International Construction Law Review
THE USE OF STATUTE: ENDING THE ABUSE OF THE DUNLOP JUDGMENT AND PEAK PRECEDENT
MATTHEW POPPLEWELL1
Melbourne Law School, The University of Melbourne
This article examines the troubled evolution of the Australian common law within the context of the doctrine of prevention and the doctrine of penalties. In the wake of critical contemporary judgments of the Supreme Courts of New South Wales and Victoria, the uncertainty surrounding the Australian common law’s ability to provide adequate protection for contracting parties within this context remains unclear. Accordingly, the case for the introduction of new statutory legislation has gained credibility and is fortified upon review of historical jurisprudence which advocates for legislative intervention when the balance of the common law has been disturbed. It is upon this reflection that the introduction of new statutory measures is compelling to ensure that fairness and accuracy can be guaranteed when giving effect to liquidated damages regimes under Australian construction contracts.
I. INTRODUCTION
In “The Use and Abuse of Precedent”,2 Mason CJ conceded that the tendency of the High Court to adhere too stringently to precedent often precluded the delivery of contextually fair and rational outcomes. As such, Mason advocated for the use of discretionary consideration by the courts to establish equilibrium between “consistency and predictability” and “flexibility and justice”.3 Within the context of construction law, flexibility is essential to ensure that equitable outcomes are achieved for contracting parties, particularly when dealing with dynamic issues surrounding contractual delay and disruption. However, as Mason discussed, flexibility is not always applied within judgments of the High Court, with binding precedent often precluding case verdicts from achieving an outcome which prioritises fairness and integrity. This lack of flexibility has become synonymous with
1 Matthew is a Construction Law Masters student at Melbourne Law School, The University of Melbourne. An earlier iteration of this article was submitted as part of coursework undertaken for the Masters program at Melbourne Law School, The University of Melbourne. Matthew is indebted to Dr Matthew Bell (Associate Professor; Co-Director of Studies, Construction Law, Melbourne Law School), the Honourable Peter Vickery QC and Senior Fellow (Melbourne Law Masters) Robert Gemmell for their helpful advice and comments on the original submission of this article.
2 Chief Justice of Australia Sir Anthony Mason, “The Use and Abuse of Precedent”, (1988) 4 Australian Bar Review 93 (“Mason”).
3 Ibid, 95.
Pt 1] The Use of Statute: Ending the Abuse of Dunlop and Peak
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