The Australian Law Journal —Vol 76 xi

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 1 CONVEYANCING AND PROPERTY 7 INTERNATIONAL FOCUS 12 RECENT CASES 19 AUTHOR GUIDELINES 80

ARTICLES JANUARY 2002

THE STATE OF THE JUDICATURE 24

— HON CHIEF JUSTICE MURRAY GLEESON AC

SOUTH AFRICAN JUDGES AND HUMAN RIGHTS 34

— HON MR JUSTICE RALPH H ZULMAN

WHAT CAN WE LEARN FROM THE FRENCH CRIMINAL JUSTICE SYSTEM? 49

— BRON McKILLOP

LIABILITY FOR PSYCHIATRIC INJURY: AN EVIDENCE-BASED APPRAISAL 73 CONTENTS

— PROFESSOR CHRIS TENNANT i h utainLwJunl—Vol 76 The Australian LawJournal xii CONTENTSJANUARY 2002 RECENT CASES RECENT FOCUS INTERNATIONAL PROPERTY CONVEYANCINGAND ISSUES CURRENT The case of MV Tampa: state and refugee rights collide rights refugee and Tampa:state MV of case The to not term Implied and wives, Banks, acting landlord a is When Guesses jury Trialby Judge” Hero the of Rise “The guide Sentencing health Judges’ fewer means training “Better College Judicial National week Schoolies the at Christmas ago years 50 Y New Happy Delayed judgments Delayed Prior judgments as evidence as judgments Prior for against relief Lease: to relationship personal witness: Expert to care of Duty land adjoining Trespasson Meetings notices of Service 6 21 4 1 ear! 3 escapee 2 Bar lines 19 undue influence undue 1 19 vary interest rate interest vary 1 4 feiture 22 2 reasonably in refusing in reasonably 21 22 pel” appeals” 4 22 8 “unreasonably” 3 a party a 22 consent?

— MR JUSTICE P W Y W P JUSTICE MR — — MR JUSTICE P W Y W P JUSTICE MR — 10 tsa sea at

— RYSZARD PIOTROWICZ RYSZARD — 7

— PETER BUTT PETER — 12 OUNG OUNG The Australian Law Journal —Vol 76 xiii

ARTICLES

THE STATE OF THE JUDICATURE An address by the Chief Justice of the High Court of Australia delivered to the 32nd Australian Legal Convention (Law Council of Australia), Canberra, on 14 October 2001 The Chief Justice draws attention to the fact that modern judges have taken on board modern technology and produce judgments electronically accessible to the community He considers worldwide standards for judicial conduct, noting that standards of professional behaviour are best developed by experience, not imposed by edict He also briefly reviews other current developments affecting the judiciary 24 — HON CHIEF JUSTICE MURRAY GLEESON AC

SOUTH AFRICAN JUDGES AND HUMAN RIGHTS This article is an edited version of, and based substantially upon, an address given by the author to the Supreme Court History Society in the Banco Court, Supreme Court, Queensland on 4 July 2001 In this thought- provoking piece, the author deals with the problems of conscience faced by judges in the former South African regime He then notes the legislative and practical changes in present-day South Africa and gives his vision for the future At present, 27 per cent of the judges in the superior courts are persons of colour 34 — HON MR JUSTICE RALPH H ZULMAN

WHAT CAN WE LEARN FROM THE FRENCH CRIMINAL JUSTICE SYSTEM? There are many differences between the Australian and French criminal justice systems This article discusses those differences, describes the French system focusing on its salient features, and suggests three criteria that might be applied in considering whether some procedures could beneficially be JANUARY 2002 adopted into the Australian system 49 — BRON McKILLOP

LIABILITY FOR PSYCHIATRIC INJURY: AN EVIDENCE-BASED APPRAISAL A recent review by Ian Freckelton has assessed the issue of liability for damages for psychiatric injury following psychological trauma from a legal perspective This article examines the legal constructs involved in this domain, from an evidence-based psychiatric approach These constructs and the way they are applied in common law may varyingly discriminate against a plaintiff or a defendant depending on particular circumstances Future determinations by superior courts in Australia may hopefully set precedents which increasingly eliminate these problems 73 CONTENTS — PROFESSOR CHRIS TENNANT i h utainLwJunl—Vol 76 The Australian LawJournal xiv CONTENTSFEBR UARY 2002 ARTICLES SECTIONS AUTHOR GUIDELINES AUTHOR OBITUARIES CASES RECENT FAMILYLA LA THE IN PEOPLE PROPER AND CONVEYANCING ISSUES CURRENT OES F H TKOES AE AD HI EFC UPON EFFECT THEIR AND PANEL TAKEOVERS THE OF POWERS B AT LOOKS LAWYER A THE OF 73 s IN “SENTENCES” WORD MYSTERIOUS THE ASIC AND THE COUR THE AND ASIC CONSTITUTION H AUSTRALIAN THE 89 W 140 92 81 97 88 W A JOURNAL LAW 143 119 T AYES’THEOREM Y 85 TY — HON JUSTICE MICHAEL KIRBY AC CMG AC KIRBY MICHAEL JUSTICE HON — 109 — BARBARA MESCHER BARBARA — — DAVIDHODGSON — The Australian Law Journal —Vol 76 xv

CURRENT ISSUES — MR JUSTICE P W YOUNG

Chapter III courts 81 A matter of timing 81 Legal aid 81 Counsel’s immunity 82 Privacy 83 Privacy legislation 83 Abolition of civil juries 83 Lawyers in country areas 84 Apology and New Year resolution 84

CONVEYANCING AND PROPERTY — PETER BUTT

Implied permission defeats claim to prescription 85 Lease cured of uncertainty 86 Proprietary estoppel and a “home for life” 86 Easements: ancillary right to construct road 87

PEOPLE IN THE LAW — GEOFF LINDSAY SC

Appointment of Senior Counsel (Qld) 88 Bar Council Elections (WA) 88

FAMILY LAW — ANTHONY DICKEY QC

Problems concerning financial agreements 89 FEBR UARY 2002

RECENT CASES — MR JUSTICE P W YOUNG Deemed contract with state enterprise: quantum meruit 92 Human rights 92 Duress and official secrets 93 Expert evidence 93 Fiduciary duty to next door neighbour 94 Landlocked land 95 Receptionists: duty of care 95

