The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Acquire a practical overview of 'good faith' in commercial contracting

The twists and turns in the ongoing development of the implied common law good faith obligation in the commercial contractual arena continue to prove fertile academic ground. Despite a lack of guidance from the High Court, the lower courts have been besieged by claims based, in part, on the implied obligation. Although lower court authority is lacking consistency and the ‘decisions in which lower courts have recognised the legitimacy of implication of a term of good faith vary in their suggested rationales’, the implied obligation may provide some comfort to a party to ‘at least some commercial contracts’ faced with a contractual counterpart exhibiting symptoms of bad faith.

The borders that law sets on entertainment

It is natural for those involved in entertainment to focus on the art. However, like any activity in even a free society, those involved in entertainment industries must operate within borders set by the law. This article examines the main areas of law that impact entertainment in an Australian context. It contrasts the position in relation to freedom of expression in Australia with that in the United States, which also promotes freedom of expression in a free society. It then briefly canvases the main limits on entertainment productions under Australian law.

The Commercial Surrogacy Dilemma

In November 2009 the England and Wales High Court (Family Division) granted a parental order pursuant to s30 Human Fertilisation and Embryology Act 1990 in respect of twins who came to be in the custody and control of the applicants (Mr and Mrs A) through a surrogacy arrangement. The particularly unusual and interesting aspect of this case is that, on the evidence, Mr and Mrs A had paid expenses to the surrogate above and beyond those allowed by the legislation, thus creating a commercial surrogacy arrangement. Commercial surrogacy arrangements involve the payment of money to the surrogate mother in excess of those expenses which have been reasonably incurred pursuant to the surrogacy arrangement. This case is relevant to Queensland law because commercial surrogacy arrangements are also prohibited in Queensland and, as in the United Kingdom, the court cannot make a parentage order unless it is satisfied the surrogacy arrangement is not a commercial surrogacy arrangement.

Using cost-effective multimedia to create engaging learning experiences in law and other disciplines

This is the final report of an Australian Learning and Teaching Council Teaching Fellowship which addressed the needs of two separate groups of learners: (1) final year law students studying ethics and (2) law academics and other interested educators in higher education wishing to use information and communication technologies (ICT) to create engaging learning environments for their students but lacking the capacity to do so. The Fellowship resulted in final year law students being infused with an improved appreciation of ethical practice than they receive from traditional lecture/tutorial means by the development of an integrated program of blended learning including an online program entitled "Entry into Valhalla". This "ethics capstone‟ utilises multimedia produced using cost effective resources (including the "Second Life" virtual environment) to create engaging, contextualised learning experiences. The Fellowship also constructed the knowledge of producing cost-effective multimedia projects in other law academics and other educators in higher education by staff development activities comprising workshops, conference presentations and an interactive website using the "Entry into Valhalla" program as a case study exemplar.

The adoption of residential sustainability programs : lessons from the commercial sector

The article explains and compares sustainability programs available for use by residential and commercial premises; as well as the respective legal tenure frameworks of commercial and residential tenancies. It identifies that while the desire of commercial tenants drive the participation by landlords in these programs, residential tenants appear to be ignorant of sustainable measures. The article contends that the reason for this difference is rooted in the legal and social status of residential tenants. It explores the impact that secure tenure may have in promoting residential sustainability programs and concludes by observing that the lack of involvement of residential tenants in programs stems from the absence of tenure security, which prevents any long term cooperation between the parties.

Australian tax analysis - cases, commentary, commercial applications and questions [7th Ed.]

"Australian Tax Analysis, seventh edition, provides a comprehensive examination of taxation law with a practical commercial perspective. The seventh edition of this text features: two new chapters: "Offsets" and "Superannuation and Employer Responsibilities"; selected case extracts; Tax Commissioner Rulings; thought-provoking commentary; instruction on how to read the Acts; and engaging problem-based practice questions."--Publisher's website.

The role of strategic intelligence in anticipating transnational organised crime: A literary review

Transnational Organised Crime (TOC) has become a focal point for a range of private and public stakeholders. While not a new phenomenon, the rapid expansion of TOC activities and interests, its increasingly complex structures and ability to maximise opportunity by employing new technologies at a rate impossible for law enforcement to match complicates law enforcement’s ability to develop strategies to detect, disrupt, prevent and investigate them. In an age where the role of police has morphed from simplistic response and enforcement activities to one of managing human security risk, it is argued that intelligence can be used to reduce the impact of strategic surprise from evolving criminal threats and environmental change. This review specifically focuses on research that has implications for strategic intelligence and strategy setting in a TOC context. The review findings suggest that current law enforcement intelligence literature focuses narrowly on the management concept of intelligence-led policing in a tactical, operational setting. As such the review identifies central issues surrounding strategic intelligence and highlights key questions that future research agendas must address to improve strategic intelligence outcomes, particularly in the fight against TOC.

Strategic Intelligence in Law Enforcement: A Review

In an age where the role of police has morphed from simplistic response and enforcement activities to one of managing human security risk, it is argued that intelligence can be used to reduce the impact of strategic surprise from evolving criminal threats and environmental change. This review specifically focusses on research that has implications for strategic intelligence in law enforcement. The review findings highlight the absence of detailed research of law enforcement strategic intelligence. Findings suggest that current law enforcement intelligence literature focuses narrowly on the management concept of intelligence-led policing in a tactical, operational setting. As a result there is little theory on how to improve strategic intelligence outcomes. This is despite the fact that intelligence –led policing is envisaged as a management tool to guide strategic decision making. the review identifies central issues surrounding strategic intelligence and highlights key questions that future research agendas must address to improve strategic intelligence outcomes

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Gifts, the law and functional rationalism

This paper examines the legal facilitation (or rather lack of facilitation) of gifts. The emerging western political ideology of welfare is based on the premise that nonprofit organisations are to play a far greater role in the delivery of welfare services. This role will be enabled in part by increased gifts. The ideology has not addressed the fundamental hostility of the law to the facilitation of gifts. The nature of the legal obstruction of such gifts is compared to equivalent commercial transactions, the reasons given for this obstruction are analysed and the appropriateness of such nonfacilitation is challenged. A state that does not alter the legal hostility to gifts may find that organisations do not attain their expected role in the changing welfare state.

Questions and Answers : Contract Law [4th ed.]

LexisNexis Questions & Answers - Contract Law provides an understanding of contract law and gives a clear and systematic approach to analysing and answering problem and exam questions. Each chapter commences with a summary of the relevant cases and identification of the key issues. Each question is followed by a suggested answer plan, a sample answer and comments on how the answer might be assessed by an examiner. The author also offers advice on common errors to avoid and practical hints and tips on how to achieve higher marks.