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The latest issue of the Australian Law Journal (Volume 90 Part 1) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Happy New Year
• 50 years ago
• Penalties
• Court delays
• Property Law List (New South Wales)
• Moral responsibility for one’s actions
• Helpful judges are well remembered
• It can be helpful to be wrong
• Australian Law Journal and ProView

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Statutory warfare, round 2: Has the High Court confused the law of illegality?

CRIME AND EVIDENCE – Editor: Justice Phillip Priest

• Consistency in sentencing federal offenders

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• Review of the ability of ASIC to undertake new challenges

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Penalties: English view
• Tracing: Backwards tracing – Privy Council breaks new ground
• Whether accountants’ organisation disciplinary section providing services
• Crime: Misconduct in public office – Elements of the offence
• Contracts: Abandonment – Principles
• Solicitors: Client becomes incapable – Is retainer frustrated?
• Freezing orders: Whether defendant can obtain loan funds
• Land tax (Victoria): Mandamus to compel refunds after 20 years
• Contra proferentem rule

Articles

Magna Carta and the Executive – James Spigelman

In this his third article on Magna Carta, the author makes the point that the real significance of Magna Carta is not its status as a sacred text, but rather its introduction of four themes which were developed over the centuries into basic principles of government. These four themes are identified and their development traced in detail as government by a feudal absolute king was transformed into today’s democratic system.

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Much ado about nothing: Why accepting an invitation did not make Dyson Heydon AC, QC appear biased – Louise Floyd

This article analyses the reasons for rejecting the recent apprehended bias application made by unions against Royal Commissioner Dyson Heydon – not for anything he had done in running the Royal Commission into Trade Union Governance, nor in writing his 1,700-page interim report, but because of his accepting an extra-curricular invitation to give the Sir Garfield Barwick Address. Apprehended bias requires proof of prejudgment, rather than suspicion of possible private predisposition (which is where the unions failed). Relevantly, the author argues that law schools should emphasise the positive role judges play in society; and that a greater emphasis should be placed on those who send emails to make key points abundantly clear.

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The tyranny of small differences: Culpability gulf between subjective and objective tests for extended joint criminal enterprise in Australia – Laura Stockdale

At present there is an imbalance in the legal scholarship on extended joint criminal enterprise (EJCE) in Australia. While the subjective test applied in the common law jurisdictions has been widely criticised for extending liability too far, legal scholars have overlooked the objective test in the criminal codes of Queensland, Western Australia and Tasmania. This article seeks to remedy this situation by comparing the subjective and objective tests for EJCE in detail and evaluating each test by inquiring whether it limits criminal liability to secondary participants who are sufficiently culpable. It argues that only the subjective test limits liability to secondary participants who are sufficiently culpable, as only those participants who have consciously taken the risk that the additional crime will occur are liable for that crime.

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BOOK REVIEW – Editor: Angelina Gomez

• Residential Tenancies: Law and Practice – New South Wales (6th ed) by Allan Anforth, Peter Christensen and Sophie Bentwood

For the PDF version of the table of contents, click here: ALJ Vol 90 No 1 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 2) contains the following material:

CURRENT ISSUES – Editor: Ruth C A Higgins

• Class wars
• Queensland judicial commission
• First Peoples and last chances
• Anything but plain
• The many faces of access to justice: United States
• The many faces of access to justice: United Kingdom
• Continuity and change

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Is a provider of nominal consideration a “volunteer”?
• The GST Act exemption and sales of real estate going concern businesses
• Remedies available to mortgagees under unregistered mortgages

PERSONALIA – Editor: Clare Langford

Commonwealth

• Justice Mark Moshinsky
• Australian Academy of Law

Victoria

• Justice Jane Dixon
• Chief Judge Peter Kidd

Western Australia

• Justice Bruno Fiannaca
• Justice Paul Allan Tottle

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• Proprietary relief and tracing in equity

ADMIRALTY AND MARITIME – Dr Damien J Cremean

• Wrongful arrest of vessels

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• High Court rejects Federal Court decision in CFMEU Case: Regulators breathe a sigh of relief!

RECENT CASES – Editor: Ruth C A Higgins

• Precedent: Authority of decision on construction of identical words in different statute – Authority of Australian appeals to Privy Council
• Scotland: Judicial review – Electricity Act 1989 – Statutory construction – Implied conditions in planning permissions
• Insurance: Motor vehicles – Compulsory third party insurance and like schemes – Generally – South Australia
• Equity: Backwards tracing – Intermediate balance rule

Articles

Lord Denning: His Judicial Philosophy – Justice James Douglas

Lord Denning (1899-1999) was the most famous English judge of the 20th century, largely because of his willingness to reconsider and reform legal principle. He was also unique in identifying and expressing his judicial philosophy, namely: (i) Let justice be done; (ii) Freedom under the law; and (iii) Put your trust in God. The author briefly details Lord Denning’s upbringing and early career and examines how his judicial philosophy played out in certain fields of law, with an emphasis on associated developments in Australia. The author concludes with some observations about his Achilles’ heel as a judge: too great a readiness to confuse personal prejudice with his notions of justice.

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Australia is Different: Restitution and the Australian Constitution – Brian Mason

Restitution in Australia is different. This is usually explained by the limited, conceptual role unjust enrichment performs in Australian law. This article explores a further explanation: the judiciary’s functions and responsibilities in Australia’s constitutional framework. Using the High Court’s decision in New South Wales v Kable (2013) 252 CLR 118 as the prism for its analysis, this article examines how this framework can influence the development and application of two restitutionary principles in Australian law. The first is the principle allowing ultimately successful litigants to recover amounts they have paid under earlier judgments which are subsequently set aside, together with interest. This principle must be tailored to suit the constitutional explanation that a superior court’s orders remain enforceable until overturned on appeal. The second is the principle permitting taxpayers to recover any overpaid tax, together with interest, which is unnecessary given the Australian superior courts’ constitutionally enshrined judicial review jurisdiction.

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For the PDF version of the table of contents, click here: ALJ Vol 90 No 2 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 3) contains the following material:

CURRENT ISSUES – Guest Editor: Justice James Edelman

• Comity and civility between courts

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Off-the-plan purchasers receive protection for sunset clause rescissions
• Rescission under sunset clauses
• Editor’s postscript

PERSONALIA – Editor: Clare Langford

Commonwealth

• Law Council of Australia

New South Wales

• New Chair of Law Reform Commission
• Appointment of Senior Counsel
• Bar Council election

Queensland

• Justice P D McMurdo
• Michael Roderick Byrne QC: Director of Public Prosecutions
• Appointment of Queen’s Counsel

South Australia

• Judge Mary-Louise Hribal

Tasmania

• Daryl Coates SC: Director of Public Prosecutions

Victoria

• Bar Council election
• Appointment of Senior Counsel

Western Australia

• Appointment of Senior Counsel

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• The battle resumes for a better business judgment rule

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Donatio mortis causa
• Vendor and purchaser: Purchaser’s equitable rights before completion
• Landlord and tenant: Removal of wall by tenant – Who owns the bricks removed?
• Art auctioneers: Extent of duty of care

Articles

The Widening Net of Preventative Detention and the Unfit for Trial – Kerri Eagle and Andrew Ellis

There has been an increasing trend in Australia towards using preventative detention legislation to supervise and detain high risk offenders. This has now been extended to forensic mental health legislation and in particular to those found unfit for trial. There are strong arguments both for and against such legislation but the potential for unfairness and injustice, particularly in relation to the most vulnerable such as those with mental impairments who are unfit for trial, is significant. In this article a review of the current legislation is undertaken and an attempt made to canvass some of the legal, clinical and jurisprudence issues relevant to any debate regarding the utility and role this type of legislation should have in Australia, particularly with regard to those with mental impairments.

