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The latest issue of the Australian Law Journal (Volume 88 Part 7) contains the following material:

Articles

Gaining public confidence in the judiciary: Sir William Portus Cullen, Chief Justice of New South Wales, 1910-1925 – Tony Cunneen

Sir William Portus Cullen was Chief Justice of New South Wales between 1910 and 1925. He was the first Australian born Chief Justice wholly educated in Australia. His career covered academic, political and legal realms. He was involved in the establishment of the Sydney University Law School. He campaigned for the Federation of Australia. He supported the admission of women as lawyers. His extended term as Acting Governor of New South Wales coincided with one of the worst periods experienced by Australians in the First World War. The sense of public duty he inherited from his family was fostered by his educational experiences, producing a lawyer of the highest calibre, with a powerful social conscience, actively involved in shaping the character of the modern Australian legal profession.

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The negation of venting in Australian sentencing: Denouncing denunciation and retribution – Professor Mirko Bagaric

Sentencing in Australia has been criticised for being too indeterminate and unpredictable. This is attributable in large part to the number of discrete sentencing objectives which, at times, overlap and at other times conflict. Moreover, there is no clear ranking of the objectives, meaning that sentencing courts have a considerable degree of latitude in imposing a sentence. The key sentencing aims are community protection, general deterrence, specific deterrence, rehabilitation, denunciation and retribution. Sentencing would be simplified and, in all likelihood, more consistent if these objectives were prioritised or reduced. This article argues that two of the objectives are superfluous to a properly constructed system of sentencing. In pragmatic terms, the main imperative of sentencing is to impose proportionate sentences: broadly, “the punishment should fit the crime”. If this goal is satisfied, the objectives of denunciation and retribution are obsolete. There is no residual meaning (or purpose) to denunciation and retribution in the sentencing sense beyond the need to ensure that proportionate penalties are set. The need for retribution or denunciation can never justify the imposition of a sanction which is disproportionate to the severity of the crime. It follows, therefore, that denunciation and retribution should be abolished as sentencing objectives.

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Sections

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Slow news month
• The Eastman case
• Remember the basic principles
• Surveys
• Driving licences
• An acting judge considers modern litigation
• Judicial comity
• Who’s out of touch now?
• What is news?
• Judges’ notebooks
• Resignation of Assistant General Editor

LETTER TO THE EDITOR

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Native title and priorities: Western Australia v Brown
• Of moves and counter-moves: The modern law of notices to complete
• More moves and counter-moves
• Severance of joint tenancy
• Tenant entitled to late exercise of option to renew
• Registrar’s power to correct errors in the register – A new beginning?

FAMILY LAW – Editor: Anthony Dickey QC

• May a lawyer act for spouse or lover?
• Declaration of property interests of parties to a de facto relationship

PERSONALIA – Editor: Sienna Merope

Australian Capital Territory

• Chief Justice Terence Higgins AO
• Chief Justice Helen Murrell

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• A dispute about a dispute: Watergate by Lake Burley Griffin?

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• The Harper “root and branch” review: A possible new way forward for the clearance of anti-competitive mergers?

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Evidence by telephone: Whether unfair
• Donatio Mortis Causa
• Destruction of foreign fishing boat: Whether justified – Consequences
• Limitation of action: What is a fraudulent breach of trust?
• Conveyancing: Essentiality of time
• Administrative law: Revocation of decisions
• Costs: Right of solicitors to be paid

OBITUARY

• Kevin Maurice Waller

For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 7 Contents.

Click here to access this Part on Westlaw AU

In last month’s editorial for The Australian Law Journal, General Editor Acting Justice Peter W Young AO wondered whether law schools are producing too many lawyers: read the full text here.

In the July Part of the ALJ, Stephen Magee writes a letter to the editor, suggesting that great results in tertiary entrance exams don’t necessarily make great lawyers:

10 June 2014

Dear Sir

Your comment on current legal education (“Current Issues: Are law schools producing too many lawyers?” (2014) 88 ALJ 367) did not cover one important point.

My contemporaries, now in our late 50s, often remark that we would struggle to gain entry to law school nowadays, because of the incredibly high entrance marks. Despite this, and excluding myself, those contemporaries are now senior and highly successful practitioners. More recent generations of law graduates may equal them in legal skills, but I have yet to be convinced that their 99.99% HSC results mark them out as superlawyers.

What is in fact happening is that law is increasingly being chosen as a career, not because of any particular aptitude for or interest in the discipline, but simply because one has the HSC mark to gain entrance to a law school.

As a Macquarie graduate from the “bad old days”, I witnessed at first hand the profession’s distaste for that university’s approach to legal education. However, once in practice, Macquarie graduates showed that relatively lower HSC scores and an interest in legal issues beyond Latin maxims were no bar to becoming a competent practitioner (or even a Supreme Court judge). That, surely, is preferable to a situation in which one chooses to study law primarily because one has a stratospheric HSC score and cannot stand the sight of blood.

Stephen Magee

What drew you to study law? Did you use your law degree to go into practice, or are you doing something else with it? What kind of entry requirements should law schools have? Let us know what you think on Twitter @JournalsTalk, or below in the comments.

Subscribers can read the full July Part of the ALJ here.

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The latest issue of the Australian Law Journal (Volume 88 Part 8 ) contains the following material:

Articles

The individual judge – Hon Justice Susan Kiefel AC

This article explores the relationship between judicial independence, individualism and judgment writing. While it is the duty of a judge who disagrees with his or her colleagues to express that disagreement, the issue is more complicated where a judge does agree, but nevertheless deems it necessary to write separately. The current practice of the High Court of Australia encourages the production of joint judgments, without judges having to publish a separate concurrence. Although not suggesting that judges in appeal courts should never write separately from their colleagues, the article considers the reasons for favouring the production of joint judgments, rather than multiple separate judgments.

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 “Delivery”, “escrow”, recitals and estoppel, and attestation: Current questions with deeds – Lee Aitken

The law of deeds is of ancient provenance but continues daily to throw up difficult questions with respect to their meaning and enforceability. Recent authority has considered fundamental issues with respect to when a deed is “delivered”, what effect a recital in the deed has, and how it should be attested. The great attractions of using a deed to give effect to a contractual or proprietary intention means that the maker must take constant care to keep in the forefront of the mind those formalities and special rules which affect deeds and their validity.

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The prerogative writs and the origins of English administrative law – Clare Langford

This article outlines the development of the prerogative writs, focusing on the writs of prohibition, certiorari, mandamus and habeas corpus, and their contribution to the shape of Anglo-Australian administrative law. These writs were the remedies which gave meaning to the maxim, expressed as early as the 13th century, that the King was under the law. In the 17th century, they permitted lawyers to enforce a particular conception of the English Constitution which has influenced the structure of Australian public law to a great degree. At the same time, these common law remedies offered inadequate protection against governmental excesses in the absence of institutional reform; most importantly, the formalisation of judicial independence.

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Sections

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Class actions
• Police doing too good a job
• Other new statistics
• Role of an Attorney-General
• Anti-terrorism laws and liberty of the subject
• Evidence of conversations
• Taxpayers
• Appointment of Assistant General Editor
• Apology

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Moot point: Garnishee orders served on purchasers by Commissioner of Taxation
• Fraud, joint tenancies and the torrens system
• Joint tenancies and stolen money

AROUND THE NATION: NORTHERN TERRITORY – Editor: The Honourable Dean Mildren AM RFD QC

• Marriage law in Madayin

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• The “clash” between Rules of Corporate Governance and the law

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• Killing whales: Japan’s scientific research no longer putting food on the table

OVERSEAS LAW – Editor: Colin Picker

• What’s in a name? Recent developments in Brazilian private international law

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Vendor and purchaser: Damages for non-completion
• Donatio mortis causa: Whether principle applicable to land
• Crime: Phone hacking – Is it relevant that the hacking took place after the message was read but was retained on voicemail?
• Trustees: When to seek judicial advice
• Solicitor’s negligence: Obligation on solicitors to provide business people with a simple explanation of documents they draft
• Solicitors’ immunity from suit: Alleged negligence at mediation
• Crime: Significance of mistake in indictment referring to wrong section

OBITUARY

• The Honourable Bruce Harvey McPherson CBE

For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 8 Contents.

