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Find out more about Oscar Roos, Sharon Erbacher an.d Ben Hayward's theses

Deakin Law School is proud to announce that staff members Oscar Roos, Sharon Erbacher and Ben Hayward have recently completed their theses.

With a view to facilitate a culture of excellence, the school supports research that has relevance to the critical implementation of policy and legislation and connects with both industry and society. Oscar, Sharon and Ben's findings will thus enrich future teaching and course development here at Deakin.

Oscar Roos

The Entrenchment of a Minimum Standard of Judicial Review in the Australian States: Towards an Originalist Assessment.

The thesis assessed whether the Constitution entrenched a minimum standard of judicial review of state decision makers using an originalist methodology of constitutional interpretation.  It found that the Constitution contained no 'genuine' implication entrenching such review, but that a 'judicial' implication could be inserted into s 73 to entrench the jurisdiction of the state Supreme Courts to review the decisions of Lower State Courts exercising judicial power.   The insertion of this implication allows the modern High Court, through its appellate jurisdiction from the state Supreme Courts, to subsume the role that the Privy Council played at the time of Federation in supervising the exercise of judicial power throughout the British Empire, including Australia.  By contrast, no judicial implication can be inserted into s 73 to entrench the judicial review of State Administrators, as the role of the Privy Council did not extend to their supervision, and any such entrenchment would be inconsistent with the fundamental assumptions and intentions of the Constitution's framers.

Sharon Erbacher

Negligence and the Wrongdoing Plaintiff: A Corrective Justice Analysis

Courts often reject on public policy grounds a claim in negligence for compensation for harm that was sustained while the plaintiff was engaged in an unlawful act or that is otherwise connected to an unlawful act of the plaintiff.  This thesis examines common law and statutory illegality defences and explains that these defences undermine the corrective justice entitlements of plaintiffs. It argues that it is only through adherence to the structural principle of corrective justice that it is possible to identify a coherent and principled path for resolving these claims.  The thesis evaluates the various criteria invoked as the basis for an illegality defence and demonstrates, with reference to the main precepts of corrective justice, that the only legitimate basis for denying a claim is the need to preserve the coherence of the legal system.  A claim should be rejected for the plaintiff's illegality only where recognition of it would create an inconsistency between negligence law and the area of law proscribing the conduct; in particular where negligence and the area of law that sanctions the conduct intersect so as to negate an essential requirement for establishing the claim to damages. Recognition of a claim will create an incoherence in the law where an element of the claim is incompatible with the purpose of the statute proscribing the conduct, or where the loss suffered by the plaintiff does not have a legal value because the loss resulted from the actual or notional application of the criminal or civil legal process.  The thesis also applies principles of corrective justice to develop a new relational approach to resolving claims for injuries sustained in the commission of a joint illegal venture between the plaintiff and defendant.

Ben Hayward

Arbitral Discretion in Resolving Conflicts of Laws – The Case for a Bright-Line Closest Connection Test in International Commercial Arbitration.

The thesis undertakes a study of international commercial arbitration – a way for businesses operating in different countries to settle commercial disputes without going to the ordinary courts of either company's home country, which might be seen to confer on one side a home-ground advantage.  International commercial arbitration is a private form of dispute settlement, and requires parties to agree to the process beforehand.  Where parties agree to arbitrate business disputes, they are also able to agree on the law that arbitrators will apply when resolving their disputes.  In some cases – perhaps around 15% of cases, based on the best available data – commercial parties do not agree on the applicable law.  The thesis specifically analyses how arbitrators identify the law that will be applied where parties do not themselves choose the law.  This is an important question because international commercial arbitration is a preferred means of resolving international business disputes, and the laws of the different countries involved might affect the outcome of the case if they require different results.  By analysing this issue, the thesis seeks to contribute to arbitration's ability to meet the needs of the business community.

The thesis analyses over 100 arbitration laws and rules from around the world and assesses how they address this problem.  It identifies that the prevailing approach is to allow arbitrators a broad discretion to select the law that they consider is most appropriate or most applicable, without giving any further guidance or a specific legal test to apply.  The thesis argues that this is inappropriate given the need for certainty in international commerce.  It also argues that the international commercial arbitration process can be improved by a modification of this process to require arbitrators to apply the law or legal rules that are most closely connected to the parties' dispute.  In this way, businesses would be better able to foresee the applicable law if they fail to choose it at the time of entering into a contract, and business certainty in the resolution of possible future disputes would be improved.

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