This resource aims to foster greater engagement between the judiciary, the academy, and the legal profession by enabling a shared experience of the latest pieces of doctrinal research in significant and emerging areas of the law. 

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7 August 2023

• When an efficient breach of contract becomes unconscionable conduct under the Australian Consumer Law
• The prejudices of expert evidence
• Read about the role of academic literature in judicial decision making
   

Re-Examining the Relationship between Mutual Promises in Contract Law  
Nuwan Dias, (2022) 46(1) Melbourne University Law Review (advance). 

This article attempts to systematise the jurisprudence of mutual promises, known as the Dependency Doctrine, and demonstrate the continuing practical relevance of the doctrine. The article argues that – despite the perception that the doctrine has been usurped by the modern doctrine of termination – the doctrine persists, and serves a purpose which aligns with the values of modern contract law, including freedom of contract, the utility in providing security to transacting parties, advancing relational contracting norms, and constraining opportunism. 

Medical Intervention as a Novus Actus Interveniens: Giving Meaning to the Concept of Gross Clinical Negligence: Introduction (Law Library login required)
Louis Baigent, (2022) 29(4) Journal of Law and Medicine 1201.

This article explores gross negligence in a clinical health care context. The article argues that there are no identifiable criteria which separate grossly negligent conduct from ordinary, actionable wrongdoing. There is also some uncertainty about whether it is reasonably open for courts to make findings of gross negligence in the absence of explicit expert evidence to this effect.  The article argues that more clearly defined parameters are needed to distinguish actionable negligence from gross negligence, and proposes that courts discard 'broad descriptors' and instead adopt a two-limb test for determining grossly negligent conduct:

1. complete disregard for ordinary medical precepts; and
2. indifference towards the patient's safety and wellbeing.

Compensatory damages and the role of ‘loss’ in actions for tort and breach of contract (Law Library login required)
Cameron J Charnley, (2022) 51 Australian Bar Review 320

This article considers the High Court case of Lewis and the Victorian Supreme Court case of Leeda Projects to compare the award of compensatory damages in tort and breach of contract. The decisions illustrate the differing approaches to compensation for loss where the innocent party would, in all likelihood, have suffered the same detriment or incurred the same expense regardless of the wrongdoing. In tort, a fact-based counterfactual analysis can help to avoid awarding substantial compensatory damages for loss that is merely theoretical. In contract law, a contract has terms both express and implied, which allows for a just award of compensatory damages where a breach has deprived the offended party of an expected benefit, regardless of the inevitable expense needed to obtain it.

Development of the Reflective Loss Principle and the Need for Exceptions in Australia (NEW) (Law Library login required)
Dominic Rawlings, (2023) 97 Australian Law Journal 468

This article explores Australia’s adoption of the reflective loss principle from English common law, which was founded in policy to prevent personal recovery by shareholders against a wrongdoer for loss that is not distinct from the company’s. Recent Australian jurisprudence has diverged from the latest English approach by maintaining the dual policy justification of the principle, namely the prevention of both double recovery and the circumvention of the rule in Foss v Harbottle. 

The article argues that the law should generally favour the innocent shareholder over the wrongdoer in recognising exceptions to ensure that the shareholder receives full compensation. This article describes two factual examples whereby the recognition of an exception would promote clarity in the law, without engaging the two policy considerations. Without such exceptions, shareholders may be “arbitrarily denied fair compensation”. The author argues that Australian courts should incrementally develop the law with reference to the relevant policy considerations, to ensure that justice for shareholders is achieved.

What does it mean to ‘carry on business in Australia’? An analysis of the Full Federal Court decision in Facebook Inc v Australian Information Commissioner (Law Library login required)
Lloyd Freeburn and Ian Ramsay, (2023) 52 Australian Bar Review 335

This article examines how the Full Federal Court applied the Privacy Act 1988 “carrying on business in Australia” test in the context a social media company like Facebook. The Court held that Facebook Inc was carrying on a business in Australia, despite the lack of a physical presence in Australia and the absence of traditional indicia, such as whether there are employees and a fixed place of business. The Court focused instead on the non-material concept of information in concluding that the test’s application did not require some form of physical presence of the business in Australia, which demonstrates how the traditional test can be adapted to meet the challenges of modern enterprises.