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The latest issue of the Australian Law Journal (Volume 88 Part 9) contains the following material:

Articles

The best interests duty and the standard care for superannuation trustees – Paul Collins

The duty of best interests has come to prominence as a foundational duty of a trustee of a superannuation fund since the decision in Cowan v Scargill [1985] 1 Ch 270, a duty combining other specific trust duties. This article seeks to answer what the best interests duty effectively requires of a trustee and whether the duty functions as a type of performance standard that requires a trustee to do the “very best” that it can for the beneficiaries. Since the duty has been codified in s 52(2)(c) of the Superannuation Industry (Supervision) Act 1993 (Cth), this article explores whether the statutory standard is consistent with the general law. It also answers whether the duty of best interests is consistent with the trustee’s duty of care, skill and diligence, both under the general law and as codified in s 52(2)(b).

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“Confusion hath now made his masterpiece”: Federal jurisdiction, State tribunals and constitutional questions – Gim Del Villar and Felicity Nagorcka

There have been a number of decisions to the effect that State tribunals cannot decide constitutional questions in the exercise of judicial power. The basis for this conclusion seems to be either that a tribunal which answered a constitutional question would be “impermissibly” exercising federal jurisdiction, or that State Parliaments cannot confer jurisdiction to decide constitutional questions on their courts or tribunals. Neither of these approaches withstands analysis. The cases demonstrate that denying State tribunals the ability to decide constitutional questions (and some other matters mentioned in ss 75 and 76 of the Constitution) causes confusion and inconvenience: we argue it is also unnecessary and wrong. The confusion which plagues this area can best be resolved if the conviction that State tribunals cannot be allowed to answer constitutional questions is abandoned.

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Reading words into statutes: When Homer nods – Stephen Lumb and Sharon Christensen

The grammatical meaning of a statutory provision may not always gel with the purpose of the statute. The court may strive to give the provision an interpretation at odds with its ordinary and natural meaning to meet the purpose of the legislation. On occasion, this may involve notionally adding words to, or substituting words in, a statutory provision. This process of “reading in” words demands that close attention be paid to the boundary between statutory construction and judicial legislation, particularly where a court is invited to carve out an exception from grammatically clear words. In Jones v Wrotham Park Settled Estates [1980] AC 74, Lord Diplock identified three pre-conditions to reading words into a statute. This article analyses the utility of those conditions within the context of the modern purposive approach to statutory interpretation and evaluates whether they remain sufficient guideposts for identifying the boundary between interpretation and legislation.

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Sections

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• A Chief Justice
• Grant of bail
• Judicial conduct
• Royal commission into child sexual abuse
• Are too many lawyers working too long hours?
• Intention
• Specialist courts for sexual assault cases
• England and Australian authority

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Gazumping and legislative ambiguity
• Sharing the cost of maintaining an easement
• Lease renewals and anti-competitive permitted-use clauses
• Specific performance, repudiation, and notices to complete

HUMAN RIGHTS – Editor: Simon Rice

• Introduction to the Human Rights Section
• The right to be forgotten

CONSTITUTIONAL LAW – Editor: Anne Twomey

• Same-sex marriage and constitutional interpretation

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Admiralty and life salvage

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• How long is too long for an equitable claim?

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Why do courts cut back on statutory remedies provided by the Parliament under corporate law: The enigma of section 1324 of the Corporations Act?

RECENT CASES – Editor: Acting Justice Peter W Young AO

• How to construe the Personal Property Securities Act: When is defect in registration “seriously misleading”?
• Schools: Non-delegable duty of care
• What is commercially reasonable?
• Corporations: Is a right to appeal “property”?
• Religious dispute: Whether justiciable
• Receiver’s costs: When reasonable
• Crime: Inconsistent verdicts – Whether failure to reach a verdict is within the principle
• Customs duty: Powers of officials

BOOK REVIEWS – Editor: Angelina Gomez

• Land Titling Law and Practice in NSW, by Greg Stilianou
• Long Term Contracts, by Kanaga Dharmananda and Leon Firios

OBITUARY

• Hon Barry O’Keefe AM QC

For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 9 Contents.

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The latest issue of the Australian Law Journal (Volume 88 Part 10) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Legal research: By computer or by book
• English law comes into line on equitable proprietary interests
• Chief Justice of Queensland
• Specialist courts
• Filling judicial vacancies
• Arbitration and the courts
• Suspended sentences

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Derogation from the grant: Continuing life for an old doctrine
• Assurance fund confirmed as the fund of last resort

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• On the brink of regulation: The future of litigation funding in class actions

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• General average

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• Illegal immigrants, asylum seekers and Australia’s international obligations: The debate goes on

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Corporations: Statutory demands – Setting aside – Off setting claim
• Wills: Rectification
• Equity: Recovery of secret commission from agent – Is a proprietary remedy available?
• Wills: Solicitor not negligent for failing to procure execution of informal will

Articles

The anti-deprivation rule in Australia — Nishad Kulkarni

Whether the anti-deprivation rule that has recently been applied in England exists in Australia has not yet been judicially considered. The ground covered by the rule has traditionally been understood as a manifestation of the so-called pari passu principle. The English cases have, however, identified it as a separate rule with distinct operation. This article examines the English cases and seeks to identify the proper legal foundation of the rule. It asks whether a distinct anti-deprivation rule might exist in Australia consistently with the High Court’s decision in International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151. The article discusses the suggested operation in this context of the illegality principle recently applied by the High Court and considers whether it may supply a statutory footing for an Australian anti-deprivation rule.

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Response to the 2013 Whitmore Lecture by The Hon Wayne Martin AC, Chief Justice of Western Australia — Chris Wheeler

It has been argued in recent years by various commentators that consideration should be given to the concept of an “integrity” branch of government incorporating the various agencies that have been established in each jurisdiction to ensure the integrity of government. In the 2013 Whitmore Lecture (Martin W, “Forewarned and four-armed: Administrative law values and the fourth arm of government” (2014) 88 ALJ 106), the Chief Justice of Western Australia criticised this notion of an “integrity” branch in the context of a more general criticism of the legislative framework for integrity agencies in Western Australia and how they have exercised some of their functions. This article is a response to the views expressed by the Chief Justice, and argues that the criticism of the “integrity” branch concept appears to be based on the problematic premise that the historical arrangements between the existing three branches of government are still adequate to ensure an appropriate balance between them. This article also argues that some of the Chief Justice’s criticisms of the Western Australian integrity framework and legislation are misconceived.

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BOOK REVIEWS – Editor: Angelina Gomez

• The Law of Proprietary Estoppel, by Ben McFarlane

OBITUARY

• Hon John Patrick Slattery AO KGCSG QC

For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 10 Contents.

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The latest issue of the Australian Law Journal (Volume 88 Part 11) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• The cost of case management: Is it worth it?
• Costs of preparing the court book
• Bring back praemunire
• Umpire’s decision should be final
• Four- and six-person juries
• Have the Queen’s highways become stable yards?

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Purchasers’ repudiation, notices to complete, and damages
• Vendor’s sale illegal
• Defaulting purchaser recovers deposit

CRIME AND EVIDENCE – Editor: Justice Phillip Priest

• Disuniform approaches to the Uniform Evidence Act?

AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC

• Supreme and Federal Courts Judges’ Conference 2014
• New silks?
• Fraud in criminal proceedings
• Interpreters
• A new Local Court

ADMINISTRATIVE LAW – Editor: Justice Melissa Perry

• Unfairness in practice: Recent decisions in migration: Part 1

AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin

• Open justice in Western Australia

PERSONALIA: – Editor: Sienna Merope

Commonwealth

• Justice Jonathan Beach
• Justice Jennifer Davies
• Justice Jacqueline Gleeson
• Justice Debbie Mortimer
• Justice Tony Pagone
• Justice Melissa Perry
• Justice Richard White
• Justice Michael Wigney

Queensland

• Chief Justice Timothy Carmody
• Chief Justice Paul de Jersey AC QC

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Senate Economic References Committee: Update

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• Forcing forced labour onto the agenda

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Can an executor or administrator be removed without necessity for revocation of grant?
• “Fraud on the market” theory survives in the United States Supreme Court

Articles

Equity: The soul and spirit of all law or a roguish thing? – Lehane Lecture 2014 – Lord David Neuberger

This speech, by a leading English equity lawyer, now President of the English Supreme Court, makes the case that equity is alive and well in England and that there have been at least nine leading equity cases decided by the Supreme Court in the recent year. It also makes the point that some revered equity judges whose judgments display an impressive and intimidating confidence, appear, when tested by the passage of time, to have demonstrated a lack of consistency and a fallibility which did not quite justify that confidence. Many of them have occasionally been judicial Pied Pipers leading future generations of judges into mountains of error where they rested for a long time.

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ACCC compulsory examinations: Does the “accusatorial” principle of criminal justice affect them? – Peter Strickland

The High Court’s recent decisions in X7 v Australian Crime Commission (2013) 248 CLR 92, Lee v New South Wales Crime Commission (2013) 87 ALJR 1082 and Lee v The Queen (2014) 88 ALJR 656 address the scope of certain statutory compulsory examination powers in crime commission investigations and recovery of proceeds of crime proceedings. These decisions also explore the extent to which the “accusatorial” nature of criminal justice influences the interpretation of those powers. Importantly, it is likely that the compulsory examination powers of other statutory agencies, like the Australian Competition and Consumer Commission, will be affected by these recent decisions. This article examines the extent to which the “accusatorial” principle of criminal justice is likely to affect the proper construction of the Australian Competition and Consumer Commission’s compulsory examination power. Specifically, this article considers the extent to which oral evidence obtained compulsorily by the Commission can be used, both directly and indirectly, in investigating and prosecuting the individual who gave that evidence.

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For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 11 Contents.

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The latest issue of the Australian Law Journal (Volume 88 Part 12) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Appearance in court by telephone
• Thomson Reuters in the United States
• The Australian court system
• Quiz
• Finally

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• When is land “used or occupied”?
• Caveats
• “Fair wear and tear”
• Torrens title documents “having the effect of” deeds

FAMILY LAW – Editor: Anthony Dickey QC

• A lacuna in the provisions for financial agreements between de facto partners
• Do limited duration marriages come within the scope of the marriage power?
• Origin of the claimed “rule of thumb”

ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper

• Federal environmental policy
• Significant environmental decisions of the Federal Court
• Repeal of Queensland’s Wild Rivers Act
• Third party objector rights to challenge proposed mining projects curtailed in Queensland
• Conflicting land use case between rural neighbours in Western Australia dismissed
• Reprieve for Western Australia’s sharks
• Back to the future with the abrogation of Tasmanian forests “peace deal”
• Power to cancel, refuse, or renew a mining right if applicant is not “fit and proper person” in New South Wales

PERSONALIA – Editor: Clare Langford

Commonwealth

• Justice John Edward Griffiths
• Justice Kathleen Farrell
• Justice Duncan James Colquhoun Kerr, Chev LH

Queensland

• Justice Robert W Gotterson AO

Victoria

• Justice Gregory Howard Garde AO

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Admiralty arrest and innocent passage

OVERSEAS LAW – Editor: Colin Picker

• United States Supreme Court revises fraud on the market presumption for securities class actions

HUMAN RIGHTS – Editor: Simon Rice

• Law and religion in the Victorian Court of Appeal

ADMINISTRATIVE LAW – Editor: Justice Melissa Perry

• Procedural fairness and cultural diversity: Recent decisions in migration: Part 2

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Trusts: Protector of the trust – Ambit of authority
• Negligence: Liabilty of parent company to subsidiaries’ employees
• Racial discrimination: Church not discriminatory for disbanding Samoan-speaking congregations and conducting all services in English
• Impartiality of the judiciary: Judge ought not select the judges who hear an appeal from himself
• Compulsory acquisition: Betterment of retained land to be offset against compensation payable

Articles

The defaulting executor – Hon Peter W Young AO QC

An executor who fails to do his or her duty in a proper and timely manner is a nuisance to everyone. This article, which is the text of a speech given to a seminar held by the Law Society of South Australia in November 2013, highlights the problems, and notes how solicitors and the judiciary might deal with them.

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Equity’s obligation to perform: Efficient breach and the inadequacy of common law damages – Samuel Kang and James Nguyen

The theory of efficient breach holds that a promisor is free to breach a contract provided the promisor pays damages. This consequentialist approach to contract law ignores or downplays the availability of equitable remedies including specific performance, injunction and account of profits. This article explores equity’s role in the operation of the common law of Australia and the United States in providing contracting parties with recourse to compel performance where a counterparty seeks to breach. While all equitable remedies are discretionary, in a wide range of circumstances, these remedies amount to an obligation to perform in direct contradiction to the theory of efficient breach.

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Answers to Quiz

For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 12 Contents.

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Thomson Reuters is pleased to announce the appointment of the Hon Justice Stephen Estcourt as the Section Editor for a brand new Tasmania Section in The Australian Law Journal.

Justice Escourt was appointed as a Magistrate in 1990, after 15 years as a barrister and solicitor with the firm of Archer Bushby in Launceston. He left the Court in 1994 to establish the Resource Management and Planning Appeal Tribunal for the Tasmanian Government. After 2 years as the inaugural Chair of that body he resigned to join the Tasmanian Independent Bar in late 1995.

Justice Estcourt took silk in 1998 and as a Queens Counsel practiced extensively in the civil and criminal jurisdictions of the Supreme Court of Tasmania and in the Federal and High Courts of Australia. Justice Estcourt was President of the Law Society of Tasmania in 1988 and between 2003 and 2007 was President of the Tasmanian Independent Bar. In 2006 he was elected President of the Australian Bar Association, a position he held until January 2008. Justice Estcourt signed the Victorian Bar Roll in September 2004. By the end of 2011, he was a Fellow of the Australian Academy of Law.

In 2001 Justice Estcourt was appointed a part-time Deputy President of the Commonwealth Administrative Appeals Tribunal and sat all over Australia hearing chiefly visa refusal and deportation cases. He left the AAT in 2004 as a result of philosophical objections to Attorney General Philip Ruddock’s apparent oversight and appointment practices.

In March 2013, the Attorney General of Tasmania, Brian Wightman, announced Justice Estcourt’s appointment as a Puisne Judge of the Supreme Court of Tasmania.

Justice Estcourt’s updates from Tasmania will be of great benefit to readers of The Australian Law Journal and we take great pleasure in welcoming him to the team.

Stay tuned or follow us on Twitter for more news from our Journals portfolio.

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The latest issue of the Australian Law Journal (Volume 89 Part 1) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Welcome to the Journal for 2015
• 50 years ago
• Too many commissions?
• Delay in Family Courts
• 21st anniversary of the Laws of Australia

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Statutory warfare? What happens when retail lease legislation collides with liquor licensing laws?
• Date for assessment of damages

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Choice of law: Trans Tasman Treaty
• Court orders: How construction must be approached
• Insurance: Fire claim – Onus of proof
• Specific performance: Claim by musicians to play at a theatre
• Trusts: Variation – How far Court’s power to approved advantageous dealings can be employed to vary the trusts

Articles

Unnecessary causation – James Edelman

One of the most difficult, but ubiquitous, issues in the law is the question of causation. Whether in criminal law or in civil law a person is not generally thought to be responsible for outcomes that he or she has not caused. The question of causation should not be understood as one of fact or of law. It is a question of metaphysics. The approach that should be taken to the metaphysical question is a counterfactual inquiry into whether the event which was the person’s action or inaction made a difference to the outcome. In other words, whether “but for” the event the outcome would have happened anyway. Once causation is understood in this way then it is possible to see a considerable number of circumstances where persons are responsible without having caused an outcome. Attention can then be focused upon the reasons why the law allows responsibility where causation is unnecessary.

