Extending the Critical Rereading Project
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Justice and Efficiency in Mega-Litigation
Justice and Efficiency in Mega-Litigation Anna Olijnyk Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide October 2014 ii CONTENTS Abstract ....................................................................................................................................... ix Declaration .................................................................................................................................. x Acknowledgments .................................................................................................................... xi Note on Referencing Conventions ......................................................................................... xii Part I: The Problem .................................................................................................................... 2 Chapter 1: Introduction ......................................................................................................... 3 I Introduction ...................................................................................................................... 3 II Significance and Limits of the Study ........................................................................... 6 III Methodology and Structure ......................................................................................... 8 Chapter 2: Justice and Efficiency as Aims of Civil Procedure ....................................... 12 I Introduction ................................................................................................................... -
A Case for Structured Proportionality Under the Second Limb of the Lange Test
THE BALANCING ACT: A CASE FOR STRUCTURED PROPORTIONALITY UNDER THE SECOND LIMB OF THE LANGE TEST * BONINA CHALLENOR This article examines the inconsistent application of a proportionality principle under the implied freedom of political communication. It argues that the High Court should adopt Aharon Barak’s statement of structured proportionality, which is made up of four distinct components: (1) proper purpose; (2) rational connection; (3) necessity; and (4) strict proportionality. The author argues that the adoption of these four components would help clarify the law and promote transparency and flexibility in the application of a proportionality principle. INTRODUCTION Proportionality is a term now synonymous with human rights. 1 The proportionality principle is well regarded as the most prominent feature of the constitutional conversation internationally.2 However, in Australia, the use of proportionality in the context of the implied freedom of political communication has been plagued by confusion and controversy. Consequently, the implied freedom of political communication has been identified as ‘a noble and idealistic enterprise which has failed, is failing, and will go on failing.’3 The implied freedom of political communication limits legislative power and the common law in Australia. In Lange v Australian Broadcasting Corporation, 4 the High Court unanimously confirmed that the implied freedom5 is sourced in the various sections of the Constitution which provide * Final year B.Com/LL.B (Hons) student at the University of Western Australia. With thanks to Murray Wesson and my family. 1 Grant Huscroft, Bradley W Miller and Grégoire Webber, Proportionality and the Rule of Law (Cambridge University Press, 2014) 1. -
Autumn 2015 Newsletter
WELCOME Welcome to the CHAPTER III Autumn 2015 Newsletter. This interactive PDF allows you to access information SECTION NEWS easily, search for a specific item or go directly to another page, section or website. If you choose to print this pdf be sure to select ‘Fit to A4’. III PROFILE LINKS IN THIS PDF GUIDE TO BUTTONS HIGH Words and numbers that are underlined are COURT & FEDERAL Go to main contents page dynamic links – clicking on them will take you COURTS NEWS to further information within the document or to a web page (opens in a new window). Go to previous page SIDE TABS AAT NEWS Clicking on one of the tabs at the side of the Go to next page page takes you to the start of that section. NNTT NEWS CONTENTS Welcome from the Chair 2 Feature Article One: No Reliance FEATURE Necessary for Shareholder Class ARTICLE ONE Section News 3 Actions? 12 Section activities and initiatives Feature Article Two: Former employees’ Profile 5 entitlement to incapacity payments under the Safety, Rehabilitation and FEATURE Law Council of Australia / Federal Compensation Act 1988 (Cth) 14 ARTICLE TWO Court of Australia Case Management Handbook Feature Article Three: Contract-based claims under the Fair Work Act post High Court of Australia News 8 Barker 22 Practice Direction No 1 of 2015 FEATURE Case Notes: 28 ARTICLE THREE Judicial appointments and retirements Independent Commission against High Court Public Lecture 2015 Corruption v Margaret Cunneen & Ors [2015] HCA 14 CHAPTER Appointments Australian Communications and Media Selection of Judicial speeches -
Situating Women Judges on the High Court of Australia: Not Just Men in Skirts?
