*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 88 Part 1) contains the following material:
Forrest v ASIC: A “perfect storm” – John Humphrey and Stephen Corones
The policy objectives of the continuous disclosure regime augmented by the misleading or deceptive conduct provisions in the Corporations Act 2001 (Cth) are to enhance the integrity and efficiency of Australian capital markets by ensuring equality of opportunity for all investors through public access to accurate and material company information to enable them to make well-informed investment decisions. This article argues that there were failures by the regulators in the performance of their roles to protect the interests of investors in Forrest v ASIC; FMG v ASIC (2012) 247 CLR 486: ASX failed to enforce timely compliance with the continuous disclosure regime and ensure that the market was properly informed by seeking immediate clarification from FMG as to the agreed fixed price and/or seeking production of a copy of the CREC agreement; and ASIC failed to succeed in the High Court because of the way it pleaded its case. The article also examines the reasoning of the High Court in Forrest and whether it might have changed previous understandings of the Campomar test for determining whether representations directed to the public generally are misleading.
Breach ordinarily no bar to termination – Thomas O’Brien
When both contractual parties are in breach of contract, the prevailing view is that one such party will only be able to exercise a right of termination if their breach was of an inessential obligation. This article suggests that the prevailing view is incorrect; while breach of an essential term may prevent a party from recovering substantial damages it should not prevent them from terminating the contract. It is suggested that as a general rule a party should be able to exercise a right to terminate regardless of whether they have breached an essential term of the contract. There should be two exceptions to that general rule, whereby a party in breach will be restricted from terminating the contract: (1) where the terms breached by the parties are dependent; and (2) where the breach by the party seeking to terminate caused the breach by the other party, upon which the terminating party relies to justify their right to terminate.
Kable, preventative detention and the dilemmas of Chapter III – James Stellios
The High Court’s decision in New South Wales v Kable (2013) 87 ALJR 737;  HCA 26 has significant implications for the way in which preventative detention is to be characterised in Australia. Although the High Court’s decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 was generally regarded to have characterised preventative detention as non-judicial in nature, the court in the more recent Kable case appears to have reconsidered this understanding. This article explores the possible bases for this development and the implications of such a reconceptualisation for a range of Ch III dilemmas.
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- Happy New Year
- Judicial sittings in suburban cities
- Driver’s licences: Whether there should be a limit on disqualification
- Assessing witness reliability to remember old conversations
- Statutes of limitation
- “Paperless” courts
- The Journal in 2014
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Indefeasibility of title and easements: An update
- No easement by estoppel or statute
- Effect of a transferee’s covenant to “observe and perform” transferor’s obligations
- Vendor’s obligation to “observe and perform” sounding in damages only
- Lessor’s consent to assignment and permitted use clauses
- Abuse of caveat procedure: On facts, no liability in damages
- Abuse of caveat procedures: Indemnity costs?
FAMILY LAW – Editor: Anthony Dickey QC
- Property subject to a moral obligation
- Valuation of chattels
PERSONALIA – Editor: Sienna Merope
- New South Wales
- Justice Fabian Gleeson
- Justice Mark Leeming
- South Australia
- Chief Justice John Doyle
- Chief Justice Alan Blow
- Chief Justice Ewan Crawford
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Blood transfusions for 17-year-olds against their will
- Wills: Effect of clause giving reasons for non-inclusion of child as beneficiary
- Ecclesiastical law: Committee to protect church from unsuitable clergy – Whether properly established by diocese
- Can a partnership agreement between two persons be terminated by one for repudiation by the other?
- Malicious prosecution: Whether lies in respect of a civil action
- Res judicata: Abuse of process – American action commenced and decided after Australian action commenced on the same facts, though not all the parties were the same – Whether American decision effected a res judicata
BOOK REVIEWS – Editor: Angelina Gomez
- Account of Profits, by Peter Devonshire
For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 1 Contents.