Ambiguities and inconsistencies in relation to the obligations of proxies under corporations law: a model for reform

This article reconsiders the important question which came to light as a result of the controversial 2002 Coles Myer annual general meeting: do directors that are appointed as proxy have an obligation to vote as directed (and indeed should they)? A recent decision of the New South Wales Supreme Court, which was subsequently approved on appeal, stands for the proposition that proxy holders are agents of the shareholders that appointed them. However, currently the Corporations Act only requires a Chairman appointed as proxy to vote as directed — not an ordinary director. This article briefly explains the present state of the law in Australia on this issue, and then explores some interesting recent judicial remarks which may suggest that ordinary directors appointed as proxy must vote as directed in order to satisfy their director’s duties (both common law and statutory) to the company. We finally outline a proposed statutory reform initiative which seeks to remove the present uncertainty in the law by introducing a blanket requirement that all proxy holders must vote as directed.

Feudal tenure and native title: revising an enduring fiction

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.
The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts' reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Disinterested truth: legitimation of the doctrine of tenure post-Mabo

This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.

General practitioners' competence and confidentiality determinations with a minor who requests the oral contraceptive pill

The right of minors to make medical treatment decisions is an issue that is not explicitly addressed in the legislation of most Australian jurisdictions. While recent common law decisions allow competent minors to consent to treatment, current legislation in Victoria does not provide adequate guidelines on how competence is to be measured. It is also unclear whether the duty of confidentiality is extended to competent minors. The current study explored general practitioners' competence and confidentiality decisions with a hypothetical 14-year-old patient who requests the oral contraceptive pill (OCP). Questionnaires were sent to 1,000 Victorian general practitioners, 305 of whom responded. General practitioners were asked to determine whether "Liz" was competent to request the OCP, and whether they would maintain her confidentiality. A total of 81% of respondents found the patient competent, while 91% would have maintained her confidentiality. Results indicate that the majority of general practitioners used rationales that generally did not conform to current legal principles when making competence and confidentiality determinations regarding this patient.

Of personalities and personae: a French victory for film producers and authors

The international medium of film poses many challenges for authors and copyright owners. So do the practices of the advertising industry. Each jurisdiction approaches these challenges differently. In a recent French decision three issues that are of interest in Australia were discussed – the copyright status of a literary or dramatic character, the use of such a persona in character merchandising, and the moral right of film directors to control the exploitation of the persona. This article examines the 2004 decision of the Paris Court of Appeal in the matter of the film “The Fifth Element”. It compares the protection offered to author and copyright owner under French law with the protection offered by Australian legislation and common law.

Legal professional privilege and the foreign lawyer in Australia

Legal professional privilege is very important to lawyers and clients alike. It has evolved within the common law world over a period of centuries. In a domestic Australian context the test to establish what attracts advice privilege has become reasonably well settled. However, the increasingly international character of commerce has revealed new challenges. Is the current test appropriate to determine whether advice given outside Australia by a foreign lawyer is privileged? This article considers that question in detail. After examining the historical development of legal professional privilege, the article discusses Kennedy v Wallace (2004) 208 ALR 424 (at first instance) and Kennedy v Wallace (2004) 142 FeR 185 (on appeal). The article concludes that the current test is both capable and appropriate if properly applied.

Accountants and valuations in Australian family court proceedings

This paper investigates issues related to the role of accountants in presenting expert evidence in the form of share valuations in Family Court of Australia proceedings. By providing a background to the valuation rules applied by the Family Court and examining relevant cases, the paper emphasises that considerable ambiguity exists. The paper highlights some of the inconsistencies that are evident from reported decisions and stresses the difficulties that judges have experienced with valuations presented by accountants in Family Court cases. It is evident that the courts, despite the legal precedents, continue to have considerable difficulty with valuation issues and methodologies. By exploring issues related to accounting based valuations in the context of Australian family law cases, the present paper examines accounting in a particular social and institutional setting. The paper is interdisciplinary in nature, in that issues extending over accounting, finance and legal boundaries are considered.

Family law

This series comprises a range of student texts, each adopting a problem-solving approach within a discrete area of the law. This text is designed as an easily accessible account of the legislative and judicial principles contained in Australian family law.

Principles of property law

This comprehensive text covers all of the materials relevant to property law in a detailed and thorough manner. The second edition examines the basic tenants of property law,as well as specific property interests such as land interests and the way in which these interests are conveyed, registered and co-ordinated.The book considers the development of native title as a legally recognised form of property in Australia and how such an interest sits within the common law and statutory infrastructure. Principles of Property Law is a vital book for students studying this complex area and is also a valuable addition to the library of academics and practitioners interested in this field.

