges that the difficulty in calculating the loss per se is no bar to compensatory relief and that the court will do the best it can to assess the loss, the level of difficulty may point to a performance-based remedy being preferable. Intractable problems of calculation may thereby be avoided.[101]

The practicality of enforcement is the eighth principle. Hammond J points out that it is the parties who must live with a performance-based decree. For that reason, and because the courts should avoid being brought into disrepute by attempting to enforce the impossible and, possibly, the very difficult, this point will always be relevant.[102] But it has been pointed out elsewhere that the difficulties perceived by the courts under this heading are generally overstated.[103] Indeed, the historic tendency of courts to wish to disassociate themselves from supervision or, indeed, any kind of ongoing involvement in a case, has been a source of irritation to scholars for a long time. As early as 1923, Roscoe Pound referred to the “almost pedantic squeamishness of courts about absolute certainty in all details as a requirement of specific performance of a contract” and to “the ex post facto attempts to put reason behind a historical prejudice in case of specific performance of contracts for construction or for continuous performance”.[104] In one of his articles, Hammond J expresses the view that, while it is entirely understandable and practical that they should wish to close a file at the end of a case and hear no more of it, the judges’ attitude begs the question, “when should the case end?”[105] I agree that sometimes the best remedy may be an ongoing remedy, but I also agree that it is unlikely the courts will be overly ambitious in the imposition of a remedy which requires a significant element of supervision.

Finally, reference is made to the conduct of the parties. Hammond J observes that the parties’ conduct has always been one of the great cornerstones of equitable relief and that, in a system in which common law and equity now inform each other, the conduct of the parties becomes relevant to a wide range of causes of action and the selection of a remedy.[106]

I would not suggest, any more than Hammond J would, that these principles are exhaustive. Rather, they are the kind of considerations which, reinforced by the judges’ intuitive sense of justice, will arise out of the facts of a particular case. Counsel will press the points seen to be to their client’s advantage. Inevitably, by the process so firmly established in the methodology and discipline of the law, factors of this kind will emerge and will be defined and redefined so as eventually to provide a core of principles to which the courts will have regard in exercising their choice. Such principles will enhance rather than inhibit the flexibility which the appropriateness of remedy concept requires.

VI. CONCLUSION

I began by indicating that the appropriateness of remedy principle is not novel. It has been judicially endorsed in this country and in other jurisdictions. The great majority of academic commentators support the concept. In this article I have not sought to side-step the difficulties the implementation of the principle must confront. But they are not insurmountable, and will surely succumb to the dynamic of the law.

The profession, I believe, has a vital role to play. Judges may adjudicate, but it is counsel who initiate the cases which come before the courts and who have the opportunity to identify the issues which require resolution. Generally speaking, counsels’ focus at trial is on the question of liability; sadly the question of relief tends to be neglected. Yet, do not counsel have a duty to do the best by their client, and does not that “best” include obtaining the most appropriate remedy to meet the wrong which their client has allegedly suffered? With the groundwork that has been laid, both judicially and academically, I believe that it is incumbent on counsel conscious and alert to their duty to their client, and irrespective of their personal views on the subject, to pursue that remedy which will most appropriately redress the injury which their client has suffered. The impetus for the further development of a more flexible law of remedies will ultimately, I suggest, be founded in lawyers’ uncompromising dedication to serve the best interests of their client.

A much more flexible and logical law of remedies will result. Notwithstanding the darkest fears of Professor Birks and others, intellectual respectability will not be lost to a law which will provide a much more coherent set of legal remedies for civil wrongs than is presently the case.


[*] A Judge of the Court of Appeal of New Zealand. This article is based on a paper delivered at the New Zealand Law Society’s Triennial Law Conference, 1999. The author would like to thank Sarah Allen for her invaluable assistance in the preparation of the paper.

[1] See Goddard, D and Rickett, C NZLS Seminar – Developments in the Law of Obligations – Tort Equitable Duties and the Effect of Contractual Relationships (1996) 33.

[2] Tilbury, M J Civil Remedies (1990) chap 1, 3.

[3] Laycock, “The Death of the Irreparable Injury Rule” (1990) 103 Harv. LR 688, 693.

[4] Maxton, “Equity and the Law of Civil Wrongs” in Rishworth, P (ed) Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon, (1977) 101.

[5] Supra note 1, at 33.

[6] See Lac Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14.

[7] See also the decisions of the High Court of Australia: Dart Industries Inc v Décor Corp Pty Ltd (1993) 179 CLR 100, 111; and Baltic Shipping Co v Dillon (“The Mikhail Lermontov”) [1993] HCA 4; (1993) 176 CLR 344, 376.

[8] See the articles and cases listed below. See also Crump v Wala [1994] 2 NZLR 331, 343 and Tabley Estates Ltd v Hamilton City Council [1996] 1 NZLR 159, 162-163.

[9] Corbin, A L Contracts (1950) sec 613, 458.

