by Damien Cremean

Litigants in person are a growing phenomenon across all jurisdictions, at all levels, and in all sorts of cases. It is hard to know how this has come about. Litigants have always been able to present their own cases but them doing so has become far more frequent. The costs of legal representation have definitely contributed to this – which is unfortunate, if so. But governments and the appalling levels of legal aid funding surely are the main culprits.

Attitudes to litigants in person have also changed over the years – and it is possible this could be a contributing factor. The more the courts assist people who are running their own cases, the more that people will be encouraged to do so. Amongst other things, this will inevitably lead to delays in the completion of proceedings. It will also lead to the courts looking biased – helping the side without the lawyer but providing no assistance whatever to the legally represented side. And that will make people feel they are disadvantaged by having a lawyer represent them.

It is doubtful if a court would say this these days:

It is a pity that the appellant is not versed in the law. It is a pity that no-one helped him present his case at trial. But that is not a basis for allowing a party to make a new case on appeal with the benefit of the experience of the trial” (see Riboni v Tropeano [2007] VSCA 99 at [10]).

More likely these days the court will be saying:

A trial judge should take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure at the Court as is reasonably practicable for the purposes of ensuring a fair trial” (see Ekermani v Harbour Radio Pty Ltd [2013] NSWCA 54 at [13].

However, a comment of Applegarth J in Mbuzi v Hall [2010] QSC 359 at [27] is worth quoting in this regard:

A court is entitled to extend some latitude to a self-represented litigant who is not familiar with the forms and procedure, providing in doing so injustice and prejudice is not occasioned to other parties, and also provided the court is able to achieve a just and expeditious resolution of the real issues of the proceeding at a minimum of expense.

Litigants in person can make it extremely difficult for the judge who is hearing a case – as may be seen from the opening remarks in the judgment of Sir Alan Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234 at [1]:

This judgment will make depressing reading. It concerns a dispute between two intelligent and not unsuccessful businessmen who, after years of successful collaboration, have fallen out with each other and this and other litigation has ensued with a vengeance. Being without or having run out of funds to pay for legal representation, they have become resolute litigators and they litigated in person. Some unlucky judge had to cope with the problems that inevitably arise in the management of a case like this. Here the short straw was drawn by His Honour Judge Anthony Thornton QC. He struggled manfully, patiently, politely, carefully and conscientiously. Many may not have done so. It is, therefore, hugely unfortunate that the appeal is launched essentially on the ground that the judge allowed himself to become distracted and so wrongly conducted the trial on the written information he had without allowing the defendants to call live evidence. The appeal is based upon the alleged procedural impropriety.

What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person…

Sir Alan went on to say (at [2]) that two particular issues were highlighted by that case:

1.  how far judges should have to micro-manage cases, “coaxing and cajoling the parties to focus on the issues that need to be resolved”; and
2.  how far it may be possible “to shift intransigent parties off the trial track onto the parallel track of mediation”.

The conduct of civil litigation in Australia is vitally affected in every way by the growing phenomenon of litigants in person. The legal profession must bear some responsibility for this – but so must governments, particularly in the meagre sums they allow for legal aid funding. They (normally Treasury officials doing economic modelling) think they are saving money by not spending money but, in reality, they are burdening an already over-burdened legal system. Imagine the uproar there would be if it was decided to cut health funding so that more and more people become “self-administered patients”. It is not fair on judges that they should have to spend time schooling people on how to run their cases. Not only is that wasteful but it gives an appearance of bias. And that strikes at the heart of our system of justice.

Governments, and the private legal profession, need to take the issue of self-represented litigants seriously. This is a problem that will not go away. It is irritating in the extreme to know that government funds probably exist to fix the problem almost overnight.

* The full citation for this comment is: (2013) 2 JCivLP 3 at 7.

Domenico Cucinotta is a Law Graduate in the Sydney office of King & Wood Mallesons where he works in Construction and Engineering Law. At King & Wood Mallesons, Domenico has also worked in Mergers & Acquisitions in Sydney and International Arbitration in Hong Kong. Before joining King & Wood Mallesons, Domenico was a law clerk at Clifford Chance, Sydney and research assistant to Professor Chester Brown at Sydney Law School. Domenico’s interests are in international business law, public law, international commercial arbitration and dispute resolution.

