Journal articles on the topic 'Supreme Court (Australia)'
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1
Bartlett, Francesca, and Heather Douglas. "‘Benchmarking’ a Supreme Court and Federal Court judge in Australia." Oñati Socio-legal Series 8, no. 9 (December 31, 2018): 1355–85. http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-0992.
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In this article, we reflect upon the backgrounds and career trajectories of judicial officers currently presiding over the Federal Court and Supreme Courts, which are some of the highest courts, in Australia. We gathered information through publicly available websites in Australia providing official biographical information, and drew on academic efforts to fill in more details about the judiciary. While patchy, the picture today in the Australian judiciary is of a relatively uniform educational and career background – for both male and female judges. Our analysis shows that judges are predominantly recruited from a long career at the private Bar. However, given continued professional barriers to women succeeding in the Australian legal profession which we describe, we argue that it is time to take seriously the stated goals of modern judicial appointment to widen the pool and consider merit that is not solely defined by a benchmark male career. Planteamos una reflexión sobre los orígenes y las trayectorias de las autoridades judiciales que presiden el Tribunal Federal y los Tribunales Supremos, algunas de las instancias judiciales más altas de Australia. Recopilamos información publicada en webs australianas que proporcionan biografías oficiales, y completamos el retrato judicial mediante recursos académicos. Aunque borroso, el retrato actual del mundo judicial australiano muestra un origen educativo y profesional similar para jueces y juezas. Nuestro análisis muestra que jueces y juezas provienen generalmente de una larga carrera profesional en la abogacía. Sin embargo, debido a los constantes obstáculos –los cuales describimos– que deben enfrentar las mujeres para triunfar en la profesión jurídica, argumentamos que ha llegado el momento de abordar seriamente los objetivos establecidos de la designación judicial, para ampliar el grupo y tomar en consideración méritos que no están definidos únicamente por la trayectoria legal masculina.
2
Dale, Gregory. "Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru." International and Comparative Law Quarterly 56, no. 3 (July 2007): 641–58. http://dx.doi.org/10.1093/iclq/lei186.
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A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.
3
Kirby CMG, Michael J. "THE HIGH COURT OF AUSTRALIA AND THE SUPREME COURT OF THE UNITED STATES - A CENTENARY REFLECTION." Denning Law Journal 16, no. 1 (November 23, 2012): 45–78. http://dx.doi.org/10.5750/dlj.v16i1.300.
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In October 2003 in Melbourne, the High Court of Australia celebrated the centenary of its first sitting. According to the Australian Constitution, it is the “Federal Supreme Court” of the Australian Commonwealth.1 Although the Constitution envisaged the establishment of the High Court, the first sitting of the new court did not take place until a statute had provided for the court and the appointment of its first Justices. They took their seats in a ceremony held in the Banco Court in the Supreme Court of Victoria on 6 October 1903. Exactly a century later, the present Justices assembled in the same courtroom for a sitting to mark the first century of the Court.
4
Stevens, Tracey, and George Williams. "A Supreme Court for the United Kingdom? A view from the High Court of Australia." Legal Studies 24, no. 1-2 (March 2004): 188–209. http://dx.doi.org/10.1111/j.1748-121x.2004.tb00247.x.
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The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.
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Kee, Christopher, and Stephen Barrett-White. "Enforcement of Arbitral Awards where the Seat of the Arbitration is Australia — How the Eisenwerk Decision Might Still be a Sleeping Assassin." Journal of International Arbitration 24, Issue 5 (October 1, 2007): 515–28. http://dx.doi.org/10.54648/joia2007038.
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This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.
6
Stephan, Paul B. "U.S. Supreme Court: Morrison v. Australia Nat’l Bank Ltd." International Legal Materials 49, no. 5 (October 2010): 1217–37. http://dx.doi.org/10.5305/intelegamate.49.5.1217.
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Jenks, Chris. "The United States Supreme Court: Graham v. Florida & the Federal Court of Australia: Habib v. Australia." International Legal Materials 49, no. 4 (August 2010): 1029–96. http://dx.doi.org/10.5305/intelegamate.49.4.1029.
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Beswick, Samuel. "Strike-out Appeals, Unjust Enrichment, and Discoverability: Insights from Kenya." Common Law World Review 51, no. 1-2 (May 18, 2022): 12–23. http://dx.doi.org/10.1177/14737795211070838.
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This note analyses a judgment of the Kenyan Court of Appeal that implicates issues that have been on the move in private law jurisprudence around the common law world. These issues are: (1) the interlocutory/final ruling distinction that appellate courts in Australia, Canada, Ghana, India, New Zealand, and elsewhere continue to grapple with; (2) when courts can reframe pleadings for breach of contract as claims in unjust enrichment, an issue recently considered by the Privy Council (2020); (3) the essentiality of ‘mistake’ for the purposes of benefitting from an extended limitation period – the subject of continued contention among unjust enrichment scholars; and (4) when mistakes are reasonably discoverable for limitation purposes, which has been the subject of major litigation before the United Kingdom Supreme Court (2020) and the Supreme Court of Canada (2021). The resolution of these issues in Alba Petroleum Ltd v Total Marketing Kenya Ltd could have been usefully informed by – and can inform – comparative common law jurisprudence.
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Raphael, David K. L. "Comparing the institutional constructive trust with the remedial constructive trust." Trusts & Trustees 25, no. 9 (November 1, 2019): 919–38. http://dx.doi.org/10.1093/tandt/ttz091.
