This chapter does not purport to provide an exhaustive account of proprietary remedies. It proves a brief remedial overview of how proprietary remedies work. Because proprietary remedies are enforceable against property rather than a specific person, they are advantageous to plaintiffs in the following ways:

• Proprietary remedies are enforceable against third parties (except bona fide purchasers for value of the legal title without notice).

• Some proprietary remedies (constructive trusts) allow plaintiffs to enjoy appreciations in value of property, or to trace into exchange products

• Specific property may be able to be returned (important if property has special value to the plaintiff)

• Proprietary remedies confer advantages in insolvency by conferring priority to the plaintiff or taking property out of the insolvent estate.

Legislation in all Australian jurisdictions allows courts to award damages in addition to, or in lieu of, specific performance or an injunction. Although these are sometimes called ‘equitable damages’, to avoid confusion with equitable compensation, they are called ‘Lord Cairns’ Act damages’ in this book and i the principles text.

These damages are primarily awarded for proprietary torts such as trespass, and for breaches of negative covenant where no other relief is available. The quantum varies, and the measurement of ‘reasonable fee’ awards in particular is still controversial

In this chapter, we consider other forms of remedies which seek to vindicate the plaintiff’s rights by a public statement of those rights, including declarations, awards of nominal damages and apologies. The court may make a public statement of rights (as with declarations) or the defendant himself may be compelled to make the statement (as with apology orders). Below, we first consider apologies, then declarations, nominal damages and contemptuous damages, and then finally other vindicatory awards available under the Australian Consumer Law.

The overarching principle governing compensation for a civil wrong is that compensation be awarded to the plaintiff for losses suffered but must not place the plaintiff in a better position than if the wrong had not occurred – the ‘compensatory principle’.

Rescission is available to reverse a variety of transactions where one of the parties is subject to a vitiating factor. There are three different kinds of rescission which will be discussed in this chapter:

1. 1. Common law rescission

2. 2. Equitable rescission

3. 3. ‘Rescission’ under the Australian Consumer Law.

This chapter focuses on the concept that ‘because of’ the conduct of the wrongdoer, damage is suffered. Since the conduct of a person which contravenes one or more provisions of the ACL could also make the wrongdoer liable in tort or breach of contract, the extent to which common law principles would apply in the assessment of compensation under the ACL will make up a large part of the discussion.

The jurisprudence created under the s 52 of the ‘old’ Trade Practices Act and associated provisions concerning compensation for misleading or deceptive conduct remains largely applicable to the ACL due to the close similarity in the wording of the respective provisions. By virtue of s 131A Competition and Consumer Act, the ACL does not apply in respect of financial products. The equivalent provisions of the Australian Securities and Investments Commission Act, (‘ASIC Act’) which regulate financial services and products, are virtually identical and will not attract dedicated treatment.

This chapter considers the law of civil remedies: the definition and nature of ‘remedies’ and the relationship between remedy and right. It provides extracts which discuss the ongoing debate about whether judges should have discretion in the remedies they grant. It considers the nature of the common law and equity divide in Australian law as expressed in case law and in academic discussion. Finally, it outlines a functional approach to remedies.

This chapter considers the rules governing claims for compensatory damages in tort. Compensation in tort is generally governed by the same rules as apply to all civil wrongs, although some specific rules apply to torts claims in particular.

Specific performance typically enforces a contract but also can be invoked to enforce a ‘promise’ enforceable under principles of estoppel. Equitable remedies like specific performance are discretionary. The inadequacy of damages is a particularly significant consideration in determining if specific performance should be granted, although there is lack of complete consensus whether the inadequacy of damages is a jurisdictional hurdle or another discretionary factor.

While the focus of this casebook is on remedies that are awarded pursuant to a judicial order, most disputes are settled outside court. Of course, self-help remedies are not remedies in the strict sense of the word, because they do not involve court orders; rather the court gives the plaintiff permission to act in a particular way. It could be said that the plaintiff is vindicating her own rights. However, courts prefer to ensure that ‘self-help’ is exercised reasonably.

This chapter deals with court orders made prior to final judgment and with enforcement of final judgments. These are matters of civil procedure and are not remedies in the technical sense. They protect the ability of courts to award remedies in two ways. First, if a particular subject matter needs to be protected before judgment, interlocutory remedies can achieve that goal. Secondly, after final judgment has been handed down, courts must be able to ensure that the defendant does what they were ordered to do, for example by seizing assets to pay for an outstanding judgment debt.