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A cattle lifter’s Bill: Nemo dat rule and the Indian Contract Act – Gail Pearson

Who should own wrongfully obtained goods sold to a third party? The nemo dat rule for sale of goods is taken for granted but was not inevitable. There was a 19th century proposal to create a universal market overt for the buyer to gain title. Reform proposals oscillated between favouring the owner or the buyer. Mid-century English reformers suggested abolishing the market overt rule, then law commissioners drafting the Indian Contract Bill proposed a buyer should gain title from anyone in possession of the goods. This was rejected with a new proposal that a buyer could not gain ownership from any person in possession. In turn this was rejected and a proposal stating the nemo dat rule was accepted and became law in India, in turn influencing legislation in England and other common law countries. This story of property rights involves Romilly, Macpherson, Maine, Stephen and the ubiquitous cattle-lifters of districts in India.

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Possession of land: Missteps in the control analysis – Part 1 – Chris Boge

Possession of an estate is one of the most important concepts in land law. And while it has been said that possession is difficult to define, it does have an internal consistency. Its true meaning concerns a relationship a person has with an estate; yet not infrequently it is wrongly used to describe physical occupation or control of land. This false approach has the potential to lead principle into irreversible error. Possessory remedies can sometimes protect a right of general control of land, even where that right is not sourced in a title. Indeed, such remedies are the core of general control. However, courts in England have seemingly adopted an approach which uses possessory remedies against third parties who do not owe any relevant duty to a “title-less” claimant not to interfere with the claimant’s right of occupation or use of land, sometimes referred to, nebulously, as effective control of land. Australian courts have also made missteps in the “control” analysis by suggesting that possession can be vindicated against limited third parties. Part 1 of this article explores the bases for these developments. Part 2 will consider more recent directions in the English and Australian positions and the parallel development of the idea of “possession for a purpose”.

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For the pdf version of the table of contents, click here: ALJ Vol 89 No 1 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 2) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• The siege of Sydney
• Discretion to prosecute
• Victoria is not a sovereign state
• Good news for fraudsters
• How far does Quistclose go?
• A judge’s duty to listen

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Incentive deeds and contractual penalties
• Sharing the costs of and maintaining an easement: A postscript
• No “taking” by order to cease prohibited use of land
• Volunteer gets indefeasibility
• Caveat extended pending appeal to High Court on issue of director’s liability
• Caveat claiming interest under constructive trust not extended
• Caveat claiming wrong interest removed

PERSONALIA – Editor: Clare Langford

• Commonwealth
  • Justice Geoffrey Arthur Akeroyd Nettle
  • Justice Iain James Kerr Ross AO
• New South Wales
  • Justice Francois Kunc
• South Australia
  • Justice Kevin Gordon Nicholson
• Tasmania
  • Justice Stephen Estcourt

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Valuation of land
• Informal wills
• When can an undischarged bankrupt sue?
• Common law lien: Possession – Database
• Deeds: Whether a person is estopped from denying that an imperfectly executed document is not a deed
• Freezing orders in aid of foreign court process
• Lawyers: Injunction to restrain acting

Articles

What are accumulations and why they remain important – David K L Raphael

The law as to accumulations of income under trusts is often thought of as a difficult academic matter not relevant in practice. This article seeks to upset that view. It explains the origins of the present rules and how proper consideration of the circumstances in which beneficiaries may benefit from accumulating income may result in tax savings and other benefits.

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Possession of land: Missteps in the control analysis – Part 2 – Chris Boge

Part 1 of this article explored the development of new approaches to the concept of possession in respect of land. A false approach to the concept has emerged in England, and to some extent in Australia. In particular, possessory remedies have been used to vindicate, or are considered available for the protection of, rights of occupation or use of land or various “degrees of control” of land. This Part considers more recent directions in the English and Australian positions and the parallel development of the ideas of possession enforceable against limited third parties and “possession for a purpose”.

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Restitution sans rescission: Exposing the myth of a fallacy – Daniel Morris

Critics of Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 say that the court in that case confused termination with rescission when awarding restitutionary quantum meruit (RQM) to the plaintiff contractor against the repudiating principal. This alleged confusion became known as the “rescission fallacy”. This article seeks to disprove the existence of the rescission fallacy and goes on to argue that in fact, Renard and subsequent cases did not go far enough because they only established the contractor’s right to “get what its work is worth” where the contract’s failure was the principal’s fault. In fact, a repudiating contractor should be recognised as having the same rights because RQM has not been fault-based since unjust enrichment replaced implied promise or quasi-contract as the juridical basis for RQM awards.

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For the pdf version of the table of contents, click here: ALJ Vol 89 No 2 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 3) contains the following material:

CURRENT ISSUES – Guest Editor: Justice Clyde Croft

• Providing clarity to judicial support of arbitration

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Dual character of lease confirmed in fiscal context
• Landlord held not liable for nuisance committed by tenant
• Adverse possession and criminal trespass

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Admiralty: Convenient forum
• Costs: Liability of solicitor
• Where to draw the line: Fraudulent consent or no consent at all?

Articles

Discretion and the rule of law in the criminal justice system – Justice M J Beazley AO and Myles Pulsford

Justice Beazley was invited to give a keynote speech at the World Bar Conference 2014 centred on the theme of “Advocates as Protectors of the Rule of Law”. Confronted by the breadth of discourse on the rule of law, we were interested to examine whether our legal systems’ compliance with the rule of law was more apparent than real; whether, to use the analogy of Hans Christian Andersen’s fairy tale, the cloth we wear is really woven with gold. This article examines that question of compliance by reference to discretion in the criminal justice system, a subject that has received frequent attention by the High Court of Australia in recent years. Identifying discretion as playing a central but complex role in the rule of law, the importance and rule of law concerns associated with the extent and allocation of discretion in, and between, the police force, prosecutors and the judiciary is examined. This issue is explored by reference to two areas of the New South Wales criminal justice system: first, the offence of consorting in the Crimes Act 1900 (NSW), s 93X which, at the time the speech was given, was the subject of a reserved High Court decision on its constitutional validity; and, secondly, the introduction of aggravated forms of existing offences which are coupled with mandatory minimum sentences which were considered by the High Court in Magaming v The Queen (2013) 87 ALJR 1060; [2013] HCA 40.

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In defence of McCracken: A response to “Why do courts cut back on statutory remedies provided by parliament under corporate law” – Nishad Kulkarni

The proper scope of s 1324 of the Corporations Act 2001 (Cth) continues to attract divergent views, with some commentators arguing that the courts have taken an unduly narrow approach to its interpretation. In the September 2014 issue of the Australian Law Journal, Professor Baxt expressed that view in respect of the Queensland Court of Appeal’s decision in McCracken v Phoenix Constructions (Qld) Pty Ltd [2013] 2 Qd R 27; (2012) 272 FLR 104. In the absence of consideration of the provision by the High Court, the view expressed by Professor Baxt is certainly not foreclosed. This article, however, contends that the two distinct propositions that emerge from McCracken regarding the interpretation of s 1324 are correct and find support in reasons outside those stated in the decision as well as from the authorities.

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Recourse to contractual context reaffirmed – Brent Michael and Derek Wong

This article provides an update on the principles governing recourse to surrounding circumstances in contract interpretation following the High Court’s decision in Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; 88 ALJR 447 and the decision of the New South Wales Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184. The extent to which the current state of the law reflects the English position expressed by Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 is also considered.

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The intoxication defence: Toward a better understanding of current doctrine and reform – Kenneth J Arenson

This article deals with the contentious issue of the extent to which an intoxicated person, particularly one who has become inebriated of his or her own volition, should be permitted to escape liability on the basis that the degree of inebriation was sufficient to preclude the fact-finder from finding a volitional act or omission on the part of the accused and/or that he or she acted with the requisite mens rea, if any, as defined by the common law or statutory definition of the offence. In addressing this issue, the article embarks upon a thorough analysis of the House of Lords seminal decision in Director of Public Prosecutions v Majewski [1977] AC 443 which, despite some very harsh criticism of late, continues to be the leading authority on this question in the United Kingdom, United States and Australia. As part of this analysis, the article examines and ultimately attempts to resolve the longstanding controversy over what has proved to be the elusive distinction between crimes of basic or general intent and those of specific intent. The article concludes by rejecting the Majewski principles in favour of those enunciated by the High Court of Australia in R v O’Connor (1980) 146 CLR 64; 54 ALJR 349. In reaching this conclusion, the article notes various legislative and academic proposals for reform as well as statutory reforms in the United Kingdom, United States, Canada, and Australia.

