The evolution of the doctrine of restraint of trade in Australia: a law reform perspective
thesisposted on 20.02.2019 by Cheng, John Wei-Ting
In order to distinguish essays and pre-prints from academic theses, we have a separate category. These are often much longer text based documents than a paper.
This thesis examines the present state of the common law doctrine of restraint of trade from a law reform perspective. The doctrine was developed in England between the 1600s and mid-1800s and its evolution over the centuries has been a slow and ongoing process. The present state of the doctrine and its application in the Australian jurisdiction presents a challenging set of circumstances due to the difficulties faced by contracting parties when they wish to engage in restraint of trade. This thesis will begin by reviewing the history of the doctrine from its earliest days in a bid to identify the moments in time when the doctrine was chopped and changed to accommodate the social and economic needs of society. It will critique English and Australian cases which had a fundamental role in the evolution of the doctrine, analyse the development of legislation that is unique to New South Wales and evaluate the use of cascading clauses when parties seek to contract with one another in restraint of trade. It will also examine the influence of economic theories such as the perfectly competitive model and its impact on the development and interaction between the doctrine and competition legislation in Australia by way of the Competition and Consumer Act 2000 (Cth). The law reform proposition advanced in this thesis is that the doctrine should be abolished in its entirety. Through the body of this work, it will be demonstrated that the doctrine is no longer necessary or desirable for the proper function of society. In addition, this thesis will also present alternative recommendations for change in the event that abolition of the doctrine appears to be unpalatable to those in the legislature and judiciary.