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The latest issue of the Australian Law Journal (Volume 87 Part 12) contains the following material:

Articles

The courts and the parliamentChief Justice Robert French AC

Definition of the boundary between the constitutional function of Parliament and that of the courts requires consideration of the function of the common law, or judge made law, in the context of parliamentary sovereignty and the function of the court in interpreting statutes and applying them. Legislative intention and statutory purpose are concepts which play an important role in marking that constitutional boundary. This article considers aspects of those functions and the need for reciprocal institutional restraint, courtesy and civil discourse between the institutions as an aspect of their constitutional relationship.

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It tolls for thee: Accessorial liability after Bell v WestpacHon T F Bathurst and Sienna Merope

The trial and appellate decisions in the Bell/Westpac proceedings have significant implications for fiduciary duties, directors’ duties and the scope of accessorial liability under Barnes v Addy principles in corporate insolvency contexts. This article examines two issues central to the proceedings in Bell, namely whether directors’ duties to act bona fide in the best interests of the company and for proper purposes are fiduciary in nature and the circumstances in which those duties will be breached in a near insolvency context. The extent to which Bell has altered conventional understandings of the “best interests” and “proper purposes” duties and the implications of any such alteration for corporate rescue strategies are explored.

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The status of law reports produced in England prior to 1865P W Young and A A Gomez

Nominate reports appeared in England between 1530 and 1865 through private enterprise and varied in both quality and accuracy. This article attempts to provide a helpful guide as to what reports are considered more reliable than others. The article will particularly focus on the reporters of the period from the accession of George III, 1760 to 1865.

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Proportionate liability in the High CourtLeigh Warnick

The interpretation of proportionate liability legislation has caused difficulty for courts in most Australian jurisdictions. Intermediate appellate decisions in New South Wales and Victoria had prevented some defendants from using the proportionate liability regime to limit liability, by adopting (essentially on policy grounds) a relatively narrow interpretation of the threshold definition, “concurrent wrongdoer”. The High Court (by a 3:2 majority) has now overturned those decisions, taking a broader approach in terms of both interpretation and policy. The decision makes it likely that a wider range of defendants will qualify as concurrent wrongdoers, and become eligible to limit their liability through apportionment. However, policy factors and value judgments will remain relevant to the apportionment process. Some cases may call for a very high (even 100%) apportionment of responsibility for the plaintiff’s loss or damage to a single defendant, even though that defendant has qualified as a concurrent wrongdoer.

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Sections

CURRENT ISSUES – Guest Editor: Justice Geoff Lindsay

  • Precedential reasoning in Australian law
  • A national website for authorised law reports?
  • Australian Academy of Law
  • What is it to be a barrister?
  • Christmas reading: Law literature and legal history

CONVEYANCING AND PROPERTY – Editor: Peter Butt

  • Making positive covenants “run”
  • Restrictive covenant not running, in absence of benefited land
  • What is admissible extrinsic evidence in interpreting a registered Torrens title instrument?
  • Boundary demarcation agreement need not be in writing
  • No “partition” by strata subdivision

RECENT CASES – Guest Editor: Justice Geoff Lindsay

  • Disqualification of judicial officer: Apprehended bias – Extra-curial statements about a party’s legal representation
  • Corporations law: Winding up appliation – Disputed debt – Status of applicant as a creditor
  • Private international law: Forum – Australia and New Zealand
  • Trusts: Operation of principles governing sham transactions

BOOK REVIEWS – Editor: Angelina Gomez

  • Dewigged, Bothered and Bewildered, British Colonial Judges on Trial 1800-1900 by John McLaren
  • Crossing the Bar by William Cox
  • Cases on Torts (5th ed) by Barbara McDonald and Ross Anderson
  • Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law by Joseph Kimble
  • Fundamentals of Trial Technique (3rd ed) by Thomas A Mauet and Les A McCrimmon

For the pdf version of the table of contents, click here: LOLA – ALJ Vol 87 Pt 12 Contents or here: WAU – ALJ Vol 87 Pt 12 Contents.

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