Domenico graduated from the University of Sydney with a Bachelor of Arts and Bachelor of Laws (Honours Class I) and completed a semester of study on exchange at Bucerius Law School, Hamburg, Germany. While studying, Domenico was a student editor of the Sydney Law Review and represented the University of Sydney in a number of national and international mooting competitions and was a Quarter-Finalist at the Willem C Vis International Commercial Arbitration Moot in Vienna, Austria in 2011. Domenico speaks Italian, French, German and Spanish.

We are delighted to have Domenico join the editorial team and are confident subscribers will benefit greatly from his Case Notes.

The Criminal Law Journal was first published in 1977. It features in-depth articles and reviews of criminal issues across all Australian jurisdictions. Consideration is given to law reform issues, comments on High Court and State criminal cases, relevant legislation, a digest of recent criminal cases, book reviews and reports of developments in criminal law in Australia and overseas.

The meeting was an opportunity to exchange ideas on the future of the Journal, and on the state of criminal justice and procedure around Australia generally.

The meeting was chaired by the Hon Michael Kirby AC CMG, Chairman of the Editorial Board and included a report from General Editors Stephen Odgers SC and Professor Mirko Bagaric.

Other board members in attendance included Robert Bromwich, CDPP; Matthew Goode, A Crim R Editor; and Grant Niemann, International Editor. Joining us by teleconference were Justice Mark Weinberg, Vic Ct of Appeal and Kate Warner, Sentencing Editor.

With so many notable legal minds in the room it is hardly surprising that lively discussion was sparked at the meeting and carried on to the dinner which followed!

It is exciting to note that submissions to the Journal have been increasing over the past year, with a particular increase in articles dealing with Sentencing issues.

The Board also discussed the topics covered by the Journal since the last Board meeting, and the breakdown of contributors (with a healthy number of practitioners submitting articles).

From the meeting and from general customer feedback, it is clear that the journal is widely valued and is continuing to meet customer needs. We extend our thanks to the entire Editorial Board for all their efforts, particularly those of the General Editors Stephen Odgers SC and Professor Mirko Bagaric.

We welcome submissions to the Criminal Law Journal from practitioners, academics and Criminal Law specialists. For more information visit Journals Talk or email lta.crimlj@thomsonreuters.com.

The latest issue of the Australian Tax Review (Volume 42 Part 2) contains the following material:

EDITORIAL

• Testing times for tax advisers

Articles

Tax, the way ahead – Chris Jordan

This article, originally presented by the Commissioner at the Tax Institute’s Annual Convention in March 2013, broadly outlines the future themes for the Australian Taxation Office and plans for possible improvements for Australia’s tax system in general.

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Income tax issues for impaired debt – Joshua Cardwell and Angela Danieletto

The article considers the Australian income tax issues that may arise for both borrowers and lenders when a debt becomes impaired or is deemed bad. The article considers the outcomes for different types of debt and some strategies for dealing with debt compromises, recapitalisations and variations. The issues considered include implications arising in respect of the commercial debt forgiveness provisions, tax losses, tax consolidation and TOFA.

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Lawyers and accountants as “gatekeepers” to combat money laundering – an international comparison – Maria Italia

This article examines the measures recommended by the Financial Action Task Force (FATF) to bring professional “gatekeepers”, including lawyers and accountants, into the battle against money laundering. The article describes the measures taken in a number of jurisdictions, contrasting those that generally have complied with the FATF requirements with those that have been less compliant. Money laundering and tax avoidance are often closely linked and revenue authorities have been known to work with criminal investigators. To this end, the article looks at the effect of an obligation upon professional advisors to report suspicions about their clients’ transactions to government authorities, which might threaten the important element of loyalty and trust essential to the lawyer-client, or accountant-client, relationship.

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For the pdf version of the table of contents, click here: LOLA – AT Rev Vol 42 Pt 2 Contents or here: WAU – AT Rev Vol 42 Pt 2 Contents.

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The latest issue of the Australian Law Journal (Volume 87 Part 4) contains the following material:

Articles

Stemming the flood: Procedural and ethical issues arising from potential flood litigation – Jennifer Corrin and Francesca Bartlett

Potential legal action arising from the 2011 Queensland floods raises three interesting issues of procedure and ethics. First, there is the question of the type of group action to be taken, which will depend on the jurisdiction in which the proceedings are commenced. The distinction between class actions (which are not available in Queensland) and representative actions, raises some interesting questions. Secondly, the threatened action involves com- mercial funding of litigation; and thirdly, is the related issue of advertising for potential claimants by the funders and solicitors. This article examines these issues and some of the surrounding questions.

