The Library Bulletin

SEARCH ALL POSTS

New books

Fri Mar 19 2021

New judgments

Fri Mar 19 2021

Jago v Anti-Discrimination Tribunal [2021] TASSC 10 - discrimination

Jex v Jiang, 2021 ONCA 160 - whether the trial judge erred in failing to make a peanut butter and jelly sandwich for Mr Jex during the trial, "He still owes me a peanut butter and jelly sandwich with the homemade strawberry jam."

R v Blake Davis [2021] NSWSC 235 - manslaughter, excessive self-defence, deceased committed home invasion on offender, deceased assaulted offender then fled, offender pursued deceased with samurai sword

Thurston v State of New South Wales [2021] NSWSC 226 - "Latin – not generally spoken in New South Wales"

Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197 - Springs application for a Distinguished Talent (Residence) visa was refused, was the Tribunal's affirmation of that refusal within power?

New and updated NSW Bills

Fri Mar 19 2021
Acts proclaimed

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 (2021-116) — 27 March 2021 appointed as the day on which the Act commences, published LW 19 March 2021

In progress

Civil Liability Amendment (Child Abuse) Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Wed 17 Mar 2021

COVID-19 Recovery Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Wed 17 Mar 2021

Independent Commission Against Corruption Amendment (Publication of Ministerial Register of Interests) Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Thu 18 Mar 2021

Local Government Amendment Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Wed 17 Mar 2021

Mutual Recognition (New South Wales) Amendment Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Wed 17 Mar 2021

Prevention of Cruelty to Animals Amendment Bill 2021 - in Legislative Assembly, to be reported, Thu 18 Mar 2021

Property Services Council Bill 2021 - in Legislative Assembly, to be reported, Wed 17 Mar 2021

Real Property Amendment (Certificates of Title) Bill 2021 - in Legislative Assembly, 2R debate, debate adjourned 5 clear days, Wed 17 Mar 2021

South32 Dendrobium Extension Project Approval Bill 2021 - in Legislative Council, awaiting 2R debate, debate adjourned 5 calendar days, Wed 17 Mar 2021

Negatived

Crimes (Domestic and Personal Violence) Amendment (Coercive Control—Preethi’s Law) Bill 2020 - negatived, Thu 18 Mar 2021

Local Government Amendment (Pecuniary Interests Disclosures) Bill 2020 - negatived, Thu 18 Mar 2021

Notice of motion

Crimes Amendment (Enthusiastic Consent) Bill 2021 - in Legislative Assembly, notice of motion, Tue 16 Mar 2021

Awaiting assent

Community Land Development Bill 2020 - awaiting assent, Tue 16 Mar 2021

Community Land Management Bill 2020 - awaiting assent, Tue 16 Mar 2021

COVID-19 Legislation Amendment (Stronger Communities and Health) Bill 2021 - awaiting assent, Thu 18 Mar 2021

Marine Pollution Amendment (Review) Bill 2020 - awaiting assent, Wed 17 Mar 2021

News

Fri Mar 19 2021

Interesting articles, speeches and podcasts

Fri Mar 19 2021

Breaking down biodiversity banking : part one by Louise Camenzuli, Anna White and Samantha Yeung of Corrs Chambers Westgarth - examines biodiversity banking (aka biobanking), a conservation and land management scheme in which biodiversity is measured and commodified

Competing class actions : first in (is still) not best dressed by Richard Harris, Rebecca Spigelman and Dominic Eberl of Gilbert + Tobin - considers Wigmans v AMP Limited [2021] HCA 7

Courts, confidences and change in challenging circumstances by Justice Banks-Smith of the Federal Court of Australia, delivered at the Quayside Chambers Oration, Perth Concert Hall on 4 March 2021

The divided decision in Love v Commonwealth – an analysis of Justice Gageler's and Justice Edelman's approaches to constitutional interpretation by Mikaela Smith on Aus Pub Law - considers Love v Commonwealth of Australia [2020] HCA 3

High Court confirms the nuclear effect of a finding of apprehended bias by Madhuri Pillai of Higgins Chambers - considers Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2