Lawyers – mediation – conflict of interest 95 CONTENTS Contributory negligence 96 v h utainLwJunl—Vol 76 The Australian LawJournal xvi CONTENTSFEBR UARY 2002 OBITUARIES ASIC UPON EFFECT THEIR AND PANEL TAKEOVERS THE OF POWERS BAYES’ATTHEOREM LOOKS LAWYER A CONSTITUTION THE OF 73 s IN “SENTENCES” WORD MYSTERIOUS THE ARTICLES VernonW F Robert John Justice power judicial exercising be may Panel the because Constitution Panel Panel the the Panel’soffend the powers whether is the issue significant on and additional An powers and these bestow court to the decision legislature’s and the Panel, by created the and ASIC between tensions the examines also article The court the and Panel, the ASIC, between overlaps jurisdictional resulting the Paneland the of powers new the analyses article This period bid the during disputes takeover resolving for forum main the takeovers TakeoversThe on 6 Ch former the of rewriting the is Panel now is changes those of law One company to changes major in results (Cth) 1999 then the to amendments of ProgramAct Reform Economic Law Corporate the under Law Corporations 2000 March 13 on commencement The some have to lawyers trial of understanding and judges for helpful is it believe of I Theorem, Bayes’ sort apply routinely that should courts addresses that suggest that not do I theory While problem probability of theorem a is Theorem Bayes’ case the in evidence other with evidence that combine to need character,and in statistical explicitly is that evidence receive sometimes Courts word constitutional redundant some, of view the The dignity? judicial in and, mysterious this beneath of meaning the to as possibilities the explores author or unfruitful as appeals sentencing regard to decisions) court earlier in (observed tendency judicial a correct to there it is eyes today’s with Read punishment? criminal of disposition judicial the – usage modern natural its with harmonious more meaning a have word the does Australia, ever,in exercisedbriefly,if only was jurisdiction such as But courts ecclesiastical of orders the to refers it that is England, in word the of On thisthereislittleauthority Onepossibleinterpretation,giventhehistory Court? High the of jurisdiction appellate the attracting dispositions judicial of list the in s 73, in “sentences” of meaning the is what But operation its of word of theA every amendment,nearly Because ofitsbriefexpression andthedifficultyofformal AND THE COURT THE AND atson 141 it ustralian Constitutionhasbeenstudiedinthefirstcentury 109 elix Lehane elix 140 — HON JUSTICE MICHAEL KIRBY AC CMG AC KIRBY MICHAEL JUSTICE HON — 97 — BARBARA MESCHER BARBARA — — DAVIDHODGSON — 119 The Australian Law Journal —Vol 76 xvii

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 145

LETTER TO THE EDITOR 150

CONVEYANCING AND PROPERTY 151 CONSTITUTIONAL LAW 154

EQUITY AND TRUSTS 158

OVERSEAS LAW 161 RECENT CASES 164 M A R C H C R A M 2 0 0 2 NEW BOOKS 209

AUTHOR GUIDELINES 212

ARTICLES

EXCLUSION OF EVIDENCE ILLEGALLY OR IMPROPERLY OBTAINED 170

— G L DAVIES

A DIARY OF TWO GERMAN CIVIL CASES 186

— DR ANDREW CANNON

CAUSATION AND AGENCY: A STUDY IN SEMANTICS 195 CONTENTS

— G H L FRIDMAN QC FRSC vi h utainLwJunl—Vol 76 The Australian LawJournal xviii CONTENTSMARCH 2002 RECENT CASES RECENT LAW OVERSEAS TRUSTS AND EQUITY LAW CONSTITUTIONAL PROPERTY CONVEYANCINGAND EDITOR THE TO LETTER ISSUES CURRENT Damages for non-pecuniary loss non-pecuniary for Damages acceptance and Offer high the is Where Soci Law the of President Is breach and Bankruptcy se re Confidentiality leader his sues counsel Junior mortgages moneys All trial pre-reading Judges the in remuneration Judicial States United the in law of rule the of Erosion trust fund superannuation a of amendment of deed invalid an of Effect constitutional in trends Recent extend? security mortgagee’s a does far How deposit of Recovery List Honour’s Day Australia judges Sleeping 1951 of troubles The 148 SC? or QC Auditors r 30-year The Court Federal the of years 25 penalties Criminal insurance National balance a Getting Injunctions in defamation in Injunctions equity? an not equity an is When deed 158 148 l 147 ule 149 145 water mark? water 146 146 xual affairs xual 151 148 167 165 of trus of material cases ety a public a ety 149 United States United of Austra of 166 167 t law 167 166 164 150 168 165 164 154 lia office? 147 163 167 161 153

— MR JUSTICE P W Y W P JUSTICE MR — — MR JUSTICE P W Y W P JUSTICE MR —

— PROFESSOR P H LANE H P PROFESSOR —

— DAVIDMACLEAN —

— ROSS BUCKLEY ROSS — — PETER BUTT PETER — OUNG OUNG The Australian Law Journal —Vol 76 xix

ARTICLES

EXCLUSION OF EVIDENCE ILLEGALLY OR IMPROPERLY OBTAINED The exclusion of evidence illegally or improperly obtained has come to be seen as a means of disciplining law enforcement officers, maintaining integrity and public confidence in the courts, and protecting rights as well as to give effect to its original purpose, to avoid the risk of unreliability of evidence This article contends that the exclusion of evidence is not an adequate means of giving effect to these purposes and may result in the exclusion of relevant and highly probative evidence of guilt It is contended that a code of conduct for law enforcement officers and an independent system of determining breaches of such code and applying sanctions, leaving assessment of reliability of evidence to juries, would be a better solution 170 — G L DAVIES

A DIARY OF TWO GERMAN CIVIL CASES This article is a practical insight into the German civil code method of resolving civil disputes It briefly reviews some of the substantial differences and similarities between the approach of courts to resolving civil disputes in Germany and the common law tradition, and suggests some aspects that might be useful to our system It then gives tangible examples by reproducing diaries of the hearings of two German cases, one in the equivalent of a Magistrates Court and the other in the higher State Court, the equivalent of an Australian District, County or Supreme Court 186 — DR ANDREW CANNON

