August 2012 Highlights

Subtitle 7.4 Terms Westlaw AU / Legal Online

Updated by Elle Curran, Legal Editor, The Laws of Australia

This update references consequential legislative changes as a result of the new Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) as it impacts contractual terms and consumer transactions, as well as the National Credit Code under the National Consumer Credit Protection Act 2009 (Cth).

This Subtitle is also published as part of the timely forthcoming release of the Second Edition of Contract: General Principles – The Laws of Australia, available as a softcover book in 2012.

Subtitle 7.6 Breach Westlaw AU / Legal Online

Updated by Dr Paul Vout, Member of the Victorian Bar

This Subtitle examines the rights, requirements and consequences that arise when a party does not, or cannot, perform their obligations under the contract. It focuses on the construction of terms and circumstances giving rise to a right termination of contract for breach (as well as requirements for exercising a right to terminate), which in turn raises the issue of the availability of remedies. This discussion deals with the interaction of general contract law with statutory regimes under the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) and the National Consumer Credit Protection Act 2009 (Cth).

This update provides expanded commentary on the implications of landmark decisions such as Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; 82 ALJR 345; [2007] HCA 61; Sopov v Kane Constructions Pty Ltd (2007) 20 VR 127; [2007] VSCA 257; Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570; 83 ALJR 196; [2008] HCA 57; Visscher v Giudice (2009) 239 CLR 361; 83 ALJR 1068; [2009] HCA 34.

This Subtitle is also published as part of the timely forthcoming release of the Second Edition of Contract: General Principles – The Laws of Australia, available as a softcover book in 2012.

Subtitle 7.9 Remedies Westlaw AU / Legal Online

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

There are a considerable variety of remedies for a breach of contract, the most common of which is the payment of damages. This update discusses the doctrine of penalties in Australia as examined in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292; [2008] NSWCA 310, Diakos v Mason [2010] SASCFC 37, Ange v First East Auction Holdings Pty Ltd (2011) 284 ALR 638; [2011] VSCA 335 and Andrews v Australia & New Zealand Banking Group Ltd (2011) 86 ACSR 292; [2011] FCA 1376.

This Subtitle is also published as part of the timely forthcoming release of the Second Edition of Contract: General Principles – The Laws of Australia, available as a softcover book in 2012.

Subtitle 13.3 Expert Determination Westlaw AU / Legal Online

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

This Subtitle addresses expert determination, a kind of dispute resolution process in which an independent expert in the field relevant to the dispute is asked to determine the matter. This Subtitle considers the rules governing the expert determination process, including both binding and non-binding determinations. The commentary covers features particular to expert determination, including assessments, references, early neutral evaluation and case appraisals.

Subtitle 14.7 Biodiversity Westlaw AU / Legal Online

Updated by Natasha Hammond-Deakin, Senior Solicitor, Environmental Defender’s Office (NSW), Kirsten Miller, Director, Legislation and Policy Section of the Commonwealth Department of Sustainability, Environment, Water, Population and Communities and Jeff Smith, Executive Director, Environmental Defender’s Office (NSW)

This Subtitle deals with the legal concepts and regulatory frameworks that attempt to protect biodiversity throughout Australia. The commentary addresses categories of both terrestrial and marine protected areas, and the processes in place to create, dismantle, enforce and manage these protected areas. Substantial consideration is given to threatened species, including methods for the listing of threatened species, communities and threatening processes, as well as subsequent planning and management strategies. Commentary is also provided on the voluntary agreements governments and land-holders may enter into for the purposes of conservation and land management. This significant update includes new commentary on environmental offsets schemes that allow developers to offset the environmental impact of development, and captures the findings of the Hawke Report, the 10-year review required under the Environmental Protection and Biodiversity Conservation 1999 (Cth).

Subtitle 19.7 Practice and Procedure Westlaw AU / Legal Online

Updated by Justin Carter, Barrister, Queensland

This Subtitle examines the manner in which the Australian judicial system addresses constitutional matters. The original and appellate jurisdiction of the High Court is examined, as is the constitutional jurisdiction of other courts and tribunals. Consideration is given to the doctrines of standing and justiciability, High Court procedure for dealing with constitutional questions, interlocutory proceedings and evidence in constitutional cases, the nature of relief available for successful constitutional challenges, and the awarding of costs in the High Court. Legislation relevant to procedure is discussed, including the High Court Rules 2004 (Cth). Reference is made to longstanding case law as well as more recent cases, including Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; 83 ALJR 765; 72 ATR 580; [2009] HCA 23; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 83 ALJR 951; [2009] HCA 27; Betfair Pty Ltd v Racing New South Wales (2012) 86 ALJR 418; [2012] HCA 12; Williams v Commonwealth [2012] HCA 23.

Subtitle 26.6 Regulation of Industrial Organisations Westlaw AU / Legal Online

Updated by Lucy Hartland, Legal Editor, The Laws of Australia

This comprehensively updated Subtitle examines the legislative framework regulating the federal industrial relations system in Australia, with particular focus on the Fair Work reforms being introduced on an ongoing basis, including the Fair Work Act 2009 (Cth); Fair Work (Registered Organisations) Act 2009 (Cth); Fair Work (Registered Organisations) Amendment Act 2012 (Cth); and Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth). This legislation is considered in reference to the rights and obligations of industrial organisations, including in relation to registration, rules and membership. The discussion covers issues relating to the role of employee organisations in the workplace, including rights of entry and the system of modern awards and enterprise agreements, and considers the types of industrial action, both as protected under the Fair Work Act 2009 and specifically in the building industry under the operation of the former Building and Construction Industry Improvement Act 2005 (Cth). This update also examines recent authorities, including decisions pertaining to the Health Services Union: see Jackson v Mylan [2012] NSWSC 552; Brown v Health Services Union [2012] FCA 644.

 August 2012 planned updates

(please note that updates are subject to change)

• 13 Dispute Resolution 13.7 “Arbitration”
• 20 Health & Guardianship 20.1 “Health Rights and Responsibilities”
• 28 Real Property 28.17 “Land Acquisition”
• 31 Revenue Law 31.14 “Calculation of Tax Payable”
• 32 Sport & Leisure 32.3 “Dispute Resolution”