Situating Women Judges on the High Court of Australia: Not Just Men in Skirts? Kcasey McLoughlin BA (Hons) LLB (Hons) A thesis submitted for the degree of Doctor of Philosophy, the University of Newcastle January 2016 Statement of Originality This thesis contains no material which has been accepted for the award of any other degree or diploma in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. I give consent to the final version of my thesis being made available worldwide when deposited in the University's Digital Repository, subject to the provisions of the Copyright Act 1968. Kcasey McLoughlin ii Acknowledgments I am most grateful to my principal supervisor, Jim Jose, for his unswerving patience, willingness to share his expertise and for the care and respect he has shown for my ideas. His belief in challenging disciplinary boundaries, and seemingly limitless generosity in mentoring others to do so has sustained me and this thesis. I am honoured to have been in receipt of his friendship, and owe him an enormous debt of gratitude for his unstinting support, assistance and encouragement. I am also grateful to my co-supervisor, Katherine Lindsay, for generously sharing her expertise in Constitutional Law and for fostering my interest in the High Court of Australia and the judges who sit on it. Her enthusiasm, very helpful advice and intellectual guidance were instrumental motivators in completing the thesis. The Faculty of Business and Law at the University of Newcastle has provided a supportive, collaborative and intellectual space to share and debate my research. -
THE ADELAIDE LAW REVIEW Law.Adelaide.Edu.Au Adelaide Law Review ADVISORY BOARD
Volume 40, Number 3 THE ADELAIDE LAW REVIEW law.adelaide.edu.au Adelaide Law Review ADVISORY BOARD The Honourable Professor Catherine Branson AC QC Deputy Chancellor, The University of Adelaide; Former President, Australian Human Rights Commission; Former Justice, Federal Court of Australia Emeritus Professor William R Cornish CMG QC Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge His Excellency Judge James R Crawford AC SC International Court of Justice The Honourable Professor John J Doyle AC QC Former Chief Justice, Supreme Court of South Australia Professor John V Orth William Rand Kenan Jr Professor of Law, The University of North Carolina at Chapel Hill Professor Emerita Rosemary J Owens AO Former Dean, Adelaide Law School The Honourable Justice Melissa Perry Federal Court of Australia The Honourable Margaret White AO Former Justice, Supreme Court of Queensland Professor John M Williams Dame Roma Mitchell Chair of Law and Former Dean, Adelaide Law School ADELAIDE LAW REVIEW Editors Associate Professor Matthew Stubbs and Dr Michelle Lim Book Review and Comment Editor Dr Stacey Henderson Associate Editors Kyriaco Nikias and Azaara Perakath Student Editors Joshua Aikens Christian Andreotti Mitchell Brunker Peter Dalrymple Henry Materne-Smith Holly Nicholls Clare Nolan Eleanor Nolan Vincent Rocca India Short Christine Vu Kate Walsh Noel Williams Publications Officer Panita Hirunboot Volume 40 Issue 3 2019 The Adelaide Law Review is a double-blind peer reviewed journal that is published twice a year by the Adelaide Law School, The University of Adelaide. A guide for the submission of manuscripts is set out at the back of this issue. -
Bella Donna! Bar Dinner 2009 No
VICTORIAN BAR NEWS Bella Donna! Bar Dinner 2009 No. 147 No. I SSN 0159-3285 noBleSSe SPRING Blazing away The Bushfires oBlige 2009 Royal Commission KirbyVICTORIAN aC BAR on NEWS Pro Spring Bono 2009 1 VICTORIAN BAR COUNCIL VICtorian BAR NEWS Clerk EDITORS Published by The Victorian Bar Inc. D Digby QC, J. (Chairman) Georgina Schoff, Paul J Hayes Owen Dixon Chambers G Colbran QC, M.J. (Senior Vice-Chairman) 205 William Street, D *Moshinsky, SC, M.K. (Junior Vice-Chairman) CONTRIBUTORS Melbourne 3000. D *Fajgenbaum QC, J.I. The Honourable Michael Kirby AC CMG, Registration No. A 0034304 S L Priest QC, P.G. the Honourable Justice Peter Vickery, W Murphy QC, B.A. David Curtain QC, Greg Davies QC, This publication may be cited as H Tobin SC, P.T. Julian Burnside AO QC, Adrian Ryan SC, (2009) 147 Vic B.N. A Anastassiou SC, P.E. Andrew Bristow, Michael O’Connell, A Macaulay SC, C.C. Geraldine Gray, Tom Pikusa, Renee Enbom, Opinons expressed are not necessarily H McGarvie SC, R. Elizabeth Bennett and Nigel Leichardt. those of the Bar Council or the Bar or of D Alstergren, E.W. (Honorary Treasurer) any person other than the author. D Stuckey, S.W. (Assistant Honorary Treasurer) DESIGN/PRODUCTION D *Hinchey S.L. Ron Hampton Printed by Impact Printing F Walsh M.J. David Johns (Photography) 69 –79 Fallon Street, Brunswick D Connor P.X. Vic. 3056 F Knights K.J. ADVERTISING G Anderson K.J.D. Miriam Sved Contributions to VBN Boilerplate should T Sharpe, M.R. The Victorian Bar Inc. -
September 2015