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Abstract The concept of the Institutional Constructive Trust was first recognised in Australia in 1907 by the most senior court, i.e. the High Court of Australia, in Black v S Friedman & Co. This arose in a decision involving stolen funds. Its importance was addressed in the State of Victoria in Nolan v Nolan where what was in issue involved the Limitations Act of the State of Victoria. It must be appreciated that in the Commonwealth of Australia, State Acts can, and sometimes do, differ. In 1985, in Muschinski v Dodds, Deane J of the Australian High Court placed different emphasis on the court’s ability to recognise and construe such a trust and gave it the imprimatur of “Remedial Constructive Trust”. The latter, whilst adopted in New Zealand and Canada, has had what might fairly be described as its critics in the UK and, indeed the UK Supreme Court in FHR European Venture LLP v Cedar Capital Partners LLC has stated at [47] that the remedial constructive trust is not part of the law of the UK.
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Kaal, Wulf A. "Extraterritorial Application of US Securities Law: Will the US Become the Default Jurisdiction for European Securities Litigation?" European Company Law 7, Issue 3 (June 1, 2010): 90–97. http://dx.doi.org/10.54648/eucl2010019.
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Pending case law by the US Supreme Court (Morrisson v. National Australia Bank) and draft legislation in Congress threaten to expand the jurisdiction of US courts to cases where foreign, i.e. non US, plaintiffs sue foreign defendants over securities purchased in foreign securities markets. This article describes the many aspects of this threat, in particular for European investors, brokers, banks and ... lawyers.
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Geuther, Thomas. "Search for Principle - The Government's Liability in Negligence for the Careless Exercise of its Statutory Powers." Victoria University of Wellington Law Review 31, no. 3 (October 2, 2000): 629. http://dx.doi.org/10.26686/vuwlr.v31i3.5945.
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For many years the English courts have struggled to develop a principled approach for determining when a public authority can owe a duty of care in respect of the exercise of its statutory powers. Initially, public authorities received no special treatment. Then the courts conferred an almost complete immunity on them, requiring public law irrationality to be established before considering whether a duty could arise. The English approach has not been adopted elsewhere in the Commonwealth. The High Court of Australia and the Supreme Court of Canada have developed different tests, and the New Zealand courts, while never explicitly rejecting the English position, have never followed it. This paper argues that a modified version of the Canadian Supreme Court's approach should be adopted in New Zealand. It proposes that irrationality be a precondition to the existence of a duty of care only where policy considerations are proved to have influenced the decisions of a public authority in exercising its statutory powers.
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Krebs, Beatrice. "ACCESSORY LIABILITY: PERSISTING IN ERROR." Cambridge Law Journal 76, no. 01 (March 2017): 7–11. http://dx.doi.org/10.1017/s0008197317000150.
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IN Miller v The Queen [2016] HCA 30, the High Court of Australia (HCA) declined to follow the Privy Council and UK Supreme Court (UKSC) in abolishing the doctrine of extended joint criminal enterprise, as PAL is known in South Australia. Under the Australian doctrine, liability for murder is imposed where an individual “is a party to an agreement to commit a crime and foresees that death or really serious bodily injury might be occasioned by a co-venturer acting with murderous intention and he or she, with that awareness, continues to participate in the agreed criminal enterprise” (at [1]). This reflects the very position that was abandoned in Jogee [2016] UKSC 8; [2016] 2 W.L.R. 681 Ruddock v The Queen UKPC 7 as a “wrong turn” of the English common law.
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Perry Jr, H. W., and Patrick Keyzer. "Human Rights Issues in Constitutional Courts: Why Amici Curiae are Important in the U.S., and What Australia Can Learn from the U.S. Experience." Law in Context. A Socio-legal Journal 37, no. 1 (November 30, 2020): 66–98. http://dx.doi.org/10.26826/law-in-context.v37i1.127.
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Unlike thirty years ago, human rights issues are now routinely raised in Australian constitutional cases. In this article, the authors examine the role of the amicus curiae in the United States Supreme Court and consider how far and to what extent the amicus curiae device has been accepted in decisions of the High Court of Australia. The authors analyse the High Court’s treatment of applications for admissions as amici curiae, noting the divergent approaches taken by Chief Justice Brennan and Justice Kirby, and drawing attention to the practical difficulties faced by applicants who seek admission to make oral submissions. Human rights cases raise questions of minority rights that should not be adjudicated without input from those minorities. The authors recommend that Australia adopt the U.S. approach, to admit written submissions as a matter of course, and to allow applicants to make oral submissions when they have a serious and arguable point to make. This approach is consistent with the Court’s significant role of establishing legal policy norms for the entire nation, including for the identity groups that increasingly occupy the Court’s attention. The focus here is on Australia, but the argument for the role of amici is more general and might well apply to high courts elsewhere.
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Dean, Rebecca. "Erosion of Access to Abortion in the United States: Lessons for Australia." Deakin Law Review 12, no. 1 (January 1, 2007): 123. http://dx.doi.org/10.21153/dlr2007vol12no1art169.
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<p>Since the legalisation of abortion in the United States (US) in 1973, access to abortion has been restricted and under attack from multiple fronts. From a pro-choice perspective, this article analyses the way women’s access to abortion has been eroded in the US. This article considers: Roe v Wade and chronicles the subsequent cases decided by the US Supreme Court which have gradually dismantled its holding; the various US state and federal legislative restrictions on abortion and their impact on access to abortion; the new composition of the US Supreme Court and the consequences for women’s access to legal abortion; and a brief overview of abortion in Australia. Awareness of anti-choice tactics used to restrict access to abortion in the US may prevent a similar erosion of abortion rights in Australia.</p>
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Mummé, Claire. "Bhasin v. Hrynew: A New Era for Good Faith in Canadian Employment Law, or Just Tinkering at the Margins?" International Journal of Comparative Labour Law and Industrial Relations 32, Issue 1 (March 1, 2016): 117–29. http://dx.doi.org/10.54648/ijcl2016007.
