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The latest issue of the Australian Law Journal (Volume 93 Part 7) contains the following material:

Corrigendum
Please refer to Volume 90 of the Australian Law Journal. An error appears in the article by Daniel Reynolds, “Construction of Contracts after Mount Bruce Mining v Wright Prospecting” (2016) 90 Australian Law Journal 190, page 204. The list of High Court  Justices appearing in the first full sentence on that page should have included Justice
Crennan. The author apologises for the omission.

CURRENT ISSUESGuest Editor: Dr Nuncio D’Angelo

  • Climate Change and the Law
  • ASIC’s and APRA’s Changed Attitudes to Enforcement
  • Review of Franchising Law
  • Politics and the Rule of Law
  • Arbitration Clauses and the High Court
  • The Ongoing Saga of an Implied Duty of Good Faith in Contracts
  • Religious Freedom: A Follow-up
  • A New International Law Editor for the Journal
  • The Curated Page

AROUND THE NATION: VICTORIAEditor: Justice Clyde Croft AM

  • Amendments to the International Arbitration Act 1974 (Cth)

FAMILY LAWEditor: Richard Ingleby

  • What if Mrs Jennings or Mr Stanford were worth $20,000,000?

INTERNATIONAL FOCUSEditor: Professor Stuart Kaye

  • Australia and Timor-Leste Conciliation and Maritime Boundary Treaty

ADMIRALTY AND MARITIMEEditor: Dr Damien J Cremean

  • Pollution of the Seas and Admiralty

COMPETITION AND CONSUMER LAWEditor: John Kettle

  • Competitive Neutrality, State Aid and Australia – Worth Reconsidering?

PERSONALIAEditor: Emily Vale

New South Wales

  • Justice Lea Armstrong
  • Justice Andrew Bell
  • Justice Patricia Henry

Queensland

  • Justice Elizabeth Wilson

RECENT CASESEditor: Ruth C A Higgins SC

  • Representative Proceedings – Part IVA of the Federal Court of Australia Act 1976 (Cth) – Constitutional Law – Judicial Power – Whether Power to Make Common Fund Order Part of or Incidental to Exercise of Judicial Power by the Court – Constitutional Law – Acquisition on Just Terms
  • Constitutional Law – Separation of Powers – Acquisition of Property – Whether Common Fund Order Contrary to Separation of Powers – Whether Common Fund Order Acquisition of Property Other Than on just terms – Representative Proceedings – Common Fund Order

Articles

Enforcement of Foreign Judgments: Does an Issue Estoppel Arise from a Foreign Court’s Determination of its Own Jurisdiction? – Dan Butler

Australian Courts, from time to time, are asked to enforce foreign judgments. A fundamental requirement for enforcement of a foreign judgment is that the foreign Court has exercised a jurisdiction which is recognised by Australian law. However, on an enforcement application in Australia, what is the effect, if any, of the foreign Court’s determination of its own jurisdiction? That is, if a foreign Court is asked by a defendant to rule on its own jurisdiction, and decides it does have jurisdiction, does an issue estoppel arise in local enforcement proceedings, preventing the judgment debtor from contending that the foreign Court did not have jurisdiction? This article considers the limited, and differing, authorities on this issue. It contends that an issue estoppel should not be permitted in those circumstances.

“Seeking Equal Dignity without Discrimination” – The Australian Human Rights Commission and the Handling of Complaints – Emeritus Professor Rosalind Croucher AM

The complaint handling role of the Australian Human Rights Commission (AHRC) is one of the key ways of protecting human rights in Australia, but it is not well understood. This article seeks to fill that gap. There are actually three distinct streams of complaints, a fact that reflects the history of the Commission itself. There is the set of complaints that may be brought under the four federal Discrimination Acts, but there are also two other streams of complaints, based on the international instruments that are scheduled to the AHRC Act, rather than through domestic legislation. As is the story in most legal histories of the development of legislation, it is not a linear narrative. Contemporary criticism or questioning also needs to be placed in the context of that history. An understanding of the role played by the Commission since its foundation also provides essential background for a consideration of improving human rights protections in Australia.

Alternative Facts in the Courts – The Hon Justice Stephen Gageler AC

This article reflects on how our legal system deals with the phenomenon of the assertion of alternative versions of a fact. When a party in litigation asserts the existence of a fact which another party disputes, the question for the tribunal of fact is not the abstract question of whether the fact exists. The question for the tribunal is whether it is satisfied that the fact has been proved to the requisite standard. The tribunal’s judgment is made inevitably under conditions of uncertainty and involves the formation of a subjective belief. That subjective belief is an “actual persuasion” that the asserted fact exists. And it is the subjectivity of fact-finding that allows us to understand why a different, probabilistic approach to fact-finding cannot be the measure or the goal of what our courts do.

Exploring New and Old Ideas about Estoppel and Election – The Hon K R Handley QC

The author explores the interaction between old and new ideas in the test of unconscionability, statements about the future, agreements subject to contract, promissory estoppel, testamentary promises, the relevance of Hohfeld’s analysis of the nature of legal rights, and election between rights.

OBITUARY

  • Emeritus Professor Michael Coper AO, FAAL

For the PDF version of the table of contents, click here: ALJ Vol 93 No 7 Contents.

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