NEWSLETTER NUMBER 29: SEPTEMBER 2015 Welcome to the twenty-ninth issue of the Centre for Comparative Constitutional Studies Newsletter, a guide to news and events at the centre and a spotlight on issues in constitutional law nationally and globally. Message from the Director Among the highlights of our last three months have been Lady Hale, the Baroness of Richmond and Deputy visits from a number of very distinguished judicial figures. President of the Supreme Court of the United Kingdom. Lady Hale was in Melbourne to deliver the Caldwell On 6 August, Centre members were fortunate to Lecture jointly hosted by Melbourne Law School and attend a lecture hosted by the Melbourne University Trinity College. In addition, she found time to attend a Law Students’ Society. The 20th Sir Anthony Mason regular CCCS ‘Brown Bag’ meeting. While her Caldwell Lecture was delivered this year by Sir Anthony Mason lecture discussed the Human Rights Act 1998 (UK), with himself. A recording of the lecture, Proportionality and CCCS Lady Hale discussed a recent trend toward greater its uses in Australian Constitutional Law can be found judicial attention to common law rights. here. A third event during this time was of quite a different At the same time, we hosted Justice Daphne Barak- character but equally exciting: On 26 - 28 September, Erez from the Supreme Court of Israel. On 7 August, Melbourne Law Students’ Society (MULSS) hosted she and Professorial Fellow the Hon. Kenneth the Sir Harry Gibbs Constitutional Law Moot, an Hayne AC engaged in a ‘A Comparative Conversation event co-sponsored with the Australian Association of on Constitutions’ on the topic ‘Implications and the Constitutional Law. -
Judges and Retirement Ages
JUDGES AND RETIREMENT AGES ALYSIA B LACKHAM* All Commonwealth, state and territory judges in Australia are subject to mandatory retirement ages. While the 1977 referendum, which introduced judicial retirement ages for the Australian federal judiciary, commanded broad public support, this article argues that the aims of judicial retirement ages are no longer valid in a modern society. Judicial retirement ages may be causing undue expense to the public purse and depriving the judiciary of skilled adjudicators. They are also contrary to contemporary notions of age equality. Therefore, demographic change warrants a reconsideration of s 72 of the Constitution and other statutes setting judicial retirement ages. This article sets out three alternatives to the current system of judicial retirement ages. It concludes that the best option is to remove age-based limitations on judicial tenure. CONTENTS I Introduction .............................................................................................................. 739 II Judicial Retirement Ages in Australia ................................................................... 740 A Federal Judiciary .......................................................................................... 740 B Australian States and Territories ............................................................... 745 III Criticism of Judicial Retirement Ages ................................................................... 752 A Critiques of Arguments in Favour of Retirement Ages ........................ -
The Case for Abolishing the Offence of Scandalising the Judiciary
Daniel O’Neil* THE CASE FOR ABOLISHING THE OFFENCE OF SCANDALISING THE JUDICIARY ABSTRACT This article assesses the philosophical foundations and the practical remit of the common law offence of scandalising the judiciary (also known as ‘scandalising contempt’), and finds that the continued existence of this offence as presently constituted cannot be justified. The elements and scope of this offence, it is suggested, are ill-defined, which is a matter of great concern given its potentially fierce penal consequences. Moreover, given the extent to which it may interfere with free expression of opinion on an arm of government, the offence’s compatibility with the implied freedom of political communication guaranteed by the Australian Constitution is also discussed — though it is noted that in most instances, prosecutions for the offence will not infringe this protection. The article concludes by suggesting that the common law offence must either by abolished by legislative fiat or replaced by a more narrowly confined statutory offence. It is suggested that an expression of genuinely held belief on a matter of such profound public interest as the administration of justice should not be the subject of proceedings for contempt of court. I INTRODUCTION ow far can one go in criticising a Judge?’1 This is the question at the heart of the common law offence known as scandalising the judiciary — an ‘H offence that may sound ‘wonderfully archaic’,2 yet is regrettably anything but. This article attempts to chart the metes and bounds of this offence and to assess its empirical application in Australia and elsewhere. It is concluded that the offence is both vague in definition and savage in its potential punitive consequences. -
