*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF at the bottom of this post.
The latest issue of the Australian Law Journal (Volume 87 Part 1) contains the following material:
Legal coherence in the High Court: String theory for lawyers – Professor Michael Gillooly
The law is not a disjointed grab bag of unconnected instances, bearing no relationship to each other. Rather it comprises a coherent and consistent whole. The fundamental importance of this notion of legal coherence has been emphasised in the recent jurisprudence of the High Court of Australia, mainly but not exclusively in the realm of negligence law. In this article, the notion of legal coherence is explored, the recent jurisprudence examined, and a strategy for dealing with incoherence issues outlined.
Claimed property right does not hold water – John R Corkill OAM
Evidence advanced for the proposition that “governments and legislatures cannot ignore the fundamental right of property owners to protect their land from the sea” is reviewed to test the veracity of this bold claim. The origin of this right and the courts’ clarification of its limited nature in English common law are explained, the impacts of modern statutes on common law rights are considered and the powers of State Parliaments to enact legislation are examined. By referring to decisions of superior courts and citing current NSW statutes applicable to the construction of coastal protection works, the article concludes that the claimed fundamental property right does not hold water. Coastal landowners are encouraged to recognise NSW shoreline law as it currently exists and challenged to abandon the claim to a right which has long ceased to exist in NSW.
There has been a series of legislative movements aimed at reducing the disparity between commercially sophisticated parties and their consumer client base in recent years. Some notable examples include the Australian Consumer Law imperatives and the introduction of the National Consumer Credit Protection Act 2009 (Cth) and accompanying Credit Code. Whilst commercial in focus, the Personal Property Securities Act 2009 (Cth) (PPSA) also offers some important protection to consumers when dealing with property affected by the regime. As this article demonstrates, the protections contained within this important statutory regime are potent and the consequences of misunderstanding their effect could prove fatal to an interest which would otherwise benefit from a position of priority under the regime. The article analyses the nature and extent of the consumer protection rationale underpinning some important sections of the PPSA with a view to arming commercial participants and their legal advisers with some pragmatic steps to prevent being caught unprepared.
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- Happy New Year!
- Criminal law: Trial by judge or trial by jury
- Judgment writing
- Ex parte injunctions
- Ex parte injunctions: Strategic weapon or procedural necessity?
- Spousal privilege
- Cautions by arresting police
- World wide policing
- Loose ends
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Sea changes in coastal protection laws
- Interpreting registered Torrens title instruments: To what extent is extrinsic evidence admissible?
FAMILY LAW – Editor: Anthony Dickey QC
- Pre-nuptial contributions to property
- Death of a judge before delivering a judgment
OVERSEAS LAW – Editor: Colin Picker
- Speech for sale: Commerce and free speech in ICANN’s new gTLD process
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Carbon rights: Fraudulent transfer of permits
- Probate: Shifting executors
- Election at common law
- Charities: Dissolution of named beneficiary – Whether general charitable intent
- What is a “house”?
- Precedents: Decisions of judges of equivalent status to be followed – Bankruptcy – Effect – Pending action by bankrupt as trustee
- Penalty doctrine revisited
BOOK REVIEWS – Editor: Angelina Gomez
- Williams & Kawharu on Arbitration, by David A R Williams QC and Amokura Kawharu
- Charles Comans
- Jeremy Pope