July 2013 Highlights

Subtitle 2.6 Remedies in Judicial Review

Updated by Brenda Tronson, Barrister, Supreme Court of New South Wales

This Subtitle addresses the judicial review remedies available to challenge the actions of public-decision makers and the scope of each form of remedy. The requirements for standing are explored in depth in addition to discussion of the influence judicial discretion in the review process. The traditional prerogative writs of certiorari, mandamus and prohibition and the remedies of declaration and injunctions are examined separately and in relation to each other. Ouster clauses and the justiciability of decisions are considered and alternative remedial action available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) are discussed.

Subtitle 3.8 Effects of Bankruptcy

Updated by Steven M Foale, Consultant, Maurice Blackburn Lawyers

This Subtitle is concerned with the wide ranging legal effects of bankruptcy. Discussion is made of the strict obligations placed upon the bankrupt personally; the possibility for the bankrupt to be prosecuted for criminal offences; the bankrupt’s ability to manage a corporation or engage in certain professions; and the impact upon the bankrupt’s family, business associates and creditors. The significant effects upon the property of the bankrupt are also examined, as are the interaction of the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth), as well as the provisions regulating second and subsequent bankruptcies. Reference is made to the relevant legislation and case law, including recent cases such as: Tapp v LawCover Insurance Pty Ltd [2013] FCA 35; Newman v Bain [2013] FCA 558; and Leader Computers Pty Ltd v Johnson [2012] FCA 716, amongst others.

Subtitle 5.7 Trial and Execution of Judgments

Updated by Andrew West, Barrister, Supreme Court of Queensland

The rules of court in each jurisdiction govern the conduct of litigation up to the hearing and entry of judgment and orders. This Subtitle examines the court supervision and case management schemes applicable to civil litigation in the Federal Court of Australia and the Supreme Courts of each State and Territory , as well as the special rules applicable to expert evidence. The updated material references the latest court procedure legislation for each jurisdiction, court practice directions and recent case law, and contains helpful links to further forms and resources.

Subtitle 14.1 General Principles: Basic Concepts

Updated by Professor Gerry Bates, Australian National University and University of Sydney

The constitutional powers and limitations concerned with litigation with respect to the environment are considered in this Subtitle. Questions of interpretation and legal status of environmental regulations within States and Territories are discussed in addition to circumstances of immunity in relation to environmental controls. Furthermore, court and tribunal procedure is examined in light of liability for environmental damage and the enforcement of statutory duties and the availability of appeal.

Subtitle 16.6 Computer-produced Evidence

Updated by Dr Roger Brown, Magistrate, Local Court of New South Wales

This Subtitle enquires into the laws governing the admission of computer-produced information as evidence. It primarily examined the rules for the Commonwealth, Australian Capital Territory, New South Wales, the Northern Territory, Tasmania and Victoria codified in the Uniform Evidence Acts, then looks at the different approaches to computer-produced evidence in South Australia and Western Australia.

Subtitle 17.3 Marriage and Nullity

Updated by Dr Owen Jessep, Senior Visiting Fellow in Law, University of New South Wales

This Subtitle discusses the legal requirements for a valid marriage in Australia, but also the circumstances under which a marriage may be found to be void. Particular reference is made to Kevin v Attorney-General (Cth) (2001) 165 FLR 404; [2001] FamCA 1074, which considered the authority of Corbett v Corbett [1971] P 83 in the context of what defines a "man" and a "woman" for the purposes of the definition of "marriage" in Australian marriage legislation. The rest of the Subtitle is devoted to the procedural and jurisdictional aspects of voiding a marriage, including discussion of the grounds under which nullity of marriage may take place. Divorce, which in contrast involves the termination of a valid marriage, is explored in Subtitle 17.4 "Divorce".

Subtitle 17.4 Divorce

Updated by Dr Owen Jessep, Senior Visiting Fellow in Law, University of New South Wales

This Subtitle addresses the termination of a marriage at law – the law of divorce. It looks at the historical developments in both England and Australia prior to the implementation of the Family Law Act 1975 (Cth). It goes on to examine the procedural and jurisdictional requirements for divorce laid down in the Federal Circuit Court of Australia Act 1999 (Cth), the associated Family Law Rules 2004 (Cth), Federal Circuit Court Rules 2001 (Cth) and other relevant legislation. The Subtitle also looks at precedents established in the Full Court of the Family Court of Australia, primarily in the proceedings of Price v Underwood [2008] FamCAFC 46 and Price v Underwood [2009] FamCAFC 127.

