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The latest issue of the Australian Law Journal (Volume 88 Part 6) contains the following material:
Articles
Foss v Harbottle: Alive and well in the public sector? – Marco Bini
Fiduciary duties are long established legal concepts, particularly in the context of directors of companies and the company. Associated with these duties of company directors is the “proper plaintiff†rule espoused in Foss v Harbottle (1843) 2 Hare 461 which stated that only the company had standing to take actions for wrongs done to it. The rule was eventually weakened by judicial discovery of exceptions and finally removed by statute in Australia. In the public sector however, there is less precedent surrounding directors of public entities and whether their duties are also fiduciary in relation to their public entity. Similarly, if the duties are fiduciary then does the proper plaintiff rule still apply? This article explores whether directors of public entities owe fiduciary duties to the entity similarly to company directors and whether the proper plaintiff rule might still apply to parties wishing to bring a suit against a director in breach. The article considers the operation of the Public Administration Act 2004 (Vic) in this area and concludes that directors of public entities likely owe fiduciary duties to the entity and that the rule in Foss v Harbottle likely still applies to parties seeking to bring a suit against a director in breach. This article reproduces part (with modifications as necessary) of a Ph D dissertation in law to be submitted by the author for examination in 2014.
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Limiting the nature and scope of a beneficiary’s entitlement to receive trust information – Elizabeth Bishop
Despite Schmidt v Rosewood Trust Ltd [2003] 3 All ER 76, in Australia there remains conflicting judicial approaches to the task of determining whether a beneficiary has a right or entitlement to access trust documents and information about the trust. As a means to alleviate the uncertainty and in an attempt to regulate what a beneficiary can access, the use of information control mechanisms in trusts deeds are being employed. This article addresses the conflicting foundational theories and, in light of Re A Trust [2013] SC (Bda) 16 Civ; [2013] BMSC 14, considers whether information control mechanisms effectively limit the nature and scope of a beneficiary’s entitlement to trust information.
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The rise of the information barrier: Managing potential legal conflicts within commercial law firms – Ian Dallen
The size of commercial law firms operating in Australia, coupled with increased partner movement between those firms, means that robust and effective practice management has become critical for the identification, avoidance and management of conflicts. This article analyses the use of information barriers (traditionally referred to as “Chinese wallsâ€) as a way of managing this risk and, in particular, considers the circumstances in which information barriers are commonly used by commercial law firms, namely: acting for multiple clients in the same, or related, matter; and acting against former clients; and how the courts have viewed the use of information barriers in these scenarios in the context of a lawyer’s professional responsibilities and duties.
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Sections
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- Are law schools producing too many lawyers?
- Universities and stress
- Proposed changes to race discrimination legislation
- Country court houses
- New ALJ sections
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- The settlement from hell
- Chargee entitled to surplus proceeds of mortgagee’s sale
- Guarantor released on assignment of lease
- No severance of options to renew
- Severance of GST clause
- Time provisions: The need for clear drafting
AROUND THE NATION: VICTORIA – Editor: Justice Clyde Croft
- Lifting the standard of conduct under the Civil Procedure Act
CONSTITUTIONAL LAW – Editor: Anne Twomey
- Canadian Supreme Court invalidates one of its own
- Exposing royal influence in the United Kingdom
CRIME AND EVIDENCE – Editor: Justice Phillip Priest
- Prosecutors’ duties in the wake of Barbaro
ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper
- Federal environmental judicial review proceedings under Environment Protection and Biodiversity Conservation Act 1999
- Wind farms found to be safe in Victoria
- NSW awaits passage of Planning Bill 2013 and reform of current legislative regime protecting Indigenous cultural heritage
- Failure to disclose and failure to notify in NSW
- Successful prosecution of desecration of Aboriginal sacred site in Northern Territory
- Sea level rise impact on coastal development must now be taken into account by decision makers considering development in Queensland
- Western Australia’s shark catch and kill policy upheld
COMPETITION AND CONSUMER LAW – Editor: Robert Baxt AO
- What place does “moral obloquy†have in the evaluation of statutory unconscionable conduct?
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Corporations: Premium offered to noteholders who vote in favour of scheme – Whether lawful
- Court practice: Costs of complying with a subpoena
- Contributory negligence: Damages for domestic assistance
- What are injuries caused by a motor accident?
- State Supreme Court may exercise power under ADJR Act
- Trade and commerce: Partial invalidity of drink bottle disposal scheme
- Setting aside an arbitral award on grounds of public policy
BOOK REVIEWS – Editor: Angelina Gomez
- Principles of Equity, by Henry Home, Lord Kames
For the pdf version of the table of contents, click here: WAU – ALJ Vol 88 Pt 6 Contents.
