{"id":6224,"date":"2014-02-11T16:48:44","date_gmt":"2014-02-11T05:48:44","guid":{"rendered":"http:\/\/sites.thomsonreuters.com.au\/journals\/?p=6224"},"modified":"2014-02-11T16:48:44","modified_gmt":"2014-02-11T05:48:44","slug":"australian-law-journal-update-january-2014","status":"publish","type":"post","link":"https:\/\/sites.thomsonreuters.com.au\/journals\/2014\/02\/11\/australian-law-journal-update-january-2014\/","title":{"rendered":"Australian Law Journal update: January 2014"},"content":{"rendered":"

*Please note that the links to the content in this Part will direct you to Westlaw AU.<\/p>\n

<\/strong>NB: <\/strong>Please note that from now on, 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\u00a088 Part 1) contains the following material:<\/p>\n

Articles<\/h3>\n

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Forrest v ASIC: A \u00e2\u20ac\u0153perfect storm\u00e2\u20ac\u009d<\/span><\/i><\/b><\/a> \u00e2\u20ac\u201c <\/b>John Humphrey and Stephen Corones <\/span><\/span><\/p>\n

The policy objectives of the continuous disclosure regime augmented by the misleading or deceptive conduct provisions in the Corporations Act 2001 (Cth) are to enhance the integrity and efficiency of Australian capital markets by ensuring equality of opportunity for all investors through public access to accurate and material company information to enable them to make well-informed investment decisions. This article argues that there were failures by the regulators in the performance of their roles to protect the interests of investors in Forrest v ASIC; FMG v ASIC (2012) 247 CLR 486: ASX failed to enforce timely compliance with the continuous disclosure regime and ensure that the market was properly informed by seeking immediate clarification from FMG as to the agreed fixed price and\/or seeking production of a copy of the CREC agreement; and ASIC failed to succeed in the High Court because of the way it pleaded its case. The article also examines the reasoning of the High Court in Forrest and whether it might have changed previous understandings of the Campomar test for determining whether representations directed to the public generally are misleading.<\/span><\/p>\n

To purchase this article, complete the Individual Article Sale<\/a> order form and email it to tlranz.journal.orders@thomsonreuters.com<\/a>.<\/p>\n

Breach ordinarily no bar to termination<\/span><\/i><\/b><\/a> \u00e2\u20ac\u201c <\/b>Thomas O\u00e2\u20ac\u2122Brien <\/b><\/span><\/span><\/p>\n

When both contractual parties are in breach of contract, the prevailing view is that one such party will only be able to exercise a right of termination if their breach was of an inessential obligation. This article suggests that the prevailing view is incorrect; while breach of an essential term may prevent a party from recovering substantial damages it should not prevent them from terminating the contract. It is suggested that as a general rule a party should be able to exercise a right to terminate regardless of whether they have breached an essential term of the contract. There should be two exceptions to that general rule, whereby a party in breach will be restricted from terminating the contract: (1) where the terms breached by the parties are dependent; and (2) where the breach by the party seeking to terminate caused the breach by the other party, upon which the terminating party relies to justify their right to terminate.<\/span><\/p>\n

To purchase this article, complete the Individual Article Sale<\/a> order form and email it to tlranz.journal.orders@thomsonreuters.com<\/a>.<\/p>\n

Kable, preventative detention and the dilemmas of Chapter III<\/span><\/i><\/b><\/a> \u00e2\u20ac\u201c <\/b>James Stellios <\/b><\/span><\/span><\/p>\n

The High Court\u00e2\u20ac\u2122s decision in New South Wales v Kable (2013) 87 ALJR 737; [2013] HCA 26 has significant implications for the way in which preventative detention is to be characterised in Australia. Although the High Court\u00e2\u20ac\u2122s decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 was generally regarded to have characterised preventative detention as non-judicial in nature, the court in the more recent Kable case appears to have reconsidered this understanding. This article explores the possible bases for this development and the implications of such a reconceptualisation for a range of Ch III dilemmas.<\/span><\/p>\n

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Sections<\/h3>\n

CURRENT ISSUES<\/a> \u00e2\u20ac\u201c Editor: Acting Justice Peter W Young AO <\/b><\/p>\n