Judicial impartiality seminar stimulates important discussions on Australian Law Reform Commission - view seminar

Law Report (ABC) for 16 March presented by Damien Carrick - Politicians suing for defamation and research on re-offending by forensic patients

Law talking, Episode 6 - The three C'S - Lucas Shipway and Declan Byrne provide a summary of their upcoming CPD on class actions in construction law and Ian Roberts and Richard Sergi discuss the Greenway Cycle Club and the benefits of cycling with Frank Hicks

Love v Commonwealth and a voice to parliament by Megan Davis and Dylan Lino at the Annual Constitutional Law Conference, G+T Centre of Public Law, 12 February 2021

Misconceptions about sexual assault perpetuate injustice by Professor Rita Shackel of Sydney Law School - the author discusses her research on misunderstandings surrounding sexual assault, and justice for victims and survivors

PIC's first published decision : Worker and PIAWE by Karl Maakasa of McCabe Curwood - considers Sarcia v Workers Compensation Nominal Insurer (iCare) [2021] NSWPIC 1

Rule of law by Lord Bingham

New law reports

Fri Mar 19 2021

Commonwealth law reports, Volume 267(3), March 2021 - in this issue : Comcare v Banerji / Connective Services Pty Ltd v Slea Pty Ltd / KMC v Director of Public Prosecutions (SA) / Public Prosecutions Reference No 1 of 2017, Director of / Strbak v The Queen

Federal Court reports, Volume 276(3), March 2021 - in this issue : BYN18 v Minister for Home Affairs / Crown Resorts Ltd v Zantran Pty Ltd / DVE18 v Minister for Home Affairs / National Disability Insurance Agency v WRMF / National Home Doctor Service Pty Ltd v Director of Professional Services Review

New South Wales law reports, Volume 102(4), March 2021 - in this issue : Ballas v Department of Education (State of New South Wales) / Feldman v Polaris Media Pty Ltd as Trustee of the Polaris Media Trust t/as The Australian Jewish News / Gibson (on behalf of the Dungay Family) v Commissioner of Police (NSW Police Force) / Hochbaum v RSM Building Services Pty Ltd / Jackmain (a pseudonym) v R / Lee v Deputy Commissioner of Taxation / Outerbridge t/as Century 21 Plateau Lifestyle Real Estate v Hall / Secretary, New South Wales Ministry of HEalth v W / Silverbrook v Deputy Commissioner of Taxation / Whitton v TEchnical and Further Education Commission t/as TAFE NSW

State reports (Western Australia), Volume 102(1), March 2021 - in this issue : Birchwood Consolidated Pty Ltd v Owners, Equus Strata PLan 62962 / Re BZ

New journals

Fri Mar 19 2021

Australian law journal, Volume 95(2), February 2021 - in this issue : Current issues Justice François Kunc (ed) Afghanistan - Office of Special Investigator, Royal Commission into Police Informants, Press freedom, National security and the law, The AG's gambit : national defamation reform enters its middlegame / Conveyancing and property Robert Angyal SC and Brendan Edgeworth (eds) The mortgagees' duty to account - Rowe and nom de plume Andrew Godwin / Around the nation : Victoria Hon Clyde Croft AM SC (ed) COVID-19 and emergency regulations Clyde Croft / Admiralty and maritime Damien J Cremean (ed) World in a box : impact of containerisation on shipping transactions Angus Stewart / Reflections upon constitutional interpretation and the aliens power : Love v Commonwealth Peter Gerangelos / The fluctuating incidence of the burden of proof under the Hague-Visby Rules : the implications of Volcafe Ltd v Compania Sud Americana de Vapores SA [2019] AC 358 for the position in Australia Angus Stewart / Overruling constitutional precedent Joshua Thomson SC and Madeleine Durand

Interesting articles, speeches and podcasts

Fri Mar 12 2021

Consultation and a First Nations voice : building on the Aboriginal and Torres Strait Islander Commission by Harry Hobbs on Aus Pub Law - examines indigenous consultation and the Aboriginal and Torres Strait Islander Commission, which operated between 1989 and 2005

