2020 Annual Essay Prize Winners
This year, there were two joint winners of the Academy of Law Essay Prize, Ms Natalie Ngo and Mr Tom Allchurch. The topic was the impact of a new and widespread contagious disease on pre-existing contractual obligations, with earlier ‘new’ outbreaks of infectious diseases being able to be taken into account, with a Judging Panel of Professor The Hon William Gummow AC as chair, and the Hon Justice Pamela Tate and Emeritus Professor Rosalind Croucher AM. The Essay Prize will be presented when circumstances allow.
As Natalie Ngo explained,
"the topic of the essay prize this year really piqued my interest because pre-existing contractual obligations which were made difficult by the coronavirus are of crucial importance to the practice of the legal profession in the foreseeable future.
I argued in my essay that there are essentially two pathways by which contractual parties may avoid liability for breach of contract: force majeure clauses and the doctrine of frustration”.
As she noted in her conclusion, whether based on force majeure clause or the doctrine of frustration, that the court’s analysis is always fact-based.
“As extraordinary as the pandemic and its consequences have been, there is no certainty that every force majeure clause will be triggered and all commercial contracts will be frustrated. The same factual circumstances associated with one restriction may frustrate one type of contract but not others. A particular force majeure clause may operate to relieve the parties of one contract, but in a different contract the force majeure clause may not apply.”
“The takeaway message from my essay is that the applicability of the two mechanisms is not straightforward, and that businesses should tread with care before proceeding on the basis that either of those pathways is available to release them from existing contractual obligations”.
Ms Ngo is the Associate to the Hon Justice Garde of the Supreme Court of Victoria. Her essay can be viewed here.
Tom Allchurch was the other joint winner.
He commented that this research “found almost no consideration of the impact of past pandemics on contractual relations in Australian jurisprudence. This means that the matter is left to general doctrine (frustration), contractual drafting (force majeure clauses) or government intervention.
Proving frustration by a pandemic may be difficult and highly dependent on the nature of the contractual obligation.
Government action is significant, but may not address the particular concerns of contracting parties.
Careful drafting is therefore key - it would be a mistake for lawyers to assume that future pandemics (or future challenges more generally) will have the same characteristics as previous ones”.
As a matter of historic interest, Tom’s research revealed that the seminal contract decision in Carlill v Carbolic Smoke Ball Company arose out of the Russian Flu of 1889-1892, Tom writing that the “carbolic smokeball could be described as the hydroxychloroquine of its day”.
However the case was limited to general principles of offer, acceptance and unilateral contracts and while the appeal judges “may have been inclined to take a dim view of mere puffery in the context of what they called the “increasing epidemic” or the “prevailing epidemic” … there is no suggestion in the judgment that the outcome depended in any way on that context”.
Mr Allchurch is a Solicitor with the NSW Crown Solicitor's Office. His essay can be viewed here.