High Court of Australia Annual Report 2008–09 © Commonwealth of Australia 2009 ISSN 0728-4152 This Work Is Copyright
High Court of Australia Annual Report 2008–09 © Commonwealth of Australia 2009 ISSN 0728-4152 This work is copyright. Apart from any use as permitted under the Copyright Act 1968 (Cth), no part may be reproduced by any process without prior written permission from the Commonwealth available from AusInfo. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Legislative Services, AusInfo, GPO Box 1920, Canberra ACT 2601. High Court of Australia Canberra ACT 2600 27 November 2009 Dear Attorney In accordance with section 47 of the High Court of Australia Act 1979 (Cth), I submit on behalf of the Court and with its approval a report relating to the administration of the affairs of the High Court of Australia under section 17 of the Act for the year ended 30 June 2009, together with fi nancial statements in respect of the year in the form approved by the Minister for Finance. Section 47(3) of the Act requires you to cause a copy of this report to be laid before each House of Parliament within 15 sitting days of that House after its receipt by you. Yours sincerely Andrew Phelan Chief Executive & Principal Registrar of the High Court of Australia The Honourable Robert McClelland MP Attorney-General Parliament House Canberra ACT 2600 Annual Report 2008-09 i TABLE OF CONTENTS Part I – Preamble 1 Part II – Introduction 5 Chief Justice French 6 Justice Gummow 7 Justice Hayne 7 Justice Heydon 8 Justice Crennan 8 Justice Kiefel 9 Justice Bell 9 Part III – Chief Justice’s Overview 11 Part IV – The Year In Review -
To Compilation of Speeches Delivered by the Hon. JJ Spigelman, AC
Index to compilation of speeches delivered by the Hon. J J Spigelman, AC, Chief Justice of NSW in 2008 Page number Date speech Description reference within delivered pdf compilation Address on The Retirement of the Honourable 19 December 2008 Page 2 of 362 Justice Virginia Bell 14 November 2008 Launch of Rediscovering Rhetoric Page 10 of 362 Cross-Border Insolvency: Co-operation or 16 September 2008 Page 25 of 362 Conflict? 2 August 2008 & 4 Lord Mansfield and the Culture Of Page 65 of 362 August 2008 Improvement Address on the Retirement of the Honourable 30 May 2008 Page 77 of 362 Justice Mason AC 12 March 2008 Legitimate and Spurious Interpretation Page 87 of 362 11 March 2008 The Application of Quasi-Constitutional Laws Page 135 of 362 10 March 2008 The Common Law Bill of Rights Page 183 of 362 8 February 2008 Consistency and Sentencing Page 232 of 362 29 January 2008 Opening of Law Term Dinner Page 268 of 362 22 January 2008 Bicentenary of the Coup of 1808 Page 285 of 362 21 January 2008 Foundations of the Rule of Law In Australia Page 312 of 362 Foreword to special issue on International 2008 Commercial Arbitration (2008) 31 UNSW Law Page 332 of 362 Journal 264 ADDRESS ON THE RETIREMENT OF THE HONOURABLE JUSTICE VIRGINIA BELL BANCO COURT, SUPREME COURT OF NEW SOUTH WALES 19 DECEMBER 2008 It is singularly fortunate in any personal journey to meet someone who simply lights up your life. Virginia Bell is such a person. You have done it for me and I am quite confident in saying that you have done it for every other member of this Court. -
VICTORIAN BAR NEWS ISSUE 161 WINTER 2017 VICTORIAN a Fiery Start to the Bar BAR Cliff Pannam Spies Like Us NEWS Stephen Charles
161 VICTORIAN BAR NEWS BAR VICTORIAN ISSUE 161 WINTER 2017 VICTORIAN A fiery start to the Bar BAR Cliff Pannam Spies like us NEWS Stephen Charles Remembering Ronald Ryan Masterpiece Bill Henson work unveiled WINTER 2017 161 At the Glasshouse: The Bar dinner photographs ISSUE 161 WINTER 2017 VICTORIAN BAR NEWS Editorial 44 Milky Way Dreaming KRISTINE HANSCOMBE QC Not the 24 hour news cycle 3 THE EDITORS 46 Innovate, regulate: Michael McGarvie, Victorian Legal Letters to the editors 5 Services Commissioner President’s report 6 GEORGINA COSTELLO AND JESSE RUDD JENNIFER BATROUNEY QC 20 Around town Bar Lore 2017 Victorian Bar Dinner 8 52 A Fiery start at the Bar — Indigenous Justice 14 some fifty years ago Committee RAP event DR CLIFF PANNAM QC SALLY BODMAN 58 Remembering Ronald Ryan George Hampel AM QC 16 KERRI RYAN ELIZABETH BRIMER 62 Where there’s a will, we’ll go a Henson portrait of the Hon 20 Waltzing Matilda: Serendipity Ken Hayne AC QC in chambers SIOBHAN RYAN W. BENJAMIN LINDNER Supreme Court of Victoria 24 v Australian Cricket Society 8 Back of the Lift THE HON DAVID HARPER AM 66 Adjourned Sine Die Bar, Bench and Solicitors golf day 27 67 Silence all stand CAROLINE PATTERSON 46 68 Vale News and Views 76 Gonged Volunteering at the Capital 28 77 Victorian Bar Readers Post-Conviction Project of Louisiana Boilerplate NATALIE HICKEY 78 A bit about words JULIAN BURNSIDE QC The David Combe affair 31 THE HON STEPHEN CHARLES AO QC 80 Off the Wall SIOBHÁN RYAN The Judicial College 38 82 Red Bag Blue Bag of Victoria master of its fate 83 The