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In Commonwealth Bank of Australia v. Barker the High Court of Australia refused to impose an implied duty of mutual trust and confidence into the employment contract, reasoning that doing so would take the Court beyond its legitimate authority. Issued two months later, the Supreme Court of Canada went in a different direction. In Bhasin v. Hrynew, the Court crafted a new substantive doctrine of honest contractual performance, based on a newly-recognized central organizing principle of good faith in contract law. A few months later the Court applied the organizing principle of good faith to circumscribe the exercise of an employer’s discretion in Potter v. New Brunswick Legal Aid Services Commission. This article offers an assessment of the potential impact of Bhasin and Potter on the future direction of Canadian employment law.
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Rissy, Yafet Yosafet W. "DOKTRIN PIERCING THE CORPORATE VEIL: KETENTUAN DAN PENERAPANNYA DI INGGRIS, AUSTRALIA DAN INDONESIA." Refleksi Hukum: Jurnal Ilmu Hukum 4, no. 1 (October 31, 2019): 1–20. http://dx.doi.org/10.24246/jrh.2019.v4.i1.p1-20.
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This article discusses about provisions and application of the Piercing The Corporate Veil (PVC) doctrine in the United Kingdom, Australia and Indonesia. The main issue is when and how the courts apply the PVC doctrine, also whether the doctrine can be applied outside the courts or not. In some states such as the United Kingdom and Australia which exercise common law tradition, the courts may apply the PVC doctrine on share holders and directors when there is an exceptional circumstance which requires to apply the doctrine. Similar to both states, Indonesia, through the Indonesian Supreme Court, has already applied the doctrine long before the law on Limited Liability Company was enacted. In 1998, a unique legal case about the Liquidity Aid of Bank Indonesia shows a phenomenon that was beyond the normal understanding of the Law. In that time, the Indonesian Bank Restructuring Agency applied an out-of-court settlement model to hold shareholders' liability. Finally, this article recommends that a legal and economic study should be considered to examine the effectiveness of this approach.
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Muir, Dana, Junhai Liu, and Haiyan Xu. "The Future of Securities Class Actions against Foreign Companies: China and Comity Concerns." University of Michigan Journal of Law Reform, no. 46.4 (2013): 1315. http://dx.doi.org/10.36646/mjlr.46.4.securities.
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In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors entered into the relevant securities transactions.
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Khali, Vahibaya. "COMPARATIVE ANALYSIS OF JUDICIAL APPOINTMENTS WITH REFERENCE TO USA, AUSTRALIA AND INDIA." International Journal of Advanced Research 10, no. 10 (October 31, 2022): 1128–34. http://dx.doi.org/10.21474/ijar01/15588.
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Appointment of judges in India in higher judiciary have been an issue since independence where even constituent assembly while drafting the constitution was in dilemma as to what method should be adopted to appoint a judge in the Supreme court and High Court. Ultimately, the power to appoint judges was given to executive to keep a check on higher judiciary to prevent nepotism and increase accountability and transparency. But this trend was reversed in 2nd judges case in 1993 when collegium system was formed by Supreme Court and President became bound to accept the recommendation of collegium system in the appointment of judges. Even SC struck down National Judicial Appointment Commission Act, 2014 (NJAC) to uphold judicial independence. In this paper author will study the judicial appointment process of 3 countries i.e., USA, Australia and India and will try to analyze the trend followed in India for appointment process by looking into the landmark cases and NJAC Act which was struck down in 2015 by SC and lastly giving recommendations to improve the appointment process to uphold transparency and accountability which is considered as sine-qua-none for good governance.
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Ferguson, Christopher J. "Violent Video Games, Mass Shootings, and the Supreme Court." New Criminal Law Review 17, no. 4 (2014): 553–86. http://dx.doi.org/10.1525/nclr.2014.17.4.553.
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The issue of video game violence continues to attract attention from the legal and policy communities, particularly in the wake of mass shootings. However, focusing on video game violence has generally not resulted in successful legal or public policy. In part this is because the science upon which beliefs of “harm” in video game violence are based remains inconsistent and heavily disputed. The current article examines several issues. First, the article examines the current evidence about video game violence influences on negative outcomes in players. Second, the article concerns itself with the application of video game science to several recent legal cases, involving both criminal prosecutions and attempted regulation/censorship of video game violence in the United States. Finally, the manuscript addresses several common talking points used in legal cases and by policy makers and examines whether these talking statements survive careful scientific scrutiny. It is advised that, consistent with the legal decisions and government reviews in the United States, Sweden, Australia, and elsewhere, current evidence does not support the regulation of violent video games, and legal or policy attempts to connect video game violence to specific crimes are unlikely to survive careful scrutiny.
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Cranmer, Frank. "How Relevant to the United Kingdom are the ‘Religious’ Cases of the US Supreme Court?" Ecclesiastical Law Journal 18, no. 3 (August 8, 2016): 300–315. http://dx.doi.org/10.1017/s0956618x16000533.
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High-profile cases in the Supreme Court of the United States (‘SCOTUS’) on religion tend to attract a certain amount of academic comment in the United Kingdom but US judgments are cited only infrequently by the superior courts in the UK. In return, SCOTUS rarely cites foreign judgments at all. The reason, it is suggested, is that the effect given by the First Amendment to the US Constitution is to render US case law of less relevance to the UK than, for example, judgments from jurisdictions such as Canada and Australia.
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Gover, Kirsty. "The Potential Impact of Indigenous Rights on the International Law of Nationality." AJIL Unbound 115 (2021): 135–39. http://dx.doi.org/10.1017/aju.2021.8.
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International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.
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de Clerck, Wouter J. L., Jeffrey D. Rotenberg, and Jean-Pierre Douglas-Henry. "International Class Actions: Will the Centre of Gravity Shift from the US towards Europe?" European Company Law 9, Issue 3 (June 1, 2012): 174–79. http://dx.doi.org/10.54648/eucl2012027.