Energy from waste – a load of rubbish or a viable solution to landfill? by Alexander Danne and Peter Doyle of Gilbert + Tobin - considers the use of technology to convert waste into energy

Have you come far? New justice of the Supreme Court certainly has by Joshua Rozenberg on A Lawyer Writes - item on Dame Vivien Rose's appointment to the UK Supreme Court

Law Report (ABC) for 9 March presented by Damien Carrick - Debate over independent inquiry into Christian Porter rape allegations

Membership models for an Indigenous voice : what does representation mean for First Nations? by Dani Larkin on Indigenous Constitutional Law - examines representation

Politics with Michelle Grattan : Fleur Johns on the rule of law by Michelle Grattan on The Conversation - examines rule of law

Privacy Commissioner makes first representative award for non-economic loss following a government data breach by Dan Pearce and Louise Almeida of Holding Redlich - considers 'WP' and Secretary to the Department of Home Affairs (Privacy) [2021] AICmr 2

What is the proper role of the Attorney General in Australia? on Rule of Law - considers the role of the Australian Attorney General

News

Fri Mar 12 2021

New judgments

Fri Mar 12 2021

The Commissioner of Taxation of the Commonwealth of Australia v Travelex Limited [2021] HCA 8 - taxation

GetSwift Limited v Webb [2021] FCAFC 26 - apprehended bias, whether the primary judge should have disqualified himself from hearing the trial in a class action proceeding (Webb proceeding) where he has refused to do so

Lacey (a pseudonym) v A-G (NSW) [2021] NSWCA 27 - where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 - immigration

Satyam Enterprises Ltd v Burton & Anor [2021] EWCA Civ 287 - where the trial judge "decided the case on a basis that had neither been pleaded nor canvassed before him", this was an impermissible misunderstanding of the judge's function

Wigmans v AMP Limited & Ors [2021] HCA 7 - representative action

New journals

Fri Mar 12 2021

Adelaide law review, Volume 41(2), 2020 - in this issue : Australia's commitment to 'Advance the human rights of indigenous peoples around the globe' on the United Nations Human Rights Council Kishaya Delaney, Amy Maguire and Fiona McGaughey / Sentencing to protect the safety of the community Ben Livings / The right to reasons and the courts' supervisory jurisdiction Christopher Chiam / A doctrinal and feminist analysis of the constitutionality of the Australian citizenship revocation laws Matilda Gillis / Is the tail wagging the dog? Finding a place for ADR in pre-action processes : practice and perception Tania Sourdin and Margaret Castles / Regulating the influencers : the evolution of lobbying regulation in Australia Yee-Fui Ng / Reflections on Paddy Ireland on companies Frank Carrigan / The resignation of the third Indian Law Commission : who makes law? Gail Pearson / Transgender and intersex athletes, professional sport and the duty to ensure worker health and safety : challenges and opportunities Eric L Windholz / The final bail review Martin Hinton / In these uncertain times : (a lack of) oversight of the Biosecurity Act 2015 (Cth) Lauren Fletcher / Heartbeat in the High Court : Love v Commonwealth (2020) 375 ALR 597 Flyn Wells / After the 'hurly-burly has dimmed outside' : misleading and deceptive corflutes in Garbett v Liu (2019) 375 ALR 117 Christina Devetzidis / 'A witness of truth' : the Court of Appeal's cardinal sin in Pell v the Queen (2020) 376 ALR 478 Samuel Beer and Charlotte Burchart

