The subject considers key legal concepts employed in commercial law and the practical role they play in solving commercial disputes. Our focus is on key structures and relationships used in commercial transactions, and the question of how such structures and relationships may affect third parties. As commercial parties often need to decide what legal structure to adopt in a relationship, we consider and compare the differing legal consequences of different types of commercial transactions, looking at their effect on both contracting parties and third parties. In doing so, we look at how key conceptual building blocks of commercial law (such as agency; trusts; sale; assignment; and security) are applied in practice. Given the international nature of much commercial law, and the important ongoing influence of shared common law concepts, we consider both Australian and English materials.

The syllabus remains flexible to ensure that our focus is on recent developments and topics of current interest. In 2019, the core topics studied will be: (i) agency: its internal and external aspects; (ii) trusts and their use in commercial transactions; (iii) sale and the effect of passing property; (iv) assignment of contractual rights and the practical effects of non-assignment clauses; (v) the operation of good faith in commercial relationships.  Broader themes to be discussed include: (i) the effects of different transactions on third parties, including the limits placed by the law on the parties’ freedom to determine such effects; (ii) the interaction of common law, equity and statute in commercial contexts.

Students taking this subject will be assumed to have a basic knowledge of the principles of contract law, property law, equity and trusts, as applied in Australia or other legal jurisdictions.

Principal topics:

• Agency: internal and external aspects
• The use of trusts in commercial relationships
• Sale and the effect of passing property
• The transfer and protection of intangible commercial rights, including assignment of choses in action
• The role of good faith in commercial transactions

Australia has a detailed and comprehensive consumer protection regime dealing with the supply of goods and services, including financial products, to consumers. Primary legislation is the Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010 (Cth); equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) applying to financial services and products; and, for consumer credit, the National Consumer Credit Protection Act 2009 (NCCP Act). This subject provides students with a detailed knowledge of key features of the Australian Consumer Law and of the common law principles and policy imperatives that underpin it. The lecturers include one of the Law School’s private lawyers with specialist expertise in consumer law, and a leading practitioner in this field of law.

Principal topics include:

• Purposes of consumer protection law
• The regulatory toolkit
• Common law doctrines underlying the legislative regime
• Enforcement and remedial strategies.
• Key consumer protection regimes under the ACL, ASIC Act and NCCP Act:
  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • Consumer guarantees and implied terms
  • Unfair contract terms.

Equitable doctrines and remedies lie at the heart of commercial conduct, transactions and private law litigation. They provide unique standards of conduct that restrict and guide commercial dealings and a raft of powerful personal and proprietary remedies that dictate defendant liability when transactions fail. Over recent years their influence has been seen not only in important judicial decisions affecting commercial dealings, but in the raft of legislation that now builds on those equitable foundations. This subject considers some of the more pressing points of convergence between equitable doctrine and commercial practice, and examines their ongoing relationship with key statutory counterparts. In doing so, the subject is tightly structured to ensure that students are exposed to cutting-edge legal theory concerning court-led equitable developments and to the ramifications of those developments at the coal-face of commercial practice and dealings.

This subject will be relevant to transaction lawyers involved in planning, initiating and drafting contracts, for corporate lawyers and regulators involved in consumer and banking law and for commercial litigators. The lecturers are internationally recognised experts in the commercial applications of equitable doctrines and remedies. They are also exceptional teachers, evidenced by the consistently outstanding results in the student experience surveys for this subject.

Principal topics include:

• The role of equity in commercial transactions
• The nature of the fiduciary obligations, including the avoidance and ‘management’ of fiduciary conflicts
• Undue influence, mistakes and the enforcement of domestic guarantees in banking contexts
• Quistclose trusts
• The role of estoppel in commercial transactions
• Equitable remedies for breach of obligation, with special reference to gain-based awards and constructive and resulting trusts.

This subject provides an outline of the UNCITRAL Model Law legislation and the LEADR & IAMA Rules and a detailed analysis of the procedures involved in the conduct of domestic commercial arbitration proceedings. It will provide lawyers involved in the conduct of such proceedings and practising arbitrators with an opportunity to develop a comprehensive understanding of all elements of the process. The subject includes consideration of the principles of procedural fairness, the law of evidence and their application to commercial arbitration proceedings. The subject will also include written exercises intended to develop skill in the process of decision-making and the writing of decisions and awards in arbitrations.

Principal topics include:

• An introduction to the UNCITRAL Model Law legislation
• A detailed analysis of procedural rules and their use in the course of proceedings
• Identification of issues, pleadings and issues statements
• Evidence, documents, statements of evidence and admissibility generally
• Expert evidence, identification of issues, adoption of rules and procedural control
• Procedural fairness and its application in practice
• Procedural efficiency and control of the process
• The process of analysis of evidence and reasoning
• Award writing.