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BOOK REVIEWS – Editor Angelina Gomez

• Authority to Decide, The Law of Jurisdiction in Australia, by Mark Leeming
• Sir Charles Lilley, Premier 1868-1870 and Second Chief Justice 1879-1893 of Queensland, by Dr J M Bennett AM

For the pdf version of the table of contents, click here: ALJ Vol 89 No 3 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 4) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• The Queensland election
• Double jeopardy
• Law reports: Headnotes
• Breach of privacy as a crime
• The Australian States
• 30 years on the Supreme Court Bench
• Can a person with a drug conviction reform?
• Another decent cop
• A lawyers’ patron saint

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Three moot points
• Moot point 1: Notices to complete using the phrase “not less than [14] days”
• Moot point 2: What is meant by a “marketable title”?
• Moot point 3: Should a purchaser make a title search before entry into the contract?
• Equitable estoppel: What must the party asserting an estoppel have been induced to believe by the defendant?

AROUND THE NATION: QUEENSLAND – Editor: John McKenna QC

• Statutory wills and public policy
• Problems with juries
• Appointments, retirements and deaths
• Judicial appointments and the role of the judges

PERSONALIA – Editor: Clare Langford

New South Wales

• Justice Rowan Darke
• Justice Stephen Robb
• Justice Robertson Wright

Northern Territory

• Justice Graham Hiley RFD

South Australia

• Chief Judge Geoffrey Muecke
• Justice Gregory Parker

Tasmania

• Justice Robert William Pearce

Victoria

• Justice Christopher William Beale
• Justice Joanne Cameron
• Justice Geoffrey John Digby
• Justice Phillip Geoffrey Priest

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Murray Report recommendations relating to the Australian Securities and Investments Commission

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Witness: Immunity from suit
• Crown prerogatives: Role of courts
• Illegal contracts
• Companies: Powers of liquidator to sell trust property
• Costs: Whether cost of obtaining insurance against loss of the litigation claimable
• Employment law: Second notice of termination
• Injunctions: Damages claimable by recipient of inappropriate freezing order
• Crime: Mother excessively drinking during pregnancy injuring baby – Whether baby entitled to criminal compensation
• Trusts: Trustee in position of conflict

Articles

Judicial ethics and judicial misbehaviour: Two sides of the one coin? – Ronald Sackville AO QC

The catalyst for the relatively recent interest in judicial ethics in Australia was the series of allegations against judicial officers in the mid-1980s. One outcome of the upheavals was legislation creating mechanisms for dealing with complaints against judicial officers. Another was the formulation and publication of ethical guidelines for judicial officers, under the auspices of the Council of Chief Justices. It is evident that there is considerable overlap between ethical guidelines and standards of conduct that may be enforceable by disciplinary sanctions. Over time it is likely that some voluntary guidelines will harden into binding rules of conduct.

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Investor claims and the reach of proportionate liability – Alister Abadee

The State and federal regimes of proportionate liability were enacted in response to a perceived crisis in the cost of liability insurance, particularly, for professionals. It was hoped that, by limiting the liability of defendants, whose conduct contributed, with other persons, to a claimant’s losses, to accord with their responsibility for a claimant’s loss, the regime would facilitate greater predictability for underwriters in assessing the maximum exposure of an insured; without the vagaries of the insolvency of other wrongdoers affecting the ultimate outcome. However, recent decisions in the Federal Court of Australia, concerning the operation of the doctrine in claims by investors, have frustrated this hope and indicated that the forensic decisions of claimants and even the defendants themselves, as to joinder, and the way that a claim is framed, continue to generate uncertainty. In relation to two conflicting decisions, concerning the issue of whether apportionment applies to multiple causes of action arising from the same facts, the High Court is expected to resolve that uncertainty.

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Future representations and the grounds that may be relied on to establish reasonableness – Andrew Eastwood

Since the decision of the Full Court of the Federal Court in Sykes v Reserve Bank of Australia (1998) 88 FCR 511, courts have held that, in misleading conduct claims concerning future representations, the representor (in seeking to establish reasonableness) can only rely on matters which the representor in fact relied on at the time of making the relevant representations. This article contends that such a requirement should be discarded. The question of reasonableness should be determined objectively, having regard to all the relevant facts and circumstances, whether or not known or relied on by the representor at the time.

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BOOK REVIEWS – Editor: Angelina Gomez

• Interpreting Principles of Equity, by M Cope (ed)
• Excursions in the Law, by Peter Heerey

For the pdf version of the table of contents, click here: ALJ Vol 89 No 4 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 5) contains the following material:

CURRENT ISSUES – Guest Editor: Ruth Higgins

• Magna Carta turns 800
• Legal aid funding
• Polls and wires
• Diversifying legal culture
• Harper and its likely effects
• Plainly contagious
• Continuity and change

LETTER TO THE EDITOR

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Fraud, joint tenancies and the torrens system: Cassegrain v Cassegrain
• Another case of the fraudulent “all-moneys” mortgage
• Split deposits and penalties
• Bootstrap caveats: Agreements to lodge caveats

PERSONALIA – Editor: Clare Langford

Commonwealth

• Hon Susan Maree Crennan AC QC

New South Wales:Update

• Justice Robert Beech-Jones
• Justice Geoffrey Bellew
• Justice Richard Button
• Justice Stephen Campbell
• Justice Geoff Charles Lindsay
• Justice James Stevenson

Western Australia

• Justice Jeremy Clyde Curthoys

FAMILY LAW – Editor: Anthony Dickey QC

• The implication of Hoffman
• Relevance of the filial relationship in adult maintenance cases

HUMAN RIGHTS – Editor: Simon Rice

• Cobaw update
• The Racial Discrimination Act at 40

RECENT CASES – Guest Editor: Ruth Higgins

• Contract: Implied duty of good faith
• Corporations: Continuous disclosure – Causation and loss
• Corporations: Insolvency – Extension of time
• Tort: Concurrent wrongdoer

Articles

The United States and the Australian Constitution: Influence of US Constitutional model on development and interpretation of the Australian Constitution – Kathleen Morris and James Allsop AO

Over the past two centuries the United States’ Constitution has played an important role in inspiring and shaping the content and development of Australian constitutional law. This article explores the extent of that influence by considering the key discussions of the Australian constitutional framers, undertaking a brief comparison of the text of the two Constitutions, and reviewing the High Court’s approach to the use of American precedents over the past century.

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Reassessment of Robert Menzies’ contribution in the Engineers Case – Gerard Carney

The recent discovery of Sir Robert Menzies’ handwritten notes made for and during his appearance as counsel in the Engineers’ Case in 1920 provides a unique insight into the six days of that hearing, of which no transcript exists. They also allow a reassessment of his role as a young 25-year-old barrister, opposed by a formidable line-up of counsel representing the States. This article attempts to piece together the line of argument each day, as well as something of the atmosphere in the High Court and the personalities of the other counsel.

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BOOK REVIEWS – Editor: Angelina Gomez

• Sir Charles Lilley, Premier and Chief Justice of Queensland, by J M Bennett

For the pdf version of the table of contents, click here: ALJ Vol 89 No 5 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 6) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Magna Carta
• Appointment of Australian jurists to the Singapore International Commercial Court
• Human rights in tiers
• More on Quistclose
• Crime and the “cross”
• Je suis Charlie
• Freedom of the press

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Shaking the foundations: What is the nature of a purchaser’s interest before completion?
• Mutual wills and severance of joint tenancies

AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin

• David Kingsley Malcolm AC, QC, CitWA
• Summaries of top civil and public law cases of 2014

PERSONALIA – Editor: Clare Langford

New South Wales

• Justice Helen Wilson
• Justice Peter Hamill
• Chief Judge Derek Michael Price

Queensland

• Justice Peter Flanagan
• Justice Anthe Philippides

Victoria

• Justice Michael Phillip Mcdonald
• Justice Peter Julian Riordan
• Justice Rita Zammit

Victoria (cont)

• Justice Emilios John Kyrou
• Justice Anne Ferguson

Western Australia

• Justice Robert Mackenzie Mitchell

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• “Chameleon-hued words”: A note on discretionary trusts

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• Have small business rights been adequately recognised in the Harper Report?

