JUSTIFYING PRIVATE LAW REMEDIES. Ed by Charles E F Rickett Oxford & Portland: Hart Publishing (www.hartpub.co.uk), 2008. xxvii + 393 pp. ISBN 9781841138415. £65.
| Pages | 168-169 |
| Published date | 01 January 2009 |
| DOI | 10.3366/E1364980908001200 |
| Date | 01 January 2009 |
Many issues in private law, especially in the Common Law world, resolve into questions of remedies – their function, availability and merits. This edited collection seeks to assess justifications for such remedies, and is the product of the 2006 Australian Obligations Conference, hosted in Brisbane, on the same topic. The impressive list of contributors includes Professor Ernest J Weinrib, Professor Stephen A Smith, and Dr James Edelman. The academic speakers were also joined by two judges: the Hon Justice P de Jersey, the Chief Justice of Queensland, and the Hon Justice Susan Kiefel of the High Court of Australia. This allows for a stimulating combination of theory (as, for example, Professor Weinrib's paper on conceptions of remedies derived from Aristotle and Kelsen), and practice (as evidenced in, for example, Justice de Jersey's paper on the role of judicial discretion).
Although the conference itself had a single focus, the essays are largely independent of each other, and it is therefore possible to focus on two of the highlights. Dr Edelman's defence of exemplary damages is particularly enjoyable, since it has become “fashionable” for exemplary remedies to be condemned (225). Edelman's approach swims against the prevailing tide, albeit that elsewhere in the volume punitive damages are considered, generally favourably though in brief, by Ralph M Cunnington in his contribution on “The Inadequacy of Damages as a Remedy for Breach of Contract” (126-127 and 144-145). By addressing the historical roots of exemplary damages in Common Law jurisdictions (at 227-233), Edelman is able to show why it would not be a simple matter to uproot and discard such a remedy. Further, he bases his argument in favour of exemplary damages on notions not of punishment but rather of deterrence, and offers a rational account of why some such measure of damages is needed to fulfil a moral purpose, as well as a compensatory one. While acknowledging there is more to be done in this area, Edelman's wide-ranging review of case law and theory provides a very useful point of departure for future work.
In a very different vein, but equally insightful, is the contribution of Justice Kiefel on the role of public policy in judicial decisions in the field of obligations. While drawing out the obvious differences in the application of public policy to contract and tort cases...
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