[10] Hammond, “Rethinking Remedies: The Changing Conception of the Relationship Between Legal and Equitable Remedies” in Berryman, J (ed), Remedies: Issues and Perspectives (1991) 92-93.

[11] See the full discussion in Hammond, “The Place of Damages in the Scheme of Remedies” in Finn, P D (ed) Essays on Damages (1992) 197, 199; and Ken Cooper-Stephenson, “Principle and Pragmatism in the Law of Remedies” in Remedies: Issues and Perspectives (1991) 1.

[12] Hammond, supra note 11, at 197.

[13] Hammond, supra note 10, at 90-91.

[14] Fiss, “The Forms of Justice” (1979) 93 Harv L Rev 58, quoted in Gewirtz, “Remedies and Resistance” (1983) 92 Yale LJ 587.

[15] Gewirtz, supra note 14, at 587. And see Cooper-Stephenson, supra note 11, at 2.

[16] Ibid, 6.

[17] Gewirtz, supra n 14, at 678-679. And see Cooper-Stephenson, ibid.

[18] Thomas, “An Affirmation of the Fiduciary Principle” (1996) NZLJ 405.

[19] Ibid, 407.

[20] Hammond, supra note 11, at 197-198.

[21] Maitland, F W Equity (Revised, J W Brunyate, 1936) 20.

[22] Supra note 4, at 92. For a full exposition of the effects of the intermingling of common law and equity, see Maxton, “Some Effects of the Intermingling of Common Law and Equity” (1993) 5 Cant LR 299-302. The New Zealand approach did not find universal favour in Australia; see G R Mailman and Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24 NSWLR 80, 99, per Meagher J .

[23] (1977) 2 All ER 62, 84.

[24] Ashburner, N Principles of Equity (1902) 23, quoted in Maxton, supra note 4, at 93.

[25] Supra note 23, at 68. And see Lord Simon’s observation at 84.

[26] [1976] NZHC 5; [1977] 2 NZLR 225, 298.

[27] At 359.

[28] [1983] NZLR 140, 148.

[29] [1984] 1 NZLR 354.

[30] [1987] NZCA 74; [1987] 2 NZLR 443.

[31] At 450.

[32] [1990] 3 NZLR 299.

[33] At 301.

[34] [1992] 2 NZLR 462, 468.

[35] Further judicial approval of the principle was forthcoming from Fisher J in Newmans Tours Ltd v Ranier Investments Ltd [1992] 2 NZLR 68, 96.

[36] The focus of this article has been on common law and equitable wrongs, not statutory-based wrongs. Consistently, however, the same principle should apply whenever the statute vests the courts with a latitude in the choice of a remedy. Thus, the judgments of the minority (Richardson P and Tipping J) are to be preferred to the judgment of the majority (Gault, Henry and Blanchard JJ) in Cox & Coxon Ltd v Leipst & Anor 24 November 1998, CA 59/98. The majority held that damages for loss of bargain or future profits for a breach of s 9 of the Fair Trading Act 1986 were totally precluded on the basis that such losses flowed, not from the conduct which was wrongful under the Act, but from failure to implement a promise. Damages were calculated by analogy to tort. The minority opted for a flexible approach to remedies for a breach of the Act, rejecting the importation of notions of contract or tort for the purpose of assessing compensation. Preferring a new approach untrammelled by historical causes of action, the minority considered that damages for loss of profits should be available if on the facts of the particular case such damages represented the real loss of the innocent party. In the particular case the real loss of the appellant justified such a basis of assessment because of the promissory nature of the misrepresentation in issue.

[37] [1993] 3 NZLR 623.

[38] (1980) 117 DLR (3d) 257, at 273; see also Powell v Thompson [1991] 1 NZLR 597.

[39] (1974) Ch 269, 322.

[40] McLachlin, “Fairness and the Common Law: Using Equity to Achieve Justice” in Saunders, Cheryl (ed) Courts of Final Jurisdiction: the Mason Court in Australia (1996) 137.

[41] Burrows, Andrew Remedies for Torts and Breach of Contract (2nd ed, 1994) 9-10.

[42] Thomas, supra note 18, at 405.

[43] Henderson v Merrett Syndicates Ltd [1994] UKHL 5; (1995) 2 AC 145; and see Rowlands v Collow [1992] 1 NZLR 178, 190-193; and Dairy Containers Ltd v NZI Bank Ltd [1995] 2 NZLR 30, 74.

[44] Goddard and Rickett, supra n 1, at 33.

[45] [1995] 1 NZLR 22, at p 26 and p 34 respectively.

[46] See also Maxton, “Intermingling of Common Law and Equity” in Cope, M (ed) Equity: Issues and Trends (1995) at 25.

[47] [1999] 1 NZLR 664.

[48] Supra note 43.

[49] [1995] UKHL 5; (1995) 1 All ER 691.

[50] [1995] UKHL 10; (1995) 3 All ER 785.

[51] See Thomas, supra note 18, at 408.

[52] And see Downsview Nominees Ltd v First City Corporation Ltd (1993) 2 WLR 86.