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The arbitrability of oppression and winding-up actions – Alistair Marchesi and Kanaga Dharmananda SC

International commercial arbitration depends upon the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Any arbitration rests upon the existence of an arbitration agreement, dealing with a matter that is capable of being resolved by arbitration. However the New York Convention, and the Model Law do not define, with specificity, the type of matters which are “capable of settlement by arbitration”. This article considers whether certain statutory provisions of corporations legislation are able to be arbitrated in view of recent case law. We conclude that there are few bars to such matters falling within arbitral jurisdiction, although the power of arbitrators to make certain awards is ultimately limited.

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Oppression in the context of corporate trustees – Michael May

Parties going into business together often use corporate trustee structures, which provide incidental asset protection and taxation benefits. However, an unintended consequence of such structures may be to deprive the parties of access to remedies under the Corporations Act 2001 (Cth) for oppression. This article seeks to reconcile the conflicting authorities on the application of oppression provisions to corporate trustees. It argues that there is limited scope for the kinds of oppressive conduct recognised by the Corporations Act to arise in the context of a corporate trustee.

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Things gained through unjust fraud are never secure: Fairclough Homes v Summers – Mark Smyth

In Fairclough Homes Ltd v Summers [2012] 1 WLR 2004, the United Kingdom Supreme Court unanimously held that “the court does have jurisdiction to strike out a statement of case under CPR r 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum” (at [33]). The Supreme Court concluded that a court should only exercise this discretion for cases involving fraud in “very exceptional circumstances” where it was “just and proportionate” and declined to do so on the facts of the case (at [61]-[63]). Nevertheless, the finding raises key conceptual tensions in the court’s strike out powers and has implications for the conduct of litigation in English and Australian courts.

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Sections

CURRENT ISSUES – Editor: Acting Justice Peter W Young AO

• Injured persons’ rights
• No fault liability
• Duty of the state to prosecute crime
• Cost of litigation
• Policy on “peer review”

CONVEYANCING AND PROPERTY – Editor: Peter Butt

• Torrens title issues
• Registrar’s power to cancel notations
• When is an interest “recorded” in the torrens title register?
• Caveats without reasonable cause
• Notice of foreclosure sufficiently “served”

OVERSEAS LAW – Editor: Colin Picker

• Houseboat or floating home or what? Certiorari process in US Supreme Court

ADMIRALTY AND MARITIME – Editor: Dr Damien J Cremean

• Colonial Courts of Admiralty

RECENT CASES – Editor: Acting Justice Peter W Young AO

• Powers of attorney: Informal termination
• Restitution: Mistaken payment by bank – Scope of defence of change of position
• Solicitors: Negligence – Premature payment of loan funds
• Courts and judges: Disqualification – Magistrate married to prominent solicitor
• Easements for drainage: What is covered? – What use can be made of extrinsic evidence to construe grant?
• Tort: Escape of fire – Rylands v Fletcher
• Wills: Statutory will – Requirements
• Trusts: Derivative claim by beneficiary
• Expert evidence: Specialised knowledge and the role of independence
• Consumer law: Misleading or deceptive conduct and the publishers’ defence

For the pdf version of the table of contents, click here: LOLA – ALJ Vol 87 Pt 4 Contents or here: WAU – ALJ Vol 87 Pt 4 Contents.

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Journal of Banking and Finance Law and Practice

The June issue will be jam-packed with interesting and informative articles and sections covering recent case law, legislation and theory both in Australia and abroad.

Articles to be included:

• “What is an “absolute” assignment? Further reflections on charges, “tacking” and marshalling” by Lee Aitkin
• “The New Zealand Supreme Court speaks on bankers’ mandates and dishonest assistance” by Michael Lenihan
• “Twinsectra versus Elizebethan Theatre: Comments on the Nature of the Quistclose Trust” by Andrew Pingree

Sections to be included:

• Banking Law and Banking Practice – “Silent confirmation of credits” by Alan L Tyree
• Commercial and Finance Law – “Arbitrating financial ‘star wars’” by Bryan Pape
• Financial Markets – “Disclaimers – ally or neutral bystander?” by Paul O’Brien
• New Zealand – “Does cyprus provide lessons for new zealand’s open bank resolution, and do we need to broaden the discussion?” by Gene Turner and Simon Jensen
• and more!

