Volume 23(1)
July 1993
ARTICLES
Constitutional Law: ‘At the Eye of the Storm’ (pp 15-32)
JJ Doyle (Chief Justice of the Supreme Court of South Australia)
Until recently ‘legalism’ has been identified as the dominant aspect of the High Court’s technique in constitutional cases. Little attention has been given to the concept of constitutional law underlying that technique. A number of members of the current High Court have now discarded legalism. This article examines the significance of that change and raises the question, what concept of constitutional law lies behind the change? The article suggests that the Court’s concept has moved from one of interpretation to development of the Constitution to ensure that it meets current community needs.
Controlling the High Court’s Agenda (pp 33-48)
David Solomon (Journalist)
In 1984, Parliament abolished the automatic right of litigants to appeal to the High Court in cases involving claims of $20 000 or more. Since then, there have been significant changes in the functioning of the Court. The Court itself now mostly determines what cases it hears. Increasingly they are the cases which involve important and controversial points of law. Though the Court aims to develop and clarify the law, the use of multiple judgments often prevents it from succeeding in this goal. Another disturbing aspect of the Court’s work is that, occasionally, it relies on materials which have not been cited by counsel in argument. Such materials have not been the subject of detailed analysis and debate.
Commerce and Conscience: The High Court’s Developing View of Contract (pp 49-73)
JW Carter (Professor of Law, University of Sydney) and A Stewart
Starting with the flood of cases that reached it in 1982-1983, the High Court has had the opportunity in the last decade to reform or restate most aspects of the general law of contract. In doing so it has moved away from English law in many significant respects, not least of which being its embrace of the concept of unconscionability as the central element in a variety of doctrines. However, important issues remain to be addressed by the Court, including the extent to which the motion of unconscionability can or should be used to police opportunistic commercial conduct, the inhibiting effect of the established forms of action on the development of restitutionary remedies, and the importance of the Court providing clear guidance on matters of contract law to the ‘consumer’ of its judgments.
Towards an Australian Law of Torts (pp 74-100)
Francis A Trindale (Sir Owen Dixon Professor of Law, Monash University)
The law of torts has its roots in English law. But the High Court has, over the past 30 years, taken major steps to ‘indigenise’ the law with the result that there is now a distinctively Australian law of torts. The author analyses the reasons for this development before going on to discuss the new and conceptually difficult structure imposed by a majority of the High Court on the law of negligence. The author also touches on a number of other important aspects of the law of torts, including exemplary damages, causation, occupiers’ liability and res ipsa loquitur. In each case the High Court has consciously moved away from English law and established principles unique to this country.
The Political Economy of Taxation and the Roles of the High Court (pp 101-119)
Graeme S Cooper (Professor of Law, University of Sydney)
This article argues that while the High Court perceives the political nature of taxation in a constitutional democracy, it has never displayed a similar appreciation of the economic foundations of the income tax and the implications of the design of an income tax for its role in solving tax disputes. This means that the Court has not offered guidance on fundamental issues of tax policy. The argument is advanced by analysing several recent cases which demanded a response addressing fundamental issues of principle, but which received, instead, an answer based on linguistic deconstruction.
The Rise and Rise of Judicial Review (pp 120-142)
Robert S French (Judge of the Federal Court of Australia)
The principal agents of change in Australian administrative law in the past three decades have been statutory and procedural. Central principles as enunciated by the High Court remain substantially unaltered. Constitutional access to the High Court to review Commonwealth executive action stands against privative clauses and has been repeatedly affirmed. Attempted limitations on access to judicial review by privative clauses have been met with constructional devices and the distinction between jurisdictional and non-jurisdictional error. Standing necessary to access is unchanged tin principle but more flexible in practice. Judicial review now extends to the highest levels of executive decision-making and subject to clear statutory exclusions procedural fairness is a general mandate.