CAUSATION AND AGENCY: A STUDY IN SEMANTICS This article considers the problem of determining the causal connection between an agent’s performance of the agency and the ultimate result, so as

to entitle the agent to the agreed commission Various tests have been MARCH 2002 proposed by courts in England, Canada and Australia The purpose of this discussion is to consider those suggestions in the context of a recent decision of the High Court of Australia and compare the way in which such courts have dealt with the problem, with a view to suggesting that there appears to be no satisfactory answer 195 — G H L FRIDMAN QC FRSC

NEW BOOKS 209 CONTENTS xTeAsrla a ora —Vol 76 The Australian LawJournal xx CONTENTSA P R I L 2 0 0 2 ARTICLES SECTIONS NRSOS O“OAD OECMLATJDCAY” 231 JUDICIARY?” COMPLIANT MORE A “TOWARDS TO RESPONSE IN OBITUARY BOOKS NEW CASES RECENT FAMILYLA PROPERTY CONVEYANCINGAND ISSUES CURRENT MEDICAL CAUSA MEDICAL PRIVATE?OR FUNDED GOVERNMENT FUND: ASSURANCE THE ACCOUNTABILITY EVALUATION: PERFORMANCE JUDICIAL WITHOUT COMPLI WITHOUT H AUSTRALIAN THE 223 W 276 269 226 TION 213 A JOURNAL LAW ANCE 258 235 — HON JUSTICE ALASTAIR NICHOLSON AO RFD AO NICHOLSON ALASTAIR JUSTICE HON — 219 — RICHARD TRAVERSRICHARD — — STEPHEN COLBRAN STEPHEN — — LYNDEN GRIGGS LYNDEN 250 The Australian Law Journal —Vol 76 xxi

CURRENT ISSUES — MR JUSTICE P W YOUNG ADR: a generic, holistic concept 213 The Drummond article 214 Justice in central and north western New South Wales 214 Criminal justice in Dubbo 215 Lawyers’ advertising 215 New South Wales Judicial Commission 215 The Lord Chancellor 216 The Coat of Arms 216 Resealing probates 217 Examination paper for advanced students: criminal law 218 Quote of the month 218

CONVEYANCING AND PROPERTY — PETER BUTT Indefeasibility of title and “volunteers” 219 Tenant reimbursed for expenditure on leased premises 219 Going behind a valuer’s rent determination 220 Rent review where there is no “market” for the property – and a leasing drafting point 221 Another leasing drafting point 221 Australian land law runs in Mongolia 222 APRIL APRIL 2002 FAMILY LAW — ANTHONY DICKEY QC Property division and disparity of income and capital 223 Step-children and the inter-relationship between s 55A and s 66M 224

RECENT CASES — MR JUSTICE P W YOUNG Views as evidence 226 Exoneration 226 Exemplary damages in equity 227 Solictors: challenge to retainer 228 Contractual restraints of trade 228 Asset freezing orders 228 Directors’ contracts with the company 229 Shares: holding locks 229 CONTENTS Bankruptcy: duty of trustee 230 xiTeAsrla a ora —Vol 76 The Australian LawJournal xxii CONTENTSAPRIL 2002 OBITUARY BOOKS NEW CAUSATIONMEDICAL PRIVATE?OR FUNDED GOVERNMENT FUND: ASSURANCE THE WITHOUT EVALUATION: ACCOUNTABILITY PERFORMANCE JUDICIAL JUDICIARY?” COMPLIANT MORE “TOWARDSA TO RESPONSE IN ARTICLES The Hon Peter F Peter Hon The as B contracted plaintiff a that probabilities of balance the on proof to amounting as scientists those of evidence the accept may court a may it that suggests which which in circumstances the examinesarticle This do notclaimtohaveproventhatAcausesB;theyonly tohaveevidence They B disease cause may A factor that claim scientists medical Reputable Torrenssystem the of elements critical the of one as sit comfortably of does system assurance indefeasibility funded government of the that is concept conclusion The title the by affected adversely those compensate to way superior and cheaper a be would interest, their protect to desire who parties those by out taken insurance, private whether is article this by raised inquiry The this? support analysis economics/law an However,can system Torrensthe of component essential an as seen often is fund assurance The is powers discussed of separation and independence judicial accountability, evaluation’sassociationwithjudicial for courtresources Judicialperformance in used as the Family Court,isanessen measurement, performance administrative and court accountability, that judicial and to approaches self-improvement traditional embrace supplement to to duty is strategies ethical It an discussed have is judges context that Australian argued the into transposed readily be can judges individual Scotia Nova and of US the in used methods performance evaluation performance Whether the evaluate flawed to are which accountability by judicial measures to approaches traditional judiciary, the compliant that a and creating without achieved that be argues can and accountability evaluation performance judicial examines article This Journal Law Australian the of editions 2001 June and May More the in a in parts, “Towardstwo in write appeared, Drummond, which Judiciary?”, to Douglas Compliant moved Justice by is Australia article the of to Court response Family the of Justice Chief The COMPLIANCE 235 269 Brinsden AM, QC AM, Brinsden tial toolforself-management andaccountability — HON JUSTICE ALASTAIR NICHOLSON AO RFD AO ALASTAIRNICHOLSON JUSTICE HON — 276 231 — STEPHEN COLBRAN STEPHEN — — RICHARD TRAVERSRICHARD — euto 258 A of result a — LYNDENGRIGGS 250 The Australian Law Journal —Vol 76 xxiii

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 277 CONVEYANCING AND PROPERTY 283 FAMILY LAW 287 INTERNATIONAL FOCUS 290 RECENT CASES 298 M A Y 2002 Y A M AUTHOR GUIDELINES 340

