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The latest issue of the Australian Law Journal (Volume 88 Part 3) contains the following material:
Lessons from a “conversation” about restitution – Hon Justice Susan Kiefel AC
In Australia, the law of restitution adheres to the approach exemplified by Lord Mansfield in Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676. It does not recognise “unjust enrichment” as a definitive principle. In the late 20th century, the English courts recognised the principle and, shortly after, the defence of change of position. These developments may owe much to a “conversation” between English and German legal scholars. The German Civil Code (Bürgerliches Gesetzbuch, or BGB) has long recognised the defence, as a counterpoint to its broad “absence of basis” ground for liability. Notably, however, English law has not (yet) embraced such a broad ground for liability, and still requires a vitiating factor, such as mistake, to found a restitutionary claim. This article considers what implications the adherence to the considerations in Moses v Macferlan may have for the acceptance in Australia of the change of position defence as it is known to English and German law.
Murray Gleeson’s contribution to the development of criminal law – Hon Justice Margaret McMurdo AC
In this article I deal briefly with Murray Gleeson’s contribution to the criminal law as barrister and Chief Justice of the Supreme Court of New South Wales. But I focus principally on his contribution to the criminal justice system through his judgments, extracurial speeches and leadership role whilst Chief Justice of the High Court of Australia. I discuss his first and last criminal decisions in the High Court. In between, I briefly analyse his dissents, his influence on the Tasmanian Jury Study, his role as leader of the Australian judiciary and review a representative selection of his judgments from all Australian jurisdictions. Before concluding, I consider how he dealt with the tension between community protection and individual rights and whether the label of black-letter conservative judge, which some gave to him, is apposite.
Except for an immediate small flurry of cases, s 92 of the Australian Constitution went to sleep for 20 years after the High Court’s ground-breaking decision in Cole v Whitfield (1988) 165 CLR 360. Then in 2008, this pivotal guarantee of free trade among the States in our 19th-century foundational document came into collision with new, 21st-century, electronic ways of doing business, to which State geographical boundaries were largely irrelevant – except that it was the States that sought to regulate this business. In Betfair Pty Ltd v Western Australia (2008) 234 CLR 418, involving State regulation of internet gambling, the High Court reminded us of the gospel according to Cole v Whitfield: the States cannot regulate in a way that discriminates against interstate trade so as to confer protectionist benefits on their own intrastate trade. In the age, however, of the new economy, and of national competition law, some commentators have asked whether the national “common market” is adequately fostered by confining s 92 to the prevention of State protectionism. Two further internet gambling cases in 2012 appear to squash any suggestion in the 2008 case that the High Court might stray from the true path of Cole v Whitfield and expand the ambit of s 92 beyond State protectionism – although a possible issue raised by laws that lessen competition without involving State protectionism was left to another day. In the author’s view, s 92 is appropriately confined to the prevention of State protectionism, with broader protection of the common market best left to other mechanisms.
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- The holiday season
- Respect for the judiciary
- “I’m coming through”
- Threats to democracy
- Transcripts of court proceedings
- Death of prominent lawyers
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Disclaimer of lease by landlord’s liquidator extinguishes tenant’s leasehold interest
- Landlord’s measure of damages for tenant’s default
- Loose drafting leads to litigation
AROUND THE NATION: WESTERN AUSTRALIA – Editor: Justice Kenneth Martin
- Western Australia v Rayney  WASCA 219
PERSONALIA – Sienna Merope
- Justice Michael Croucher
- Justice James Elliott
- Justice Ginnane
- Justice Joseph Santamaria
- Justice Melanie Sloss
EQUITY AND TRUSTS – Justice Mark Leeming
- Translating overseas trusts into the Australian legal system
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Trade marks: Foreign words
- Income tax: Non-resident – Transaction involving sale of Australian company shares to non-resident – Consideration to be paid in Canadian dollars – Whether taxable in Australia
- Crime: Manslaughter – Whether accused should foresee the precise harm which caused death
- Companies: Winding up – Statutory subrogation when employees’ debt is paid
- Negligence (contractual): In a motor cycle training school – Whether Civil Liability Act (NSW), ss 5B and 5M apply
- Marshalling: How far operation of principle restricted by contract
BOOK REVIEWS – Editor: Angelina Gomez
- Tort Law Defences, by James Goudkamp
For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 3 Contents.