Melbourne Law School - Theses

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Start date: 2010 × End date: 2016 × Type: Masters Coursework thesis ×

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    Liability for profits in breach of contract
    Collins, Paul Anthony ( 2015)
    Accounting for a profit in breach of contract is directed to the purpose of contractual damages. The purpose of contractual damages is to obtain performance of the parties’ obligations and is reflected in the awards that the courts make. This means that remedies for breach of contract are broader than mere compensation. Yet in many cases the courts strain logic by attempting to equate a gain with a loss under the rubric of compensation. A fresh approach that is attracting judicial support is to recognise that the performance interest forms the essence of contractual damages. Once this is recognised, there should be an open acceptance of compensation for loss and accounting for gain. The reach of accounting for profit is comprehensively defined by the performance interest and only operates once compensatory damages are inadequate. This standard can form part of the law of Australia as it can in England.
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    The use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008
    Zhang, Diane ( 2010)
    This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.