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Construction of Contracts after Mount Bruce Mining V Wright Prospecting – Daniel Reynolds

Since Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 was handed down over 33 years ago, a debate has existed as to whether a written contract must be shown to contain ambiguity before a court may have regard to extrinsic evidence in construing it (the “ambiguity gateway” question). The High Court’s decision in October 2015 in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 89 ALJR 990; [2015] HCA 37 did not resolve that debate. However, it did reinforce the ascending view, which this article argues is more tenable in light of recent High Court authorities, that the ambiguity gateway is not an extant requirement in Australian law, and that courts may instead admit all extrinsic evidence on a provisional basis in order to decide which evidence can be of use, and for what purposes.

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For the PDF version of the table of contents, click here: ALJ Vol 90 No 3 Contents.

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Members of the bench, bar, academia and all walks of the legal profession gathered for a historic occasion to mark the retirement of the longest-serving General Editor of the The Australian Law Journal, the Hon Acting Justice Peter Wolstenholme Young AO, at a farewell reception held on Wednesday 27th April at the Supreme Court of New South Wales.

Acting Justice Young served on the bench for 27 years, a period rivalled by his editorship of the ALJ, which spans an incredible 24 years, from Volume 66 in 1992 to Volume 90 in 2016, producing 24 journal volumes, 288 parts, and totalling 21,644 pages in all.

His Honour is succeeded by another eminent sitting judge, the Hon Justice François Kunc of the Supreme Court of New South Wales, who takes on the role of the eighth General Editor of the ALJ, commencing with the May 2016 issue.

We at Thomson Reuters and the journals team express our warmest thanks for his Honour’s generous and prolific contributions and unwavering dedication to the journal and its readers, and wish him the best in all his future endeavours.

Left to right: Cheryle King, Ruth Higgins, The Hon Acting Justice Peter W Young AO, Clare Langford, Angelina Gomez, The Hon Justice François Kunc.

 

Presentation of a parting memento by Carl Olson, Thomson Reuters ANZ Product Management Director.

 

The ALJ through the ages, from Volume 1 in 1927 to the 80th anniversary issue in 2007, through to the latest bound volume of the journal.

 

Justice Young (left), with guests (left to right): The Hon Justice Dyson Heydon AC QC, Prof Anne Twomey and The Hon Justice Mark Leeming.

 

Guests pictured (left to right): Megan Smith, The Hon Justice Margaret Beazley AO, Adam Weir and Prof Anne Twomey.

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The latest issue of the Australian Law Journal (Volume 90 Part 4) contains the following material:

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• My last fling
• The republic debate
• Tertiary education
• “No order as to costs”
• Acting judges
• Solicitors’ advertising
• Multicultural Australia
• Deemed consent
• European civil courts
• Secondary liability
• New South Wales Supreme Court named Australia’s most innovative law firm

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Omitted easements

PERSONALIA – Editor: Clare Langford

Commonwealth

• Justice Robert Bromwich
• Justice Natalie Charlesworth
• Justice Catherine Carew
• Sex Discrimination Commissioner

New South Wales

• Justice Timothy Moore

South Australia

• Justice Sam Doyle

Western Australia

• Justice Richard O’Brien

CONSTITUTIONAL LAW – Editor: Anne Twomey

• Recent constitutional reforms in the United Kingdom

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Financial advisors: Liability to disgorge secret commissions
• Land law: Collapse of boundary retaining wall – Liability for repair
• Wills: Knowledge and approval of will
• Contracts: Commercial lease – Construction – Implied terms
• Listening devises: What is a private conversation? – What is consent to recording?

Articles

Orthodoxy Lost: The (Ir)relevance of Causation in Quantifying Breach of Trust Claims – Nicholas A Tiverios and Clare McKay

In FHR European Ventures v Cedar Capital Partners [2015] AC 250; [2014] UKSC 45, the Supreme Court of the United Kingdom suggested that it would be “highly desirable” for common law jurisdictions to learn from each other, with a view to “harmonising the development of the common law round the world”. In many contexts, this observation holds merit. However, there are limits to the extent to which Australian courts should follow their English counterparts in developing the private law. This article argues that the Supreme Court of the United Kingdom’s recent decision in AIB Group (UK) v Mark Redler & Co Solicitors [2015] AC 1503; [2014] UKSC 58 was wrongly decided and should not be followed in Australia. Rather, consistent with orthodox principles, no causation requirement should be necessary for the quantification of loss in claims for breach of trust by misapplication of trust assets.

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Prenatal Duty of Care: A Consideration of the Current Formulation of the Law and the Various Policy Arguments – Casey Williamson

The question of whether a mother should be liable for harm inflicted upon her unborn child garners heated debate over morality, ethics and the rule of law. The ever evolving scope of the duty of care relationship and the abolition of inter-familial immunity, precipitate the argument that a pregnant woman’s maternal duty of care to her unborn child is a reasonable progression in the law of torts. This article seeks to explore a mother’s tortious liability towards an unborn child and the various policy arguments for and against imposing such a duty of care.

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Terrorism, Shari’a and the Isolating of Islam – Neville Cox and Hannah O’Farrell

This article assesses the relationship between Shari’a law and terrorism and specifically the question of whether there is any legitimacy to the truism which is prevalent in western society that the actions of so-called Islamic terrorist groups are authorised by Shari’a. Having concluded that, in fact, behaviour with terrorist characteristics is condemned by Shari’a, the article assesses why the concept of a connection between Islamic law and terrorism is so accepted by many in the west and argues that this is the result of the actions and inactions both of forces within the Islamic and western worlds.

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BOOK REVIEW – Editor: Angelina A Gomez

• Zines’s, The High Court and the Constitution by James Stellios

OBITUARY

• The Hon Jerrold Sydney Cripps QC

For the PDF version of the table of contents, click here: ALJ Vol 90 No 4 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 5) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Farewell to the retiring General Editor from his successor
• Some new contributors
• Rights and freedoms: An important report and a recent speech
• Elder law
• Discovery and predictive coding
• Federal Court administration
• Two new reports from the Judicial Council on Cultural Diversity
• Asian Business Law Institute
• Australian Academy of Law essay prize

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Relief against forfeiture of lease
• No apportionment of rent payable in advance
• Tenant not entitled to valuable graffiti

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt

• Links with Canberra: Tasmanian cases in the High Court

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• An interesting “intersection” between competition law and corporate law: The re-regulation of the Queensland sugar industry

OVERSEAS LAW – Editor: Colin Picker

• China’s regulation of digital financial services: Some recent developments

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

• New location for the Supreme Court of Western Australia: July 2016
• Leading case for 2015: Knowledge by an accused about a “prohibited drug” in the context of possession or supply offences

HUMAN RIGHTS – Editor: Simon Rice

• Australia’s Universal Periodic Review 2015

RECENT CASES – Editor: Ruth C A Higgins

• Criminal law: Evidence – Competence and compellability – Oath – Children – Presumption of competence
• Public international law: Whether rule of international law – Terra nullius – Customary international law
• Trade practices: Price fixing – Meaning of a “market in Australia”
• Deed: Proper construction – Non-party claiming benefit of deed – Property Law Act 1969 (WA), s 11(2) – Doctrine of lost modern grant

Articles

Retirement of the Hon Peter W Young AO QC: Seventh Editor of the Australian Law Journal – Hon Michael Kirby AC CMG

Justice Peter Young has stood down as General Editor of the ALJ, after a record 24 years of service. In this reflection, the author (who also farewelled his predecessor J G Starke QC) notes the remarkable features of Peter Young’s service to the ALJ. It included monitoring and reporting on changes in the law and judiciary over more than two decades; providing regular notes on the growing impact of technology and changing values on the law; attempts to cater for the vast and diverse interests of the Australian legal profession; and adjusting to the growing demands of digital law. The fact that the editorial duties were performed alongside extremely busy judicial activities, as well as writing important legal texts and participating in legal education and Church affairs, speaks volumes for his fidelity to duty and devotion to work for others. A few hints are offered on the possible future interests and activities of Peter Young, to whom Australian lawyers owe a huge debt of gratitude.