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On 17 January 2012 the Appeals Court in Amsterdam, the Netherlands concluded class settlement proceedings in the Converium securities litigation. In its decision the court made explicit reference to the 2010 United States (U.S.) Supreme Court judgment in Morrison v. National Australia Bank. It is interesting to consider these decisions - which have sparked debate in their respective jurisdictions - from a trans-Atlantic perspective more specifically. The decisions in the Converium case confirm the Netherlands as the pre-eminent European centre for the settlement of international collective claims outside of the U.S.
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Flanagan, Brian, and Sinéad Ahern. "JUDICIAL DECISION-MAKING AND TRANSNATIONAL LAW: A SURVEY OF COMMON LAW SUPREME COURT JUDGES." International and Comparative Law Quarterly 60, no. 1 (January 2011): 1–28. http://dx.doi.org/10.1017/s0020589310000655.
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AbstractThis is a survey study of 43 judges from the British House of Lords, the Caribbean Court of Justice, the High Court of Australia, the Constitutional Court of South Africa, and the Supreme Courts of Ireland, India, Israel, Canada, New Zealand and the United States on the use of foreign law in constitutional rights cases. We find that the conception of apex judges citing foreign law as a source of persuasive authority (associated with Anne-Marie Slaughter, Vicki Jackson and Chris McCrudden) is of limited application. Citational opportunism and the aspiration to membership of an emerging international ‘guild’ appear to be equally important strands in judicial attitudes towards foreign law. We argue that their presence is at odds with Ronald Dworkin's theory of legal objectivity, and is revealed in a manner meeting his own methodological standard for attitudinal research.Wordsworth's words, written about the French Revolution, will, I hope, still ring true: Bliss was it in that dawn to be alive. But to be young was very heaven.– Justice Stephen Breyer's assessment of ‘the global legal enterprise now upon us’ before the American Society of International Law (2003)
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Palmer, Jessica. "Implications of the New Rule Against Penalties." Victoria University of Wellington Law Review 47, no. 2 (September 1, 2016): 305. http://dx.doi.org/10.26686/vuwlr.v47i2.4803.
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Whether a contractual term is penal and therefore unenforceable has usually been determined by distinguishing it from stipulations that are a reasonable contemplation of loss resulting from breach. This article considers recent decisions of the High Court of Australia and the United Kingdom Supreme Court that have made significant revisions of the rule. Both Courts have diverged from the traditional formulation and, to some extent, from each other. I argue that the traditional rule against penalties reflects foundational principles of contract law and not merely notions of fairness or justice in the round. The recent revisions to the rule have implications for the role and boundaries of contract law more generally and reflect increasing attention being paid to the "performance interest".
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Martin, Stevie. "Friends of the Earth: ‘Government Policy’, Relevant Considerations and Human Rights." Journal of Environmental Law 33, no. 2 (March 1, 2021): 449–54. http://dx.doi.org/10.1093/jel/eqab012.
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Abstract Litigation involving climate change is on the increase both domestically and internationally and the Supreme Court's judgment in Friends of the Earth Ltd joins that list. While it was not as directly concerned with the implications of climate change as, perhaps, recent case law from the Netherlands or Australia, the case has significant implications including in terms of future litigation involving human rights challenges based on climate change. Three aspects of the judgment in particular warrant consideration. First, the legitimacy of the Court's purposive interpretation of the meaning of ‘Government policy’. Second, the Supreme Court left unanswered the question of whether the Paris Agreement was so ‘obviously material’ to the exercise of the relevant discretion that a failure to have regard to it would be Wednesbury unreasonable. Finally, the Supreme Court rejected the claim that designating the Airports National Policy Statement would interfere with any rights contained in the European Convention of Human Rights. This case analysis examines each of these aspects of the judgment.
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Loken, Keith. "In the Matter of Kl (A Child) (U.K. Sup. Ct.) & X v. Latvia (Eur. CT. H.R.)." International Legal Materials 53, no. 2 (April 2014): 350–96. http://dx.doi.org/10.5305/intelegamate.53.2.0350.
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On December 4, 2013, the Supreme Court of the United Kingdom ruled in In the Matter of KL that a child brought to the UK pursuant to a U.S. district court order–subsequently overturned by a U.S. court of appeals–in a proceeding under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) must be returned to the United States. One week earlier, in a 9-8 decision issued on November 26, 2013, the Grand Chamber of the European Court of Human Rights (ECHR), upholding the judgment of the ECHR Chamber below, ruled in X v. Latvia that the actions of the Latvian courts, ordering Ms. X to return her daughter E. to Australia under the Hague Convention, constituted an infringement of Ms. X’s rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Human Rights Convention). These cases provide an interesting contrast in approaches to the international abduction of children.
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Nagy, Victoria Maria, and Georgina Rychner. "Longitudinal Analysis of Australian Filicide Perpetration Trends: Filicide in Victoria, 1860–1920." International Journal for Crime, Justice and Social Democracy 10, no. 2 (June 1, 2021): 50–66. http://dx.doi.org/10.5204/ijcjsd.1642.
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The historical examination of filicide in Australia is limited and often focuses on case studies of maternal filicides. Longitudinal trends of Australian filicide offending have focused almost exclusively on the late twentieth and early twenty-first centuries. Our study aims to fill a gap in Australian criminological knowledge about filicide. Utilising prison and Supreme Court records from 1860 and 1920, we plot the extent of filicide offending by men and women in Victoria to create a more comprehensive picture of filicide perpetration. This study also tests whether identified motives and risk factors for filicide today can be applied to historical data, to make these data accessible to criminologists studying filicide in the twenty-first century.
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Bunting, Kristin. "Estoppel by Convention and Pre-Contractual Understandings: The Position and Practical Consequences." Victoria University of Wellington Law Review 42, no. 3 (October 3, 2011): 511. http://dx.doi.org/10.26686/vuwlr.v42i3.5120.
