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Australian Law Journal THE AUSTRALIAN LAW JOURNAL VOLUME 83 January 2009 — December 2009 GENERAL EDITOR MR JUSTICE P W YOUNG AO PRODUCTION EDITOR CHERYLE KING ASSISTANT GENERAL EDITOR ANGELINA GOMEZ INDEX ALAN WALKER BA (Hons), DipLib THOMSON REUTERS 2009 Customer Service and Sales Inquiries Tel: 1300 304 195 Fax: 1300 304 196 Web: www.thomsonreuters.com.au/legal/ Email: [email protected] Editorial Inquiries Tel: 61 2 8587 7000 HEAD OFFICE 100 Harris Street Pyrmont NSW 2009 Tel: 61 2 8587 7000 Fax: 61 2 8587 7100 ISSN 0004-9611 Typeset by Thomson Reuters (Professional) Australia Ltd, Pyrmont, NSW Printed by Ligare Pty Ltd, Riverwood, NSW The Australian Law Journal — Vol 83 iii The mode of citation of this volume of the AUSTRALIAN LAW JOURNAL will be: (2009) 83 ALJ TABLE OF CONTENTS AUSTRALIAN LAW JOURNAL TABLE OF AUTHORS ........................................................................ v TABLE OF CASES............................................................................... ix AUSTRALIAN LAW JOURNAL, VOL 83, No 1, January 2009 to No 12, December 2009 .................. 1-852 INDEX................................................................................................... 853 AUSTRALIAN LAW JOURNAL REPORTS CASE REPORTERS ............................................................................. v TABLE OF CASES REPORTED ......................................................... vii CORRIGENDA ..................................................................................... xi AUSTRALIAN LAW JOURNAL REPORTS, VOL 83 ....................... 1-1238 INDEX................................................................................................... 1239 ARRANGEMENT OF INDEXES AND TABLES OF CASES • There are separate Indexes and Tables of Cases to ALJ and ALJR. • The ALJ Index covers all the material in the Journal. In addition there is an Index of Authors covering the feature articles. The Table of Cases is a table for this volume of all English, Australian, and other decisions, which have formed the subject matter of explanation and comment in articles and in notes and paragraphs in the various departments of the Journal. • The ALJR Index and Table of Cases relate solely to the cases reported in the Reports, that is, to cases decided by the High Court of Australia. Comprehensive Tables of Contents for each monthly Part are available at http://www.thomsonreuters.com.au/support/ps_index.asp iv The Australian Law Journal — Vol 83 The Australian Law Journal — Vol 83 v TABLE OF AUTHORS AITKEN, LEE — Discretion, Power and the “Accrued” Jurisdiction of the Family Court ................................................ 694 Share Trading and the “Clog” on the Equity of Redemption ................................................................. 237 ANGYAL SC, ROBERT — Enforceability of Agreements to Mediate: Seventeen Years after Hooper Bailie ................................. 299 ASHBOLT, ALICE — Legislated and Reasoned Away: Death of the Doctrine of Shareholder Ratification ........................... 525 BANNAN, CONOR — Accessorial Liability under the Trade Practices Act .............................................................................. 407 BASTIN, LUCAS AND JUSTICE BRIAN TAMBERLIN — In-House Counsel, Legal Professional Privilege and “Independence ................................................... 193 BEVAN, CHRISTOPHER — Waiver of Contractual Rights: A Non Sequitur ..................................................................................... 817 BRENNER, CHIEF JUSTICE DONALD I — Cross Border Court Communications ..................................................................................................... 90 CAMPBELL, J C — Exercise by Superannuation Trustees of Discretionary Powers ............................................................ 159 Some Historical and Policy Aspects of the Law of Equitable Liens ..................................................... 97 CLARKE SC, GRAEME S — Confidential Information and Trade Secrets: When is a Trade Secret in the Public Domain? ............. 242 CREMEAN, DR DAMIEN J — The Inter-State Commission: Rethinking the Wheat Case .................................................................... 765 CROUCHER, PROF ROSALIND F — Quirks and Curios: Rescued Footnotes in the History of Succession Law ........................................... 609 Towards Uniform Succession in Australia ............................................................................................. 728 vi The Australian Law Journal — Vol 83 DESIATNIK, DR R J — Trade Practices Act, s 53(e): When will they ever learn? ...................................................................... 