Subtitle 20.8 Mental Health and the Intellectually Disabled

Updated by Dr Annegret Kämpf, Teaching Associate, Faculty of Law, Monash University

This Subtitle examines the legislation in the Australian States and Territories concerning the care and treatment of people with mental illness and intellectual disability. The impact of the rights-based approach of the UN Convention on the Rights of Persons with Disabilities (CRPD) (2006) 2515 UNTS 3; [2008] ATS 12 on law and policy-making is considered. National strategies and policies setting directions for the development of mental health service delivery, and identifying strategies to implement service reform, are examined. The general law as it affects people with mental illness or intellectual disability is discussed, including in relation to will-making (Nicholson v Knaggs [2009] VSC 64), contracts and sexual relationships. The mental health legislation in all jurisdictions regulating the control, protection, treatment and care of people with mental illness is examined, including in relation to voluntary and involuntary admission; community treatment orders and inpatient treatment and detention orders; review of orders; and regulation of special kinds of treatment such as psychosurgery, electroconvulsive treatment and physical restraint. The legislative protection of the rights of people with mental illness is discussed, and there is special consideration of the Disability Act 2006 (Vic) regulating the care and treatment of persons with intellectual disabilities in residential facilities. The new Mental Health Act 2013 (Tas), anticipated to come into effect in 2014, is foreshadowed.

Subtitle 21.9 Discrimination

Updated by Dr Steven Churches, Senior Lecturer, University of South Australia

This Subtitle examines the provisions of the Commonwealth, State and Territory anti-discrimination legislation, except for those provisions relating to employment. Analysis is made of the grounds of discrimination, important exemptions under legislation, the unlawful conduct of harassment and the proscription against incitement and vilification. This revision includes an update of all legislative references in Commonwealth, State and Territory jurisdictions, in particular the revised provisions under the Equal Opportunity Act 2010 (Vic). It also provides an analysis of developments in case law, including Eatock v Bolt [2011] FCA 1103 and Clarke v Nationwide News Pty Ltd [2012] FCA 307.

Subtitle 22.3 Social Security

Updated by Emeritus Professor Terry Carney, University of Sydney

This Subtitle addresses the income transfer payments made under the main Commonwealth schemes collected within the social security law and the family assistance law. The operation of income and assets tests, international social security agreements and the impact of compensation awards on payability are comprehensively dealt with. The Subtitle also considers the review powers of the Social Security Appeals Tribunal and the Administrative Appeals Tribunal. The case law has been extensively updated to reflect the impact of recent decisions of the Social Security Administrative Appeals Tribunal and the Federal Court of Australia.

Subtitle 24.3 International Business Transactions

Updated by Dr Bruno Zeller, Associate Professor, Victoria University Law School (Chs 1–9, 11–12) and Dr Bryan Mercurio, Professor of Law, The Chinese University of Hong Kong (Ch 10)

This Subtitle addresses an area of law dominated by a complex web of private and international laws with various intersections by government regulation and international treaties. The Subtitle has undergone a substantial review, and has been updated with new commentary and material. The United Nations Convention on Contracts for the International Sale of Goods (1980) 1489 UNTS 3; 19 ILM 668; [1988] ATS 32 receives significant attention with the inclusion of recent academic and judicial consideration of key provisions in the treaty. The Subtitle includes a significant rewrite of international trade regulation through the World Trade Organization (WTO) and its predecessors. Insights of key provisions are gained through the analysis of decisions by the WTO Dispute Settlement Body. The Subtitle concludes with an updated review of the functions of various regional economic bodies, like the European Union (EU), the Asia-Pacific Economic Cooperation (APEC) forum and the North American Free Trade Agreement (NAFTA).

Subtitle 28.3 Torrens System – Indefeasibility and Priorities

Updated by Elise Bennett Histed, Senior Lecturer, University of Tasmania

The Torrens System is created by legislation and administered by government bodies in each State and Territory. This Subtitle considers the commonalities and differences in the law of each jurisdiction.

This Subtitle deals with the concept of indefeasibility of title for registered interests in Torrens System land, as well as the priorities between unregistered interests. This Subtitle first considers the principle of indefeasibility, its nature and the exceptions to indefeasibility as found in legislation and case law, and goes on to discuss unregistered interests and the principles that govern priority between unregistered interests.

This updated commentary highlights key cases from the High Court of Australia, including Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22.

Subtitle 28.10 Licences

Updated by Dr Ben McEniery, Barrister-at-Law

This Subtitle discusses the law relating to licences. A "licence" is permission granted to enter and use land for a purpose, which would otherwise result in trespass to land.

This Subtitle first considers the nature of a licence, the relationship between licence and third parties and the transmission of the benefit of a licence. It then discusses licences and similarly situated interests, distinguishing a licence from a lease, an easement and a profit a prendre. Commentary on the various types of licence (bare licences, both express and implied; contractual licences; and licence coupled with a grant or interest), their creation and revocation then follows. Finally, the Subtitle focuses on licences protected by the equitable principle of proprietary estoppel and by statute, and the nature of licences under the Torrens System of land registration.

This expanded commentary includes consideration of important cases handed down by the High Court of Australia, including Western Australia v Ward [2002] HCA 28.

August 2013 planned updates (please note that scheduled updates are subject to change):

• 3 Bankruptcy 3.13 “Termination of Bankruptcy”
• 8 Contracts: Specific 8.3 “Building and Construction Contracts”
• 10 Criminal Offences 10.8 “Companies and Securities Offences”
• 10 Criminal Offences 10.9 “Motor Vehicle Offences”
• 16 Evidence 16.5 “Documentary Evidence”
• 31 Revenue Law 31.2 “Income from Business and Isolated Activities”