Dear Colleagues;
The High Court of Australia seems to reserve the time just before Christmas for extensive discussion of contract doctrine (in fact now that I check it was almost precisely a year ago that Koompahtoo was released discussing the doctrine of "essential conditions" etc.) Now in Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57 (11 December 2008) http://www.austlii.edu.au/au/cases/cth/HCA/2008/57.html we have a detailed discussion of the doctrine of "waiver" (or whether there is a unified doctrine by that name) in contract law. Briefly, a borrower had failed to pay some instalments of a loan on time. The contract imposed penalties for failure to pay "punctually"; it also made a third party company liable to "indemnify" against default but again only if payments were made "punctually". Some oral representations were allegedly made by officers of the lender that late payment would be accepted, but later the defaults were sued upon. The question was whether there had been a "waiver" of rights that entitled the borrower to some relief. All 5 members of the HC said not; but Kirby J was much more prepared to allow a generalised doctrine of waiver which led to "unfairness", whereas the majority judgement of Gummow, Hayne and Kiefel JJ rejected an overarching category of this sort, analysing in detail other categories such as election, forbearance and abandonment.
I will leave it to others who know more about such things to comment on the merits of the decision. I do note, however, that it has interesting connections with the Williams v Roffey Bros debate that has raged recently- see paras [95]-[96] where one of the overall reasons for denying a doctrine of "waiver" is that it would undermine the doctrine of consideration.
Two incidental things caught my attention. One is that this may well be one of Kirby J's last judgements on the court- he has previously informally indicated he might stand down at the end of this year rather than in (I think) March next year as he is constitutionally required to, and I have noticed he has not been participating in a number of cases recently (in particular he did not sit on the hearing of the appeal in Stuart & Anor v Kirkland-Veenstra & Anor [2008] HCATrans 397 (3 December 2008) which I would otherwise have expected him to be interested in- that case will probably resolve a number of issues to do with liability of police for "negligent investigation" etc.) A similar debate could no doubt be held as to the overall merits of his Honour's service on the HC as was recently held here in relation to Lord Denning, and I suspect the proponents would on the whole be on similar sides. But we may need a decade or so to get a feel for the real impact of his Honour's many dissents. I simply say that in my view he is no doubt one of Australia's (and the common law world's) great judges and I will miss not being able to refer students to one of his recent judgements in whatever area as a well-written and clear exposition of the law.
The second thing I note is that Kirby J has done us all a favour by using a word with which I was completely unfamiliar in para [137], where he says:
"Some may not be curious as to the shared foundations of "waiver" by "election", "forbearance" or "renunciation". Mumpsimus is never a stranger to lawyers."
As for me, I freely confess I had no idea what this meant!! But the online OED gives a fascinating overview of the word, the primary meaning of which seems to be "A person who obstinately adheres to old ways in spite of clear evidence that they are wrong; an ignorant and bigoted opponent of reform". Now, who can that be aimed at....? Clearly the editors of OED need to include this use of the word here in their next edition, though I notice that the meaning here may be moving slightly from referring to the actual "grumpy old conservative" to "the state of refusing to move with the times" or something of the sort.
Merry Christmas to all!
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
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