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Recently, the House of Lords held in Chartbrook Ltd v Persimmon Homes Ltd that an understanding or common assumption reached by contracting parties in the course of their pre-contractual negotiations, including "an assumption that certain words will bear a certain meaning" can provide the basis for an estoppel by convention claim. This was reaffirmed by the New Zealand Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltd. Both the House of Lords and the Supreme Court assumed that this was well established. Given that the issue was unsettled in England and with two divergent lines of authority in Australia, the House of Lords and Supreme Court should not have assumed this. In light of this development in the law, it is also argued that where the evidence proves that the parties established an understanding as to the meaning of a term in a proposed contract, then surely that is the meaning of that term, as a matter of interpretation. In addition, allowing consideration of pre-contractual negotiations to prove an estoppel by convention has undermined the rule that pre-contractual negotiations are inadmissible as an aid to interpretation of a contract.
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Keyzer, Patrick. "Freedom of speech issues in Peach v Toohey and a hypothetical variant of that case." Pacific Journalism Review : Te Koakoa 10, no. 1 (April 1, 2004): 139–52. http://dx.doi.org/10.24135/pjr.v10i1.784.
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The purpose of this article is to consider the tensions within Australian free speech jurisprudence based on a hypothetical variant of the facts of the decision of the Supreme Court of the Northen Territory in Peach v Toohey. In particular, this article briefly explores the competing legal interests that operate when journalists seek access to restricted areas, in this case aborginal land, in the course of an investigation. After considering the case and the issues it raises the author develops a hypothetical that draws out some of the deeper tensions in this area of the law. The article concludes with proposals for new apporoaches to the test developed by the High Court of Australia in Lange v Australian Broadcasting Corporation for the balancing of freedom to discuss political and governmental affairs—including the public right to know — against other legitimate objectives such as the maintence of property rights and the privacy interests that can be associated with propety rights.
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Buxbaum, Hannah L. "National Courts, Global Cartels: F. Hoffman-LaRoche Ltd. v. Empagran, S.A. (U.S. Supreme Court 2004)." German Law Journal 5, no. 9 (September 1, 2004): 1095–106. http://dx.doi.org/10.1017/s2071832200013109.
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In its most recent term, the United States Supreme Court heard a case arising out of the activities of a price-fixing cartel in the vitamins market. The defendants were a number of major international pharmaceuticals companies, including F. Hoffman-LaRoche, Rhone-Poulenc, Daiichi Pharmaceutical, and BASF, that had fixed prices for bulk vitamins and vitamin pre-mixes in markets around the world. The cartel, which has been described as “probably the most economically damaging cartel ever prosecuted under U.S. antitrust law,” is estimated to have affected over $5 billion of commerce worldwide. Previous proceedings against the participants in the cartel, initiated in Australia, Canada and the European Union as well as in the United States, included administrative investigations and criminal prosecutions of individual executives. In these various proceedings, the cartel participants were found to have violated antitrust laws in the United States and elsewhere, and were subjected to heavy – indeed, record – fines in many countries. By all accounts, the countries engaged in investigating and then prosecuting the cartel participants did so in full cooperation with each other. In particular, they made use of the mutual assistance and information sharing agreements that have become an important component of coordinated international antitrust enforcement.
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Ryan, Desmond. "FROM OPPORTUNITY TO OCCASION: VICARIOUS LIABILITY IN THE HIGH COURT OF AUSTRALIA." Cambridge Law Journal 76, no. 01 (March 2017): 14–18. http://dx.doi.org/10.1017/s0008197317000174.
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IN Prince Alfred College Incorporated v ADC [2016] HCA 37, the High Court of Australia (HCA) has once again considered the appropriate test for establishing vicarious liability of employers for the wrongful acts of their employees. The decision will be of interest to tort lawyers in the common-law world for at least four reasons. First, the Court looked afresh at the test for vicarious liability in the context of intentional wrongdoing and has accordingly clarified the confusion arising from its earlier decision in New South Wales v Lepore [2003] HCA 4; (2003) 212 C.L.R. 511. Secondly, the Court expressed very strong disagreement with the decision of the UK Supreme Court handed down just months earlier in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11; [2016] A.C. 677. The Court apparently regarded Mohamud as having in effect abandoned the Lister qualification that mere opportunity was not enough to satisfy the close connection test (Lister v Hesley Hall Ltd. [2001] UKHL 22; [2002] 1 A.C. 215). Thirdly, the Court appears to have interpreted the relevant English authorities as espousing a Caparo-like criterion of fairness and justice as a separate stage of the close connection test (Caparo Industries plc v Dickman [1990] 2 A.C. 605). That interpretation is questionable. Finally, the Court has articulated a new test in Australian law for vicarious liability reasoning based on whether the employment provided the “occasion” for the wrongdoing to be committed. This prompts a reflection on the difference between “occasion” and “opportunity”, and how this new test is to be applied in practice.
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Flaherty, Kate. "Cathcart vs Brooke: a Touring Actress and a Trial of Public Private Identity in the Australian Colonies." New Theatre Quarterly 33, no. 1 (January 10, 2017): 47–58. http://dx.doi.org/10.1017/s0266464x16000622.
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In this article Kate Flaherty examines the sensational contractual dispute that arose between Gustavus Vaughan Brooke and Mary Fanny Cathcart during their Australian colonial tour in 1855. She follows Brooke's attempt to use his theatrical repertoire to achieve and consolidate a legal victory over Cathcart, but argues that this strategy ultimately backfired and elicited a form of judgement by the theatregoing public that countered the judgement handed down by the Supreme Court. Conversely, coverage of the case in Australian newspapers is identified as shaping reviews and sharpening the edge of the stage dramas. The article provides a focused instance of the complex interplay of dramatic works, cultural politics, gendered power, and publicity that characterized nineteenth-century theatrical touring. Kate Flaherty is a lecturer in English and Drama at the Australian National University, a member of the International Shakespeare Conference, and a Senior Fellow of the Higher Education Academy. She is author of Ours as We Play It: Australia Plays Shakespeare (University of Western Australia Press, 2011), as well as numerous essays on how Shakespeare's works play on the stage of public culture.