ARTICLES

COURT ETIQUETTE 303

— MR JUSTICE P W YOUNG

TREATY APPLICATION TO A CAPITAL GAINS TAX INTRODUCED AFTER CONCLUSION OF THE TREATY 309

— HON JUSTICE GZELL

NON-COMPENSATORY DAMAGES FOR BREACH OF CONTRACT AND

TORTS 328 CONTENTS

— DR JAMES EDELMAN xvTeAsrla a ora —Vol 76 The Australian LawJournal xxiv CONTENTSMAY 2002 RECENT CASES RECENT FOCUS INTERNATIONAL FAMILYLAW PROPERTY CONVEYANCINGAND ISSUES CURRENT Duty of care of care of Duty Blank in document: in Blank deposit of return Conveyancing: – oppression Corporations: contracts illusory and Mortgages – rates interest variable Mortgages: contempt: Purging involved crime where orders Declaratory Declaratory the is What employees? clergy Are evidence Expert universal to exposure their and ministers foreign of Immunities matters child in law Applicable marriage with nexus and relief Financial distant benefiting Covenant f forfeiture against relief No evil or Godsend Email: the of regulation National federal against Complaints matter Kirby The Attor the and Kirby Justice Stairway to nowhere to Stairway jurisdiction sea? proceedings and status and proceedings 290 licenced c licenced 298 299 278 options invalidati 284 298 282 onveyancers legal profession legal ney-General 300 judges date of val of date or purc or land ng effect ng involving residents of di of residents involving 302 301 286 281 haser duty of mortgagee of duty 299 uation 283 302 277 283 287 300 281 301

— MR JUSTICE P W Y W P JUSTICE MR — — MR JUSTICE P W Y W P JUSTICE MR — 300 fferent States fferent

— RYSZARD PIOTROWICZ RYSZARD — — ANTHONY DICKEY QC DICKEY ANTHONY —

— PETER BUTT PETER — 288 OUNG OUNG The Australian Law Journal —Vol 76 xxv

ARTICLES

COURT ETIQUETTE There are a number of “rules” which are observed by all practitioners of good standing which are “lore” rather than “law” These are best described as rules of etiquette They are basically the same for all courts and tribunals, but special practice or the rules of court in some places may mean that they need to be applied sub modo This article sets out 44 rules of etiquette, the observance of which will aid the hearing of most cases in the courts 303 — MR JUSTICE P W YOUNG

TREATY APPLICATION TO A CAPITAL GAINS TAX INTRODUCED AFTER CONCLUSION OF THE TREATY The Australian Taxation Office issued a ruling on 19 December 2001 asserting that residents of countries with which Australia signed agreements for the avoidance of double taxation before the introduction of capital gains tax in Australia are not protected by those treaties from this Australian tax This article takes the contrary view 309 — HON JUSTICE GZELL

NON-COMPENSATORY DAMAGES FOR BREACH OF CONTRACT AND TORTS The issue that this article focuses upon is one that the Full Federal Court recently confronted explicitly for the first time in Australian law This was the question of the availability of two gain-based damages remedies, variously described as “restitutionary damages” and “disgorgement damages”, in Australian law Although it will be shown that both remedies have a strong historical pedigree, their relationship with each other and

their nature had never previously been considered in any detail 328 M A Y 2 0 0 2 — DR JAMES EDELMAN CONTENTS xiTeAsrla a ora —Vol 76 The Australian LawJournal xxvi CONTENTSJ U N E 2002 ARTICLES SECTIONS AUTHOR GUIDELINES AUTHOR CASES RECENT A PRACTICAL PROPERTY CONVEYANCINGAND ISSUES CURRENT IDEA/EXPRESSION DICHOTOMY:IDEA/EXPRESSION APPLICATION ARCHITECTURAL TO PRIVAIN DAMAGES OF PROOF THE AND COMMONWEALTH”, AMERICAN “THE BRYCE, JAMES PLANS AND COMPUTER SOFTW COMPUTER AND PLANS CONS AUSTRALIAN H AUSTRALIAN THE VCC 351 DVOCACY 353 341 A JOURNAL LAW TITUTION 402 TE COMPETITION LAW COMPETITION TE 362 R 389 ARE 346 — MATTHEW N C HARVEY C MATTHEWN — — STEPHEN CORONES STEPHEN — — DANIEL SULLIVANDANIEL — ACTIONS 374 The Australian Law Journal —Vol 76 xxvii

CURRENT ISSUES — MR JUSTICE P W YOUNG

Tort “reform” 341

Juries and justice 343

Apprehended violence orders 343

Guarantees 343

Bugging warrants 343

Country courts and the poor 344

Without prejudice 344

Examination Topic No 2: Company law – vacating office upon death 345

CONVEYANCING AND PROPERTY — PETER BUTT

Conveyancing practice and the law: leases and subdivisions 346

Purchasers relieved against loss of contract 347

PRACTICAL ADVOCACY — CHIEF JUSTICE JOHN H PHILLIPS AC JUNE 2002 JUNE Decisions, decisions 351

RECENT CASES — MR JUSTICE P W YOUNG

Nuisance: overflowing sewer 353

Mere equities 354

DNA examination of material from a corpse 356

Amendment of consent orders 356

Rent: to be paid without deduction 357

Injunctions: clarity 358 CONTENTS

Charges over book debts 358 xiiTeAsrla a ora —Vol 76 The Australian LawJournal xxviii CONTENTSJUNE 2002 DAEPESO DCOOY APIAIN O ARCHITECTURAL TO APPLICATION DICHOTOMY: IDEA/EXPRESSION PRIVATEACTIONS LAWIN COMPETITION DAMAGES OF PROOF THE AND COMMONWEALTH”, AMERICAN “THE BRYCE, JAMES ARTICLES ewe pas n porm ad nlss h apiain f h idea/ the of application works those to the dichotomy expression analyses and programs and plans between the expression dichotomyindepth Itreflectsonthesimilaritiesanddissimilarities to due protection idea/ the considers copyright article This expression from idea of separating of difficulty level appropriate the fix to struggled software have Courts computer functional highly are works of and types these of Both (programs) (plans) houses works: residential of for categories plans troublesome architectural two of copyright considers article This Australia’s for inspiration initial the was law competition States which United under law handled are antitrust issues these way the of consideration a The with begins It 80 conduct anti-competitive for s recoverable are that damages to pursuant injunction an or 87, theprivate purpose ofthisarticleistoconsidertheprinciplesfordetermining or 82 for s claim to a support pursuant to damages theory separate a and liability of the theory a of establish one of breach a for Tradeto the need of will provisions (Cth) law 1974 ActPracticescompetition action private a contemplating plaintiff A the of making the in Constitution Australian book influential American most “The the that was realise Commonwealth” today people Few States of United century first the the in operated had it how them taught and federalism of Constitutional Australian possibilities the the to minds delegates’ the opened at It 1890s the of Conventions book admired often most and frequently cited most the was Bryce James by Commonwealth” American “The PLANS AND COMPUTER SOFTWARECOMPUTER AND PLANS CONSTITUTION AUSTRALIAN 374 362 389 — MATTHEW N C HARVEY C MATTHEWN — — STEPHEN CORONES STEPHEN — — DANIEL SULLIVANDANIEL — The Australian Law Journal —Vol 76 xxix