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The Interaction of Statute Law and Common Law – Hon Sir Anthony Mason AC KBE GBM

This is a tripartite discussion of the interaction between common law and statute. Part I deals with the constitutional dimension, demonstrating ways in which the Constitution shapes and influences the content of the common law, just as it impacts upon statute law. Most notably the Constitution constrains the principles of statutory interpretation and mandates a “uniform” common law. Part II illustrates the way in which the common law moderates legislative intention by presumption and rules of statutory interpretation. Part III discusses analogical development of the common law by reference to statute and likewise common law development by reference to statutory policy. The discussion identifies the considerations relevant to such development, including the doctrine of coherence and the relevance of statutory intention.

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Contours and Prospects for Indigenous Recognition in the Australian Constitution and Why it Matters – Fr Frank Brennan SJ AO

The Australian Constitution does not mention Aboriginal and Torres Strait Islander peoples. Amendment of the Constitution is notoriously difficult to achieve. The 1967 referendum deleted the two adverse references to Aboriginal people. The 50th anniversary of that referendum provides an impetus for the Australian Parliament to consider a further referendum after the 2016 election. The 2012 Expert Panel recommended the insertion of a racial non-discrimination clause in the Constitution. Such a clause is unworkable and unachievable. Constitutional recognition of an Indigenous body advisory to Parliament has also been suggested. A legislative trial of such a body is warranted and should precede any attempt at constitutional entrenchment. The preamble of the Commonwealth of Australia Constitution Act should not be altered. A preamble for the Constitution should be considered only when it is severed from the Imperial Act. Now is the time to consider the insertion of an Acknowledgment of Aboriginal and Torres Strait Islander peoples, their history and aspirations at the commencement of the Constitution. The Commonwealth Parliament’s s 51 power to make laws could then include the power to make laws with respect to the peoples and matters acknowledged.

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How Should Academia, the Practising Profession and the Courts Assist Each Other in the Education of Australian Lawyers? – Ailsa McKeon

This article identifies four proposals for increased engagement between academia, the practising profession and the courts for the furtherance of Australian lawyers’ education. These proposals are, in sum: increased involvement between professional regulation bodies and university students; greater emphasis on critical thinking and problem-solving skills through taught law courses and pro bono activities; greater student engagement with the operation of courts and tribunals; and the training of solicitors from law firms by those within community legal centres in relation to their pro bono activities. The philosophical foundations of the law support such steps, which would be of direct advantage to students and broader benefit to the community.

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For the PDF version of the table of contents, click here: ALJ Vol 90 No 5 Contents.

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Thomson Reuters is delighted to welcome the Honourable Justice François Kunc as the new General Editor of the ALJ, commencing with Volume 90 Part 5, together with several new Editors who will join the ALJ team.

The May issue of the ALJ opens with his Honour’s appreciation for the remarkable achievements and tenure of the previous General Editor, the Honourable Acting Justice Peter Young AO, who held the post from 1992 to April 2016, and also contains a tribute written by the Hon Michael Kirby AC CMG.

The Hon Justice François Kunc: Eighth General Editor of the ALJ

The Honourable Justice François Kunc was appointed to the Supreme Court of New South Wales in April 2013 and sits in the Equity Division. After graduating with degrees in Arts and Law from the University of Sydney, his Honour practised as a solicitor with Allen Allen and Hemsley from 1986. He was called to the Bar in 1992 and appointed Senior Counsel in 2007, based in chambers at Eleven Wentworth. He was a leader of the commercial bar, appearing in courts throughout Australia for major government, corporate and individual clients, including Paul Hogan and Ginia Rinehart. He is a Fellow of the Australian Academy of Law.

Having studied piano and violin at the NSW Conservatorium, and after seriously considering a career in classical music, his Honour has maintained a lifelong interest in the arts and culture including as a legal adviser and board member, most recently as a Director of the Opera Australia Capital Fund. In early 2016, Pope Francis created his Honour a Knight Commander of St Gregory the Great for services to the Catholic Church. His Honour currently also serves on the Editorial Board of the Journal of Equity, the Editorial Committee of the Civil Trials Bench Book, and the Drafting Committee for the Australian national standards for interpreters in courts and tribunals (under the auspices of the Judicial Council for Cultural Diversity). He is also Chairman of The Layne Beachley Aim for the Stars Foundation.

Justice Kunc steps into his new role just ahead of the 90th anniversary of The Australian Law Journal, which first published on 5 May 1927. In a recent interview, his Honour spoke about the challenges and opportunities involved in guiding the journal through today’s rapidly changing professional landscape, the unique role of the ALJ in informing the law and legal practice generally, and encouraging thoughtful conversation about the development and practice of Australian law across all branches of the legal profession. Read more on why his Honour took on the role and his vision for the future of the ALJ.

Justice Kunc has invited four distinguished members of the profession to bring their extensive experience to the journal, and we are pleased to announce their appointment as follows:

Dr Nuncio D’Angelo – as Assistant General Editor, alongside Angelina Gomez, Ruth Higgins and Clare Langford

Dr Nuncio D’Angelo is a partner and Head of Banking & Finance Australia at Norton Rose Fulbright. He is a board member and vice president of the Banking and Financial Services Law Association (BFSLA) as well as a founding member of its Academic Committee. He is an active member of the Documentation Committee of the Asia Pacific Loan Markets Association (APLMA) and the Technical Committee of the Finance & Treasury Association (FTA). He is a Fellow of the Australian Academy of Law and lectures part-time at Sydney Law School, and is widely published in the areas of banking and finance, insolvency and commercial trusts. Dr D’Angelo’s dual role as a senior solicitor practitioner and active academic will play a significant part in ensuring that the journal continues to reflect and represent key segments of the Australian legal profession.

Professor Michael Coper – Section Editor for brand new “From the Law Schools” section

One of Australia’s most distinguished legal academics, Michael Coper is Professor of Law at the ANU College of Law, where he was Dean from 1998 to 2012, having previously worked in government and private legal practice and having been one of the founding fathers of the UNSW Law School. His books include Encounters with the Australian Constitution (1987) and The Oxford Companion to the High Court of Australia (2001, co-edited), and he has appeared as counsel in a number of High Court matters, including Cole v Whitfield (1988) 165 CLR 360. He was Chair of the Council of Australian Law Deans (2005-2007) and Vice President of the International Association of Law Schools (2011-2014), and has written extensively about legal education. Professor Coper will head a new Section entitled “From the Law Schools”, a forum for law schools and legal academics in the national legal discourse.

The Honourable Justice John Dominic Burns – Section Editor for the Australian Capital Territory

The Hon Justice John Burns

Justice John Burns was first admitted to practise as a solicitor of the Supreme Court of New South Wales in 1981. He practised as a Legal Aid solicitor in the Legal Services Commission of New South Wales, specialising in criminal law, until January 1983 when he joined the Deputy Crown Solicitor’s office in Canberra as a Prosecutor. In 1984, he joined the newly created office of the Australian Government Solicitor in Canberra as a senior solicitor, before being invited to join the firm of Gallens Barristers and Solicitors, where he subsequently became a partner. In April 1989, his Honour commenced practice at the bar at Blackburn Chambers.

His Honour was appointed as a Magistrate and Coroner of the Australian Capital Territory in April 1990. During his time as a Magistrate, his Honour spent three years as the Childrens Court Magistrate. In December 2009, his Honour was appointed Chief Magistrate and Chief Coroner of the Australian Capital Territory. He held those positions until he was sworn in as a judge of the Supreme Court of the Australian Capital Territory on 1 August 2011.