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Fidicuary: Liability for account of profits
• Injunctions: Interim – Whether damages an adequate remedy
• Landlord and tenant: Tenants holding jointly – Notice to quit
• Payment into joint account as security for stay does not create PPSA security interest

Articles

Magna Carta in its medieval context – Hon James Spigelman AC QC

This article discusses the background, development and significance of the Magna Carta in the century after it was accepted by King John in June, 1215. The article also considers the importance of the companion Forest Charter, which elaborated the provisions in the original Magna Carta for regulation of the Royal Forests.

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Misleading or deceptive conduct cases in the Supreme Court of Victoria – Graeme S Clarke QC

Misleading and deceptive conduct cases decided by the Supreme Court of Victoria usefully illustrate the principles stated by the High Court.

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BOOK REVIEWS – Editor: Angelina Gomez

• Meagher, Gummow & Lehane’s Equity Doctrines & Remedies (5th ed), by J D Heydon, M J Leeming and P G Turner
• Director’s Duties: Principles and Application, by Rosemary T Langford
• The Law Affecting Valuation of Land in Australia (5th ed), by Alan Hyam

For the pdf version of the table of contents, click here: ALJ Vol 89 No 6 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 7) contains the following material:

CURRENT ISSUES – Editor: Ruth C A Higgins

• Look back in anger
• The divided kingdom
• Uniform solicitors rules
• Watching the world go by
• Continuity and change

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Can a notice that never arrived be properly served?
• Relief against forfeiture for non-payment of rent

PERSONALIA – Editor: Clare Langford

Commonwealth: High Court of Australia

• Justice Michelle Marjorie Gordon

Commonwealth: Family Court of Australia

• Justice David Berman
• Justice Jennifer Coate
• Justice Garry Foster
• Justice Hilary Hannam
• Justice Jenny Hogan
• Justice Sharon Johns
• Justice Christine Thornton
• Justice Peter Tree

Queensland

• Justice John Bond
• Justice Martin Burns

Victoria

• Justice David Francis Rashleigh Beach
• Justice Stephen William Kaye
• Justice Stephen Geoffrey Edwin McLeish
• Justice John Timothy Rush

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• The Harper Report: A defining moment or an impossible dream?

RECENT CASES – Editor: Ruth C A Higgins

• Unlawful industrial action: Admitted contraventions – Civil penalties – Exercise of judicial discretion in sentencing
• Succession: Construction of will – Whether “children” included step-children or only natural child
• Contract: Decision by contractual fact-finder – Requirement of reasonableness

Articles

Set-off against statutory avoidance and insolvent trading claims in company liquidation – Rory Derham

The purpose of this article is to consider whether a set-off under s 553C of the Corporations Act 2001(Cth) may be relied on as a defence to the various statutory recovery claims available to a company’s liquidator under the Act, with particular reference to unfair preferences, uncommercial transactions, void dispositions and insolvent trading. That question, though capable of simple expression, gives rise to considerable complexity. A line of authority has developed in Australia in favour of the view that set-off may be available against those claims under s 553C, including at intermediate appellate level, as a consequence of comments in the New South Wales Court of Appeal in Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2011) 81 NSWLR 47. It is contended in this article that that view is wrong as a matter of principle, and that a set-off should not be available for three reasons. First, a set-off would be contrary to the statutory purpose of the claims, being to benefit unsecured creditors. Secondly, and related to the first point, there is a lack of mutuality. It is commonly said that mutuality is determined by reference to equitable interests, but the expression of the principle in those terms does not always explain mutuality. It is suggested that in some cases the answer may be found in the concept of beneficial ownership, using that expression in the sense of ownership for one’s own benefit, and a consequent right to deal with property as one’s own, as opposed to the interest of a beneficiary of a trust in the strict sense. Thirdly, the statutory claims do not arise until after the time for determining the availability of set-offs in the liquidation, and are not properly characterised as contingent at that time. The contrary view, that the claims exist as contingent before the liquidation, is supported by the decision of the New South Wales Court of Appeal in Vale v TMH Haulage Pty Ltd (1993) 31 NSWLR 702 in relation to insolvent trading and also, arguably, by the recent analysis of the United Kingdom Supreme Court in Re Nortel GmbH [2014] AC 209 in relation to proofs of debt for statutory liabilities. But it is suggested that there are difficulties with those cases in Australia, particularly in light of the reasoning of the High Court in Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 in relation to proofs of debt for costs orders. Nevertheless, a distinction arguably may be drawn on this third issue between director liability for insolvent trading and the other statutory claims (including holding company liability for insolvent trading). There is an argument in the former situation that the statutory claims exist as contingent before the liquidation which would not be available in relation to the latter.

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Defending orthodoxy: Codelfa and ambiguity – Thomas Prince

In Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113; [2014] NSWCA 184, the New South Wales Court of Appeal rejected the view expressed by the High Court in Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1, that before evidence of surrounding circumstances is admissible in construing a written contract the language must be “ambiguous or susceptible of more than one meaning”. This conclusion was said to be mandated by the High Court’s later decision in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640. This article argues that the Court of Appeal was plainly wrong to reach that view, and it should not be followed. As a matter of precedent and principle, Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 remains good law.

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OBITUARIES

• Peter McInerney QC
• Peter Tebbutt

For the pdf version of the table of contents, click here: ALJ Vol 89 No 7 Contents

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The latest issue of the Australian Law Journal (Volume 89 Part 8) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Justice
• Courts and delays
• Disposal of appeals that clearly fail
• Citatation of authority
• Jobs for lawyers
• Single issues and a balanced society
• Passwords

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• A common leasing problem gives rise to a difficult legal issue

AROUND THE NATION: QUEENSLAND – John McKenna QC

• Causation and damages
• Allowances for tax in damages
• Fiduciary duties of parents
• Selden Society
• Appointments and retirements

CRIME AND EVIDENCE – Justice Phillip Priest

• Provocation’s peculiar position in 21st-century Australia

PERSONALIA – Editor: Clare Langford

Commonwealth: High Court of Australia

• Justice Kenneth Hayne

Commonwealth: Federal Court of Australia

• Justice James Edelman

New South Wales

• Chief Judge Reginald Blanch AM

Northern Territory: Update

• Justice Peter Barr
• Justice Jenny Blokland
• Justice Judith Kelly
• Chief Justice Trevor Riley
• Justice Stephen Southwood

Queensland

• Chief Judge Kerry O’Brien

South Australia

• Justice David Lovell

Victoria

• Associate Justice Mary-Jane Ierodiaconou

Western Australia

• Justice Peter Dominic Martino

OVERSEAS LAW – Colin Picker

• Financial advisers and tangled loyalties: The case of In re Rural Metro

AROUND THE NATION: NORTHERN TERRITORY – Hon Dean Mildren AM RFD QC

• Interpreter protocols in the Northern Territory Supreme Court

ADMIRALTY AND MARITIME – Dr Damien J Cremean

• Proximate loss in marine insurance

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Review of settlement arrangements between regulators and defendants: “Unshackling” the role of the courts?

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Statutory construction: Apparent inconsistency between two statutes of the same government
• Real property: Boundaries – Land adjoining ocean
• Police duties revisited
• Corporations Law: Preferences – Recent analysis of the “preference” under the NZ Companies Act and Australian analogues

Articles

Faulty refinancing: Subrogation, Torrens and the PPSA – Hon W M C Gummow AC and J G H Stumbles

The co-existence of equitable remedies with statutory regimes illustrates equity’s vitality and versatility. In this article, we examine the availability of subrogation in relation to securities over Torrens land and PPSA security interests and how subrogation may apply in a way which is consistent with each of these regimes. The analysis also demonstrates differences in the operation of subrogation in relation to Torrens land and personal property.

