March 2012 Highlights

Subtitle 7.1 Formation Westlaw AU / Legal Online

Updated by Professor JLR Davis, Emeritus Professor of Law, Australian National University

This update covers with the law applicable to formation of contracts and deals with changes in this area of the law as a result of the Australian Consumer Law, especially in relation to misleading and deceptive conduct. The Subtitle also includes numerous recent case authorities of notable importance, including: Olivaylle Pty Ltd v Flotweg AG [No 4] (2009) 255 ALR 632; [2009] FCA 522 and Edwards v Securities and Investments Commission (2009) 235 FLR 207; 264 ALR 723; 76 ACSR 369; [2009] NSWCA 424.

Subtitle 7.8 Discharge Westlaw AU / Legal Online

Updated by Melissa Di Rienzo, Legal Editor, The Laws of Australia

This Subtitle explores the circumstances under which it is possible for a contracting party to be discharged from its contractual obligations even though the contract is still executory.

Subtitle 9.1 The Criminal Laws Westlaw AU / Legal Online

Updated by Professor Mirko Bagaric, School of Law, Deakin University

The update to this Subtitle explores the precepts from which the criminal laws proceed. Examination is made of: the concept of criminality and the extent to which courts or legislatures can prescribe behaviours as offences, the constitutional limitations in which Australian criminal laws operate, the classification of offences and the procedural consequences of certain classifications, territorial and extraterritorial jurisdiction, trial court jurisdiction, the interpretation of criminal legislation and Criminal Codes, elements of criminal liability and the principle of double jeopardy. Relevant case law and legislation is discussed, including several recent cases and enactments such as: CTM v The Queen (2008) 236 CLR 440; 82 ALJR 978; 185 A Crim R 188; 247 ALR 1; [2008] HCA; South Australia v Totani (2010) 242 CLR 1; 85 ALJR 19; 201 A Crim R 11; 271 ALR 662; [2010] HCA 39; Wainohu v New South Wales (2011) 243 CLR 181; 85 ALJR 746; 278 ALR 1; [2011] HCA 24; and legislative changes to abolish the absolute nature of double jeopardy in several jurisdictions.

Subtitle 16.3 Proof in Criminal Cases Westlaw AU / Legal Online

Updated by Professor Mirko Bagaric, School of Law, Deakin University and Stephen J Odgers SC, Part-time Senior Lecturer, Faculty of Law, University of Sydney

This update addresses the changes to the area of evidentiary proof in criminal cases as a result of the Uniform Evidence Acts in the Commonwealth, New South Wales, the Northern Territory, Tasmania and Victoria. The Subtitle deals separately with the non-uniform jurisdictions (Queensland, South Australia and Western Australia). It also includes important recent decisions in evidence law such as Dyers v The Queen (2002) 210 CLR 285; 76 ALJR 1552; 192 ALR 181; [2002] HCA 45; Azzopardi v The Queen (2001) 205 CLR 50; 119 A Crim R 8; 75 ALJR 931; 179 ALR 349 and MWJ v The Queen (2005) 80 ALJR 329; 22 ALR 436; [2005] HCA 74.

Subtitle 16.4 Testimony Westlaw AU / Legal Online

Updated by Professor Mirko Bagaric, School of Law, Deakin University and Stephen J Odgers SC, Part-time Senior Lecturer, Faculty of Law, University of Sydney

This update details the legislative amendments to the reception of relevant human testimony as evidence that followed the adoption of the Uniform Evidence Acts by Commonwealth, New South Wales, Tasmanian and Victorian courts. Included in the update is commentary detailing the commencement of the Evidence Act 2011 (ACT) (1 March 2012) and the Evidence (National Uniform Legislation) Act 2011 (NT) (anticipated 31 March 2012). Notable decisions covered in this update include: Dasreef Pty Ltd v Hawchar (2011) 85 ALJR 694; 9 DDCR 25; 288 ALR 611; [2011] HCA 21, as to the admissibility of expert opinion evidence; and the recent High Court case of Lithgow City Council v Jackson (2011) 85 ALJR 1130; 281 ALR 223; [2011] HCA 36, which discusses the application of s 78 of the Uniform Evidence Acts. It further discusses the insertion of s 66(2A) to the Acts in response to Graham v The Queen (1998) 195 CLR 606; 72 ALJR 1491; 102 A Crim R 438; 157 ALR 404 and its application in the judgment of Whealy J in R v XY [2010] NSWCCA 181, as an exception to the hearsay prohibition.

Subtitle 28.5 Future Interests in Land Westlaw AU / Legal Online

Updated by Meng Yen Phua, Legal Editor, The Laws of Australia

This Subtitle examines the nature of estates and interests in land conferring a future interest, including coverage of vested and contingent interests and reversionary and remainder interests. This discussion details in depth the statutory modifications to the common law affecting such interests in Australia. This update includes revision of the current legislative provisions in each relevant jurisdiction and related commentary.

Subtitle 35.9 Unconscionable Dealing Westlaw AU / Legal Online

Updated by The Hon KE Lindgren AM, QC, former Judge of the Federal Court of Australia

This Subtitle has been updated to bring its contents into line with the commencement in 2011 of the unconscionable conduct provisions of the Australian Consumer Law, which have replaced the analogous provisions of the Trade Practices Act 1974 (Cth), now known as the Competition and Consumer Act 2010 (Cth). On 1 January 2012, s 22 of the Australian Consumer Law was ‘unified’ in s 21, with the result that unconscionable conduct in respect of consumers and in respect of small businesses is no longer dealt with under separate provisions. This legislative change has been factored into this Subtitle update.

April 2012 planned updates

(please note that Subtitles are subject to change):

• 5 Civil Procedure 5.3 “Discovery and Interrogatories” Chs 1-6
• 10 Criminal Law Principles 10.1 “Homicide”
• 16 Evidence 16.7 “Privilege and Public Interest Immunity”
• 21 Human Rights 21.8 “Families and Education”
• 21 Human Rights 21.10 “Equality and the Rule of Law”
• 31 Revenue Law 31.17 “Goods and Services Tax”
• 34 Transport 34.4 “Admiralty”