When is a sentence manifestly excessive? 
Paul McGorrery and Matthew Weatherson, (2022) 47(4) Alternative Law Journal 261–265.

This article examines 100 successful sentence appeals in Victoria between 2014 and 2020 to better understand when a sentence is manifestly excessive. The article aims to identify how much a sentence must stray from the permissible range in order to attract the classification of manifestly excessive. 

The analysis suggests that, generally, a sentence would need to receive as little as a 10% reduction to be classified as manifestly excessive and requiring rectification, rather than one where any change would amount to ‘tinkering’. This suggests that the window of a judge’s sentencing discretion is quite narrow, possibly as low as 10%. 

A Rational Approach to Victim Vulnerability in Sentencing (Law Library login required)
Mirko Bagaric, (2022) 96 Australian Law Journal 237. 

This article examines how victim vulnerability as an aggravating factor in sentencing is poorly defined and applied by courts in a perfunctory, common-sense manner. It argues that victim vulnerability overlaps with another aggravating factor – significant harm caused by an offence – and the application of both factors in sentencing can pose a risk of excessive punishment. The article suggests an alternative approach which includes a more restrictive definition of 'vulnerable victim', with only a relatively minor residual role for victim vulnerability to operate as a stand-alone aggravating consideration once significant harm is properly incorporated into the sentencing calculus.

The Prejudices of Expert Evidence 
Jason M Chin, Hayley J Cullen and Beth Clarke, (2022) 48(2) Monash University Law Review 59

This article aims to advance knowledge about the concept of unfair prejudice given that it has received relatively little attention from legal researchers. The article examines how the concept has been interpreted by judges, and relates this understanding to the relevant social scientific research on the characteristics of expertise that can make it prejudicial. The article notes that courts have done well in linking unfair prejudice to findings about how people are prone to misunderstand and over trust scientific experts, but have not appreciated that much expert evidence is untested and untestable, which is another key component of unfair prejudice.

Great Investments and good returns: Knowing receipt as an equitable wrong independent of contract (NEW)
Olivia Morris, Melbourne University Law Review 46(2) Advance

This article examines the conceptual basis of knowing receipt and defends its unique status as a freestanding form of equitable liability. It develops this argument by identifying doctrinal reasons why knowing receipt warrants the award of non-restitutionary remedies for wrongdoing. It analyses the judgment in Great Investments and argues that the judgment presents a logical and coherent response to the difficulties that transpire where distinct liability rules arise both at law and in equity on the same facts.

Corporate unconscionability: Systems of conduct and patterns of behaviour (Law Library login required)
Justice Beech of the Supreme Court of Western Australia, (2023) 52 Australian Bar Review 323.

This article examines recent cases on what amounts to a ‘system of conduct’ or ‘pattern of behaviour’, how it may be proved and the implications that may arise from it. Challenges include that the issues in litigation are likely to be wide ranging, demonstrating the need for an applicant to articulate the features of the conduct and circumstances that give the conduct its unconscionable character. In cases where identifying what makes conduct unconscionable is a relatively free-form choice which requires high order skill in making that choice, a trial judge may form a different conception of unconscionable conduct than the applicant has articulated. Justice to the parties – especially to the respondent – requires the judge to keep any tendency to reframe an applicant’s case in reasonable bounds.

Cryptocurrency and Interim Court Relief: Chen v Blockchain Global Ltd, CLM v CLN and Fetch.ai Ltd v Binance: I. Introduction (Law Library login required)
Albert Monichino, (2022) 50 Australian Business Law Review 205.