The Honourable Justice Kevin Nicholson – Section Editor for South Australia

Justice Kevin Nicholson was admitted to practise as a solicitor of the Supreme Court of New South Wales in 1977, and the Supreme Court of South Australia in 1995, and worked across a number of firms including Henry Davis York, Piper Alderman and Thomson Playford, before being called to the bar in 1997. His Honour also has a long-standing affiliation with the University of Adelaide Law School and the University of Newcastle, where he taught as Senior Lecturer and Associate Professor, lecturing in the areas of insurance, contract, business regulation and professional liability. He took silk in 2006, and was elected a Fellow of the Australian Academy of Law in 2013. His Honour served as a judge of the District Court of South Australia from 2006 to 2012, before being appointed to fill the vacancy created by the elevation of Justice Kourakis as Chief Justice of the Supreme Court of South Australia. Justice Nicholson was sworn in as a judge of the Supreme Court of South Australia on 19 July 2012.

We wish our new General Editor and his team all the best for the future.

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

Amid the renewed debate on repealing or amending section 18C of the Racial Discrimination Act 1975 (Cth), former Federal Court judge and acting NSW Supreme Court Justice Ronald Sackville AO has proposed key amendments to the legislation.

In an upcoming article in Thomson Reuters’ Australian Law Journal, entitled “Anti-Semitism, Hate Speech and Part 2A of the Racial Discrimination Act”, Justice Sackville argues there are powerful policy reasons for retaining Part 2A and other hate speech laws, but that the legislation should be amended to remove references to offending and insulting and introduce a more demanding standard and substituting objective tests for subjective criteria.

The proposed amendments would achieve a more defensible balance, he says, between the legitimate protection of vulnerable groups from serious hate speech and the values of free speech.

Acting Justice Sackville writes:

The difficulties created by the drafting of the current legislation would be reduced by two significant amendments. One would substitute for the current ‘to offend, insult, humiliate or intimidate’ with a more demanding standard such as ‘to degrade, intimidate or incite hatred or contempt’.

The other would be to replace the references to the subjective responses of groups targeted by hate speech with an objective test for determining whether the hate speech is likely to have the prohibited effect.

An objective test would involve reference to the standards of a reasonable member of the community at large. In practice, as in so many areas of the law, this would involve courts exercising judgment in the light of their assessment of prevailing community standards, taking account of the evidence adduced in the individual case.

NSW Supreme Court Justice François Kunc is the new General Editor of the Australian Law Journal, in which Justice Sackville’s article will soon be published (Vol 90 Part 9).

“The Australian Law Journal has an essential national role to play where considered legal analysis can make a positive contribution to public debate,” Justice Kunc says.

“Acting Justice Sackville is one of the country’s foremost legal minds and most experienced judges. This is an important article which carefully sets out a case which can inform public debate on a very topical question of contemporary public policy.”

Acting Justice Ronald Sackville AO sits in the Court of Appeal of the Supreme Court of NSW. He is a former judge of the Federal Court of Australia and past Professor of Law and Dean of the Law School at the University of NSW.

To view the pre-publication article, click here: Draft_Anti-Semitism Freedom of Speech (Sackville AJA) Insider.

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For further information, contact Australian Law Journal Product Manager, Thu Luc, on thu.luc@thomsonreuters.com or 02 8587 7011.

Click here to read the Welcome Letter from the new General Editor of The Australian Law Journal. 

To celebrate the next chapter of The Australian Law Journal, we are offering a complimentary issue of Volume 90 Part 6 on our Thomson Reuters ProView eReader®. Visit legal.thomsonreuters.com.au/ALJ to view your copy.

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The latest issue of The Australian Law Journal (Volume 90 Part 6) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• About this issue
• Legality of the Manus Island Processing Centre
• 175th anniversary of the Supreme Court of Victoria
• Indigenous deaths in custody
• Court design and family violence
• Experts: A judge writes for “Nature”
• Civil juries: A proposal come and gone

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Legal nature of a tenant’s interest in its fixtures

CRIME AND EVIDENCE – Justice Phillip Priest

• Disuniform approaches to the Uniform Evidence Act revisited
• United Kingdom Supreme Court disavows the doctrine of extended common purpose

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• Assessing profits to determine hotel rent

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• Priorities of the Australian Competition and Consumer Commission for 2016

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

• Is it time for deferred prosecution agreements in the Northern Territory?

RECENT CASES – Editor: Ruth C A Higgins

• Evidence: Admissibility and relevance – Evidence (National Uniform Legislation) Act (NT), ss 97, 137
• Constitutional law: Papua New Guinea – Persons forcefully brought into Papua New Guinea and held against their will – Constitution of Papua New Guinea, s 38
• Corporations: Trade practices – Misleading and deceptive conduct – Accessorial liability

Articles

The Australian Law Journal: Volume 90 and Beyond – Justice François Kunc

The new General Editor sets out his ambitions for the Journal as it enters the last decade of its first century. He reflects on the purposes of the Journal and the constituencies which make up its readership. While what makes the Journal distinctive may remain the same, it must reflect the new and rapidly changing world of legal practice and scholarship both in Australia and overseas.

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The State of the Australian Judicature – Chief Justice Robert French AC

The delivery of the State of the Judicature Address by the Chief Justice of Australia on 29 April 2016 marked the revival of a tradition which had lapsed with the last Australian Legal Convention in 2009. At a dinner hosted in Hobart for that purpose by the Law Council of Australia (LCA) and the Australian Bar Association (ABA), the Chief Justice discussed the national character of the Australian judiciary and, in that connection, the functions of the Council of Chief Justices (CCJ), the LCA and the ABA. Particular reference is made to guidelines developed by the CCJ for Communications and Relationships between the judicial branch of government and the legislative and executive branches. Specific issues on which the CCJ, the LCA and the ABA have focused in recent times include the implications of Australia’s cultural diversity for the effectiveness of its judicial system, access to justice for Indigenous and migrant women in domestic violence cases, the relationship between international dispute resolution and the court system, and the development of opportunities for cross-border co-operation between the Australian judiciary and the courts of other countries. Indigenous imprisonment rates under mandatory sentencing regimes and family violence raised by the LCA and the ABA are identified as matters of national concern warranting the attention of the national legal profession. So too does the recent Report of the Australian Law Reform Commission on the encroachments by Commonwealth law on traditional common law rights and freedoms. While the Australian judiciary generally meets reference points advanced by Sir Gerard Brennan in his State of the Judicature Address, it must respond to new and testing issues domestically and an internationalised legal environment.

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The Future of Lawyers: Blue Sky or Dark Clouds Ahead? – Fiona McLeod SC

The future for the legal profession is upon us, requiring vision and dexterity to adapt to the next generation of artificial triage, analysis and problem solving. Our prior inclination to national isolationism must be set aside and a commitment to preserve the rule of law, particularly equality before and in the practice of law, will position us well. Steps taken now to create new work, new ways and new places to work will support the next generation of lawyers.

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Change Drivers and their Likely Effects: Shifting Sands Beneath Australian Solicitors – S Stuart Clark AM, Robert Leeder and Nicholas McBride

This article examines the changes likely to affect the Australian legal profession in the next decade. Focusing on the solicitors’ branch of the profession, it considers what it can do to respond to and influence change. A review of the recent history of efforts to respond to change, both domestically and internationally, is followed by an examination of the current key “change drivers” in the legal profession. The likely effect of these drivers on specific aspects of Australian legal practice is then discussed, mindful that changes in one area may be affected by changes in others. It is hoped that this article will facilitate debate within the profession about issues related to its future.

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The Evolving Role and Future of In-house Lawyers – Gillian Wong and Emma Langoulant

This article considers the evolving nature of the role of in-house counsel and the future of in-house legal practice focusing on: the changing role of in-house counsel; the emerging legal issues affecting in-house counsel; and the impact of disruption and innovation on in-house counsel.

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The Changing Environment in the Legal Profession and Legal Education: The Best of the Old World and the New – Carolyn Evans

As the legal profession undergoes significant changes, law schools are challenged to re-examine the meaning of a quality legal education. It is important to recognise the value of some important elements of traditional legal education, including research, critical thinking and analytical skills. However, legal education is increasingly shifting to also assist students in developing capacities to work in the digital world, across cultural boundaries and in inter-disciplinary teams. This blend of old and new capabilities will provide law graduates with the best chance to thrive in a rapidly changing world.

