{"id":5714,"date":"2013-11-11T17:02:25","date_gmt":"2013-11-11T06:02:25","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=5714"},"modified":"2013-11-11T17:02:25","modified_gmt":"2013-11-11T06:02:25","slug":"australian-law-journal-update-november-2013","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2013\/11\/11\/australian-law-journal-update-november-2013\/","title":{"rendered":"Australian Law Journal update: November 2013"},"content":{"rendered":"

*Please note that the links to the content in this Part will direct you to Westlaw AU. If you are still using Legal Online, the links can be found in the LOLA PDF<\/strong> at the bottom of this post.<\/p>\n

NB: <\/strong>Please note that Legal Online will be decommissioned on 31 December 2013<\/b>. From January 2014, all updates will include links for Westlaw AU only<\/b> (with the exception of the Journals available on Checkpoint, which will have an extra PDF). For further information, please click here<\/a><\/strong>.<\/p>\n

The latest issue of the\u00c2\u00a0Australian Law Journal<\/em> (Volume\u00c2\u00a087 Part 11) contains the following material:<\/p>\n

Articles<\/h3>\n

The equitable duties of company directors <\/i><\/b><\/a>\u00e2\u20ac\u201c <\/b>Hon William Gummow AC<\/p>\n

This article considers the equitable duties of company directors, including in light of the Bell litigation. Three matters in particular are examined. First, the distinction between directors\u00e2\u20ac\u2122 fiduciary and other equitable duties is analysed, and the different types of accessorial liability that may attach in equity and pursuant to statute for breach of such duties outlined. Secondly, it is argued that equity should not fix criteria for accessorial liability for breach by directors of non-fiduciary duties that are more severe than those provided by statute. Finally, the availability of an award of compound interest, against both a director for breach of equitable duty and a third party accessory, is considered.<\/p>\n

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The role of the \u00e2\u20ac\u0153applicant\u00e2\u20ac\u009d in native title disputes<\/i><\/b><\/a> <\/i><\/b>\u00e2\u20ac\u201c <\/b>Justice Darryl Rangiah and Justin Carter<\/p>\n

Proceedings under the Native Title Act 1993 (Cth) are conducted, on behalf of the native title claim group, by authorised members of the claim group known as \u00e2\u20ac\u0153the applicant\u00e2\u20ac\u009d. This article considers the identification of \u00e2\u20ac\u0153the applicant\u00e2\u20ac\u009d for the purposes of the Act, and considers the nature and extent of the applicant\u00e2\u20ac\u2122s authority to negotiate, and bind the claim group to, settlements of native title disputes. The principal opportunities for negotiation of disputes \u00e2\u20ac\u201c mediation in connection with determination proceedings, the negotiation of indigenous land use agreements, and negotiations pursuant to the right to negotiate provisions \u00e2\u20ac\u201c are considered. The authors particularly focus on how dysfunction in the claim group and the applicant can stymie the progress of native title disputes, and how legal representatives and opponents can respond to such difficulties.<\/p>\n

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Are the High Court\u00e2\u20ac\u2122s reasons for refusing special leave binding? <\/i><\/b><\/a>\u00e2\u20ac\u201c <\/b>Oliver Jones<\/p>\n

The status in precedent of the High Court\u00e2\u20ac\u2122s reasons for refusing special leave has long been apparent. The reasons are not binding but instead offer guidance for lower courts. However, the author submits that, where they are seriously considered, and delivered by an appropriate number of Justices, the reasons can be binding. In other cases, the impact of the reasons will depend on how fully they explain the law. Still, the reasons cannot, as guidance, compel a court to depart from authority that is otherwise binding. The author argues that, to the extent that Western Export Services Inc v Jireh International Pty Ltd (2011) 86 ALJR 1 fell short of the foregoing, it should be discounted by lower courts.<\/p>\n

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Section 53 of the Constitution: An overlooked reference to the constitutional people <\/i><\/b><\/a>\u00e2\u20ac\u201c <\/b>Elisa Arcioni<\/p>\n

Section 53 of the Constitution sets out the limitations on the power of the Senate with respect to financial legislation. There is ongoing disagreement as to what legislation is caught by the section. This article does not resolve that disagreement. Instead, it focuses on exploring the meaning of \u00e2\u20ac\u0153the people\u00e2\u20ac\u009d in the third paragraph of s 53. That paragraph states: \u00e2\u20ac\u0153The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.\u00e2\u20ac\u009d Those people are identified as the national people who receive representation in both Houses of Parliament.<\/p>\n

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Sections<\/h3>\n

CURRENT ISSUES<\/a> \u00e2\u20ac\u201c Guest Editor: Angelina Gomez<\/b><\/p>\n