The latest issue of the Australian Law Journal (Volume 86 Part 5) contains the following material:
This article examines how the functions and powers of intermediate appellate courts differ from those of the High Court of Australia, both formally and in practice. The differences must not, however, be used to constrict the constitutional independence of intermediate appellate courts or the duties of their judges to decide cases according to their best ability in accordance with the law as they see it to be. Rules of precedent have seen considerable tightening in recent years at the hands of our ultimate appellate court, at a cost that needs greater acknowledgment. Some constitutional limits to the High Court’s newly-asserted authority to dictate rules of precedent and stare decisis for ICAs are also considered.
England as a source of Australian law: For how long? – Hon Justice James Douglas
This article surveys the current position of English law as a source of Australian law, areas of divergence in the common law and statute law and recent developments in English law as it has been affected by European law. It then discusses further possible harmonisation of European and English law and attempts to reconceptualise the taxonomy of English law, notably by the late Professor Peter Birks, and the risks perceived by some members of the High Court of applying such a process of “top-down reasoning” to the common law and equity. In addressing for how long English law might influence Australian law three areas are considered in particular, human rights, contract and the recovery of damages for pure economic loss. The conclusion is that even if the rules of English and Australian law diverge further we are likely to retain the method and spirit of the common law. A failure to keep in touch with English law will remove our understanding of the historical roots of our own law. Keeping in touch will enhance our understanding of legal developments not only in England but also in Europe and elsewhere.
CURRENT ISSUES – Editor: Hon P W Young AO QC
- Legal profession discipline in South Australia
- Workplace relations legislation
- The role of prosecutors
- Judges and the Bar
- Court appearance by video link
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Priority in equity: Failure to caveat and “postponing conduct”?
ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean
- Action in rem
INTERNATIONAL FOCUS – Editor: Ryszard Piotrowicz
- The International Criminal Court convicts an international criminal
RECENT CASES – Editor: Hon P W Young AO QC
- Evidence: Legal professional advice privilege – Joint interest privilege
- Money paid into court: Whether security conferred
- Is an excavator a “motor vehicle”?
- Costs: Mutual wills suit
- Crime: Secret bail hearing
- Application for judge to recuse on basis of out of court comments
- Judgments and orders: Inadequate reasons of primary judge – Procedure
- Estoppel by encouragement: Requirement of detriment
For the pdf version of the table of contents, click here: ALJ Vol 86 Pt 5 Contents.