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Bartholomew, Terry. "Legal and clinical enactment of thedoli incapaxdefence in the supreme court of Victoria, Australia." Psychiatry, Psychology and Law 5, no. 1 (April 1998): 95–105. http://dx.doi.org/10.1080/13218719809524923.
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Kwok, David. "Pro-enforcement Bias by Hong Kong Courts: The Use of Indemnity Costs." Journal of International Arbitration 32, Issue 6 (December 1, 2015): 677–88. http://dx.doi.org/10.54648/joia2015031.
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This article discusses the approach taken by Hong Kong courts to award indemnity costs against applicants who were unsuccessful in resisting enforcement of New York Convention awards. Under general principles, an indemnity costs order is penal in nature and is usually awarded in exceptional circumstances. In the case of A v. R, the High Court of Hong Kong held that the unsuccessful application to resist enforcement of an award warranted the indemnity costs order. This approach was justified on the basis of Hong Kong’s Civil Justice Reform (CJR) and its implications, and was given endorsement by Hong Kong’s Court of Appeal in a subsequent decision. Meanwhile, the Court of Appeal of the Supreme Court of Victoria, Australia, had considered, but rejected, the Hong Kong approach of awarding indemnity costs. This article questions whether applications in respect of Convention awards belong to a special class, compared to other civil applications to court, so that an indemnity costs order against the unsuccessful applicant should be the norm. It is argued that whilst the awarding of indemnity costs in such circumstances is controversial, it can nonetheless be justified based on the court’s ‘pro-enforcement’ bias in relation to Convention awards.
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Smith, Malcolm K., and Tracey Carver. "Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?" Journal of Medical Ethics 44, no. 6 (March 23, 2018): 384–88. http://dx.doi.org/10.1136/medethics-2017-104273.
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The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more patient-centred approach. In doing so, it reinforces the protection afforded to informed consent and autonomous patient decision making under the law of negligence. However, some commentators have expressed a concern that the widening of the healthcare providers’ duty of disclosure may provide impetus, in future cases, for courts to adopt a more rigorous approach to the application of causation principles. The aim would be to limit liability but, in turn, it would also limit autonomy protection. Such a restrictive approach has recently been adopted in Australia as a result of the High Court decision in Wallace v Kam. This paper considers whether such an approach is likely under English negligence law and discusses case law from both jurisdictions in order to provide a point of comparison from which to scope the post-Montgomery future.
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Hayne, K. M. "The High Court of Australia and the Supreme Court of the United Kingdom: The Continued Evolution of Legal Relationships." Cambridge Journal of International and Comparative Law 1, no. 2 (2012): 13–19. http://dx.doi.org/10.7574/cjicl.01.02.34.
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Rogers, Owen. "‘I beg to differ’: Are our courts too agreeable?" South African Law Journal 139, no. 2 (2022): 300–339. http://dx.doi.org/10.47348/salj/v139/i2a4.
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If dissenting judgments perform a valuable function in the administration of justice, too little dissent may indicate that the administration of justice is not reaping the benefits of dissent. South Africa belongs to the common-law tradition, which has always allowed dissenting judgments. The civil-law system traditionally did not, and this is still the position in many countries. In the modern era, considerations of transparency and accountability favour the disclosure and publication of dissenting judgments. Although they can play a role in the development of the law, their most valuable function is to improve the quality of judicial output by requiring majority judgments to confront the dissenting judgments’ reasoning. Factors which may affect the extent of dissent in appellate courts include case complexity and control over rolls; panel sizes; judicial diversity, personality and turnover; court leadership; research resources; modes of judicial interaction; and protocols on the timeliness of judgments. Data on dissent in South Africa’s Constitutional Court, Supreme Court of Appeal and Labour Appeal Court, as well as in the United Kingdom, Australia, Canada and the United States, suggest that there is less dissent in our intermediate appellate courts than might be expected. Changes in work procedures could yield a healthier pattern.
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Conaglen, Matthew D. J. "FIDUCIARY LIABILITY AND CONTRIBUTION TO LOSS." Cambridge Law Journal 60, no. 3 (November 21, 2001): 441–92. http://dx.doi.org/10.1017/s0008197301341193.
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Having made a successful takeover bid for Western United, Kia Ora found that it had paid $25.7m in cash and issued 67.9m $1 shares in return for Western United shares worth only $6.4m. Kia Ora successfully sued several former directors. The High Court of Australia’s decision in Pilmer v. Duke Group Ltd. (in liq.) (2001) 180 A.L.R. 249 concerns aspects of the liability of Kia Ora’s accountants, Nelson Wheeler, for providing a report stating that the price proposed for the Western United shares was fair and reasonable. The report was prepared incompetently and Nelson Wheeler were held liable by the Full Court of the Supreme Court of South Australia for breach of contract, negligence and breach of fiduciary duty. The High Court allowed an appeal by Nelson Wheeler.
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Grigg, Edward. "Joint Enterprise Liability: Recent Developments and Judicial Responses." Journal of Criminal Law 83, no. 2 (January 13, 2019): 128–35. http://dx.doi.org/10.1177/0022018318819150.