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The Law and the Legal Profession in the Next Decade: The Student’s Perspective – Paul Melican, Alex Bell-Rowe, Albert Patajo and Hannah McDonald

Law students are currently entering their legal education with extremely unrealistic expectations of the legal profession. The increased expectations of the profession and the cost of legal education have increased the pressures on modern law students, as opposed to those in previous generations. This article examines the changing graduate market, the wellbeing of law students and the changes in legal education from the perspective of law students. The conclusion of this examination is that the role of the legal graduate is changing and law students need to be more informed about the realities of the legal profession.

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BOOKS RECEIVED – Editor: Angelina A Gomez

BOOK REVIEW – Editor: Angelina A Gomez

• Admiralty Jurisdiction: Law and Practice – Australia, New Zealand, Singapore, Hong Kong and Malaysia, by Damien J Cremean

For the PDF version of the table of contents, click here: ALJ Vol 90 No 6 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 7) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Two reports on juries
• Juries in sexual abuse cases
• The right sentence: What jurors would do
• The Chief Justices and “The Australian”
• An Australian international commercial court
• Queensland considers cameras in the court
• Legal aid does matter
• Indigenous legal issues: South Australia and the Northern Territory
• Harder and slower to settle?

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Effect of consolidation of titles
• Land under the sea
• Land by the sea (1): Public right to bathe
• Land by the sea (2): Gathering seashells by the seashore

OVERSEAS LAW – Editor: Colin Picker

• UK Supreme Court reconsiders directors’ duties

ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper

• Federal environment policy
• Significant environmental decisions of the Federal Court
• New South Wales
• Northern Territory
• Queensland
• Tasmania
• Victoria
• Western Australia

RECENT CASES – Editor: Ruth C A Higgins

• Negligence: Duty of care – Scope of duty of care – Solicitor receiving instructions from testator to prepare will
• Legal practitioners: Negligence – Advocates’ immunity from suit – Advice given out of court – Agreed settlement of proceedings
• Contracts: Obligation to manage loans – Tort – Vicarious liability – Employer

Articles

Getting to Grips with Encroachments on Freedoms in Commonwealth Laws: The ALRC Freedoms Inquiry – Rosalind Croucher

This article provides a snapshot of the work of the Australian Law Reform Commission in the 18-month inquiry into encroachments by Commonwealth laws on “traditional rights, freedoms and privileges”, that concluded with the tabling of the report, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, on 2 March 2016. The contextual landscape of the common law is discussed; and the challenge of crafting an appropriate methodology to tackle this wide-ranging inquiry to meet the tasks of the Terms of Reference and provide a forward-looking law reform response is considered. The article concludes with an illustration of the law reform approach in two areas in the list of 19 dot-points of the Terms of Reference: freedom of speech and property rights.

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Why are Decisions on Family Property so Inconsistent? – Patrick Parkinson AM

This article argues that the law on family property in Australia is plagued with uncertainty at its very core and that the Full Court of the Family Court, as the primary appeal court in this jurisdiction, is structurally incapable of providing doctrinal coherence. Decisions of the Full Court, which ought to provide guidance to trial judges, are often inconsistent in their approach to similar fact situations, both in terms of reasoning and outcome, thus making it difficult to settle cases in the shadow of the law except in straightforward matters. Examples of the uncertainty are given concerning how the Court should deal with third party debts, property owned prior to the relationship, inheritances, post-separation windfalls, superannuation entitlements, the treatment of domestic violence in property cases and the significance of a disparity in wealth for the purposes of s 75(2) adjustments. This article then seeks to explain why the law has become so unclear. Reasons include the lack of objects and principles in the legislation, the decision of the High Court in Mallet (1984), the misinterpretation of the 1983 amendments by the Full Court in Shaw (1989), the lack of guidance on how to interpret the s 75(2) factors after Collins (1990), an unconstitutional view of the width of judicial discretion, the rarity of High Court interventions and the lack of an authoritative decision-making process in the Full Court. As a consequence, family property law is for the most part, a practice without a theory. The article concludes with consideration of whether and how the coherence of this area of law can be restored to allow people to bargain in the shadow of a reasonably settled body of law. It is argued that the problems, which have serious consequences for the general public, are unlikely to be resolved without major structural reform to the Full Court, more prescriptive legislation, or both. In the absence of statutory reform, the use of the case-stated mechanism with five-member Benches may help to resolve some inconsistencies.

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BOOK REVIEWS – Editor: Angelina A Gomez

• Intentional Tort Litigation in Australia: Assault, False Imprisonment, Malicious Prosecution and Related Claims by Corrie Goodhand and Peter O’Brien
• Adjudication on the Gold Fields in New South Wales and Victoria in the 19th Century by John P Hamilton
• Veterans’ Entitlements and Military Compensation Law by Robyn Creyke and Peter Sutherland

OBITUARY

• Russell Scott AM

For the PDF version of the table of contents, click here: ALJ Vol 90 No 7 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 8) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• “National Model Gender Equitable Briefing Policy”
• Guest contributors
• Brexit and the renewed emphasis by the UK Supreme Court on assistance from Commonwealth judicial reasoning
• Symposium: Challenges of Social Media for Courts & Tribunals

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Easements for recreation
• Easements of necessity
• Extinguishing easements under statutory power
• Granting easements under statutory power
• Easements by prescription
• Adverse possession despite criminal trespass?

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Extending admiralty jurisdiction

PERSONALIA – Editor: Clare Langford

Commonwealth

• Administrative Appeals Tribunal
• Australian Academy of Law

New South Wales

• Justice Anthony Payne
• Justice Natalie Adams
• Professor George Williams AO

South Australia

• Justice Martin Hinton

Victoria

• Justice Andrew John Keogh

RECENT CASES – Editor: Ruth C A Higgins

• Constitutional law: Trial by jury – Whether Commonwealth indictable offences can be tried by a judge alone
• Trusts: Breach of trust – Second limb of Barnes v Addy – Allegedly dishonest and fraudulent trustees as plaintiffs
• Agency: Authority – Whether agency agreement terminated on liquidation of a party – Whether liquidators entitled to claim payment of unpaid invoices

Articles

Restitution: Some Historical Remarks – Chief Justice Allsop

Over the last few decades the principles of restitution and unjust enrichment have undergone a significant degree of reorganisation and reformulation within both English and Australian law. In order better to understand these legal concepts, and their place within the modern law of obligations, it is important to understand their historical foundations, and how they have developed into the late 20th century. This article presents a brief historical account of the law of restitution, with a particular focus upon how common law writs and forms of action have evolved since the 12th century and on the development of the law of assumpsit and quasi-contract. It also considers the place of equity, and of equitable notions and principles, as an informing value for the law of restitution and unjust enrichment.

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A Legal and Historical Overview of the Land Borders of the Australian States –  Professor Gerard Carney

The origins of the Australian States really lie in the story about their land borders. This article outlines when, how, and especially why, they were drawn so. It explores for the first time the reasons for the borders of South Australia which have had such a profound impact on all the other States and the Northern Territory. It also examines the role of the High Court in the legal battles between the States over their borders. Most surprising is the fact that none is actually surveyed where they should be.

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BOOK REVIEW – Editor: Angelina A Gomez

• Accommodating Justice: Victim Impact Statements in the Sentencing Process by Tracey Booth – reveiwed by Adjunct Professor Nicholas Cowdery AM QC

For the PDF version of the table of contents, click here: ALJ Vol 90 No 8 Contents.

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The latest issue of the Australian Law Journal (Volume 90 Part 9) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Renewed debate about s 18C
• Royal Commission into Child Protection and Youth Detention Systems in the Northern Territory
• The High Court on penalties
• Australia is a good place to enforce contracts
• Judges as perpetrators and victims
• An innovative law firm funding model
• A glass ceiling shatters in the Palace of Westminster

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Deposits: A hard case?
• Estate agent’s limited authority
• Concurrent leases
• Purchaser’s interest under a contract for sale of land

CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO

• What is the fuss about culture all about?