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 405 CONVEYANCING AND PROPERTY 410 OVERSEAS LAW 414 FAMILY LAW 417 PEOPLE IN THE LAW 420 RECENT CASES 424 JULY 2002 JULY OBITUARY 466 AUTHOR GUIDELINES 468

ARTICLES

NEGLIGENCE: THE LAST OUTPOST OF THE WELFARE STATE 432

— HON J J SPIGELMAN AC

PSYCHIATRIC DIAGNOSES IN THE LEGAL CONTEXT 452

— DR JOHN ELLARD

RACE AND THE CONSTITUTION 456 CONTENTS

— ROBERT DUBLER x h utainLwJunl—Vol 76 The Australian LawJournal xxx CONTENTSJULY 2002 PEOPLE IN THE LAW THE IN PEOPLE FAMILYLAW LAW OVERSEAS PROPERTY CONVEYANCINGAND ISSUES CURRENT Advertising for judges for Advertising Press coverage Press independence Judicial solicitors Country X-Ray Camp in past the Discovering Victoria in future the Discovering Negligence Easements: permitted permitted Easements: and convenience of Balance Tertiaryeducation Sentencing custo gemns aeilavrecag lue 414 clauses change adverse material agreements: Acquisition co between Accounts pre-contract of Refund human International out Speaking Justice E M Heenan M E Justice (Tas) Counsel Senior of Appointment ( Hungerford Justice (Cth) Sackville Ronald Justice order? recovery a for apply can Who a of support for payments unjustified for Recompense Justice D A Ipp Ipp A D Justice 406 405 408 405 409 (WA) 408 406 NSW) (WA) -owners rights 422 use 409 407 deposit Tasmania 412 421 420 405 caveats 410 420 410 407 412 421 418 407

— child — JUSTICE R I BARRETT I R JUSTICE — ANTHONY DICKEY QC DICKEY ANTHONY

— GEOFF LINDSAYSC GEOFF 417

—

ROSS BUCKLEY ROSS — PETER BUTT PETER — The Australian Law Journal —Vol 76 xxxi

RECENT CASES — JUSTICE R I BARRETT Re-opening of decisions by appellate courts 424 Judicial bias 424 Contribution 425 Discrimination 426 Judicial consistency 426 Conversion: remoteness of damage 427 Duplicity and ambiguity 427 When is a lease not a lease? 428 “Bodily injury” under the Warsaw Convention 428 Voting by attorney at company meetings 428 Baumgartner equity 429 Refugee status 430

ARTICLES

NEGLIGENCE: THE LAST OUTPOST OF THE WELFARE STATE Public debate about tort law reform has intensified A review of legislative intervention over recent decades reveals that statutory change has been underwriter driven An alternative principle driven approach is available 432 — HON J J SPIGELMAN AC PSYCHIATRIC DIAGNOSES IN THE LEGAL CONTEXT I receive requests from solicitors asking me to assess the psychological consequences of misadventures suffered by their clients It is pointed out JULY 2002 JULY that I need to distinguish between a psychiatric disorder and what might be described as the normal consequences of such an event This requirement is both logical and reasonable: the purpose of this article is to indicate some of the difficulties which stand in the way of satisfying it 452 — DR JOHN ELLARD RACE AND THE CONSTITUTION In the High Court case of Kartinyeri v Commonwealth (1998) 195 CLR 337, it was accepted as received orthodoxy by the parties and judges considering the matter, that the race power in the Australian Constitution reflected a racist intention at the time to be able to pass discriminatory laws against non-whites It is suggested that this is historically an unfair view to take of the framers of the Constitution and wrongly burdens our contemporary society with a racist Constitution 456 — ROBERT DUBLER

OBITUARY CONTENTS Lionel John (Jack) Elliott QC 466 xi h utainLwJunl—Vol 76 The Australian LawJournal xxxii CONTENTSA U G U S T 2002 ARTICLES SECTIONS AUTHOR GUIDELINES AUTHOR BOOKS NEW CASES RECENT FAMILYLA PROPERTY CONVEYANCINGAND THE TO LETTER ISSUES CURRENT IET ICIIAIN N H DSBLT DISCRIMINATION DISABILITY THE IN DISCRIMINATION DIRECT OF FREEDOM JUDGES’ LAW,VALUES C 512 ACT H AUSTRALIAN THE 482 W 525 AND CH AND 485 EDITOR 469 A JOURNAL LAW ARITY 528 SPEECH 474 492 499 477 — HON SIR GERARD BRENNAN AC KBE AC BRENNAN GERARD SIR HON — — ENID CAMPBELL ENID — — GUS BERNARDI GUS — The Australian Law Journal —Vol 76 xxxiii

CURRENT ISSUES — HON JUSTICE C STEYTLER International Criminal Court 469 Mandatory sentencing 471 Race and admission to law school 472 Tribal punishment as mitigation and cross-cultural issues 472 Age and compulsory retirement 473

LETTER TO THE EDITOR 474

CONVEYANCING AND PROPERTY — PETER BUTT Death of contracting party 477 When is an easement abandoned? 477 Demolition of building in breach of covenant 477 Mortgagor entitled to have second mortgage registered 478 Termination of permissive occupancies 479 Caveatable interest 480 AUGU ST ST 2001 AUGU

FAMILY LAW — ANTHONY DICKEY QC Severance of joint tenancies after separation 482 Void marriages and non-marriages 483