In an increasingly globalised world, it is no longer enough for lawyers to be familiar with only the law in their jurisdiction. This subject aims to develop a nuanced and sophisticated understanding of family law issues arising in many jurisdictions around the world, grounded in an Australian perspective. Based on a subject taught at the University of Cambridge, core areas of family law will be looked at in a comparative perspective that examines traditional statutory and judicial materials in the context of the specific legal, cultural and social traditions of each jurisdiction. Through this approach, the subject aims to encourage fresh insights on how we think about family law (including options for reform) as it operates in our ‘home’ jurisdictions, and to deepen our understanding, appreciation and working knowledge of family law as it operates elsewhere. The subject aims to leave students – including those not intending to practice in family law – better placed to identify relevant family law problems arising in national and international cases.

Principal topics include:

• What is Comparative Family Law?
• The relevance of gender in family law (particularly in relation to relationship recognition)
• Divorce
• Legal recognition of adult relationships (including married, de facto and non-cohabiting couples; carers; non-conjugal relationships)
• Property and maintenance on relationship separation
• Financial agreements and private autonomy
• Parentage and the right to know one’s genetic heritage (including questions of medically assisted reproduction)
• Parental responsibility/time.

The law of contract interpretation is one of the most practically important areas of commercial law. In recent years, interpretation disputes have come to dominate contract litigation. Because views can differ as to basic questions — such as whether particular words have a plain meaning, and what ‘commercial sense’ dictates in a given situation — the outcome of these cases is often difficult to predict. This subject will study the core principles of contract interpretation in Australian and English law. It will also examine the closely related principles concerning implied terms, rectification and estoppel by convention. Current issues and controversies will be considered. The common law approach to contract interpretation will be compared with those adopted in important international instruments such as the United Nations (UN) Convention on Contracts for the International Sale of Goods. The lecturer is a former commercial practitioner who has taught contract law for many years and has published widely on relevant topics.

This subject will examine the principles governing the interpretation of commercial contracts, and the closely related principles concerning implied terms, rectification and estoppel by convention.

Principal topics include:

• The place of interpretation in the law of contract
• The modern approach to interpretation
• The core principles of interpretation
• The availability and relevance of extrinsic evidence
• The identification of implied terms
• The equitable remedy of rectification
• Estoppel by convention
• A comparison between the common law principles of contract interpretation and those of international instruments such as the United Nations (UN) Convention on Contracts for the International Sale of Goods, the Unidroit Principles of International Commercial Contracts and the Principles of European Contract Law.

Contract is central to the legal regulation of most commercial and economic activity, and underlies many specialist areas of legal practice. As market costs and values move, many contracts become increasingly valuable to one party and burdensome to the other. One party’s ability to terminate, or to successfully resist the termination of, a commercial contract is frequently a matter of considerable financial importance. The complex interaction between common law termination rights and rights to terminate expressly conferred by clauses in the contract in question is seldom properly understood, as illustrated by many of the cases from which this subject is taught.

This subject is taught from selected cases rather than textbooks. Principal topics include:

• Breach of conditions, including what makes a promissory term a strict condition
• Non-fulfilment of conditions precedent, and associated promissory obligations
• Breaches of intermediate terms, and what makes them sufficiently serious to justify termination
• Repudiation in its different forms
• Breach of time obligations, and the use and consequences of Notices to Perform/Complete
• Express termination clauses—the different principles concerning their operation, and ‘compare and contrast’ the principles concerning termination at common law
• Possible limits on an aggrieved party’s right to terminate through:
  • Election/affirmation
  • Estoppel
  • Breach or an absence of readiness, willingness and ability to perform on his/her own part
  • Relief against forfeiture
• Remedies accompanying effective or attempted terminations, including:
  • Principles of quantifying expectation damages at common law
  • Limited rights to damages on termination pursuant to an express clause
  • Contractual rights to remuneration accrued due prior to the termination
  • Exceptional limitations on the recoverability of contractual remuneration.

Negligence is one of the most heavily litigated causes of action in common law jurisdictions. It is of enormous practical importance in a very wide range of fact situations. It is also a dynamic area of law: the relevant principles are constantly being applied to new fact situations, and the courts are regularly forced to grapple with difficult questions about the scope of negligence liability. This subject examines key current issues and controversies in the law of negligence in the light of theoretical and comparative perspectives. The lecturers have both published widely on private law topics, including a range of issues in the law of negligence.

Principal topics include:

• An overview of the law of negligence, including theoretical and historical perspectives and the place of negligence in tort law and private law
• The duty of care requirement in general terms, including the distinction between duty in law and duty in fact, the approach to the duty question in novel situations and the role of public policy in duty decisions
• Liability for psychiatric injury
• Liability for pure economic loss
• Liability for omissions
• Liability of public authorities
• Current issues in the standard of care and its application, with particular reference to professional negligence cases
• The requirement of damage
• Factual causation, including recovery for loss of a chanceScope of liability (legal causation and remoteness)
• Defences (both common law and statutory).

Fundamentals of the Common Law is a foundational subject in the Melbourne Law Masters (MLM), which is compulsory for graduates in disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer

Principal topics include:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

This subject provides an introduction to the global law relating to international commercial contracts. A major focus will be on contracts of sales, as codified by the Vienna Convention on the International Sale of Goods (CISG). However, some issues of the general law of contract will also be covered in detail (eg formation, interpretation, third party rights, the duty of good faith and fair dealing). The treatment of some of these topics will be based on an examination of the 2016 UNIDROIT Principles of International Commercial Contracts (PICC). The approach is comparative. Examples will be drawn from the decisions of national courts as well as arbitral awards.

