Here is an excellent blog post by my friend and colleague Travis Mitchell.
Like Travis, I occasionally see allegations of waiver in correspondence or court documents. Travis’s post provides a useful outline on what waiver means or doesn’t mean, depending on your perspective.
It’s been almost five years since the High Court confirmed that Australian law does not recognise a standalone legal doctrine of waiver, Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570. Waiver is really a shorthand description of the result of the doctrines of election, estoppel, variation by contract and release. As Gummow, Hayne and Kiefel JJ said in Gardiner, waiver is one of a number of “solving words” which are “but substitutes for thought” and as one of a number of “pseudo-conceptions” or “soft spots in what appears a hard legal crust”.
But from time to time I still come across pleadings or submissions that a party has ‘waived’ contractual rights, without saying more. A defence in that form is risky. Although the intended result may be the same, each of the doctrines is made up of its own distinct elements that must be satisfied…
View original post 512 more words
Sam Hopper Barrister 
August 14, 2013 at 9:35 am
Good article. Thank you Sam.
Paul Davine