RECENT CASES — HON JUSTICE C STEYTLER Academic lamentations in choice of law 485 IVF, the church and justiciability 488 Oral argument exceeding written submissions 489

Interventionism and the adversarial system 489 CONTENTS Value of non-existence 490 xi h utainLwJunl—Vol 76 The Australian LawJournal xxxiv CONTENTSAUGU ST 2002 NEW BOOKS NEW ACT DISCRIMINATION DISABILITY THE IN DISCRIMINATION DIRECT SPEECH OF FREEDOM JUDGES’ LAW,CHARITY AND VALUES ARTICLES anr which manner, complex a in discrimination direct construed have law courts the that case finds and Australian and English of (Cth) examination close 1992 provides Act article Discrimination The Disability the in discrimination specifically direct and of generally operation and meaning the examines article This the and inhibitions special these them for justifications with concerned is article This conduct judicial regarding conventions from and part, their on bias apprehended because of adjudicating from disqualified are judges which in circumstances the regarding law common from stem inhibitions These others to apply not do which but capacity judicial extra an in write or say properly can judges what on inhibitions other however,some are, There offence criminal some for prosecuted being of or court, of contempt for against proceeded being of statements judicial Extra public made bythemmaythusexpose themtotheriskofbeingsuedfordefamation, the of members other do than speech of freedom greater no enjoy they judicially extra write or speak judges When of life a 4 to poor, the charity especially of dignity everyone, duty of a entitlement is the there protect that to question realise recurring should a citizens is good freedom all However, economic restrict should law which to extent The community the in group cultural or offend religious any it of should values the nor freedom individual upon trespass adopt unnecessarily should to not Law law need community’s a citizens of content good the influence All these law and values of scope the analyses Justice Chief In thisarticle,originallypresentedtoa application 512 525 a nroe rte ta bodnd t oeain and operation its broadened than rather narrowed has 499 Christian Lawyers’group,theformer — HON SIR GERARD BRENNAN AC KBE AC BRENNAN GERARD SIR HON — — ENID CAMPBELL ENID — — GUS BERNARDI GUS — 92 The Australian Law Journal —Vol 76 xxxv

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 529 CONVEYANCING AND PROPERTY 535

OVERSEAS LAW 539

PEOPLE IN THE LAW 544 RECENT CASES 547

OBITUARIES 595

AUTHOR GUIDELINES 598 S E P T E M B E R 2002 R E B M E T P E S

ARTICLES

PUBLIC CONFIDENCE IN THE JUDICIARY 558

— HON CHIEF JUSTICE MURRAY GLEESON AC

TENSIONS BETWEEN THE EXECUTIVE AND THE JUDICIARY 567

— HON JUSTICE M H McHUGH AC

TURNING THE NEGLIGENCE JUGGERNAUT 581 CONTENTS

— KIERAN TAPSELL xv h utainLwJunl—Vol 76 The Australian LawJournal xxxvi CONTENTSSEPTEMBER 2002 EPEI H A CASES RECENT LAW THE IN PEOPLE LAW OVERSEAS PROPERTY CONVEYANCINGAND ISSUES CURRENT Negligence and indoor cricket indoor and Negligence care of duty Mother’s Tort: voluntary information of Freedom deduction without Rent benefits killer’s of Forfeiture Subpoenas injunctions Stale give to Duty judgments on Interest approval and knowledge Wills: arbitrators of Misconduct (WA) RFD Roberts-Smith W L Justice Hon (Vic) Nettle A A G Justice Hon Gzell V I Justice AwardsAustralia of Order law domestic and international financing: Aircraft of part illegal Severing interests equitable and equities Mere Criminal International strike Lawyers powers of Separation Britain in abolished jeopardy Double Special and Crime in law Criminal t and judiciary The evidence Expert Victoria of Court Supreme the Yearsof 150 vacation My 549 529 reasons 533 injurious act injurious China 530 (NSW) 549 Courts he Executive he 548 533 554 548 531 Court a lease a 544 551 550 547 532 544 552 550 534 554 537 545 547 531 535 533 546 530

— HON JUSTICE C STEYTLER C JUSTICE HON — 539

— MR JUSTICE P W Y W P JUSTICE MR — — GEOFF LINDSAY SC LINDSAY GEOFF —

— ROSS BUCKLEY ROSS —

— PETER BUTT PETER — OUNG The Australian Law Journal —Vol 76 xxxvii

ARTICLES PUBLIC CONFIDENCE IN THE JUDICIARY Criticism of judicial decisions has always occurred, and is healthy Underlying public confidence is not affected by such criticism Public confidence is upheld by the conduct of individual judges, and by institutional guarantees Judicial independence ensures confidence; it is a right of citizens not individual judges The guarantees of judicial independence, and its implications for judicial discipline are discussed 558 — HON CHIEF JUSTICE MURRAY GLEESON AC

TENSIONS BETWEEN THE EXECUTIVE AND THE JUDICIARY Speaking at the recent Australian Bar Association Conference in Paris, Justice Michael McHugh lamented that, while the doctrine of the separation of powers makes some tension between the Executive and the judiciary inevitable, continuing tension is neither a public good nor indicative of a healthy, well-oiled government In recent years, tensions between the two arms of government have accelerated in the contentious field of immigration law This area of the law has seen a “bipartisan governmental mistrust” of the role performed by the courts in reviewing migration decisions, with an increasing “desire of the Executive to exercise control over migration matters to the exclusion of the courts” While occasional conflict may do no harm, persisting tension may diminish the authority of the courts and undermine public confidence in the integrity of judges The frustration of the Executive with applicants who abuse the judicial review system is understandable However, continuing conflict may induce the executive government to prevail on the legislature to reduce or abolish judicial review, undermining the rule of law Justice McHugh recalled the cautionary words of Sir William Wade that “to exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power” However, he said that judges also need to continually remind themselves that in judicial review cases their task is to review the legality and not the merits of administrative decisions 567 SEPTEMBER SEPTEMBER 2002 — HON JUSTICE M H McHUGH AC TURNING THE NEGLIGENCE JUGGERNAUT Insurance has been the fuel for the imperious progress of the law of negligence It has also had a subtle but hidden influence on the extension of liability especially in relation to personal injury The recent public liability insurance crisis is just as likely to have the same hidden effect, but in the opposite direction Recent decisions of the High Court would suggest that the negligence juggernaut is gradually being turned It has to turn, if the fault-based system of compensation is to retain respect 581 — KIERAN TAPSELL