Cambridge law journal, Volume 79(3), November 2020 - in this issue : Distributed ledgers, artificial intelligence and the purpose of the corporation Christopher M Bruner / Juvenile informers : is it appropriate to use children as covert human intelligence sources? Alisdair A Gillespie / Compensation for business tenants : mischief and malady Michael Haley / Another civilian view of unjust enrichment's structural debate Pablo Letelier / Moral innocence and the criminal law : non-mala actions and non-culpable agents Re'em Segev / The principle of legality Jason N E Varuhas / Corporate liability for breaches of international law abroad : Canadian Supreme Court opens the door but questions remain Andrew Sanger / The consequences of nullities Tom Hickman / Regulatory construction, discrimination and the common law Michael Foran / Consent in rape : fact, not law Richard Buxton / Nuisance, planning and human rights : throwing away the emergency parachute David Howarth / Pseudo-codification of the public-interest defence in defamation Jonathan Morgan / Mohamud explained and re-understanding "close connection" in vicarious liability Emily Gordon / By their fruits shall ye know them David Campbell and Roger Halson / Counterfactual arguments in unjust enrichment Niamh Connolly / Reflective loss in the UK Supreme Court Stephen Laing / Land registration, adverse possession and the nature of a registered title Martin Dixon / Data protection, the value of privacy and compensable damage Vaclav Janecek / Bear raids and market manipulation : muddying the waters? J S Liptrap and Anna L Christie / Restrictions by object under EU competition law Mark Friend / Jurisdiction in insurance matters and the "weaker party" Joshua Folkard

Law Institute journal, Volume 95(3), March 2021 - in this issue : Mental health matters Tania Wolff / New Attorney-General, new legal year Karin Derkley / Dual regulation system to end for migration layers Karin Derkley / Cautious approach to office return Karin Derkley / The consequences of Kraft v Bega : unregistered trademarks and legal ramifications Susan Gatford and Alan Ford / Virtual arbitrations - into the future? Alexander Crisp / The benefits of a listed competitor Greg Tucker / The dimensions of justice Samuel Woff and Joseph Xuerer / Visa refusal : it's in the interpretation Olivia Ho / Duty to the court Ethics Committee / Terminating a retainer Carly Erwin / Land tax adjustments aren't standard Legal Practitioners' Liability Committee / Land purchasers need clarity Tony Greenaway and Paul Snow / Cyber criminals double down Hadyn Corbett / 2020 a shotgun wedding Genevieve Lakey / Luminance diligence Peter Moran / Report finds abuse of power Lisa Grealy / Lessons learned from 2020 Olivia Lilly and Shaniya Vilash / Advancing the profession Jacoba Brasch QC / Lost literary treasures untapped Carolyn Ford / The path to succession

LSJ, Issue 75, March 2021 - in this issue : Law Society joins calls to criminalise coercive control Amy Dale / Six minutes with Helen Campbell Floyd Alexander-Hunt / Government v Google Amy Dale / At lunch with Lovemore Ndou Kate Allman / A country practice - Piers Blomfield / Justice in arms : the legal fallout of the Brereton Report Kate Allman / Disaster plan : how lawyers can act faster and respond better Kirrily Schwarz / Great expectations, deflated outcomes Floyd Alexander-Hunt / Make the office great again Amy Dale / Striking the right note Kirrily Schwarz / E-cigarettes : helpful or harmful? Angela Tufvesson / The case that changed me : Hayley Aldrich and Maithri Panagoda AM Floyd Alexander-Hunt / An introduction to the new Personal Injury Commission Judge Gerrard Phillips / The delicate balancing act that is industrial relations reform Jack de Flamingh and John Casey / Human rights in 2021 : key considerations for Australian businesses Abigail Gill, Dr Phoebe Wynn-Pope and Kate Gill-Herdman / Nobody knows everything : taxes and the administration of deceased estates Jim Main / Limitation periods : simple? Not always Jennifer O'Brien / Time to review your insurance contracts : the unfair contract terms regime is on its way Ray Giblett, Matt Ellis and Timothy Chan / Decision-making in uncertain times : pandemics, planning and climate change Ballanda Sack, Timothy Allen and Amelia Smillie / Recent liquor liceing reforms in NSW Kenneth Yardy / Defamation and reform of the statutory defence of contextual truth Jeremy Harrison / The latest from the High Court Dr Michelle Sharpe / The latest from the Federal Court Anthony Lo Surdo SC and Theresa Power / New South Wales Court of Appeal Bridie Nolan and Kylie Day / Criminal law Thomas Spohr / Family law Craig Nicol and Keleigh Robinson / Elder law and succession Darryl Browne

