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The latest issue of the Australian Law Journal (Volume 99 Part 4) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

  • Auschwitz and Lawyers
  • An Opening of Law Term Address Draws National Attention
  • Across the Pacific
  • Amendments to Hate Speech Laws
  • A New Assistant General Editor
  • The Curated Page

CONVEYANCING AND PROPERTY – Editors: Robert Angyal SC and Brendan Edgeworth

FAMILY LAW – Editor: Grant T Riethmuller

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

PERSONALIA – Editors: Emily Vale and Saskia O’Neill

  • Commonwealth
  • Justice Penelope Neskovcin
  • Justice Jane Needham
  • Justice Stephen McDonald
  • New South Wales
  • Justice Richard McHugh
  • Justice Tim Faulkner
  • Justice Belinda Rigg
  • Justice Andrew Coleman
  • Senior Counsel Appointments
  • Northern Territory
  • Senior Counsel Appointments
  • Queensland
  • King’s Counsel Appointments
  • South Australia
  • Senior Counsel Appointments
  • Tasmania
  • Senior Counsel Appointments
  • Victoria
  • Senior Counsel Appointments

Articles

The Trustee’s Duty of Care: To Fiduciary or Not to Fiduciary? – Dr Glen Anderson

There is a school of thought – preponderant at the time of writing – which holds that the trustee’s duty of care is not fiduciary. There is an opposing school of thought, however, which holds that the trustee’s duty of care is fiduciary. The long-running debate over the characterisation of the trustee’s duty of care stretches beyond equitable semantics, impacting limitation periods, causation tests, exemption clauses, proprietary relief and contributory negligence. Most importantly, it also impacts doctrines applicable to strangers in the non-trustee fiduciary context such as knowing receipt, knowing assistance and knowing procurement. After analysing the case law provenance of both schools of thought, and other important factors impacting the debate, the article concludes that a tractable argument can be made that the trustee’s duty of care should be characterised as fiduciary.

The Duty to Have Regard to Context as a Force for Change in the Identification of Interpretative Factors – Jeffrey Barnes

The duty to have regard to context is a central organising principle of contemporary statutory interpretation. It mandates that the context of words whose meaning is in question be fully considered in all cases, regardless of whether the meaning of the words, read in isolation, is plain. Significantly, context in this sense is both intrinsic and extrinsic. The author elaborates how acceptance of the principle has led to a great number of the previous restrictions on taking account of particular considerations being removed. The author argues that in CIC Insurance Ltd v Bankstown Football Club and following cases the High Court of Australia and other appellate courts have made a significant positive contribution in rationalising the rules for accessing interpretative factors in the course of statutory interpretation.

The Strawmen Trap: Non-Appearance and the Pitfalls of Pseudolaw – Joe McIntyre, Harry Hobbs and Stephen Young

This article examines the growing phenomenon of self-represented litigants utilising the “strawman duality” form of pseudolegal argument, and the risk of trial judges grappling with the issue. It describes the emergence of a “strawman trap” whereby, attempts by unwary trial judges to cut the Gordian knot of the convoluted pseudolaw arguments may become an appealable error. It then outlines several different approaches that may be used by trial judges to avoid this trap, and to otherwise deal with pseudolaw challenges. It argues that pseudolaw is an increasingly problematic phenomenon detrimentally affecting both the administration of justice and the interests of litigants, but that a more informed approach can aid the effective diffusing of the threat posed by it.

BOOK REVIEWS – Editor: Angelina Gomez

  • Reform: Australia’s Golden Era of Social and Legal Reform 1965–1995, The Memoir of a Participant, by Terry Purcell
  • National Security Law in Australia, by Danielle Ireland-Piper

For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 99 No 4 Contents

Click here to access this Part on New Westlaw AU

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