On June 23, 2021 3:37:32 AM Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

While contract law is not my area, I thought the decision of the High Court of Australia today in Price v Spoor [2021] HCA 20 

(23 June 2021) https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/20 might be of interest. The 5-member bench (KIEFEL CJ, GAGELER, GORDON, EDELMAN AND STEWARD JJ) agree that a contractual waiver of the right to rely on limitations legislation is valid (not contrary to public policy) and in this case enforceable, meaning that an assignee of a mortgagee could sue on a mortgage debt (and for possession of land) despite the original debt having been due some 17 years before the action was commenced.

The argument that the clause was unenforceable was based on the general proposition that limitations provisions are in the “public interest”. While conceding this was true, the members of the court said the fact the such laws have always been able to be waived at trial by a defendant, pointed to the fact that they could be waived beforehand in a contractual provision. There were three separate judgements (Kiefel CJ & Edelman J; Gageler & Gordon JJ; and Steward J) coming to the same view, and on a quick read I didn’t see any major differences. K & E do spend some time noting the comments of Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 on the general issue of whether statutory rights can be waived, at [15]:

 

“whether a statutory right is capable of waiver, or abandonment by other means, is not whether the provisions in question are beneficial to the public, but rather whether they are "not for the benefit of any individuals or body of individuals, but for considerations of State”. The "critical question", he said, "is whether the benefit is personal or private or whether it rests upon public policy or expediency". 

 

They note that these comments were not essential for resolution of the issues in Verwayen but say at [18] that:

 

“what was said by Mason CJ in Verwayen on the subject was no "mere passing remark, or a statement or assumption on some matter that has not been argued". It was a considered judgment on a point argued by the parties, one which fulfils Sir Robert Megarry's description as having "a weight nearer" to ratio decidendi than an obiter dictum.”

 

I then expected a footnote to Farah v Say-Dee or similar cases reminding lower courts that they should follow “seriously considered dicta” of the High Court, but there was none. Interestingly Steward J did not rely on the “weighty dicta” from Verwayen, but did note a number of earlier English and Australian cases where limitations provisions had been waived by contract (see [89]-]95]).

On the wider question, the judgments generally accept that there are some cases where a contractual provision waiving rights could be invalid. For example, it would seem pretty clear to me that if any employer was foolish enough to include a clause in an employment contract saying that “the employee will not sue for any acts of racial discrimination”, that such a clause would be unenforceable. But as to the limits of this doctrine, probably not much more could be said than the quote from Mason CJ noted above.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle Law School

College of Human and Social Futures

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

Top 200 University in the world by QS World University Rankings 2021

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past, present and emerging. 
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

CRICOS Provider 00109J