Online Currents

The June issue will include the usual RoundUp columns (such as Company News, Around the Blogs and Web Watch) as well as the following articles for the online information industry:

• “The Digital Rights Management minefield”
  An article by Denise Sutherland finding that DRM – a method used by digital content providers to reduce piracy of their content – is more of a hindrance than a help. DRM is problematic and can impinge on customer’s rights to fair use of content.
  
• “Election 2013: Managing the information flow” 
  An article by Jane Douglas providing a selection of material, from the credible to the less authoritative, on where to go for background information amidst the news and spin on the federal election.
  
• “Android apps” 
  An article by Jon Jermey discussing the development of apps for android devices, finding that apps exemplify the modern trend towards provision of software as a service rather than a product.
  
• “Booked out: Online events bookings services” 
  An article by Michelle McLean looking at online booking services by way of a case study of one library’s experience.
  

Public Law Review

The June issue will include a mix of articles, comments and recent developments that provide critical analyses of public law and statutory interpretation. The contents will include:

• “Anomalous occurrences in unusual circumstances? Extrajudicial activity by High Court justices: 1903 to 1945″
  An article by Fiona Wheeler challenging the conventional wisdom that justices of the High Court of Australia have generally refrained from extrajudicial work. As an example, Fiona discusses the extrajudicial service, now largely forgotten, by members of the High Court in its formative years.
  
• “The Royal Commission into Institutional Responses to Child Sexual Abuse: Safely in Judicial Hands?” 
  A comment by Gabrielle Appleby and Matthew Stubbs on whether the appointment of serving judges of State and Commonwealth courts to the Royal Commission are constitutionally valid.
  
• “Constitutional wrongs in Singapore: A comment on Tan Eng Hong v Attorney-General”
  A comment by Shubhankar Dam discussing a recent Singapore case in which the question arose as to whether the applicant had standing to challenge a provision of law that materially affected him, but had not been prosecuted under.
  
• “The Papua New Guinea “two Prime Ministers’ saga”: Parliament testing the supremacy of the Constitution”
  A comment by Vergil Narokobi discussing the events that led to Michael Somare being replaced by Peter O’Neil as Prime Minister. At the centre of these events is the question whether political expediency and perceived democratic legitimacy has trumped the rule of law and supremacy of the PNG Constitution.

Criminal Law Journal

Articles coming up in the June issue include:

• “A Committal Waste of Time? Reforming Victoria’s Pre-Trial Process: Lessons from other Jurisdictions” by Asher Flynn.  This article considers court inefficiency, and the shift towards the implementation of law reforms that seek to speed up the delivery of justice ­– especially the modification, amendment and abolition of the pre-trial committal hearing. It examines whether any proposed changes will increase the effectiveness of the committal hearing by enhancing court efficiency levels, or whether reform can provide better protections to the most vulnerable accused who come before the law by redressing the perceived exclusivity of the Victorian committal hearing.
• “Obtaining the best evidence from children and witnesses with cognitive impairments – ‘Plus ça change’ … or prospects new?” by Terese Henning. This article  looks as the problem of comprehension and communication when obtaining evidence from children, and considers various measures to improve the experience.  The measures in question are the use of advance directives to control cross-examination, the video recording of these witnesses’ entire testimony in the absence of the jury and the use of intermediaries/interpreters to aid their communication with the court. The implications of these measures for the right to a fair trial are briefly considered.
• “Case and comment: The Queen v Khazaal [2012] HCA 26 and federal anti-terrorism offences” by Miriam Gani. As the first High Court decision involving the substantive offence provisions of the Commonwealth Criminal Code, The Queen v Khazaal is an important addition to the jurisprudence on anti-terrorism law in Australia.

