The two worldviews that of commerce and the common

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Unformatted text preview: e awarded for a money withheld by a defendant. The courts also refused to recognise the economic principle of inflation. At present, inflation is recognised, the courts are willing to entertain evidence regarding opportunity losses, and plaintiffs who suffer the consequential opportunity losses can prove and recover in litigation. The reconciliation of the classification dilemma and recognition of opportunity costs does not mean that plaintiffs will find that damages awards will necessarily increase. The 6 Dart v Decor (1993) 179 C.L.R. 101; Perre v Apand [1999] H C A 36 (unreported), High Court of Australia, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne And Callman JJ. 7 Fuller v Meehan [1999] Q C A 37, (unreported) Queensland Court of Appeal, de Jersey CJ, Pincus and ^tt^v Adelaide Petroleum NL (1994) 179 C.L.R. 332; (1994) A.T.P.R 41-301 F.C. 94/010. 348 difficulties facing plaintiffs seeking opportunity cost recovery are still daunting. Issues of evidence, causation, and remoteness of damage still operate within the court system as limitations on a plaintiffs ability to recover. Although the common law has recognised the economic principle that a sum of money has a time value and, therefore, an opportunity cost, this does not translate into a corollary that the courts' decisions mirro economic theory, or that the policies applied in courts are consistent with current economic thought. The two worldviews, that of commerce and the common law, are still methodologically disparate. The lack of a prevalent cohesive interface defines the lack of theoretical agreement between the two disciplines. The common law will always deal with issues which are inherently non-economic in nature and require consideration of legal privileges and obligations which have no assigned value in currency terms. The common law must, therefore, focus on the rights and obligations of parties directly, prior to any consideration of the value of the rights obligations which have been breached by defendants. The idea that a monetary value can be assigned to the injury or net loss in a conflict between litigious parties is logically secondary to the primary considerations of rights, duties, causation, and remoteness of damage. Some facets of courts' reflections cannot be valued at all, including the concept of 'justice', the obligation to adjudicate between parties 'for the common good', and declaratory rights, all of which, prima facie, have no monetary consideration included within them. In contrast, commerce values everything in monetary terms, reducing all of virtue to currency values. As this commercial approach must undertake a conversion process for every valuation, all of life is subsequently valued indirectly. The conclusion that the value system of economics and finance is, therefore, a derivative normative framework is difficult to deny. The advocates of economic rationalism are currently attempting to move the courts toward a corporate model which would ultimately directly 349 impress the derivative monetary value mechanism indelibly upon court processes. This has not been met with an enthusiastic embrace from the judiciary. The idea of an independent judiciary has been a central pillar within the defense of the concept of natural justice within the court system and for the curial premise of legitimacy based on the rule of law. The recent advocacy and introduction of performance targets, national benchmarks for comparative data in case disposition, and the introduction of performance indicators linked to the change in judicial salaries indicates that courts are under pressure to conform to a corporate commercial model10 which, in effect, is a total capitulation to the bitter enemy of commercial practice which the court abhorred for seven centuries. Administering justice, in the court's eyes, is inherently non-economic. The resistance of judges to the imposition of these economically-oriented measurement criteria in the courts is only a sign of the deeper conflicts which have not been reconcile Further, they are not likely to be reconciled in the near future without widespread statutory intervention. According to Spigelman CJ, "[n]ot everything that counts can be counted".11 The normative conflict between the common law and economics still exists, despite the acquiescence of the courts in recognition of the economic principle of opportunity cost. The societal trend toward an economically rational worldview is not limited to the conflict between courts and commercial practice which assumes the time value of a capital sum. During previous periods courts have been able to legitimize the rigid 9 Waterside Workers Federation of Australia v J. W. Alexander Ltd. (1918) 25 C.L.R. 434 Spigelman, J.J. 2 001, "Quality in an A g e of Measurement: T he Limitations of Performance Indicators", The Sydney Leadership A lumni Lecture, http://www.lawlink.nsw.gov.au/sc/sc.nsf/pages/CJ 281101 , 2 8 10 November 2 001. 350 e nforcement of usury statutes and enjoy the liberty to denounce odious aspects of commercial practice through appeal to public policy, resting in the knowledge that the Christian worldv...
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