OBITUARIES Peter Edward Nygh 595 CONTENTS Justice Ann Robinson 596 xvi h utainLwJunl—Vol 76 The Australian LawJournal xxxviii CONTENTSO C T O B E R 2 0 0 2 ARTICLES SECTIONS AUTHOR GUIDELINES AUTHOR BOOKS NEW CASES RECENT INTERNATIONAL PROPERTY CONVEYANCINGAND ISSUES CURRENT BUSH COURTS OF RE OF COURTS BUSH COMMONWEALTH-STATE CO- SYSTEM LEGAL ZEALAND NEW THE AND MAORI WHAT SHOULD BE WHATSHOULD H AUSTRALIAN THE 652 615 601 FOCUS A JOURNAL LAW MOTE AUSTRALIA MOTE DONE NOW? DONE 654 609 PRTV CEE FE HUGHES: OPERATIVE SCHEMESAFTER 631 605 — RT HON DAME SIAN ELIAS GNZM ELIAS SIAN DAME HON RT — 640 — DENNIS ROSE AM QC AM ROSE DENNIS — 620 — NATALIE— SIEGEL The Australian Law Journal —Vol 76 xxxix

CURRENT ISSUES — MR JUSTICE P W YOUNG Reform of the law of negligence 601

CONVEYANCING AND PROPERTY — PETER BUTT Exercise of option 605 Indefeasibility and “knowing receipt of trust property” 606 Valuer’s rent review unassailable 608

INTERNATIONAL FOCUS — RYSZARD PIOTROWICZ South Asian initiatives in the fight against people trafficking 609

RECENT CASES — MR JUSTICE P W YOUNG Contempt: magistrates’ powers 615 Fruits of litigation liens 616 Condition forfeiting benefit if will contested 616 Sexually transmitted debt 617 Pathology and fiduciary duties 617

Limited authority of bishops 618 OCTOBER 2002 Forged Torrens mortgages 618 Estoppel in public law 618 CONTENTS lTeAsrla a ora —Vol 76 The Australian LawJournal xl CONTENTSOCTOBER 2002 NEW BOOKS NEW AUSTRALIA REMOTE OF COURTS BUSH COMMONWEALTH-STA SYSTEM LEGAL ZEALAND NEW THE AND MAORI ARTICLES efrac o bt Sae n Cmowat fntos ne the under functions Commonwealth schemes and State both of performance the that ensuring by the to apply misconduct simply to relating provisions solved disciplinary Commonwealth be article could This problems the problems that these suggests solve to attempts unsuccessful made have schemes TheCommonwealthandStates Commonwealth-State co-operative of have validity the about uncertainties fundamental and 535 continuing to rise given CLR 202 (2000) Hughes v R in Court High the of judgments The the Northern Territory Northern in Courts the Bush to relate they as anomalies these details author The Court in manner the from which itsprocedurevastlydiffersfromthatofthefamiliarurbanMagistrates arise issues These operation current its by posed are dilemmas of number However,a quarterly once places, some a in once or month communities these circuiting Court Magistrates the the to is given Court” name “Bush court”? to “go township, nearest the from drive days’ several sometimes communities, Aboriginal remote in living people do How of summary well comprehensive work its her done Treatyhas the in Rights, the Maori shows as Zealand this, New Despite of coups Justice inter-Maori Chief successful some after just 1840 at as rights freezing in problems also are There used terms some of meaning statement the of to as parties the by optimistic understandings different some doubtless were There and infringment looking for forward claims a was for treaty That basis rights the Maori is 1840 of Waitangi of Treaty The WHAT SHOULD BE DONE NOW? DONE BE WHATSHOULD 631 652 E OOEAIE CEE ATR HUGHES: AFTER SCHEMES CO-OPERATIVE TE and Western Au Western and tai 640 stralia — RT HON DAME SIAN ELIAS GNZM ELIAS SIAN DAME HON RT — 620 — DENNIS ROSE AM QC AM ROSE DENNIS — — NATALIE— SIEGEL The Australian Law Journal —Vol 76 xli

THE AUSTRALIAN LAW JOURNAL

SECTIONS

CURRENT ISSUES 657

LETTERS TO THE EDITOR 663 CONVEYANCING AND PROPERTY 666

FAMILY LAW 670

RECENT CASES 673 NEW BOOKS 725 N O V E ME V O N B E R 2 0 0 2 AUTHOR GUIDELINES 731

ARTICLES

THE SEVEN PILLARS OF CENTRALISM: ENGINEERS’ CASE AND FEDERALISM 678

— PROFESSOR EMERITUS GEOFFREY de Q WALKER

THE PATH OF THE LAW 716 CONTENTS

— MICHAEL COPER liTeAsrla a ora —Vol 76 The Australian LawJournal xlii CONTENTSNOVEMBER 2002 RECENT CASES RECENT FAMILYLAW PROPERTY CONVEYANCINGAND EDITOR THE TO LETTERS ISSUES CURRENT A poem for Mavis for poem A life idyllic An courts the sue to government Local 660 pay no win No land!” our stole “Government case defence to rights Prosecutors’ Interesting typo Interesting otcit n eopne o ujsiid amns o spot f a of support for payments unjustified for recompense on Postscript mentally a of favour in division Property 79A s under relief and evidence false of giving The leases retail and area” “Floor will of Construction caveatable and documents Unstamped intent with Disposition j by Lobbying liability Vicarious County Melbourne trusts of law the of Development claims preference of hearing Joint judges Married Adverse possession Adverse extent lien: litigation of Fruit whether cross-examine: to right of Denial Travel insurance: caring for caring Travelinsurance: agents fiduciary – title of retention goods: of Sale damages whether suits: Partition remedy? available an profits of account is breach: Act TradePractices donor sperm Paternity: in delay – misconduct Arbitrators: mediation declined whether Costs: bias Judicial child 672 674 660 udges 657 662 658 Mayflower Court 673 658 667 to defraud creditors defraud to 675 658 insured property insured 668 673 659 661 deductible from proceeds from deductible 663 and European and hearing 657 659 relevant 660 interests ill person ill denial of natural of denial 675 666 675 677 667 law 676