This article examines the interim relief that common law courts have recently given when things have gone wrong in the cryptocurrency space. It analyses three recently decided cases in Australia, Singapore and England to identify key takeaways about cryptocurrency's nature and form, issues of jurisdiction and venue, which contracts typically arise in cryptocurrency trading, which causes of action and relief are available for misappropriation of cryptocurrency assets, the use of disclosure orders to assist in recovery, timings of orders, and issues around service.

A common law vindicatio? Property rights as an independent basis for restitution
Rachael Short, (2022) 51(2) Australian Bar Review 264 (Law Library login required)

An increasing number of Australian cases recognise that a victim of theft has a right at common law to personal restitutionary remedy against an innocent ‘volunteer’ recipient of stolen money. This article explores the two leading justifications for the victim’s claim against an innocent volunteer: unjust enrichment and vindication of a pre-existing property right. This article concludes that the second justification is more compelling. The proprietary basis of the claim explains why a defendant is only required to make restitution for retained profits and establishes the legitimacy of the plaintiff’s claim to the increased value of traceable proceeds of their property.

Fiduciary Duties of Representative Parties: Conflicting Case Law and Conflicting Interests (Law Library login required)
Daniel Meyerowitz-Katz, (2022) 96 Australian Law Journal 185.

There is conflicting authority in Australia as to the whether a representative plaintiff in class actions owes fiduciary duties to group members. This article attempts to resolve the conflict by reference to the underpinning principles, the nature and history of representative litigation, and a comparative analysis with United States jurisprudence. The article concludes that there is a strong argument that fiduciary duties are indeed owed by a representative plaintiff, and gives some practical examples of the content of such duties.

Private Law, Conscience and Moral Reasoning: The Role of the Judge 
Justice Chris Maxwell and Matthew Harding, (2022) 46(1) Melbourne University Law Review (advance). 

This article considers private law doctrines that invoke conscience to set standards for citizens in their dealings with each other. It argues that these doctrines provide guidance to parties to minimise the risk of unconscionable conduct arising in transactions, and that this is achieved by provoking the parties’ moral reasoning. The article suggests that when judges apply these doctrines to evaluate parties’ past conduct, they should explain their decisions in terms that expose their own moral reasoning, as this will clarify the need for moral engagement on the part of transacting parties.

Rebutting the presumption of intentional revocation of a Will by destruction: An examination of electronically signed and remotely witnessed Wills (Law Library login required)
Christie Gardiner and Lee Aitken, (2022) 51 Australian Bar Review 70 

This article discusses whether and how the introduction of electronic execution and remote witnessing and attestation of Wills in response to COVID-19 disrupts the common law presumption of intentional revocation of a Will by destruction when the original Will is last traced to the testator’s possession but cannot be found on their death.  

This article argues that the nature of electronic Wills can both pose challenges for rebutting the presumption of destruction, and provide a level of assurance that can overcome some of these challenges. These challenges include poor access to digital records, uncertainty as to which record is the original file and which the copy, and the risks associated with ambiguous document storage practices.  

Business Competitors, Standing and Judicial Review (Law Library login required)
Matthew Groves, (2023) 50(5) Australian Business Law Review 315.

This article analyses the principles about commercial interest as a basis for standing in judicial review. The article examines the general rules of standing and explores the rationales underpinning the doctrine. The article argues that Argos Pty Ltd v Minister for the Environment and Sustainable Development represents a more coherent, though still uncertain approach, to business interests as a basis for standing. Recent British cases are canvassed, and it is argued that the British developments – such as increased judicial acceptance that public interest groups have standing to challenge government decisions – are unlikely to be adopted in whole by Australian courts but that they could provide an inadvertent path to doctrinal change.

Richardson v Oracle more than half a decade on: Did the ‘ground break’ for victim compensation? (Law Library login required)
Joshua Taylor, (2022) 47(1) Alternative Law Journal 36. 