689 FRENCH, CHIEF JUSTICE ROBERT S — Intellectual Property: Living in the Twilight Zone ................................................................................. 806 GLEESON SC, HON MURRAY — The Purpose of Litigation ........................................................................................................................ 601 HATZISTERGOS, JOHN — Federation and Culture: Reflections on the Australian Constitution ..................................................... 810 HEEREY QC, HON PETER — Andrew Inglis Clark: The Man and his Legacy ..................................................................................... 199 HOEL, DR ADRIAN — What Rights do you Take to Prison? Habeas Corpus and Prison Conditions ....................................... 395 HOLMES QC, MALCOLM — Drafting an Effective International Arbitration Clause .......................................................................... 305 KIRBY AC CMG, JUSTICE MICHAEL — Is Legal History Now Ancient History? ................................................................................................. 31 MCBAIN, GRAHAM S — Abolishing the Crime of Sedition: Part 2 ................................................................................................ 449 MCGOWAN SC, GLENN — IceTV v Nine Network and the Copyright in Factual Compilations in Australia ................................. 840 MACINTYRE, AMRIT — Taxation of Investments by Foreign Sovereigns .................................................................................... 752 MANTZIARIS, CHRISTOS — The Member’s Right to Inspect the Company Books: Corporations Act, s 247A ................................ 621 PAGONE, G T — Centipedes, Liars and Unconscious Bias ................................................................................................ 255 RYAN SC, DERMOT — The Queen’s Case .................................................................................................................................... 669 The Australian Law Journal — Vol 83 vii SALTER, BRENT — Early Interactions Between Indigenous People and Settlers in Australia’s First Criminal Court ......... 56 SPIGELMAN AC, HON J J — Cross-Border Insolvency: Co-operation or Conflict .............................................................................. 44 The Hague Choice of Court Convention and International Commercial Litigation ............................. 386 The Traditionality of the Law ................................................................................................................. 447 TAMBERLIN, JUSTICE BRIAN AND LUCAS BASTIN — In-House Counsel, Legal Professional Privilege and “Independence” .................................................. 193 TWOMEY, ANNE — The Fijian Coup Cases: The Constitution, Reserve Powers and the Doctrine of Necessity ................. 319 WALKER, PAUL — Vicarious Liability for Exemplary Damages: A Matter of Strict Liability? .......................................... 548 WOTHERSPOON, SCOTT — Translating the Public Law “May” into the Common Law “Ought”: The Case for a Unique Common Law Cause of Action for Statutory Negligence ...................................................................... 331 YOUNG AO, JUSTICE PETER W — Fiduciary Obligations and Trustees in Bankruptcy ................................................................................ 263 Quasi-Trusts ............................................................................................................................................ 181 Speech to the Australian Lawyers Phil-Hellenic Association ................................................................ 704 _______________ viii The Australian Law Journal — Vol 83 The Australian Law Journal — Vol 83 ix * TABLE OF CASES A Alister v The Queen (1984), 683–684 Allcoe Steel (Qld) Pty Ltd v Torres Strait Gold Pty Ltd, Abbatangelo v Whittlesea City Council, 261 299 Abbey National plc v Customs & Excise Commissioners, Allen v Maddock (1858), 731 724 Allianz SpA v West Tankers Inc, 389 Abebe v Commonwealth, 697 Allstate Life Insurance Co v Australia & New Zealand Aberaman Ironworks v Wickens (1868), 100, 110, 114 Banking Group Ltd [No 3], 630 ACCC — see Australian Competition & Consumer Almon (1765), 476 Commission Almon (1770), 476, 482 Accordent Pty Ltd v Bresimark Nominees Pty Ltd, 220 Alstom, Re, 374 Acehill Investments Pty Ltd v Incitec Ltd, 622, 626, 629, AM & S Europe Ltd v Commission of the European 631, 636–637 Communities (Case /79), 193–196 Adams v Kennedy, 562–564 Amalgamated Metal Workers Union of Australia; Ex parte Administration of Papua and New Guinea. — see Papua Shell Co of Australia Ltd, 174 and New Guinea (Administration) Anderson v Commonwealth, 772 Adsett v Berlouis, 264 Angas Law Services Pty Ltd v Carabelas, 527, 529, 531– Affiliated Ute Citizens
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