671 — MR JUSTICE P W Y W P JUSTICE MR — — MR JUSTICE P W Y W P JUSTICE MR —

658 670 — ANTHONY DICKEY QC DICKEY ANTHONY — 676 justice

— PETER BUTT PETER — 673 676 OUNG OUNG The Australian Law Journal —Vol 76 xliii

ARTICLES THE SEVEN PILLARS OF CENTRALISM: ENGINEERS’ CASE AND FEDERALISM The “literalist” Engineers’ Case (1920) 28 CLR 129 interpretation method disregards context, history, substance and basic principles of legal interpretation It has violated the sovereign people’s wishes as consistently expressed in referendums and subverted the right of State communities to govern themselves It has denied the people the benefits of competitive federalism, increasing the burden, cost and remoteness of government The High Court has discarded Engineers in other contexts Preserving it solely for division of powers cases is unjustifiable and anachronistic 678 — PROFESSOR EMERITUS GEOFFREY de Q WALKER THE PATH OF THE LAW On 8 December 2002, it will be exactly 100 years since the great American jurist Justice Oliver Wendell Holmes was sworn in as an Associate Justice of the Supreme Court of the United States Some six years earlier, he had delivered a seminal and influential address entitled “The Path of the Law”, which heralded the beginning of the legal realist movement in the United States and which has resonated down the ages In this article, Dean Michael Coper of the Australian National University Law School celebrates the power of Holmes’ stylish writing and the prescience of his famous dissents Professor Coper argues that, despite recent criticism of Holmes for his extreme scepticism about values, his elegant insights into the judicial process remain as fresh and as inspirational as they were over a century ago 716 — MICHAEL COPER

NEW BOOKS 725 NOVEMBER NOVEMBER 2002 CONTENTS lvTeAsrla a ora —Vol 76 The Australian LawJournal xliv CONTENTSD E C E M B E R 2 0 0 2 ARTICLES SECTIONS AUTHOR GUIDELINES AUTHOR OBITUARY BOOKS NEW CASES RECENT LA THE IN PEOPLE PROPERTY CONVEYANCINGAND ISSUES CURRENT OEG MRTM LES SOL TE B RCGIE IN RECOGNISED BE THEY SHOULD LIENS: MARITIME FOREIGN COMMENT:NO THE ROLE OFSUPREMECOURT OFQUEENSLANDINTHECONVERGENCE AUSTRALIAN COURTS? AUSTRALIAN LEGAL OF H AUSTRALIAN THE 785 SYSTEMS 783 744 733 740 W A JOURNAL LAW LOST DEFENCE LOST 749 787 775 737 761 — MARTIN DAVIESKATEMARTIN and — LEWINS — HON P de JERSEY AC JERSEY de P HON — — STEVEN RARES SC RARES STEVEN — The Australian Law Journal —Vol 76 xlv

CURRENT ISSUES — MR JUSTICE P W YOUNG Merry Christmas 733 Sentencing 733 Equitable principles in commercial law 733 Retirement of judges 734 Admission ceremonies 734 Women silk 735 Queensland Law Reform Commission: Annual Report 736 Statement by the Judicial Conference of Australia: Zimbabwe judiciary 736

CONVEYANCING AND PROPERTY — PETER BUTT Restrictions on assigning leases 737

PEOPLE IN THE LAW — GEOFF LINDSAY SC Hon Justice Peter Michael Jacobson (Cth) 740 Appointment of Senior Counsel (NSW) 740 Judge Derek Michael Price (NSW) 741 Bar Council Elections (Vic) 741 Hon Justice M L Barker (WA) 741 Master T R Bredmeyer CBE PhD (WA) 743 DECEMBER DECEMBER 2002

RECENT CASES — MR JUSTICE P W YOUNG Varieties of dishonesty 744 Cancelling wills 745 Court re-opening judgment 745 Expert evidence 746 Set off by tenants 746 Corporations Act: statutory demands – time for compliance 746 Corporations: insolvent trading 747

Dedication of roads 747 CONTENTS Dispute resolution agreements: are they specifically enforceable? 748 liTeAsrla a ora —Vol 76 The Australian LawJournal xlvi CONTENTSDECEMBER 2002 OBITUARY BOOKS NEW IN RECOGNISED BE THEY SHOULD LIENS: MARITIME FOREIGN DEFENCE COMMENT:LOST NO THE CONVERGENCE THE IN QUEENSLAND OF COURT SUPREME OF ROLE ARTICLES Thomas Owen Jones Owen Thomas the on development that liens maritime foreign of of recognition impact potential the considers article This laws of conflict the of purposes the for procedure and substance between The HighCourtofAustralia hasrecentlyalteredthemannerofdistinguishing the to dimension constitutional a of comment of defence development the in play to role v Australian BroadcastingCorporation(1997)189CLR520mayhavesome towhethertheHighCourtdecisioninLange for comment,beforeturning material and namely,imputations defence, the of operation the Walesin then He (NSW) 1974 Act examines theroleoftwocentralfeatureswhicharepeculiartoNewSouth Defamation the to pursuant Wales South New in operate to required been has it how examining before fair comment of defence the of significance the discusses author the article this In versa vice overseas and Australia, of law the which and Queensland of law the of to development the influenced has jurisdictions extent the addresses article This codes asthetemplatefor manyoverseas Code Griffith’sCodesubsequentlyserved Zanardelli Italian the was Code Criminal his the for blueprint the side, statutory On law common Australian of development early the to contribution his in jurisprudence international on substantially drew Griffith Samuel Sir AUSTRALIAN COURTS? AUSTRALIAN SYSTEMS LEGAL OF 783 785 761 749 775 — MARTIN DAVIESKATEMARTIN and LEWINS — — HON P de JERSEY AC JERSEY de P HON — — STEVEN RARES SC RARES STEVEN —