 Building and Construction Law Journal

This month’s issue of BCL will include:

• “Proportionate Liability in Arbitrations in Australia: Some Resolution of Uncertainties” by David Levin QC.  A follow up to the author’s article in mid-2009 (2009) 25 BCL 298, where he explored the somewhat vexed issue as to the applicability in commercial arbitrations in Australia of the various statutory provisions enacting proportionate liability in the various Australian States and Territories .
• “Breaches of natural justice in alternative dispute resolution of construction disputes” by Jeremy Coggins. Arbitration, expert determination and statutory adjudication are three of the most commonly used forms of alternative dispute resolution (ADR) used in the construction industry. For a quasi-judicial ADR process to be effective, it needs to provide an appropriate balance between procedural fairness and the need for finality of outcome. This is not necessarily the case where the parties have agreed to allow a third party to determine their dispute in a more informal procedural manner. This article considers the extent to which the Court requires the rules of natural justice to be applied in arbitration, expert determination and statutory adjudication.
• “Penalties percolating through the construction industry: Andrews v Australia and New Zealand Banking Group Ltd” by Patrick Easton. This article was the winner of the 2013 Student Brooking Prize, presented by the Society of Construction Law. It deals with the Andrews litigation in the High Court dealing with whether or not a breach of contract is an essential element to relief against penalties.

 Australian Journal of Competition and Consumer Law

This issue of AJCCL is crammed with interesting pieces written by a host of practitioners and academics, which have been carefully sourced by our General Editor, Dr Ron Desiatnik.  Sections included in the June part are: Access to Services, Defective Goods, Report from Africa and Report from India. We are also glad to see the return of “Economic(s) Matters” and “Commission Cameos”, providing insightful updates.  The two articles in this issue are:

• “Australian Competition Law still trips over barriers to entry” by Paulina Fishman. This article discusses the concept of barriers to entry is an important consideration in many Australian competition decisions. Merely technical and divisive in economics, this borrowed concept is especially muddled in the competition law context. There is an incontrovertible need for it to be explained, delineated and clarified. To that end, this article expounds the nature, effect, and theoretical foundations of barriers to entry; scrutinises particular examples of entry barriers (both structural and strategic); and broaches a number of related concepts.
• “Proposals for an ACCC makeover” by Frank Zumbo. Has the Australian Competition and Consumer Commission (ACCC) become too big and unwieldy as a single agency? Is there any merit in breaking up the ACCC into specialist, stand-alone bodies? While it is certainly good practice to regularly review Australian’s competition and consumer laws, it is also good practice to regularly review the operation of the ACCC and to assess whether its resources are being used most effectively. Ultimately, no government agency should be above independent scrutiny and the ACCC is no exception.

To stay in touch and be notified when these journal issues have been published, click on the “keep updated via email” box on the right.

Justice Croft practised extensively in property and commercial law and was an arbitrator and mediator in property, construction and commercial disputes, domestically and internationally. He was an Institute of Arbitrators and Mediators (IAMA) Grade 1 Arbitrator (the highest grading), a member of the IAMA Australian and international panel of commercial arbitrators, a member of the Australian Centre for International Commercial Arbitration (ACICA), the Singapore International Arbitration Centre (SIAC) and the Asia Pacific Regional Arbitration Group (APRAG) panels of international arbitrators; and  represented APRAG at the United Nations Commission on International Trade Law (UNCITRAL) International Arbitration Working Group Sessions from 2005 until 2010. Justice Croft was a member of the Hague Conference on Private International Law Working Group on Choice of Law in International Contracts.

Justice Croft is also a Life Fellow of IAMA, a Life Fellow of ACICA, a Judicial Fellow of AMINZ and a Fellow of the Chartered Institute of Arbitrators. He was a member of the London Court of International Arbitration (LCIA). He was the IAMA National President (1997 – 2000) and was an IAMA National Councillor and IAMA Vice-President until his appointment. Justice Croft was the Treasurer, a Director and a Fellow of ACICA. He was an accredited mediator under the Australian National Mediator Accreditation System (and a Victorian Bar and IAMA Accredited Mediator) and a Sessional Member, Victorian Civil and Administrative Tribunal. He is the author, or co-author, of leading texts in the international arbitration, property, equity, leasing, securities and commercial law fields and of numerous articles and conference papers on commercial arbitration (domestic and international) and property and commercial law subjects. Justice Croft is an Adjunct Professor of Law, Deakin University, Melbourne. He was appointed Senior Counsel in 2000 and holds the degrees of B Ec, LLB and LLM from Monash University, Melbourne, and PhD from the University of Cambridge.