Public law, January 2021 - in this issue : Judicial review during the COVID-19 pandemic Joe Tomlinson / Devolution and COVID-19 : towards a "new normal" in the territorial constitution? Gareth P Evans / The COVID-19 contact tracing app in England and "experimental proportionality" Marion Oswald / "Easing" duties and making dignity difficult: COVID-19 and the Care Act 2014 Brian Sloan / A tale of two doctrines : re-evaluating bifurcation in substantive review before the Supreme Court Tim Sayer and C R G Murray / Reimagining public procurement law : proposals for post-Brexit reform Sue Arrowsmith / Testing the limits of the common law right to trial by jury : a critical analysis of Re Hutchings Richard Martin and Karl Laird / The challenges of multi-layered governance and the fight for same sex marriage in Bermuda and the Caribbean Overseas Territories Derek O'Brien and Rhian Minty / Data governance in the cloud : of scarce regulatory resources and tactical delegated enforcement Asma Vranaki / Legislative approaches to recognising the vulnerability of young people and preventing their criminalisation Nicola Wake, Raymond Arthur, Thomas Crofts and Sara Lambert / Australia : the correspondence between the Queen and the Australian Governor-General during the 1975 dismissal of the Whitlam Government Anne Twomey

New judgments

Fri Mar 05 2021

Brownback v King, Supreme Court of the United States, 25 February 2021 - "cleaned up", for background on cleaning up quotations see here

Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21 - unsatisfactory professional conduct

Heather v Hikvision Australia Pty Ltd [2021] FCCA 196 - age discrimination

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6 - immigration, visas, procedural fairness

R v Lucas [2021] VSC 81 - "He was lying face-up — still looking at the stars — on a bed of snow on the floor of a Ruhr pine forest. It was not a dream. He was alive. Incredibly, the flexible pine branches and the powder snow had combined to break his fall. He had suffered cuts and bruises and a twisted knee, and his burns were serious, but he was otherwise unhurt."

WZASS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 19 - "whether jurisdictional error because Federal Circuit Court judge failed to take into account his own delay in deciding he was not satisfied it was necessary in the interests of the administration of justice to make the order"

Interesting articles, speeches and podcasts

Fri Mar 05 2021

Admission of lawyers by the Honourable T F Bathurst AC at Newcastle City Hall - "Even as Chief Justice, my decisions have, on occasion, been successfully appealed to the High Court. At this point, I am probably obliged to tell you that the High Court is never wrong."

Ceremonial sitting to welcome the Honourable Justice Jacqueline Sarah Gleeson as a justice of the High Court of Australia, 1 March 2021

The cold case secret in a Brisbane garage on Conversations with Richard Fidler

Commerce and COVID-19 : a song of pandemic and insolvency by Carmel Lee and Jonathon Dooley of Greenway Chambers - some COVID-19 related articles

Constitutional recognition : two decades on by Megan Davis on Aus Pub Law - considers Indigenous constitutional recognition in Australia

Deposition of Thomas Johnson, County : Mayo, Date : 14/1/1644 - cows could not read and therefore were not allowed "the benefit of clergy"

Finding today's slaves : lessons learned from over a decade of measurement in modern slavery by Davina Durgana at University of Oxford

The relationship between parliament and the voice and the importance of enshrinement by Geoffrey Lindell on Indigenous Constitutional Law - considers the importance of establishing a constitutional relationship between the proposed national First Nations Voice and the Parliament

The Joint Standing Committee on Northern Australia's Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia public hearing on 19 February 2021 - "should be a coordinated scheme of complementary state and territory and Commonwealth legislation... Commonwealth legislation would operate to accredit state legislation that satisfied national standards. If state legislation was accredited, the Commonwealth legislation would play no further role"

Law Report (ABC) for 2 March presented by Damian Carrick - Disability Royal Commissioner Ron Sackville. And legal win for Torres Strait native title holders

Prioritising identity and culture for Aboriginal and Torres Strait Islander children by Justice J R Sackar​ at the NSW Child Protection Legal Conference

The Wigs Podcast from Stephen Lawrence (Black Chambers), Emmanuel Kerkyasharian (Forbes Chambers), Felicity Graham (Black Chambers) and Jim Minns - Life of a medieval lawyer

News

Fri Mar 05 2021

New Bar Library e-card - have you downloaded yours?