This article examines whether the decision in Richardson v Oracle Corp (Australia) Pty Ltd (2014) 223 FCR 334 to increase compensation awards for victims of sexual harassment and discrimination led to an opening of floodgates for the quantum awarded in these cases. It concludes that, although damages have increased, they have increased less dramatically than anticipated, particularly where the claim is for discrimination rather than sexual harassment and where the claimant cannot demonstrate a recognisable psychiatric injury. The article concludes that further reform is required to ensure that the harms of discrimination are not minimised or undervalued.

'It's Just Business' ... Or Is It? When an Efficient Breach of Contract Becomes Unconscionable Conduct under the Australian Consumer Law 
Mark Giancaspro, (2023) 48(2) Monash University Law Review 272-308.

This article aims to identify the point at which an efficient breach of contract – an intentional breach where the innocent party is adequately compensated and the party in breach is ‘better off’ as a consequence of abandoning the contract – crosses the ‘blurry line’ into unconscionable conduct under the Australian Consumer Law. The article distils six indicia from the authorities to differentiate an efficient breach from an unconscionable one, including the gravity of the breach and associated pernicious conduct, whether there is a legitimate business reason for the breach, whether the breaching party has actively exploited the innocent party, and whether the parties are of relatively equal bargaining power.

Causation in Misuse of Market Power Claims under the Competition and Consumer Act 2010 (Cth) (Law Library login required)
Katharine Kemp (2022), 49(4) Australian Business Law Review 208

Following amendment of the Competition and Consumer Act 2010 (Cth) s 46, in 2017, a finding of misuse of market power no longer depends on proof of a causal link between a firm's substantial market power and the impugned conduct. The focus now is on the causal link between its conduct and the alleged actual or likely substantial lessening of competition. This article addresses the challenge of analysing cause and effects under the amended s 46. It proposes approaches to causation in challenging cases, namely those involving multiple causes; monopoly leveraging claims; and the special dynamics of multi-sided platforms.

A 'kind of sovereignty': toward a framework for the recognition of First Nations sovereignties at common law (NEW)
James Aird and Allan Ardill, Melbourne University Law Review 46(2) Advance

This article explores the idea that First Nations sovereignties are a spiritual notion that can be recognised in the Constitution, Acts of Parliament and by common law. Common law can recognise rights of self-government to protect traditional authority — that is, rights of organisation in relation to land. Recognition of such rights would be consistent not only with an understanding of First Nations sovereignties as being inextricably connected to the land, but also with the understanding of sovereignty as an argument for a space for deeper engagement within the state.

The article makes three interrelated alternative arguments in support of the recognition of incidents of sovereign rights. Whether it is (1) due to other land rights presupposed by native title, (2) via the ‘preferable rule’ in Mabo, or (3) via the connection with land as identified in Love, the common thread is that local law continues to the extent that it is not repugnant to the common law, or abrogated or changed by Crown sovereignty.

Te Ao Mārama – a vision for the District Court of New Zealand (Law Library login required)
Judge Heemi Taumaunu (2022), 96 Australian Law Journal 94 

The Te Ao Mārama model addresses challenges including that Māori are disproportionately over-represented in a monocultural and monolingual justice system that fails to incorporate Indigenous culture and language, or to tap into support and knowledge held in Indigenous communities. 

The proposed changes, which include infusing Indigenous language and culture into the system, increasing community involvement to improve information available to judges, toning down formalities, and a focus on addressing underlying causes of offending, are Court-led and judge-led initiatives which do not require any legislative change.

Statutory interpretation 
The Hon. P A Keane AC KC, (Speech, Judicial College of Victoria, Melbourne, 22 March 2023).

This speech emphasised the significance of studying cases related to strongly contested issues of statutory interpretation and used recent High Court decisions to show that “context is a first order consideration”. With a wide-ranging examination of issues including migration assessments, post-sentence detention, transgender recognition, public health measures and female genital mutilation, the Hon. Patrick Keane explored the contest between the legislature and the judiciary and how the resolution of that contest often depends on whether the court takes an expansive or modest view of the role of the judiciary in that relationship.