RECENT CASES – Editor: Ruth C A Higgins

• Waltons Stores today

Articles

Anti-Semitism, Hate Speech and Pt IIA of the Racial Discrimination Act – Ronald Sackville AO QC

In Australia, hate speech laws such as Pt IIA of the Racial Discrimination Act 1975 (Cth) have always generated controversy. Those laws and the international human rights regime that underpin them have been strongly influenced by the experience of the Holocaust and by the dangers of anti-Semitism. An understanding of the nature of anti-Semitism and of the Australian case law dealing with anti-Semitic speech sheds light on the debate as to whether the curiously drafted Pt IIA should be retained, amended or discarded. The article argues that there are powerful policy reasons for retaining Pt IIA and other hate speech laws, but that the legislation should be amended to substitute objective tests for subjective criteria. The amendments would achieve a more defensible balance between the legitimate protection of vulnerable groups from serious hate speech and the values of free speech.

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Liquidator Remuneration, Creditor Dividends and the Public Interest: Recent NSW Supreme Court Decisions and the Continuing Need for Reform – A Keith Thompson

In insolvency practice, there is tension between the interests of creditors and liquidators. In his 2011 article (“Peak indebtedness” theory: An abuse of the “running account” defence? (2011) 85 ALJ 374), the author explained how liquidators were using the “peak indebtedness” doctrine to intimidate “mum and dad” creditors despite their “running account” defences. In this article, he draws attention to the ongoing concerns of the New South Wales Supreme Court about liquidator charging practices. Palmer J expressed concerns about the potential for liquidators to “churn and burn” in his decision in Hall v Poolman (2007) 215 FLR 243 and Brereton J expressed similar concerns in a string of cases in 2014. Though Palmer J’s direction that there be an inquiry into the liquidator’s practice in Hall was appealed, it was not wholly overruled and the Court of Appeal concurred in much of what he said. More recently, Brereton J has interpreted post-2008 amendments to the Corporations Act to mean that the Court should not approve liquidator remuneration claims premised only on standard liquidator and lawyer charge out rates. None of these decisions have been appealed. That may mean that the insolvency profession has accepted Brereton J’s adaptation of 1960s scale and value billing practices even though they are not expressly prescribed by the Corporations Act.

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Should Lower Court Judges Bind Magistrates and Tribunals? – Oliver Jones

It is over 20 years since the Supreme Court of New South Wales, in Valentine v Eid (1992) 27 NSWLR 615, overruled previous authority and held that the reasons for judgment of the District Court of New South Wales were not binding on the magistrates of that State. Valentine continues to be applied in Australia, most recently by the Queensland Magistrates Court and, in relation to the Federal Circuit Court, by the Commonwealth Administrative Appeals Tribunal. This article argues that Valentine cannot withstand contemporary scrutiny. The reasons for judgment of the District Court of a State should, with the exception of South Australia, bind the magistrates of the State. Those reasons should also be applied by District Courts and magistrates interstate. On the other hand, a federal tribunal should only consider itself bound by the Federal Circuit Court where the tribunal is subject to the supervisory jurisdiction of that Court.

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BOOK REVIEWS – Editor: Angelina A Gomez

• The International Law of the Sea, by Donald R Rothwell and Tim Stephens
• Locating Crime in Context and Place: Perspectives on Regional, Rural and Remote Australia, by Alistair Harkness, Bridget Harris and David Baker
• Whispers from the Bush, by Skye Saunders

OBITUARY

• The Hon James Frederick Staples

For the PDF version of the table of contents, click here: ALJ Vol 90 No 9 Contents.

Click here to access this Part on Westlaw AU

To mark the 10th anniversary of the Australian Academy of Law (AAL), the 90th anniversary of The Australian Law Journal (ALJ), and the 30th anniversary of the Pearce Report on Australian Law Schools, the AAL and ALJ are presenting a national conference on the future of Australian legal education. The conference is sponsored by the AAL and ALJ publisher Thomson Reuters, and is supported by the Law Council of Australia.

The conference will provide a forum for an informed, national discussion on the future of legal study and practice in Australia, covering practitioners, academics, judges and, of course, students.

Based on the presentations and discussion at the conference, the AAL will produce a national discussion paper on this important topic. The ALJ will also publish a number of the conference papers and the organisers are investigating subsequent publication of the papers.

Bringing an international perspective, the keynote address will be delivered by Professor Martha C. Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics, appointed to the Law School and Philosophy Department, University of Chicago. Read more about Professor Nussbaum.

There will be a session devoted specifically to the ongoing suitability of “the Priestley 11”.

Other relevant topics could include:

• Pearce 30 years on — what’s worked, what hasn’t?
• What will legal education look like in the future?
• Curriculum — mandatory and elective subjects. What areas should be required for the right to practise? Is the Priestley 11 still fit for purpose?
• Pedagogy — how to teach law
• Technology and the law
• A law degree for those who do not intend to practise?
• Where’s the dividing line between academic preparation and practical training?
• Diversity — access to legal education for first Australians and others
• Structure of the practising profession: a truly national profession

Conference dates

• Opening evening reception Friday 11 August 2017
• Celebratory dinner Saturday 12 August 2017
• Concludes at lunchtime on Sunday 13 August 2017

Preparing your abstract

The organisers invite short (not more than 300 words) abstracts of proposed papers. Please send to the Secretariat of the AAL, Ms Claire Hammerton, at Admin@academyoflaw.org.au by Friday 16 December 2016. Please also email your details to this address if you wish to be placed on the conference mailing list.

Please see attached flyer for details here.

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The latest issue of the Australian Law Journal (Volume 90 Part 10) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Revenge porn
• Class actions
• Sentencing and media coverage: Unintended consequences?
• The recognition referendum delayed
• Post-sentence preventative detention
• Two developments from South Australia
• Call for papers for a national conference on the future of Australian legal education: Sydney, 11-13 August 2017
• Something old via something new

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Concurrent leases
• Owner liable for nuisance committed by licensee

AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt

• Libraries and the value of librarians

PERSONALIA – Editor: Clare Langford

Commonwealth

• Justice Stephen Burley
• Justice Shane Gill
• Director of Public Prosecutions: Ms Sarah McNaughton SC
• Human Rights Commission: Appointments

Australian Capital Territory

• Justice Michael Elkaim

New South Wales

• Justice John Robson

Northern Territory

• Chief Justice Michael Grant

South Australia

• Justice Martin Hinton

Tasmania

• Justice Michael Brett

Victoria

• Justice Maree Kennedy

An Invitation to Readers

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• Does the ACCC need further powers? Are the penalties in the Competition and Consumer Act sufficient?

RECENT CASES – Editor: Ruth C A Higgins

• Criminal law: Criminal liability – Complicity – Whether extended joint criminal enterprise proper basis for conviction of murder
• Bankruptcy: Creditor’s petition – Failure to comply with bankruptcy – Payment of judgment debt
• Insurance: Deception – Setting aside of compromise – Fraudulent misrepresentation
• Insurance: Deception – Fraudulent claims rule – Extension to fraudulent devices

Articles

Lord Atkin: Principle and Progress – P D T Applegarth

2017 marks the 150th anniversary of the birth in Brisbane of Lord Atkin. His judgments still guide Australian law. From where did he derive the values which shaped his progressive judicial philosophy? What is his legacy?

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“What’s in a Name?”  – Justice Emilios Kyrou

This article examines why many of the early Hellenic lawyers in Australia anglicised their names. The author suggests that if people change their names to conform, they risk losing part of their identity, as a name can signify a person’s familial and cultural heritage. He also observes that, as multiculturalism has gained broad community acceptance, Greek Australians are embracing their Hellenic names.