Justice Croft is the judge in charge of List C (General Commercial) and also of the Arbitration List in the Commercial Court of the Supreme Court of Victoria.

The Hon. Justice Clyde Croft’s expertise on the law of Victoria will be of great benefit to readers of The Australian Law Journal and we take great pleasure in welcoming him to the team.

The latest issue of the Australasian Dispute Resolution Journal (Volume 24 Part 2) contains the following material:

CASE NOTES

• United Kingdom: Enforcing dispute resolution clauses; costs orders against a successful party unwilling to mediate?; Mediation media watch – Christmas present for family law lawyers – David Spencer

Articles

Farm debt mediation 18 years on – Geoff Charlton

This article provides a potted history of the Farm Debt Mediation Act 1994 (NSW) based on the author’s involvement from the outset. The process involved, statistics from its administration by the Rural Assistance Authority, and the shift in mediated outcomes over time are discussed. The recent High Court decision in Waller v Hargraves Secured Investments is discussed in terms of its practical limitation on future mediated outcomes under the Act. Finally, a call for the amendment of the Act to restore its stated object of efficient and equitable resolution of farm debt disputes.

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Towards a history of mediation in New Zealand’s legal system – Grant Morris

The history of mediation in New Zealand reflects a number of influences and developments. While prototypes of mediation can be found in New Zealand’s early industrial relations, the modern mediation movement is primarily a result of state-led reform in a variety of legal areas. Much of this reform has been influenced by overseas models emphasising New Zealand’s role as a “fast-follower” of alternative dispute resolution trends rather than an initiator. The rise of mediation in New Zealand has been ad hoc and pragmatic with a distinct lack of systematic development. This pragmatic change was a response to pressures such as the cost and delay involved in litigation, and major social trends challenging traditional ways, including traditional approaches to resolving disputes. Mediation continues to play a vital role in the New Zealand legal system but the exponential growth of the 1980s and 1990s has slowed as mediation begins to clearly locate and confirm its “territory” in the New Zealand legal system.

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Resolving federal age discrimination complaints: Where have all the complainants gone? – Therese MacDermott

This article examines the available data on federal age discrimination complaints over the past five years and critiques the case law for this jurisdiction. It explores why very few federal age discrimination complaints proceed beyond the alternative dispute resolution phase, and why none of those that have been litigated in the federal judicial arena have been successful. This article assesses whether the proposals in the Human Rights and Anti-discrimination Bill 2012 (Cth) are likely to change this and what reforms are necessary to enhance the prospects of just, efficient, timely and cost-effective resolution of federal age discrimination complaints.

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Protect, respect and remedy: The multiple roles for mediators in the United Nations business and human rights framework – Christopher Halburd

The United Nations Guiding Principles on Business and Human Rights represent a significant opportunity for mediators and other dispute resolution professionals to explore new areas of work, research and teaching. The relationships between corporations, in particular multi-national corporations, and the societies in which they operate are coming under increasing scrutiny and pressure. It is an area that is ripe for the increased involvement of the dispute resolution community but before that can happen this community needs to be aware of the opportunities that now exist as well as the global framework in which they operate. This article is directed at raising that awareness by explaining the global business and human rights framework and suggesting areas for further involvement of the dispute resolution community.

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Making the invisible visible in family dispute resolution: The elephant in the room – Mieke Brandon and Tom Stodulka

In this article, the authors first describe their experiences with common external challenges in the mediation room, in particular unexpected issues related to absent parties, or facing “the elephant” in the room. Secondly, they address the particular challenges practitioners face when external pressures invisibly infiltrate the discussions and how to manage these by making them visible so that, when safe and appropriate, more transparency assists the outcomes. Thirdly, using a case study, some principles and practices are considered as ways to assist in ongoing development in managing what lies beneath the surface.

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For the pdf version of the table of contents, click here: LOLA – ADRJ Vol 24 Pt 2 Contents or here: WAU – ADRJ Vol 24 Pt 2 Contents.