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Interpreting statutes and contracts: A distinction without a difference? – Jacinta Dharmananda and Leon Firios

The intuition felt by many legal practitioners is that the process of interpreting statutes is somehow different to the approach taken to interpreting private agreements. In a paper delivered over a decade ago, then Justice Michael Kirby of the High Court of Australia noted the dearth of comparative analysis of the two disciplines, and went on to sketch what he perceived to be the similarities and differences. This article takes up Justice Kirby’s cause and explores the extent to which contractual interpretation and statutory interpretation really do differ. On closer inspection it seems that there is, in fact, little difference of major significance. The article concludes with some reflections on the variables at play in interpretation beyond the nature of the instrument being interpreted.

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BOOK REVIEWS – Editor: Angelina Gomez

• Asian Courts in Context by Ed Jiunn-Rong Yeh and Wen-Chen Chang
• The Construction and Performance of Commercial Contracts by S A Christensen and W D Duncan
• Voidable Transactions in Company Insolvency by Farid Assaf, Brett Shields and Hilary Kincaid

OBITUARY

• John Toohey

For the pdf version of the table of contents, click here: ALJ Vol 89 No 8 Contents.

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The latest issue of the Australian Law Journal (Volume 89 Part 9) contains the following material:

CURRENT ISSUES – Editor: Ruth Higgins

• Continuity and change
• The changing climate of environmental legal challenges
• The future of litigation funding
• The increasing cost of separation
• Watching the watchman

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Contractualisation of leases
• Indefeasibility of title: A strange result?
• Mortgagees’ sales

CONSTITUTIONAL LAW – Editor: Anne Twomey

• An alternative republic proposal

INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz

• The Istanbul Convention: A new chapter in preventing and combating violence against women

PERSONALIA – Editor: Clare Langford

New South Wales

• Justice Desmond John Fagan

Queensland

• Chief Justice Carmody

Victoria

• Chief Judge Michael Rozenes

Victoria update

• Justice Peter Almond
• Justice Clyde Croft
• Justice John Dixon
• Justice Cameron Macaulay
• Justice Kate McMillan
• Justice Robert Stanley Osborn
• Justice Michael Sifris
• Justice Pamela Tate
• Justice Simon Paul Whelan

Westen Australia

• Chief Judge Kevin Sleight

Appointment of Senior Counsel

OVERSEAS LAW – Editor: Colin Picker

• The silent undermining of unsecured creditors in Canada

RECENT CASES – Editor: Ruth Higgins

• Competition: Appeal – consideration of relevant market – characterisation of relevant services supplied by airlines
• Competition: Appeal – consideration of relevant market – mortgage broker offered refunds to borrowers if successful in applying for loans
• Crime: Statutory construction – “appeal by way of rehearing” – Crimes (Appeal and Review) Act 2001 (NSW), section 18

ARTICLES

Conscience and unjust enrichment – Robert Boadle

In Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 88 ALJR 552; [2014] HCA 14, the High Court of Australia explored the change of position defence in the context of claims for mistaken payments. In the process, the High Court highlighted the continuing relevance of equitable doctrine in this part of the law of unjust enrichment. This article considers equity’s properly formed and instructed conscience, and argues that principled conscience forms part of the law of unjust enrichment.

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Singapore flags avenue of appeal against plain-packaging tribunal’s ruling on jurisdiction – Tom Clarke

This article reviews the recent Singapore decision Government of the Lao People’s Democratic Republic v Sanum Investments Ltd [2015] SGHC 15, in which the Singapore High Court upheld Laos’s challenge to an investor-state arbitral tribunal’s decision affirming (in part) its jurisdiction to determine an investor’s complaint under the bilateral investment treaty between Laos and the People’s Republic of China. The decision is of interest to Australian observers for two reasons. First, it highlights an open, and potentially likely, avenue of appeal from the pending award on jurisdiction in the plain-packaging arbitration between Philip Morris Asia Ltd and Australia (which was also heard by an ad hoc tribunal seated in Singapore). Secondly, the decision highlights key limitations of “first-generation” China BITs (including the 1988 China-Australia BIT), which the investor-state arbitration provisions of the recently concluded China-Australia Free Trade Agreement have very substantially relaxed.

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Law vs history: The bill of rights 1688 or 1689? – David Clark

This article notices the disparity in the date of the Bill of Rights in Australian statutes and cases. The general explanation is that there was a different calendar in use in the 17th century. This is shown to be wrong by examining the Journals of Parliament and this article concludes that 1689 is the correct date and suggests that statutory references to 1688 should be amended accordingly.

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OBITUARY

• The Hon Frank Callaway RFD, QC

For the PDF version of the table of contents, click here: ALJ Vol 89 No 9 Contents

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The latest issue of the Australian Law Journal (Volume 89 Part 10) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• General Editor of the ALJ
• Specialist courts
• Self deception
• 150 years of law reporting
• Court delays
• 30 years after the Murphy inquiry
• Language change

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• It’s still buyer beware for building defects
• A road by any other name?
• Dangers lurking in terms contracts

FAMILY LAW – Editor: Anthony Dickey QC

• The propriety of refusing to sign the certificate of advice for a financial agreement
• The Full Court as social engineers

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• The “temptation of domesticity” and the role of the courts in Australia’s arbitration regime

ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper

• Federal environmental policy
• High Court decision on standing under the ADJR Act
• Significant environmental decisions of the Federal Court
• New State-wide mining assessment policy in New South Wales

HUMAN RIGHTS – Editor: Simon Rice

• The robust fragility of the right to liberty in Australia

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• Proposed review of Australian Consumer Law

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• International law of salvage: Past to present and useful result

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Will construction: The proper approach
• The reinterment of King Richard III
• Corporation Law: Disclosure of shareholders’ email addresses?
• Passing off: Is it sufficient that an overseas company has a reputation in England to give it standing for an injunction?
• Mortgages: Relevance of mortgagee’s motives in enforcing security – Ambit of court’s powers to give mortgagor relief against forfeiture
• Trusts: Trustees de son tort – Can there be a trust without property?
• Contract: Fraud – Rescission

Articles

Equal justice and cultural diversity: The general meets the particular – Chief Justice Robert French AC

Equality before the law does not necessarily result in equal justice. Equal justice may require different treatment of persons according to the differences between them. As such, it represents a more demanding and controversial standard. This article examines the varying ways in which the substantive law attempts to accommodate cultural diversity through the application of these two concepts of equality. Importantly, however, attempts to address difficulties faced by certain groups in accessing and effectively engaging with the judicial system must also extend to the procedural and administrative aspects of the law. In a demographically diverse nation, achievement of equal justice requires all players in the legal system to be aware of and respond appropriately to the challenges of cultural difference.

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The United Nations report on North Korea and the Security Council: Interface of security and human rights – Hon Michael Kirby AC CMG

This article examines the origins of the provisions in the UN Charter 1945, governing resolutions of the Security Council. It traces those provisions ultimately to the Congress of Vienna, 1815 and subsequent developments, including the Covenant of the League of Nations 1920. Both the Covenant and the Charter draw a distinction between “procedural” resolutions and others, so far as the “veto” reserved to the permanent members of the Council is concerned. Invoking this distinction a resolution was adopted by the UN Security Council in December 2014, placing the issue of human rights in North Korea (DPRK) on the Council’s agenda. The resolution followed a report of a UN Commission of Inquiry on DPRK chaired by the author. He examines the utility of the resolution and the way ahead.

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Magna Carta in Australia 1803-2015: Law and myth – David Clark

Magna Carta broke free of its medieval roots many centuries ago and by the 19th century came to stand for general propositions about the law and liberty. These included the right to due process, personal freedom and the right to representative government. As a statute only Ch 29 of Magna Carta 1297 currently survives in Australia and, while significant, it does not override contemporary Australian legislation, as some have argued. This article examines the myths surrounding the Charter and argues that these myths have oddly ensured the survival of the Charter in the public mind. The contemporary significance of Magna Carta in Australia, evidenced in both the law and in the press, lies in its uses in political and legal debate, and by being part of the educational culture of lawyers and the general public.