NOTES 
Guarantees of Leases: The Problem of Assignments (pp 143-151)
James O'Donovan (Professor of Law, The University of Western Australia)
Commercial tenancies and property leases are usually created for substantial terms with options to renew or extend the period. The parties anticipate that the lessee may wish to assign the lease for the balance of the current term and insert express provisions requiring the lessee to obtain the consent of the lessor to the assignment. There are seldom any express provisions governing the lessor’s right to assign the reversion as this is seen as one of the normal incidents of ownership. Often the lease itself contains a guarantee of the lessee’s obligations, but sometimes a separate guarantee is executed. The impact of an assignment of the lease or the reversion upon the rights and obligations of the parties to the guarantee is rarely considered at the time the lease is drafted. Yet recent cases highlight some of the pitfalls for lessors who wish to enforce a guarantee of a lease which has been assigned.
Vendors’ Difficulties with Unstamped Contracts: Proposals for Reform (pp 152-155)
I G Peek (Partner, Parker & Parker)
A series of cases decided in the Supreme Court of Western Australia in 1989 highlight the difficulties a vendor of property can face if he wishes to enforce his contract with a purchaser and the contract has not been stamped with duty under the Stamp Act 1921 (WA). The cases are concerned with contracts for the sale of land, but there is no reason why contracts for the sale of other forms of property should not give rise to the same issues.
Service and Execution of Process Act 1992 (Cth) (pp 156-162)
Janet Martin
On 10 April 1993, the Service and Execution of Process Act 1992 (Cth) commenced. Simultaneously, the Service and Execution of Process Act 1901 (Cth) was repealed by section 3 of the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 (Cth). Adopting many of the recommendations of the Australian Law Reform Commission, the new Act recognises the changes in Australian society, technology, commerce and legal environment since Federation. It updates the original legislation, attempting to strike a balance between the competing rights and interests of interstate and inter-territorial litigants, including their witnesses. Although not apparent on the face of the new legislation, consideration has also been given to the cost-effectiveness of many of the changes.
The Implied Guarantee of Free Political Communication (pp 163-172)
Peter Creighton (Senior Lecturer, The University of Western Australia)
On 30 September 1992 the High Court published its reasons for decision in two cases -- Nationwide News Pty Ltd v Wills (1992)1; Australiann Capital Television Pty Ltd v The Commonwealth (No 2) (1992) -- which may well mark an important change of direction in constitutional law in this country. In these decisions the Court recognised that the legislative powers of the Commonwealth are subject to an implied prohibition that the laws of the Commonwealth may not unduly restrict freedom of communication on political matters. The court has previously recognised, although rarely invoked, other implied limits on Commonweatlh power, namely, those flowing from the federal structure of government created by the Constitution. The author explores the possible implications of the Court's recognition of the existence of implied fundamental freedoms and points out that the prospect of challenges to existing laws will increase if the Court decides, as seems probable, that rules of common law and the powers of the States are also subject to similar implied prohibitions.
‘Duly Sealed’ Documents and Knowledge of a Director’s Breach of Fiduciary Duty (pp 173-180)
Robyn Carroll (Senior Lecturer, The University of Western Australia)
The aim of this note is to consider whether a document which has been ‘duly sealed’ for the purposes of section 164(3)(e) of the Corporations Law may nonetheless be unenforceable if the person dealing with the company knows that the directors of the company have breached their fiduciary duties.
BOOK REVIEWS
International Commercial Arbitration in Australia: Law and Practice, Marcus S Jacobs (Reviewed by Michael Pryles)
From Barter to Bargain: Introduction to Contract Law, Griffin University Law School (Reviewed by KE Lindgren)
Australian Constitutional Perspectives, HP Lee & G Winterton (eds) (Reviewed by RD Lumb)
Computer Contracts: Principles and Precedents, G Hughes & A Sharpe (Reviewed by Colin Tapper)
Law of Privilege, Suzanne B McNicol (Reviewed by Francis Auburn).
The Political Impact of the High Court, David Solomon (Reviewed by GA Barton)
Constructive Trusts, M Cope (Reviewed by Neville Crago) |