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BOOK REVIEWS – Editor: Angelina A Gomez

• Defamation Law by Dr David Rolph, reviewed by the Hon McHugh AC QC
• Professional Responsibility and Legal Ethics by Michael Brogan, reviewed by Anne-Marie Foord and Linden Barnes
• Leading Cases in Australian Law: A Guide to the 200 Most Frequently Cited Judgments by Daniel Reynolds and Lyndon Goddard, reviewed by Dr Nuncio D’Angelo

For the PDF version of the table of contents, click here: ALJ Vol 90 No 10 Contents.

Click here to access this Part on Westlaw AU

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The latest issue of the Australian Law Journal (Volume 90 Part 11) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Commemoration and controversy
• Commonwealth inquiry into Indigenous incarceration rates
• Fine default and Indigenous incarceration in Western Australia
• Same-sex marriage
• Privatising a land titles office
• Community legal centres can’t help everyone
• From the law schools

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Solicitor’s duty of care to an intended beneficiary when drafting a will
• Landlord’s covenant to repair: No breach without notice?

FROM THE LAW SCHOOLS – Editor: Professor Michael Coper

• Does Australia have too many law schools?

HUMAN RIGHTS – Editor: Simon Rice

• A snapshot of Australia and the death penalty in 2016

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

• The Primary Judge in Equity

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Damage done by ship

RECENT CASES – Editor: Ruth C A Higgins

• Criminal law: Criminal liability – Whether jury’s verdict unreasonable – Whether jury entitled to be satisfied beyond reasonable doubt
• Migration: Administrative Appeals Tribunal – Reconsideration of earlier AAT decision – Where earlier decision relied on judicial authority which subsequently was overturned
• Admiralty: Jurisdiction – Admiralty Act 1988 (Cth), s 15 – Whether a proceeding is on a “maritime lien” – Private international law – Characterisation of issues

Articles

Procedural Fairness: The Age of Legitimate Expectation is Over – Naomi Sharp

This article reviews some of the key principles underpinning the law of procedural fairness in Australia and also charts some significant new developments. Taking the High Court’s landmark decision in Kioa v West (1985) 159 CLR 550 as a starting point, this article traces the key developments in the law of procedural fairness as to the source of the obligation to afford procedural fairness; the criteria that attract the obligation and the scope of the obligation. A particular focus of this article is on charting the rise and fall of legitimate expectation as an analytical construct in determining whether an obligation of procedural fairness arises in the first place, and if it does, what the content of that obligation is in the circumstances. In short, given the breadth of the interest now accepted as attracting the obligation to afford procedural fairness, the key questions are now whether a legislative intent can be discerned to exclude that obligation, and if not, what the content of that obligation is in the particular circumstances of the case.

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His or Her Duty to Keep Secret – Julie Kinross and Peter Davis QC

Public officers may be disciplined, and/or face criminal sanction for unauthorised disclosure of information. Specific offence provisions detail the type of information legislatures consider criminal to disclose. General secrecy offences require a “duty to keep secret” element to be proved. Prosecutors have started to use codes of conduct to establish the duty element. This approach clouds the long held distinction between conduct attracting disciplinary sanction and serious conduct warranting criminal sanction. Tasmania v Johnston (2009) 18 Tas R 195 provides judicial authority against this approach. A contextual analysis is applied to the original 1899 “Disclosure of other official secrets” offence to support that finding. Johnston and the analysis have national implications for the success of future prosecutions of the general secrecy offence.

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BOOKS RECEIVED – Editor: Angelina A Gomez

BOOK REVIEWS – Editor: Angelina A Gomez

• Scholarly Misconduct: Law, Regulation, and Practice by Ian Freckelton QC, reviewed by Gino Dal Pont
• When Doctors and Parents Disagree: Ethics, Paediatrics and the Zone of Parental Discretion by Rosalind McDougall, Clare Delany and Lynn Gillam, reviewed by Scott Aspinall
• Australian Domain Name Law by Alpana Roy, reviewed by Nicholas Smith
• Ten Years of the Civil Procedure Act 2005 (NSW): A Decade of Insights and Guide to Future Litigation by Miiko Kumar and Michael Legg, reviewed by B C Cairns

OBITUARY

• James Donald Merralls AM, QC, LLD (Hon)

For the PDF version of the table of contents, click here: ALJ Vol 90 No 11 Contents.

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To purchase an article, please email: LTA.Service@thomsonreuters.com or contact us on 1300 304 195 (Australian customers) or +61 2 8587 7980 (international customers) during business hours (Mon-Fri, 8am-6pm AEST).

The latest issue of the Australian Law Journal (Volume 90 Part 12) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Victoria’s access to justice review
• The end of the NSW Industrial Court
• Who are the recidivists?
• Audio visual links: Does technology promote fairness?
• Section 18C: The debate continues
• Lessons from America: Future shock?
• Looking not quite so far ahead

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Recent developments in strata law: By-law making power and short-term letting

AROUND THE NATION: AUSTRALIAN CAPITAL TERRITORY – Editor: Justice John Dominic Burns

• Welcome
• Farewells
• Appointments
• The halls of justice
• Attorney-General Simon Corbell
• TI v The Queen [2015] ACTCA 62
• Blick v Franklin (2016) 76 MVR 2; [2016] ACTCA 17

AROUND THE NATION: QUEENSLAND – Editor: John McKenna QC

• Saunders v Vautier and incapacitated beneficiaries
• Performance guarantees, liquidated damages and accrued rights
• “In Freedom’s Cause”
• Courts’ program for secondary schools
• Public lectures

AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft

• Short-stay accommodation arrangements in Victoria: Implications for owners corporations, landlords and tenants

COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO

• Unconscionability: High Court emphasises moral obloquy in obiter dicta statements

RECENT CASES – Editor: Ruth C A Higgins

• Limitation of actions: Extension of time in personal injury matters – Principles upon which discretion exercised – Vicarious liability
• Building and construction: Insolvency – Building and Construction Industry Security of Payment Act 2002 (Vic), s 9(1)
• United Kingdom: Confidentiality – Taxpayers’ affairs – Commissioners for Revenue and Customs Act 2005 (UK), s 18(1)

Articles

Unconscionability and Promissory Estoppel – Acting Justice Peter Young AO

In a speech delivered to the Society of Trust and Estate Practitioners in March 2016, the author traces through the development of the concept of promissory estoppel, and analyses it, while at the same time questioning its categorisation as an estoppel. The author examines the possibility that promissory estoppel is not one principle at all but a label covering six different but related equities. Six related situations where equity considers it unconscionable for a person to renege after making a promise which another relies upon. The author explains that this discussion is complicated by the considerable differences in how promissory estoppel is considered in Australia and England and even between New South Wales and Victoria. The High Court of Australia has produced four cases where the judges’ reasoning often conflicts, leaving it to State courts to distinguish High Court material that does not fit their taxonomy. The author concludes that promissory estoppel is an area of law under development and looks forward to the day when the various theories are melded into a viable principle.

Human Rights and Business Lawyers: The 2011 Watershed – John Southalan

Magna Carta’s 800th anniversary saw much celebration and commentary about human rights in articles and conferences. Commercial lawyers should read that material carefully because, post 2011, international human rights standards apply to companies’ decisions and actions. Even where a business has fully complied with all domestic law, if that law is inconsistent with international human rights standards, there are increasing legal implications for the business. In Australia, this includes a mediation process overseen by a Commonwealth Government official, through the OECD Guidelines for Multinational Enterprises. The law is developing, and relatively unknown, but any lawyer advising a business client needs familiarity with these areas. This article summarises the current human rights standards and procedures relevant to commercial lawyers in Australia, both in advising their clients and also in conducting their own practice.

BOOK REVIEWS – Editor: Angelina A Gomez

• Research Handbook on Shareholder Power, by Professor Jennifer Hill and Professor Randall Thomas, reviewed by Ashley Black
  
• Soft Law and Public Authorities: Remedies and Reform, by Greg Weeks, reviewed by Rachael Gray
  

For the PDF version of the table of contents, click here: ALJ Vol 90 No 12 Contents.

