August 2013 Highlights

Subtitle 3.13 Termination of Bankruptcy

Updated by Dr Ben McEniery, Barrister-at-Law

This Subtitle deals with the two ways in which the legal status of bankruptcy may be terminated under the Bankruptcy Act 1966 (Cth), namely annulment of bankruptcy and discharge of bankruptcy. This update includes a discussion of the comparative merits of the two methods, as well as consideration of the implications of second and subsequent bankruptcies.

Subtitle 8.3 Building and Construction Contracts

Updated by Scott Laycock, Partner, Gadens Lawyers Sydney

This Subtitle examines the law governing building and construction contracts via the topics of formation, variation, time, defects, disputes, security, and termination. Issues covered include: the parameters of offer and acceptance; the implication of terms, including Competition and Consumer Act 2010 (Cth) requirements that contractors act with "due care and skill"; the entitlement of a principal to have variation work carried out and a contractor’s entitlement to receive payment for it; the requirement that contractors rectify defective work; time constraints on contractors for completion; forms of dispute resolution; and undertakings and forms of security provided by contractors for proper performance. The possible implications of the High Court’s decision in Andrews v Australia & New Zealand Banking Group Ltd [2012] HCA 30 in relation to penalising contractors for not adhering to extension of time stipulations, are considered. Attention is focused on the uniform Commercial Arbitration Acts passed by most Australian jurisdictions since 2010 (most recently the Commercial Arbitration Act 2013 (Qld)) whose "paramount object" is to have contractual disputes resolved "without unnecessary delay or expense". There is also detailed consideration of specific contractual provisions, including in AS 4000-1997.

Subtitle 10.8 Companies and Securities Offences

Updated by David Parish, Barrister and Solicitor, Supreme Court of New South Wales and High Court of New Zealand

This Subtitle explores the subject of liability for companies and securities offences, including those prescribed by the Corporations Act 2001 (Cth). It has been revised to take into account more recent cases such as Westpac Banking Corp v Bell Group Ltd (in liq) (No 3) [2012] WASCA 157 and Mansfield v The Queen [2012] HCA 49.

Subtitle 10.9 Motor Vehicle Offences

Updated by Danielle Andrewartha, PhD Candidate and Research Associate, Faculty of Law, Monash University

This Subtitle examines the offences expressly related to driving or using motor vehicles across all Australian jurisdictions. It considers each of the elements of dangerous driving together with issues such as mens rea, negligence and fault. Dangerous driving causing death or grievous bodily harm is dealt with first generally, and then specifically with regard to causation and sentencing.

The effect of particular circumstances (eg alcohol or drug use, speed, mechanical defects, etc) are considered, as are defences, both general and particular (eg honest and reasonable mistake of fact, sudden or extraordinary emergency, etc). This Subtitle also accounts for the regulatory offences that may be available as alternative charges or alternative verdicts to dangerous driving, and compares manslaughter in relation to dangerous driving causing death.

This update reflects changes implemented to the Australian Road Rules and the new Road Transport Act 2013 (NSW), as well as including updated commentary in each jurisdiction.

Subtitle 16.5 Documentary Evidence

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

This Subtitle provides comprehensive coverage and analysis of the common law and statutory rules governing the admissibility of documents in legal proceedings in all Australian jurisdictions. The impact of legislative reforms such as the adoption of the Uniform Evidence Acts in the Northern Territory, Tasmania and Victoria, and the progression of evidentiary principles in cases including Nolan v Nolan [2003] VSC 121 and Lithgow City Council v Jackson [2011] HCA 36 are explored with concise and insightful commentary. Substantial updates have also been made to the analysis of business records legislation, with a new section discussing the particularly privileged position of foreign business records under Australian evidence laws as a result of amendments to the Foreign Evidence Act 1994 (Cth).

Together with Subtitle 16.6 "Computer-produced Evidence", this Subtitle is also published as part of the Second Edition of the best-selling Documentary Evidence – The Laws of Australia.

Subtitle 31.2 Income from Business and Isolated Activities

Updated by Professor Robin Woellner, Adjunct Professor, James Cook University and University of New South Wales

This Subtitle examines the taxation of business income and profits derived from isolated profit-making activities. It addresses the relevant common law rules, and looks to the statutory provisions, specifically the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth) that differentiate assessable and non-assessable income. Landmark decisions Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 and Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199 and following decisions are discussed at length.