Principal topics include:

• Global commercial contracts
• Applicability and application of the CISG and the PICC
• Interpretation and supplementation of the CISG and the PICC
• Contract formation
• Interpretation of international commercial contracts
• Third party rights
• Obligations of sellers and buyers
• Contractual remedies
• Good faith and fair dealing
• Transnational commercial dispute resolution.

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least eight weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

This subject is a study of trusts in an international context, beginning with the rise of the modern form of discretionary trust and the problems of holding trustees to account and controlling the exercise of their discretion. It explores how trusts are used in the 'offshore world', which allows for private purpose trusts and makes use of enforcers, protectors, and letters of wishes. It looks at how trusts are used, and misused, to protect assets from creditors, and how they are used in civil law jurisdictions.

It is suitable for those with common law or civil law backgrounds, whether they have studied trusts at an undergraduate level or not. Suggestions for some extra introductory reading will be provided for those who are new to trusts or wish to brush-up on basic trust concepts.

Principal topics include:

• Control of trustees
• Purpose trusts
• Enforcers and protectors
• Letters of wishes
• Shams
• Asset protection
• Trusts in private international law
• Trusts in civil law jurisdictions.

With a primary focus on experiential learning and interactive discussion, this subject will provide a practical guide to the use of mediation in resolving disputes and to the legal environment in which mediation takes place. The objectives of this subject are to identify where mediation sits among available dispute resolution processes; its distinguishing characteristics and advantages; the applicable legal environment; to learn to apply mediation principles and techniques in the resolution of disputes; and to explore topical issues in mediation, including different regimes applicable to the admissibility of evidence of communications within mediation.

The lecturers are lawyers who have led and been at the cutting-edge of developing mediation and other ADR techniques. They are nationally accredited mediators and also have substantial experience in teaching and training in this field.

Principal topics include:

• Identifying the characteristics of different dispute resolution methods
• The roles of facilitative and evaluative techniques in mediation
• Practising mediation techniques in mediation scenarios
• The legislative environment in which mediation takes place
• Case law and guidelines for lawyers applicable to mediation.

This topical subject deals with the interface between private law and public law in common law systems from the perspectives of history, doctrine, theory and practice. It will explore the traditional absence of such a division in the common law, and the reasons for this, as a basis for understanding the relevance of the distinction in the contemporary legal system. The subject will critically assess the distinction from a theoretical perspective, testing whether the idea of a distinction between public law and private law can withstand scrutiny. A range of cutting-edge doctrinal issues will be examined and placed in wider context. These include whether public law principles should extend to the activities of non-governmental entities such as private firms and charities; whether the law should recognise a special set of rules to regulate public contracts; whether public authorities should be governed by the ordinary law of tort or a set of special administrative liability principles; procedural divisions between public law and private law; the role of the public interest in private remedies and of private remedies in public law cases; and whether public law issues should be heard by specialist administrative courts. The subject should be of interest to lawyers working in any field in a common law legal system and to those trained in the different traditions of the civil law who are interested in better understanding the structures and assumptions of the common law.

Principal topics are likely to include:

• History of the concept of public law in common law legal systems
• Concepts of public and private
• Implications of a distinction between public law and private law
• Overview of current practice
• Law applicable to non-governmental entities
• Legal framework for public contracts
• Liability of public authorities
• Remedies
• Specialist or generalist courts.

This subject examines the remedies commonly awarded in commercial litigation. All the major common law, equitable and statutory remedies will be covered, along with personal remedies, such as damages and proprietary remedies, such as the constructive trust. The strategic selection of remedies in commercial disputes will be considered and Australian law will be compared, where relevant, with the law of other major commercial law jurisdictions.

Principal topics include:

• Damages in tort (excluding personal injuries) and for breach of contract, including issues of concurrency, where both tort and contract damages are available. Expectation and reliance damages and the protection of the ‘performance interest’ in contract. The role of liquidated damages clauses, and the penalties doctrine, will be considered, as well as the principles governing the award of exemplary and nominal damages.
• Statutory damages awards, with particular reference to damages awarded under the Competition and Consumer Act 2010 (Cth)
• Equitable compensation for breach of equitable obligations, including breach of fiduciary obligation. Statutory damages under the Chancery Amendment Act 1858 (Imp) and equivalent Australian legislation
• Specific performance of contracts, with particular reference to the role of specific performance in common law and civil law jurisdictions
• Injunctions, including a study of the interests protected in injunction litigation. Interlocutory orders, including Mareva orders, will be examined
• The account of profits as a remedy for equitable wrongdoing, and debates about the availability of the account of profits as a remedy for breach of contract
• Proprietary remedies, with particular reference to the distinction between institutional and remedial constructive trusts
• A comparison of the role of the constructive trust, in commercial litigation, in Australia, the United Kingdom and the United States.