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This article reconsiders the decision in R v Jogee [2016] UKSC 8 and the merits of joint enterprise liability. The article is structured in three sections. First, it outlines the background to the appeal in Jogee and argues that the Supreme Court’s decision is welcome on both normative and jurisprudential grounds. Second, it considers subsequent academic criticism and the approaches taken by the High Court of Australia and Hong Kong Court of Final Appeal. Third, it responds to these differing perspectives and suggests that Jogee has left the law in a more satisfactory state, but that accessorial liability as a whole remains in need of further clarification.
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Stychin, Carl F. "Dangerous liaisons: new developments in the law of defective premises." Legal Studies 16, no. 3 (November 1996): 387–416. http://dx.doi.org/10.1111/j.1748-121x.1996.tb00536.x.
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In 1995, the highest courts in two Commonwealth jurisdictions - Canada and Australia - squarely faced the issue of the liability of builders of defective and, in the case of the Canadian Supreme Court, dangerous premises in tort.’ The determination in both cases that the builders were liable to the remote purchasers for the cost of repair, based on a duty of care owed to them, can be contrasted to the current state of tort law in this country dealing with defective and dangerous premises. In fact, the articulation of the reasons why a duty of care was imposed in these cases - as reflecting considerations both of principle and policy - provides a more compelling analysis than has been seen to date in the British law of negligence.
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Foster, Neil. "The Bathurst Diocese Decision in Australia and its Implications for the Civil Liability of Churches." Ecclesiastical Law Journal 19, no. 01 (December 20, 2016): 14–34. http://dx.doi.org/10.1017/s0956618x1600106x.
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In the New South Wales Supreme Court decision of Anglican Development Fund Diocese of Bathurst v Palmer in December 2015, a single judge of the court held that a large amount of money which had been lent to institutions in the Anglican Diocese of Bathurst, and guaranteed by a letter of comfort issued by the then bishop of the diocese, had to be repaid by the bishop-in-council, including (should it be necessary) levying the necessary funds from the parishes. The lengthy judgment contains a number of interesting comments on the legal personality of church entities and may have long-term implications (and not merely in Australia) for unincorporated, mainstream denominations and their contractual and tortious liability to meet orders for payment of damages. The article discusses the decision and some of those implications.
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PAGE, Stephen. "Practical Tips with Posthumous Use." Fertility & Reproduction 04, no. 03n04 (September 2022): 116. http://dx.doi.org/10.1142/s2661318222740280.
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Background: Posthumous use remains a controversial topic. Far too often, posthumous sperm retrieval occurs following the making of urgent Supreme Court orders-when both case law and statute say that such urgent orders are neither necessary or are legally dubious. The surviving parent then is often told to commence court proceedings in order to be able to either use or export the gamete-when often the best approach is not to go to court, but instead demonstrate to the clinics concerned that there has been full compliance with the law and the Ethical Guidelines’ requirements as to posthumous use. In recent years there have been many cases concerning posthumous use, most of which point the way to making the process easier-either in that State or by cross-border reproduction. Aim: To demystify law and practice about posthumous use. Method: To set out the law concerning posthumous use in each Australian State and Territory (both statute and case law) in the accompanying paper, set out practical tips for practitioners about what to look for, and to provide flowcharts for each State and Territory about what needs to be covered in any posthumous case. Results: Too often widows are told to spend considerable sums in unnecessary court cases. Court cases are usually not required in order to lawfully undertake posthumous use. A leading case about posthumous use from Queensland, for example, omitted in all its numerous citations a significant High Court of Australia case about gametes. A significant Western Australian case about who is a donor may also have implications in other States. Conclusion: As per the method.
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Berson, Josh. "The Dialectal Tribe and the Doctrine of Continuity." Comparative Studies in Society and History 56, no. 2 (April 2014): 381–418. http://dx.doi.org/10.1017/s0010417514000085.
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AbstractIn Australia, applicants for native title—legal recognition of proprietary interest in land devolving from traditions predating colonization—must meet a stringent standard of continuity of social identity since before the advent of Crown sovereignty. As courts and the legislature have gravitated toward an increasingly strict application of the continuity doctrine, anthropologists involved in land claims cases have found themselves rehearsing an old debate in Australian anthropology over the degree to which post-contact patterns of subsistence, movement, and ritual enactment can support inferences about life in precontact Australia. In the 1960s, at the dawn of the land claims era, a handful of anthropologists shifted the debate to an ecological plane. Characterizing Australia on the cusp of colonization as a late Holocene climax human ecosystem, they argued that certain recently observed patterns in the distribution of marks of social cohesion (mutual intelligibility of language, systems of classificatory kinship) could not represent the outcome of such a climax ecosystem and must indicate disintegration of Aboriginal social structures since contact. Foremost among them was Joseph Birdsell, for whom linguistic boundaries, under climax conditions, would self-evidently be congruent with boundaries in breeding pools. Birdsell's intervention came just as the Northern Territory Supreme Court was hearing evidence on the value of dialect as a marker of membership in corporate landholding groups in Yolngu country, and offers an object lesson in how language, race, mode of subsistence, and law come together in efforts to answer the questions “Who was here first?” and “Are those people still here?”
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Russell AM RFD QC, David. "2018 WA Lee Equity Lecture:." QUT Law Review 18, no. 2 (March 1, 2019): 137. http://dx.doi.org/10.5204/qutlr.v18i2.764.
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May I commence by acknowledging the honour done to me by asking me to give this, the nineteenth WA Lee lecture. I studied Equity, in part, under Professor Lee and he was a prominent member of the teaching community at my University College.
At that time, and later, I came to appreciate the extent to which his reputation was established, not just in Australia, but throughout the common law world. Perhaps the most telling of a number of indications, once publications such as the masterful Ford & Lee are put to one side, is the fact that when Donovan Waters QC, former Oxford don, STEP Honorary Member and one of the negotiators of the Hague Trust Convention,[1] visited Australia as a guest of STEP, the one Australian he specifically asked us to arrange for him to meet was Tony Lee.