Fri Mar 05 2021

Your new Bar Library e-card may be used to register attendance in the library and to check out loans at the library kiosk. The ecard is an electronic card/QR code that will be installed into the wallet on your mobile device (iphone, ipad, tablet, android phone) in accordance with Android/Apple Wallet services.

If you haven't already downloaded your Bar Library e-card into the wallet on your phone here's how you do it :

On your mobile device (not your PC) search for an email from library@nswbar.asn.au called Your Bar Library e-card and follow the instructions in the email. The links in the e-mail display as icons when the email is read on a phone. The Apple wallet link will show on an iphone and Gpay on an android device.

New judgments

Fri Feb 26 2021

Davenport & Davenport (No 2) [2020] FCCA 2766 - jurisdiction, whether Federal Circuit Court can make orders for "shared custody" of a dog

Employsure Pty Ltd v McMurchy [2021] NSWSC 139 - whether "employment" continues after employment relationship ceases

Frail v Shorey & Anor [2021] NSWSC 122 - burial rights

Hutley v Cosco [2021] NSWCA 17 - decision ordering Hutley to pay neighbour $360,000 in damages for defamation overturned

Kings Security Systems Ltd v King & Anor [2021] EWHC 325 (Ch) - the tort of abuse of process (the Grainger v Hill tort - (1838) 132 ER 769) continues to exist in English law, even though it has succeeded in only two reported cases, the last of those in 1868

Palmer v Western Australia [2021] HCA 5 - constitutional law

Uber BV and others (Appellants) v Aslam and others (Respondents) [2021] UKSC 5 - Uber drivers are workers

Interesting articles, speeches and podcasts

Fri Feb 26 2021

The Advocacy Podcast Episode 7 hosted by Bibi Badejo : Ian Robertson SC : an expert on expert witnesses

Farewell to the Honourable Bell J - see the transcript here

'Extraordinary' : court hears how claimant won case two years after his death by John Hyde on Law Society Gazette - considers Amirtharaja & Anor v White & Ano [2021] EWHC 330 (Ch)

The High Court and respect for Australian South Sea Islanders by Peter Prince and Eve Lester on Aus Pub Law - examines reckoning with White Australia-era High Court precedents

Human rights don't hinder ministers by Joshua Rozenberg on A Lawyer Writes - considers a UK study on delegated legislation

Indigeneity, race and the Australian Constitution : a response to Professor James Allan's characterisation of the majority decision in Love; Thoms by Harry Hobbs on IACL-AIDC Blog - considers Love v Commonwealth of Australia [2020] HCA 3

Lady Justice Episode 06 : Justice personified by Judith Resnik and Dennis Curtis

Law Report (ABC) for 23 February presented by Damian Carrick - Adventure tourism accidents and legal liability

Mince pies, parliament and peculiar old laws : the enduring popularity of legal myths by Joanna McCunn on the University of Bristol Law School Blog - examines legal myths

To cite or not to cite : is that still a question? by Deborah L Heller in (2020) 112 Law Library Journal 393

Two visions of the international rule of law by Monica Hakimi at University of Oxford

The Wigs Podcast from Stephen Lawrence (Black Chambers), Emmanuel Kerkyasharian (Forbes Chambers), Felicity Graham (Black Chambers) and Jim Minns - Social media de-platforming, The NSW Coercive Control Bill, ICC jurisdiction over occupied Palestinian territories

UK decision on COVID-19 business interruption insurance could suggest success for Australian insureds by Lucy Terracall, David Gerber and Chris Erfurt of Clayton Utz - considers The Financial Conduct Authority (Appellant) v Arch Insurance (UK) Ltd and others [2021] UKSC 1