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BOOK REVIEW – Editor: Angelina Gomez

• Seddon on Deeds by Nicholas Seddon

For the PDF version of the table of contents, click here: ALJ Vol 89 No 10 Contents

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The latest issue of the Australian Law Journal (Volume 89 Part 11) contains the following material:

CURRENT ISSUES – Editor: Ruth CA Higgins

• Plus ça change
• Pre-empting arbitration
• Enlightened incarceration
• Competition and class actions
• Continuity and change

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Destruction of unregistered leases: demise of the lighting by design line of cases?
• Compulsory easements: a new black letter syndrome?
• Writing requirements and email contracts

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt

• Peter George Underwood AC

PERSONALIA – Editor: Clare Langford

Commonwealth

• Justice Robert McClelland
• Justice Brigitte Markovic

New South Wales

• Ms Lea Armstrong
• District Court: Appointment of specialist child sexual assault judges

AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC

• 25 years on: Office of the Director of Public Prosecutions in the Northern Territory

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Directors obtain “more breathing space” in arranging indemnities

ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper

• New shark culling policies in Western Australia
• Retroactive legislation in Western Australia to validate Environmental Protection Authority approvals
• Extension of New South Wales Government’s coal seam gas licence buy-back
• Penalty increases for environmental offences in New South Wales
• Environmental contamination held a relevant factor in valuation in New South Wales
• Public inquiry into Victorian Environmental Protection Agency
• Victorian Government extends coal seam gas moratorium
• New penalties for environmental offences in Queensland
• Tasmanian illegal fishing sting collapses
• Tasmanian Government extends moratorium on hydraulic fracturing
• South Australian windfarm court win
• South Australian sentenced for failing to revegetate land
• South Australian court imposes fine for contaminated storage failure
• Northern Territory Supreme Court sets aside Minister’s decision on water rights

RECENT CASES – Editor: Ruth CA Higgins

• Intellectual property: Patentable subject matter – patent claimed isolated nucleic acid coding for BRCA1 protein – manner of manufacture
• Corporations: Compensation claim for loss or damage from misstatement or omission in disclosure document – Misleading or deceptive conduct – Market-based causation
• Prisoners: Solitary confinement – Whether decisions to keep the appellants in solitary confinement for substantial periods were lawfully made

Articles

Is access to justice a right or a service? – Steven Rares

The recent report by the Productivity Commission on Access to Justice Arrangements has made numerous recommendations, including that court fees should be charged on a differentiated basis having regard to the capacity of the parties to pay up to full cost recovery of providing the court to hear the case. At the same time governments have been increasing the levels of court fees particularly in civil and commercial matters. The author argues that equating the provision of the judicial system as a service that can and should be sold is antithetic to the fundamental principle, traceable to Magna Carta, that justice will not be sold or denied and to the rule of law. He asks whether a constitutional problem would arise if such significant fees were charged, as occurred in Canada last year. He also discusses other more appropriate suggestions in the report.

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Some judicial fallacies concerning entire agreement clauses – I M Jackman

The common inclusion in commercial contracts of an “entire agreement” clause presents a number of challenges to the current judicial trend for broad contextual approaches to the negotiations. In principle, there should not be any tension between the parties’ clearly expressed intentions and the judicial interpretation of their contract. That there is such a tension, however, is starkly illustrated in the reasoning of Australian intermediate appellate courts as to the extent to which entire agreement clauses: (a) do more than merely re-state the parol evidence rule; (b) negate the existence of collateral contracts; (c) preclude estoppels arising from pre-contractual negotiations; and (d) affect questions of construction generally. On all four of these issues, Australian appellate courts have tended to undermine the clarity and certainty that the parties plainly intend to achieve in their bargain by their express adoption of an entire agreement clause.

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The ex ante approach to assessing materiality: To what extent are subsequent price movements relevant? – Andrew Eastwood

The assessment of materiality for the purposes of the continuous disclosure and insider trading provisions in the Corporations Act 2001 (Cth) is required to be undertaken on an ex ante, before-the-event, basis. However, current authority suggests that evidence of the market’s reaction to subsequent disclosures constitutes a relevant “cross-check” as to the ex ante judgment formed. This article contends that that position should be reconsidered, and questions whether evidence of subsequent trading activity and price movements should be able to be used to establish materiality at the liability stage.

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BOOK REVIEW – Editor: Angelina Gomez

• Principles of Taxation Law 2015 by Kerrie Sadiq – reviewed by Michael Christie SC

For the PDF version of the table of contents, click here: ALJ Vol 89 No 11 Contents.

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*Please note that the links to the content in this Part will direct you to Westlaw AU.

The latest issue of the Australian Law Journal (Volume 89 Part 12) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Happy Christmas!
• New South Wales amalgamation of local government areas
• Family law
• Judges and television
• Words
• The Quiz

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Some recent decisions on mortgages and charges
• Unreasonable refusal to consent to assignment creates no liability in damages
• Landlord obliged to repair despite lack of knowledge of disrepair

CONSTITUTIONAL LAW – Editor: Anne Twomey

• Plebiscites and referenda

AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin

• Deaths of John Toohey AC, QC and Peter W Johnston
• Two leading articles

PERSONALIA – Editor: Clare Langford

Queensland

• Chief Justice Catherine Holmes
• Chief Magistrate Judge Orazio Rinaudo

Victoria

• Judge Amanda Chambers

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• The law relating to a director’s duty of care and diligence giving a more encouraging interpretation in the federal court!

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Scuttling and proof of it

OVERSEAS LAW – Editor: Colin Picker

• 2015 Brazilian Civil Procedure Code: Developments regarding private international law

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Partnership: Liability of current partner for debts
• Corporations: Cost of convening meeting – What is included
• Corporations: Court’s power to deal with control of closely held company pending resolution of dispute
• Negligence: Collapsing wall
• Advocates’ immunity: What is covered
• Tribunals: Indications of bias
• Tribunals: Jurisdiction to act informally – Hearsay evidence

Articles

The Governor-General is Australia’s head of state – Sir David Smith KCVO, AO

Australia’s system of government is a parliamentary democracy under the Crown based on the Westminster system. Queen Elizabeth II is Queen of Australia and plays an important part in our system of government. She is part of our Parliament and appoints the Governor-General, on the advice of the Prime Minster, to be her representative. Bills passed by the Parliament are given the Royal Assent by the Governor-General in order for them to become law. The defence force and the public service serve the Crown. As well as being the Queen’s representative under s 2 of the Constitution, the Governor-General has significant powers under s 61 of the Constitution – which he or she exercises in his or her own right, and not as the Sovereign’s representative. Thus the Constitution has the Queen of Australia at its apex, and a Governor-General as the Queen’s representative, with separate roles under ss 2 and 61 of the Constitution to give us a constitutional monarchy.

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What do we learn from the Court of Appeal decision in Dion Investments and how can the finding be avoided? – David K L Raphael

The New South Wales Court of Appeal has confirmed that a unilateral decision of trustees does not alone constitute a transaction for the purpose of the Trustee Acts of the States and Territories of Australia. This, then, prevents the court from approving what would otherwise be a breach of trust by virtue of the trustee’s decision. This article examines the decision in Re Dion Investments Pty Ltd (2014) 87 NSWLR 753 and suggests a way in which what is desired can be achieved.

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Mistaken consumer electronic payments: an Australian solution? – R R Edwards

The increasing use by consumers of electronic payment systems runs the risk that they may make mistakes. This is especially true when a system only uses numbers and not names. This article explores the problem of trying to recover such mistaken payments at common law and the situation in the United Kingdom and the United States, as well as examining the Australian position under the ePayments Code. The various solutions are assessed as to whether they are efficient: the cost, rule simplicity, and accessibility are focused upon in an attempt to determine this.

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BOOK REVIEW – Editor: Angelina Gomez

• Clear & Concise – Become A Better Business Writer by Susan McKerihan

ANSWERS TO QUIZ

For the PDF version of the table of contents, click here: ALJ Vol 89 No 12 Contents.

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