An Institutional Justification for the Principle of Legality 
Lisa Burton Crawford, (2022) 45(2) Melbourne University Law Review (advance)

This article argues that the presumption of statutory interpretation known as the 'principle of legality' cannot be justified as a tool for ascertaining parliamentary intention, nor is it a democracy-enhancing device. This article proposes an alternative justification for the principle of legality through which the courts are permitted to treat the common law as a relevant part of the context that informs statutory meaning, by reason of the courts constitutional function and the institutional setting in which statutory interpretation occurs.

Recurring Issues in Civil Appeals – Part 2 (Law Library login required)
Thomas Prince, (2022) 96 Australian Law Journal 273

This article discusses the review of factual findings on appeal – noting that the ultimate question for an appellate court remains whether the finding in issue was incorrect, and considers the raising of points for the first time on appeal. This includes a ‘new trial point’ ( a successful argument would result in a new trial being ordered) and a ‘verdict point’ (a successful argument would result in, or lead to, a verdict or judgment in favour of the party raising it). The article argues that much intermediate appellate authority is inconsistent with both High Court authority and general principle on the issue of when a new point can be raised on appeal.

Engaging with the Survivors' Reality of Domestic Violence: A Discourse Analysis of Judicial Understanding in Survivor-Perpetrated Homicides 
Patricia Easteal and Emma Roff, (2021) 47(1) Monash University Law Review 252–273.

This preliminary empirical study found that the family violence evidence provisions introduced into the Crimes Act 1958 and Jury Directions Act 2015 have played a role in shaping how Victorian judges understand the reality of domestic violence and its role in survivor-perpetrated homicide cases. Victorian judges have a “moderately better” understanding compared to their NSW counterparts, where there are no equivalent evidentiary changes. The researchers analysed judicial language in a sample of survivor-perpetrated homicide cases in Victoria and NSW over the past decade. This demonstrates that judicial understanding of the social context of coercive control is essential to the application of legal tests on liability and sentence in survivor-perpetrated homicide cases.

“Delicate Plants”, “Loose Cannons” or “A Marriage of True Minds”? The Role of Academic Literature in Judicial Decision Making (NEW)
Lady Justice Carr – Court of Appeal of England and Wales, Harris Society Annual Lecture, Keble College, Oxford, 16 May 2023.
 
This speech contends that academic writing from authors with a wide range of different perspectives helps judges understand – and neatly explain – what the law is, how it is developing, and how it should develop in the future. The speech argues that, through academic literature, judges and academics participate in constructive dialogue with one another which helps judges to think more critically about their decisions and consider alternative perspectives. The speech concludes that academic scholarship is vital to help develop law that is conceptually, morally and legally sound.

What is the Role of a legal academic? a Response to Lord Burrows 
Geoffrey Samuel, (2022) 2(3)(2) Amicus Curiae 305.

This article challenges some of the assumptions in Lord Burrows’ Lionel Cohen Lecture. It interrogates the perspective that a legal academic’s role necessarily bears a duty to aid the legal profession and the courts, given expectations about what amounts to good research. It also challenges the distinction between practical legal scholarship and ‘deep theory’. The article argues that a greater understanding both of the nature of disciplines and of some of the epistemic problems in law as a discipline would assist the complementary relationship between judges and academics more than a retreat from ‘deep theory’.

Taking Judging and Judges Seriously: Facts, Framework and Function in Australian Constitutional Law 
Justice Gordon (Lucinda Lecture, Monash University, Melbourne, 2 August 2022)

This speech explores the roles judges, legal practitioners and the academy each have in influencing and shaping the development of Australian constitutional law. Relevantly, it argues that the principles and standards applied by judges in determining constitutional cases ought to be informed by and developed in light of the work of practitioners and the academy to avoid rigidity in judicial thinking and stagnation in the law. The speech argues that the utility of academic work in shaping the law depends on the work being ‘reflexive scholarship’ or a ‘two-way conversation’ between judges and the academy, rather than being addressed to other academics.