[53] See Rowlands v Collow, supra note 43, at 183.

[54] [1994] 3 SCR 377. See also Canson Enterprises Ltd v Broughton (1991) 85 DLR (4th) 129.

[55] Hodgkinson v Simms, ibid, at 444.

[56] Thomas, supra note 18, at 407-408. See also Cane, “Retribution, Proportionality, and Moral Luck in Tort Law” in Cane, P and Stapleton, J (eds) The Law of Obligations (1998) 161.

[57] Laycock, supra note 3, at 693.

[58] Ibid, 703.

[59] Tilbury, supra note 2, at 13.

[60] Ibid, 13-14.

[61] Birks, “The Law of Restitution at the End of an Epoch” (1999) 28 WALR 52-54.

[62] [1964] UKHL 1; (1964) AC 1129.

[63] [1972] UKHL 3; (1972) AC 1027.

[64] Supra note 61, at 52. Note, however, that notwithstanding that Rookes v Barnard never obtained acceptance in New Zealand, the contraction of the function or role of punitive damages is implicit in the decision of the majority in Daniels v Thompson [1998] NZCA 3; [1998] 3 NZLR 22. But the multi-functional role of civil remedies is too soundly based in legal theory to be irreparably harmed.

[65] Report No. 247 (London: HMSO, 1997).

[66] See Jaffey, “The Law Commission Report on Aggravated, Exemplary, and Restitutionary Damages” (1998) 61 MLR 860.

[67] Waters, “The Nature of the Remedial Constructive Trust” in Birks, P B H (ed) Frontiers of Liability (1994) vol 1, 175.

[68] Thomas, supra n 18, at 412.

[69] See McLachlin, supra note 40, at 125.

[70] Brickenden v London Loan & Springs Co [1934] DLR 465.

[71] Maxton, supra note 4, at 102-103; and supra note 22, at 307-308.

[72] Ibid, supra note 4, at 101.

[73] Burrows, supra note 41, at 6. But see Tak & Co v AEL Corporation [1995] NZHC 361; (1995) 5 NZBLC, 103,887, and Cash Handling Systems Ltd v Augustus Terrace Developments Ltd (1996) 3 NZ Conv C 192,398.

[74] McLachlin, supra note 40, at 125.

[75] Supra note 50.

[76] At 792.

[77] Jones, “The Recovery of Benefits Gained from a Breach of Contract” (1983) 99 LQR 454.

[78] Ibid. See also Hammond, supra note 9, at 104.

[79] Buckland, “The Nature of Contractual Obligations” (1944) 8 CLJ 247.

[80] Jones, supra note 77.

[81] See Birks, “Equity in the Modern Law: An Exercise in Taxonomy” (1996) 26 WALR 39.

[82] Hammond, supra note 11, at 228.

[83] Birks, “The Remedies for Abuse of Confidential Information” (1990) 4 LMCLQ 463-465.

[84] Davies, “Duties of Confidence and Loyalty” (1990) 4 LMCLQ 5.

[85] Ibid.

[86] Birks, supra note 81, 39.

[87] Ibid.

[88] Birks, supra note 83, at 465.

[89] Davies, supra note 84, at 5.

[90] Supra note 8.

[91] Supra note 8, at 632-633.

[92] The relevant considerations are ably summarised from Hammond’s article by Fisher J in Newmans Tours Ltd v Ranier Investments Ltd, supra note 35, at 96.

[93] Hon Mr Justice E W Thomas, A Return to Principle in Judicial Reasoning and an Acclamation of Judicial Autonomy (1993) VUWLR, Monograph 5, 59.

[94] Butler v Countrywide Finance Ltd [1993] 3 NZLR 623, 632.

[95] Ibid.

[96] Ibid. See Boomer v Atlantic Cement Company 26 NY 2d 219 (1970).

[97] See, eg, Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106, in which the High Court of Australia held that legislation which amounts to a ban on paid political advertising is invalid being contrary to the right of free expression on matters of political and public affairs implied in the system of representative government provided for in the Constitution. The implication of the implied term is acceptable, but the application of it to the legislation in issue must be highly questionable. See also Lange v Atkinson & Ors [1998] 3 NZLR 424 in which the Court of Appeal extended the defence of qualified privilege to statements published about members and would-be members of Parliament, but declined to impose a requirement of reasonable care along the lines adopted by the High Court of Australia in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, and Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96. The omission of this defence is surely wrong.

[98] Supra note 94, at 633. TV3 Network Services Ltd v Fahey (1 December 1998, CA 276).

[99] Supra note 94, at 633.

[100] Supra note 64.

[101] Supra note 94, at 633.

[102] Ibid.

[103] Tilbury, supra note 2, at 13.

[104] Pound, “The Theory of Judicial Decision”, (1923) 36 Harv. LR 649, and see Hammond, supra note 11, at 195 and supra note 9, at 94.

[105] Hammond, supra note 11, at 195-6.

[106] Supra note 8, at 633.


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