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The latest issue of The Tort Law Review (Volume 21 Part 1) contains the following material:

Articles

The relationship between the host state and non-citizens through the lens of the duty of care – Sasha Baglay

This article explores the theoretical and practical implications of recent Canadian jurisprudence on immigration-related torts, with particular emphasis on judicial analysis of the duty of care in cases of alleged negligence in immigration processing. Although tort claims in immigration context have not enjoyed much success, this article argues that: (1) tort law could usefully complement existing remedies in immigration context by offering a new avenue to promote accountability of government officials and to provide recourse to non-citizens who have suffered harm as a result of negligent actions; and (2) insight from tort theory (specifically Desmond Manderson’s writings on the duty of care as ethical responsibility) can offer a new way of thinking about the relationship between non-citizens and host states.

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Deconstructing directness in Canada: A critical evaluation of the role of directness in the tort of battery – Alexandra Mogyoros

Battery is a promising cause of action for toxic tort plaintiffs. Nevertheless, there remains substantial controversy as to whether battery can only be applied in the case of direct interferences. Building on the principles of corrective justice, this article undertakes a critical exploration of the directness element in the tort of battery. The analysis begins by considering how the directness ought to be treated where the battery committed occurred via an environmental vector, such as wind or water. Then, using a series of thought experiments, the article ultimately argues that Canadian law should abolish the distinction between direct and indirect acts in battery in response to pragmatic and doctrinal considerations.

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A realistic route to vicarious immunity: Third parties, exclusion clauses and voluntary assumption of risk – Jai Singh

The ability of exclusion clauses to confer defences on third parties has long vexed the common law. This article argues that the tort defence of voluntary assumption of risk provides a simple and credible solution to the problem. An assumption of risk can be evidenced by a clause agreed between the plaintiff and another party or a clause agreed between the defendant and another party. The ordinary rules of voluntary assumption of risk must be satisfied: the plaintiff must have freely consented to the clause and the clause must, in its ordinary meaning, protect the defendant. This analysis can apply to clauses that negate the defendant’s duty of care and also to those that exclude or limit the defendant’s liability. In neither situation does the doctrine of privity of contract apply, because the clause is merely being used as evidence of the voluntary assumption of risk.

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For the pdf version of the table of contents, click here: LOLA – Tort L Rev Vol 21 Pt 1 Contents or here: WAU – Tort L Rev Vol 21 Pt 1 Contents.

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The latest issue of the Australian GST Journal (Volume 13 Part 1) contains the following material:

EDITORIAL

CASE NOTE

• Cyonara Snowfox – Unusual arguments about ordinary transactions

Articles

GST on judgments and out of court settlements: Is GSTR 2001/4 still relevant? – Christopher Sievers

Questions frequently arise regarding the GST implications of court orders and settlement agreements. Often there is no easy answer, but most will include a reference to the Commissioner’s public ruling GSTR 2001/4. Twelve years have passed since the ruling was published and it is time to assess the continued relevance of the principles outlined in the ruling. A review of the cases shows that the principles stand up reasonably well in the context of court judgments. However, in light of the recent decision of the High Court in Commissioner of Taxation v Qantas Airways Ltd (2012) 86 ALJR 1243; 83 ATR 1; 291 ALR 653 and the way the Commissioner chose to argue his appeal, the goal posts may have shifted significantly in the context of out-of-court settlements entered into to resolve claims for damages.

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Taxation of “the margin” – a different paradigm? – Michael Evans

Australia’s GST law follows the international value-added tax model, commonly described as “credit invoice” or “credit offset”. Under this model, for each tax period, a trader offsets credits for input tax on acquisitions against liabilities for GST on taxable supplies so that the net amount payable as GST is calculated as a proportion of the value added by the trader for the period. However, there are a number of circumstances where the credit invoice model does not achieve the objective of a uniform and neutral collection of GST on household consumption expenditure. Jessup J in the recent Sportsbet decision referred to the approach used under the credit invoice approach as paradigmatic and contrasted it with other mechanisms in the GST law that were unique to the particular transactions involved. This article explores four exceptions to the paradigmatic approach, evident in the treatment of used property and some risk intermediation services. The credit invoice value-added approach is ill-suited to these categories of transactions. However, the reasons for departing from the paradigm have not been well explained in the extrinsic material accompanying the legislation and the cases that have come before the courts. This article examines the four legislative mechanisms adopted to address the deficiencies in the credit invoice approach for used property and risk intermediation services and the similarities and differences of each mechanism. It seeks to explain the legislative policy of these special cases in the context of the broader policy of the uniform and neutral taxation of household consumption expenditure.

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