Labour law

Second edition university text discussing the principles of labour law, first published in 1999. Provides a comprehensive discussion of such topics as the employment relationship, termination of employment, the federal system of labour regulation and legal regulation of trade unions. Revised edition has been updated to reflect recent changes in the common law and under the Workplace Relations Act 1996. Features case examples, summary questions and graded exercises for students. Includes table of cases, table of statutes and index. Author is a Barrister and Solicitor and a lecturer in the School of Law at Deakin University.

Competition law and policy : cases and materials

This book evaluates Australian competition law including the economics and politics that lay at its heart. This fully revised second edition draws together a comprehensive collection of material providing an excellent and up-to-date guide to Australian competition law.

Historical evolution and modern implications of concepts of consent to, and refusal of, medical treatment in the law of trespass

Many mischiefs arise on the change of a maxim and rule of the Common Law, which those who altered it could not see when they made the change.

Freedom of political communication, public officials and the emerging right to personal privacy in Australia

In recent times Australian courts have demonstrated a willingness to fashion a right to personal privacy at common law. The Australian Law Reform Commission has noted this impOt1ant development and said it was likely to continue in the absence of legislative action in the area. The aim of this article is to outline a theoretical framework to underpin and inform the development of this emerging right - howsoever framed - and the extent to which it is possible for the law to provide meaningful privacy protection to public officials under the Constitution.

Defendants' liability for pure mental harm to third parties in Australia : still a work in progress

In Australia, both common and statutory law allows compensation for negligently occasioned recognised psychiatric injury, but distinguishes between pure mental harm and consequential mental harm. This column briefly discusses the concept of pure "mental harm" and the major Australian cases relating to defendants' liability to third parties for causing them pure mental harm (Jaensch v Coffey (1984) 155 CLR 549 [PDF]; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 [PDF]; Sullivan v Moody (2001) 207 CLR 562 [PDF]; and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 [PDF]). The analysis focuses on judicial approaches to determining liability in these cases, especially causation. Lack of guiding principles and precise tests for attribution of liability are illustrated by Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 [PDF]. This case is analysed first in the context of common law, and then in the light of the reform legislation contained in the Civil Liability Act 1936 (SA) and similar provisions in other jurisdictions.

Concepts and principles in unjust enrichment : a comparative study

The Thesis was inspired by a perceived need better to understand the unique description of unjust enrichment by the Australian courts, as a unifying legal concept. It demonstrates that concepts and principles are essential features of the common law because they identify the character and taxonomy of rules. The comparative study, encompassing Australian and English law primarily, and law of other jurisdictions, modern and ancient, elucidates the special characteristics of the concepts and principles of Anglo/Australian unjust enrichment and of concepts and principles generally. A like concept has had a place in the common law since its inception under several characterisations. It bears the mark of ancient Roman jurisprudence, but relates to independent principles. The jurisprudence was formed by special characteristics of its history. It is distinct from modern Roman/Dutch law but the doctrinal overtones of its foundational case law reflect the basis of reasoning which in Continental law, is found in the adopted ancient codes. It is this foundation of reasoning and the firm rejection of a normative general principle that makes Anglo/Australian law different in character and jurisprudence from unjust enrichment in USA and Canada. Stifled for centuries by quasi contract misconceptions, the law of unjust enrichment entered the modern law in the 20th C through the seminal judgements of Lord Wright in Fibrosa Spolka Akcyjna v Fairbairn Lawson Coombe Barbour Ltd, and related cases and through the strong judicial and juristic following they inspired. That “…any civilised system of law is bound to provide remedies for … unjust enrichment…” became an imperative across the common law world: it has long held a place in the Roman Dutch jurisdictions of South Africa and Continental Europe. The special character of unjust enrichment in Anglo/Australian law is focussed upon a unique action where-by the law imposes an obligation upon the establishment of a recognised ground. The notion of breach of a primary rule does not arise: the obligation is therefore a primary obligation imposed by law, as distinct from a remedy for a breach. Important consequences flow from the characteristic. The juristic development of unjust enrichment in the common law has long been the sole prerogative of the superior courts. The place of historical features of the jurisprudence has however been subsumed by modern judicial methodology that is slowly assuming a unifying pattern of reasoning from case to case; from one ground to another. This is the special characteristic of the unifying legal concept and English principle of unjust enrichment. The thesis draws widely based conclusions about concepts and principles of unjust enrichment and the actions and obligations they sponsor. It portrays them as the substance of legal reasoning and analyses underlying theory. to this end, it addresses counter juristic and historical arguments. Its central conclusion are that there are sound jurisprudential arguments for actions based upon a unifying legal concept and English principle of unjust enrichment, and that the explanation of the unjust enrichment concept as the foundation of an independent branch of the common law and taxonomy is theoretically sustainable. In this manner concepts and principles of the common law are demonstrated as critical characteristics of the common law at large.