Australian Bar Review (2018)

Issues with the use of ADR in will disputes – by Ian Davidson
(2018) 45 Aust Bar Rev 1

“It is an honour to be invited to speak in the Banco Court by The Society of Trust and Estate Practitioners (‘STEP’) which has had such a distinguished panel of speakers over the many years since Gzell J and others first energised the STEP New South Wales Branch. That STEP Branch has continued to be supported by NSW Supreme Court judges, including of course Justice Hallen and Justice Lindsay who addressed us at the last STEP function here for 2016…”

What is in a word? ‘Legitimate’ interests and expectations as common law criteria – by The Hon William Gummow AC
(2018) 45 Aust Bar Rev 23

This article considers the judicial formulation of common law doctrine in public and private law by use of the terms 'legitimate expectation' and 'legitimate interest'. While the former has had a troubled application in England, Australia, Canada, Hong Kong and elsewhere, the term 'legitimate interest' has played a significant role in restraint of trade doctrine, and more recently with respect to the damages remedy for breach of contract and relief against penalties. Such uses of the adjective 'legitimate' without analysis of its content is self-referential, bedevilled by circularity and masks the reasoning by which the court reaches its conclusions.

‘Squizzy’ and the cuckold: How majority jury verdicts got their Australian foothold— by Greg Taylor
(2018) 45 Aust Bar Rev 36

Majority jury verdicts in criminal cases were introduced far earlier in South Australia than in most comparable places. A number of factors combined to produce this result: one was the South Australian Law Reform Commission of 1923–27, a body which can now be seen as ahead of its time despite the ridicule heaped upon it by Mr Justice Evatt because it was not staffed by lawyers. It uncovered and mobilised a substantial degree of support for majority verdicts among the leaders of the profession. In Victoria in the same decade there was a great deal of anxiety about jury squaring (rigging) based partly on rumours surrounding the notorious gangster ‘Squizzy’ Taylor. This spread to South Australia, and, unlike the Victorian, the South Australian legislature was in a position to take decisive action. Nevertheless, rumours of and even proof of jury squaring continued after majority verdicts were introduced.

The balance of Barclay: An analysis of the methods used to determine ‘adverse action’ case — by Nicholas Saady
(2018) 45 Aust Bar Rev 62

Different methods have been applied to determine ‘adverse action’ cases under the Fair Work Act 2009 (Cth) and its predecessors. The High Court established the ‘Barclay’ approach as the correct approach in Board of Bendigo Regional Institute of Technical and Further Education v Barclay. Despite this, some judges have not closely followed Barclay and applied a ‘Broader’ approach to determine adverse action cases. This article outlines the two approaches, examines how they have been applied and suggests that the Barclay approach is more appropriate. It attempts to fill a void in the contemporary literature, which has focused on Barclay and the cases before it.

The importance of federal jurisdiction — by Justice Alan Robertson
(2018) 45 Aust Bar Rev 86

“Today I am not primarily dealing with the jurisdiction of the Federal Court of Australia, although the jurisdiction of that Court is necessarily federal. Most of what I will discuss is about the jurisdiction of state courts and whether they are exercising federal jurisdiction, and why that matters. I will refer to the current question of state tribunals as well…”

Return to the CCL: Advocacy and unthinkable challenges — The Hon Michael Kirby AC CMG
(2018) 45 Aust Bar Rev 100

“I am glad to be at this dinner. I insisted that I should pay my own way. This is the rule of this occasion. No free loaders. We must dig into our pockets and give generously. As the President has pointed out, there are many projects for the CCL (New South Wales Council for Civil Liberties) just now. I suspect that after Bret Walker SC has delivered his address, there will be still more. The needs for the defence of civil liberties are even greater today than they were in my time. They are greater than they have been for many years…”