So to give this lecture before an audience including Tony Lee, fills me with not a little trepidation. He – and no doubt many others of you – will be immediately aware of any errors or imperfections. It is small consolation that, on this occasion at least, he will not be marking the paper.
In choosing the topic for the paper, I had in mind a paper given by the Hon Dyson Heydon, AC QC, to the first STEP Australia Conference.[2] Mr Heydon QC observed that:
This paper is an edited version of a paper presented at the 2018 WA Lee Equity Lecture delivered on 21 November 2018 at the Banco Court, Supreme Court of Queensland, Brisbane.
* AM RFD QC; BA (UQ), LLB (UQ), LLM (UQ).
[1] Adopted by Australia and implemented in the Trusts (Hague Convention) Act 1991 (Cth).
[2] JD Heydon, ‘Modern Fiduciary Liability: the Sick Man of Equity’ (2014) 20 Trusts & Trustees 1006.
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Mendelson, Danuta, and Timothy Stoltzfus Jost. "A Comparative Study of the Law of Palliative Care and End-of-Life Treatment." Journal of Law, Medicine & Ethics 31, no. 1 (2003): 130–43. http://dx.doi.org/10.1111/j.1748-720x.2003.tb00063.x.
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Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also specifically addressed legal issues raised by palliative care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area.This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan.
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Morgut, Milosz. "Extraterritorial Application of U.S. Securities Law." European Business Law Review 23, Issue 4 (July 1, 2012): 547–63. http://dx.doi.org/10.54648/eulr2012030.
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The globalization of securities industry resulted in many corporations deciding to cross-list on numerous exchanges and investors commonly trading on foreign markets. The multitude of overlapping regulatory regimes poses difficult questions not only for legal theorists but most importantly for the investors who seek remedies after suffering multibillion losses as a result of being deceived. The paper discusses the U.S. Supreme Court decision in Morrison v. National Australia Bank which dramatically changed the way in which the US securities regulation applies to foreign claims. The analysis looks at the judgments of lower courts in order to establish the real scope of the decision. Bearing in mind the new landscape in international securities litigation, the available courses of action which can be still taken by injured investors are presented. Finally, the paper evaluates the overall decision and its effect, suggesting certain legislative changes.
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Catanzariti, Joseph, and Simon Brown. "Major Tribunal Decisions in 2007." Journal of Industrial Relations 50, no. 3 (June 2008): 429–46. http://dx.doi.org/10.1177/0022185608089998.
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Despite relatively low levels of industrial disputation in 2007, the AIRC delivered some significant decisions in relation to the `genuine operational reasons' exclusion to the unfair dismissal jurisdiction, and secret ballots for protected industrial action. However, arguably the most significant decisions in 2007 came from the Supreme Court of New South Wales and the Federal Court of Australia. These decisions illustrate that the common law contract of employment provides (increasingly) robust protections to employees from workplace injustices. This article examines recent developments in relation to the implied duties of good faith and of mutual trust and confidence. It also considers the prevalence of workplace policies in modern workplace relations and the circumstances in which workplace polices might give rise to enforceable contractual obligations and common law remedies for breach.
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Aitken, Lee. "Loan funds and the trustee's profit." Legal Studies 13, no. 3 (November 1993): 371–80. http://dx.doi.org/10.1111/j.1748-121x.1993.tb00492.x.
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A trustee or fiduciary may mix trust money with his own, purchase property, and make a profit upon its sale when the property subsequently increases in value. Frequently, however, the trustee will use the misapplied money in order to raise further funds by way of a loan with which he then purchases the property. In the first case, equity’s conventional approach is to apportion the increase in value rateably between the funds from the trust and the trustee’s own contribution so that the trust obtains that proportion of the profit derived which the misapplied funds bear to the purchase price. This result flows from the decision of Hudson J in the Supreme Court of victoria in Scott v Scott from which no cross-appeal was taken to the High Court of Australia.
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Buxbaum, Hannah L. "The Scope and Limitations of the Presumption against Extraterritoriality." AJIL Unbound 110 (2016): 62–67. http://dx.doi.org/10.1017/s2398772300002415.
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In RJR Nabisco v. European Community, the Supreme Court addressed the extraterritorial application of U.S. law for the third time in six years—in this case examining the geographic scope of the Racketeer Influenced and Corrupt Organizations Act (RICO). The decision consolidates and in certain respects expands upon the test for analyzing extraterritoriality issues that the Court had introduced in Morrison v. National Australia Bank and refined in Kiobel v. Royal Dutch Petroleum. It also provides further evidence of the Court’s continuing quest to identify categorical, territory-based rules governing the application of U.S. statutes in cases involving significant foreign elements. As I will argue, however, like other recent decisions, RJR raises doubt as to the sufficiency of such rules to address the messy and often unpredictable patterns of transnational economic activity.
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Cooper-Boast, Amy, and Brooke Hall-Carney. "Lloyd v. Google LLC, and How Australia Is Tackling Privacy and Data Breach Litigation." Global Privacy Law Review 3, Issue 3 (September 1, 2022): 195–99. http://dx.doi.org/10.54648/gplr2022020.
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The much-anticipated judgment of the UK Supreme Court in Lloyd v. Google LLC [2021] UKSC 50; [2021] 3 WLR 1268 was handed down in November 2021. The decision challenges the notion that one’s data and its loss of control has an inherent value which is actionable in its own right. It is welcomed by Big Tech, other organizations that control data, and their insurers. The decision is a key case in the broader landscape of accountability of technology companies and is indicative of the disparity in data protection and privacy rights across different jurisdictions. This case note examines the key points arising from the case, and the comparable landscape for privacy and data breach litigation in Australia. Lloyd v. Google, Google, Privacy, Data Breach, Data Protection, Litigation, Australia, United Kingdom, Class Action