*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 4) contains the following material:
Stemming the flood: Procedural and ethical issues arising from potential flood litigation – Jennifer Corrin and Francesca Bartlett
Potential legal action arising from the 2011 Queensland floods raises three interesting issues of procedure and ethics. First, there is the question of the type of group action to be taken, which will depend on the jurisdiction in which the proceedings are commenced. The distinction between class actions (which are not available in Queensland) and representative actions, raises some interesting questions. Secondly, the threatened action involves com- mercial funding of litigation; and thirdly, is the related issue of advertising for potential claimants by the funders and solicitors. This article examines these issues and some of the surrounding questions.
The arbitrability of oppression and winding-up actions – Alistair Marchesi and Kanaga Dharmananda SC
International commercial arbitration depends upon the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Any arbitration rests upon the existence of an arbitration agreement, dealing with a matter that is capable of being resolved by arbitration. However the New York Convention, and the Model Law do not define, with specificity, the type of matters which are “capable of settlement by arbitration”. This article considers whether certain statutory provisions of corporations legislation are able to be arbitrated in view of recent case law. We conclude that there are few bars to such matters falling within arbitral jurisdiction, although the power of arbitrators to make certain awards is ultimately limited.
Oppression in the context of corporate trustees – Michael May
Parties going into business together often use corporate trustee structures, which provide incidental asset protection and taxation benefits. However, an unintended consequence of such structures may be to deprive the parties of access to remedies under the Corporations Act 2001 (Cth) for oppression. This article seeks to reconcile the conflicting authorities on the application of oppression provisions to corporate trustees. It argues that there is limited scope for the kinds of oppressive conduct recognised by the Corporations Act to arise in the context of a corporate trustee.
In Fairclough Homes Ltd v Summers  1 WLR 2004, the United Kingdom Supreme Court unanimously held that “the court does have jurisdiction to strike out a statement of case under CPR r 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum” (at ). The Supreme Court concluded that a court should only exercise this discretion for cases involving fraud in “very exceptional circumstances” where it was “just and proportionate” and declined to do so on the facts of the case (at -). Nevertheless, the finding raises key conceptual tensions in the court’s strike out powers and has implications for the conduct of litigation in English and Australian courts.
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- Injured persons’ rights
- No fault liability
- Duty of the state to prosecute crime
- Cost of litigation
- Policy on “peer review”
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Torrens title issues
- Registrar’s power to cancel notations
- When is an interest “recorded” in the torrens title register?
- Caveats without reasonable cause
- Notice of foreclosure sufficiently “served”
OVERSEAS LAW – Editor: Colin Picker
- Houseboat or floating home or what? Certiorari process in US Supreme Court
ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean
- Colonial Courts of Admiralty
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Powers of attorney: Informal termination
- Restitution: Mistaken payment by bank – Scope of defence of change of position
- Solicitors: Negligence – Premature payment of loan funds
- Courts and judges: Disqualification – Magistrate married to prominent solicitor
- Easements for drainage: What is covered? – What use can be made of extrinsic evidence to construe grant?
- Tort: Escape of fire – Rylands v Fletcher
- Wills: Statutory will – Requirements
- Trusts: Derivative claim by beneficiary
- Expert evidence: Specialised knowledge and the role of independence
- Consumer law: Misleading or deceptive conduct and the publishers’ defence