*Please note that the links to the content in this Part will direct you to Westlaw AU.
The latest issue of the Australian Law Journal (Volume 89 Part 11) contains the following material:
CURRENT ISSUES – Editor: Ruth CA Higgins
- Plus ça change
- Pre-empting arbitration
- Enlightened incarceration
- Competition and class actions
- Continuity and change
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Destruction of unregistered leases: demise of the lighting by design line of cases?
- Compulsory easements: a new black letter syndrome?
- Writing requirements and email contracts
AROUND THE NATION: TASMANIA – Editor: Justice Stephen Estcourt
- Peter George Underwood AC
PERSONALIA – Editor: Clare Langford
- Justice Robert McClelland
- Justice Brigitte Markovic
New South Wales
- Ms Lea Armstrong
- District Court: Appointment of specialist child sexual assault judges
AROUND THE NATION: NORTHERN TERRITORY – Editor: Hon Dean Mildren AM RFD QC
- 25 years on: Office of the Director of Public Prosecutions in the Northern Territory
CORPORATIONS AND SECURITIES – Editor: Robert Baxt AO
- Directors obtain “more breathing space” in arranging indemnities
ENVIRONMENTAL LAW – Editor: Justice Rachel Pepper
- New shark culling policies in Western Australia
- Retroactive legislation in Western Australia to validate Environmental Protection Authority approvals
- Extension of New South Wales Government’s coal seam gas licence buy-back
- Penalty increases for environmental offences in New South Wales
- Environmental contamination held a relevant factor in valuation in New South Wales
- Public inquiry into Victorian Environmental Protection Agency
- Victorian Government extends coal seam gas moratorium
- New penalties for environmental offences in Queensland
- Tasmanian illegal fishing sting collapses
- Tasmanian Government extends moratorium on hydraulic fracturing
- South Australian windfarm court win
- South Australian sentenced for failing to revegetate land
- South Australian court imposes fine for contaminated storage failure
- Northern Territory Supreme Court sets aside Minister’s decision on water rights
RECENT CASES – Editor: Ruth CA Higgins
- Intellectual property: Patentable subject matter – patent claimed isolated nucleic acid coding for BRCA1 protein – manner of manufacture
- Corporations: Compensation claim for loss or damage from misstatement or omission in disclosure document – Misleading or deceptive conduct – Market-based causation
- Prisoners: Solitary confinement – Whether decisions to keep the appellants in solitary confinement for substantial periods were lawfully made
Is access to justice a right or a service? – Steven Rares
The recent report by the Productivity Commission on Access to Justice Arrangements has made numerous recommendations, including that court fees should be charged on a differentiated basis having regard to the capacity of the parties to pay up to full cost recovery of providing the court to hear the case. At the same time governments have been increasing the levels of court fees particularly in civil and commercial matters. The author argues that equating the provision of the judicial system as a service that can and should be sold is antithetic to the fundamental principle, traceable to Magna Carta, that justice will not be sold or denied and to the rule of law. He asks whether a constitutional problem would arise if such significant fees were charged, as occurred in Canada last year. He also discusses other more appropriate suggestions in the report.
The common inclusion in commercial contracts of an “entire agreement” clause presents a number of challenges to the current judicial trend for broad contextual approaches to the negotiations. In principle, there should not be any tension between the parties’ clearly expressed intentions and the judicial interpretation of their contract. That there is such a tension, however, is starkly illustrated in the reasoning of Australian intermediate appellate courts as to the extent to which entire agreement clauses: (a) do more than merely re-state the parol evidence rule; (b) negate the existence of collateral contracts; (c) preclude estoppels arising from pre-contractual negotiations; and (d) affect questions of construction generally. On all four of these issues, Australian appellate courts have tended to undermine the clarity and certainty that the parties plainly intend to achieve in their bargain by their express adoption of an entire agreement clause.
The assessment of materiality for the purposes of the continuous disclosure and insider trading provisions in the Corporations Act 2001 (Cth) is required to be undertaken on an ex ante, before-the-event, basis. However, current authority suggests that evidence of the market’s reaction to subsequent disclosures constitutes a relevant “cross-check” as to the ex ante judgment formed. This article contends that that position should be reconsidered, and questions whether evidence of subsequent trading activity and price movements should be able to be used to establish materiality at the liability stage.
BOOK REVIEW – Editor: Angelina Gomez
- Principles of Taxation Law 2015 by Kerrie Sadiq – reviewed by Michael Christie SC
For the PDF version of the table of contents, click here: ALJ Vol 89 No 11 Contents.