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The latest issue of the Australian Law Journal (Volume 97 Part 1) contains the following material:

CURRENT ISSUES – Editor: Justice François Kunc

  • The Year Ahead
  • The Curated Page

EQUITY AND TRUSTS – Editor: Justice Mark Leeming

  • Unconscionable Transactions – The Roles of Knowledge and “Predatory State of Mind”

INTERNATIONAL FOCUS – Editor: Professor Stuart Kaye

  • The Election of Hilary Charlesworth as a Judge of the International Court Of Justice

Articles

Judicial Legitimacy – The Hon Stephen Gageler AC

The Section 75(v) Injunction: History and Principles – Declan Noble

Accounts of the s 75(v) injunction explain its inclusion in the Constitution by reference to a supposed jurisdiction enjoyed by courts of equity before Federation to restrain the “unlawful” or “invalid” acts of public bodies and officers. This work challenges that position. It argues that, before Federation, injunctions were only granted against public bodies and officers on the same grounds as they were granted against other parties, such as to restrain certain torts or to protect property. The modern position – whereby a party with requisite standing can obtain an injunction to restrain mere want or excess of power – emerged gradually in the 20th century. Its development reflects peculiar aspects of Australian federalism, as well as attitudes to the relationship between the courts and the Executive rooted in the nature of government in colonial Australia. These matters will continue to inform developments in the scope of the s 75(v) injunction.

Questioning the Mistaken Payment Constructive Trust – Bernard Porter KC

Wambo Coal v Ariff recognised that a constructive trust arose over money paid by mistake at the time the recipient acquired knowledge of the mistaken payment (the Wambo trust). This article questions the recognition of the Wambo trust. It suggests that such a development in the law of constructive trusts is unnecessary, difficult to reconcile with general equitable principles and apt to cause injustice in particular cases. It also suggests that the arguments in favour of that development are open to question. It respectfully suggests that the principle not be applied in future cases.

BOOK REVIEW – Editor: Angelina Gomez

  • Pensions, Contracts and Trusts: Legal Issues in Decision Making, by David Pollard

For the PDF version of the table of contents, click here: New Westlaw Australia – ALJ Vol 97 No 1 Contents.

Click here to access this Part on New Westlaw AU

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