Click here to access this Part on Westlaw AU

For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

Source: High Court of Australia

Thomson Reuters offers its warmest congratulations to the Hon Justice Susan Kiefel AC on her appointment as Chief Justice of the High Court of Australia, and to the Hon Justice James Edelman on his appointment to the Court. Their Honours will begin their terms in the Court’s first sitting of 2017.

Both are exceptional appointments. Justice Kiefel’s appointment as Australia’s first ever female Chief Justice of the High Court is a richly deserved one. Her Honour left school at the age of 15 to work as a legal secretary, while studying to come to the Bar and being appointed as the first female QC in Queensland. After 16 years as a barrister, her Honour was elevated to the Bench where she has sat as a judge for 23 years (9 of which she spent on the High Court).

Justice Kiefel has contributed to The Australian Law Journal on the relationship between judicial independence, individualism and judgment writing (88 ALJ 554) and on the law of restitution in Australia (88 ALJ 176). A lecture given by her Honour on proportionality as a general legal principle was published in the June 2012 issue of the Public Law Review (23 PLR 85).

Justice Edelman joined the University of Oxford, UK as a professor of law at the age of 34 after a Rhodes Scholarship. He was appointed to the Western Australian Supreme Court and then in 2015 to the Federal Court of Australia. At the age of 43, Justice Edelman will be the fourth youngest judge to join the Court, and the youngest in 86 years, meaning that he could foreseeably hold tenure on the Court until 2044.

Justice Edelman has recently contributed to the Australian Journal of Administrative Law  and The Australian Law Journal on topics such as “Why do we have rules of procedural fairness?” (23 AJ Admin L 144) and “Unnecessary causation” (89 ALJ 20) as well as acting as Guest Editor for the ALJ “Current Issues” section in March 2016 (90 ALJ 147).

We look forward to what these appointments bring for the future of the High Court.

On 7 February 2017, the Federal Court of Australia celebrates the 40th Anniversary of its first sitting on 7 February 1977.

The Archivist’s picks include:

•  MH Byers QC and PB Toose QC, “The Necessity for a New Federal Court (A Survey of the Federal Court System in Australia)” (1963) 36 ALJ 308

These seminal articles provide unique and fascinating insights into the context and dialogue around the need for a federal court, and the mission and purpose of such a court, under the Australian Constitution and in the administration of Australian law and justice.

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

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The latest issue of the Australian Law Journal (Volume 91 Part 1) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

• Retirement of Chief Justice Robert French
• New Appointments to the High Court
• Chief Justices and the ALJ: From Knox to Barwick
• Redress for Survivors of Institutional Child Sexual Abuse
• Climate Change and Sustainability
• Victorian Review of Suppression Order Laws
• A National Court of Appeal?
• NSW Independent Commission Against Corruption (ICAC)
• Commonwealth Solicitor-General
• Debate Continues about the Proposed Sale of the NSW Land Titles Office
• An Extraordinary Reaction to the “Brexit Judgment”
• The Search for a Body
• To Prosecute or not to Prosecute?

LETTER TO THE EDITOR

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Fixtures

CONSTITUTIONAL LAW – Editor: Anne Twomey

• The Constitutional Legacy of the High Court under Chief Justice French

ADMINISTRATIVE LAW – Editor: Justice Melissa Perry

• iDecide: Administrative Decision-Making in the Digital World

PERSONALIA – Editor: Clare Langford

Overseas

• Professor Jane Stapleton

New South Wales

• Justice Paul Le Gay Brereton AM RFD
• District Court Judges for Regional New South Wales
• Appointment of Senior Counsel

Northern Territory

• Chief Justice Michael Grant
• Solicitor General: Sonia Brownhill SC

Tasmania

• Appointment of Senior Counsel

Victoria

• Appointments to the Equal Opportunity and Human Rights Commission

Western Australia

• Justice Katrina Banks-Smith
• Justice Michael Buss
• Justice Robert Mackenzie Mitchell
• Solicitor General: Peter Quinlan SC

RECENT CASES – Editor: Ruth C A Higgins

• Estoppel: Anshun Estoppel – Loans to Investors to Fund Investments in Managed Investment Schemes
• Corporations: Winding Up – Voidable Transactions – Corporations Act 2001 (Cth), s 588FF(1)
• Damages: Exemplary Damages – Intentional Torts – Assault and Battery
• United Kingdom: Constitutional Law – Crown Prerogative Powers – Sovereignty of Parliament – Treaty on European Union, Art 50

Articles

Chief Justice Robert French AC – Chief Justice Wayne Martin

The Hon Wayne Martin AC, Chief Justice of Western Australia, has enjoyed a long personal friendship and many professional associations with the Hon Robert French AC. In this article the author records the life and career of his fellow Western Australian.

Appearing in the French Court – Justice Stephen McLeish

The Hon Justice Stephen McLeish is a judge of the Court of Appeal of the Supreme Court of Victoria. As counsel he often appeared in the High Court, particularly during his term as Solicitor-General for Victoria from 2011 to 2015.

The High Court under Chief Justice Robert French – Harry Hobbs, Andrew Lynch and George Williams

On Chief Justice Robert French’s retirement from the High Court of Australia, it is appropriate to reflect on his impact and legacy. In this article we first revisit the circumstances of Chief Justice French’s appointment, before offering an overview of the dynamics of the French Court, noting the patterns of decision-making that emerged during his tenure. We then examine the French Court’s constitutional law jurisprudence, focusing on the three dominant and most contentious areas of its activity: cases on the executive power of the Commonwealth; the Ch III restrictions on State legislative power; and the legal problems raised by Australia’s asylum seeker policies.

For the PDF version of the table of contents, click here: ALJ Vol 91 No 1 Contents.

Click here to access this Part on Westlaw AU

For general queries, please contact: tlranz.journal.orders@thomsonreuters.com.

The subject of gender equality has been a hot topic in the media with recent coverage on state and national programs to tackle the bias in the legal profession. The question of why so few women appear before the High Court, and why even fewer have speaking roles has been raised recently by Professor George Williams AO in a column in the Sydney Morning Herald.

In the column, Professor Williams presents some of his research findings on the topic of gender equality among barristers before the High Court. The full research findings will appear in a forthcoming article in The Australian Law Journal, entitled ‘Gender Equality Among Barristers Before the High Court’ by Daniel Reynolds and George Williams. The article presents a survey of recent appearances before the High Court and assesses the extent to which gender equality among barristers before the High Court has been achieved.

Draft extract from ALJ Article:

“It is reasonable to expect that this gap would have closed in the intervening years. After all, women are now more ‘properly represented’ in a range of legal fields. When Justices Gaudron and Kirby made their remarks in 1997, the percentage of women law graduates in Australia had just surpassed 50%. Today, the national percentage is above 60%. Women now constitute some 63% of people admitted to legal practice, and competition amongst law firms to attract the most talented female lawyers is fierce, with firms vying to have the highest proportion of women as equity partners. At the bar from 1999 to 2015, the percentage of female Australian barristers has climbed from 11% to 23%.”

“….Notwithstanding these changes to the composition of the Australian legal profession, it continues to be unusual to find women speaking before the High Court. As this article demonstrates, stark inequalities remain in the record of female barristers as compared with male barristers. In more than half of the matters heard by the High Court over the 2015-2016 financial year (FY16), not a single female barrister appeared for any party. In those matters in which women did appear, very few had speaking parts. Significantly, six of the top ten most frequently appearing female barristers before the High Court over this period did not speak on any occasion before the Court.

This article explores these issues against a backdrop of professional and academic research into gender equality in the Australian legal profession.”

The full article will appear in The Australian Law Journal Volume 91/Part 6.

Professor George Williams AO, is the Dean, the Anthony Mason Professor, and a Scientia Professor at UNSW Law and is a columnist for the SMH