The Library Bulletin

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] FCA 42

Competition in the Australian Financial System draft report

In its Competition in the Australian Financial System draft report released 7 February 2018 the Productivity Commission questioned the effectiveness of Australia's "four pillars" banking policy which maintains the separation of Australia's four largest banks by preventing/rejecting mergers between them. See 'Four pillars' banking policy is 'ad hoc' and 'redundant', Productivity Commission warns. The shadow treasurer Chris Bowen said, "It is, in our view, not beneficial for banking competition to see the four big banks being able to merge", see 'Four Pillars' policy preventing banks from merging must stay: ALP. The Productivity Commission's final report is expected to be delivered 1 July 2018.

Australian violence : crime, criminal justice and beyond / Julie Stubbs and Stephen Tomsen (eds)

A history of Australian tort law, 1901-1945 : England's obedient servant? / Mark Lunney

Being well in the law : a guide for lawyers

Civil procedure : the White Book service 2017 / Lord Justice Jackson

Court-referred alternative dispute resolution : perceptions of members of the judiciary : an overview of the results of a study

Kerr and Hunter on receivers and administrators. Twentieth edition edited by Thomas Robinson and Peter Walton

Industrial relations reform : looking to the future : essays in honour of Joe Isaac AO / Keith Hancock and Russell D. Lansbury

The law of compulsory purchase and compensation / Michael Barnes

The law of contracts (7th ed) / S. M. Waddams

Law of privilege (3rd ed) / Bankim Thanki (ed)

Medical negligence (5th ed) / Michael Jones

Federal Court of Australia judgments

Australian Competition and Consumer Commission v Colgate-Palmolive Pty Ltd (No 4) [2017] FCA 1590 - considered cartel conduct

BHP Billiton Nickel West Pty Ltd v KN (Deceased) (TJIWARL and TJIWARL #2) [2018] FCAFC 8 - native title and validity of future acts

Certain Underwriters at Lloyd’s Subscribing to Contract Number NCP106108663 v Aquagenics Pty Limited (in liquidation) [2018] FCAFC 9 - professional indemnity insurance policy and "wrongful acts"

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser (Australia) Pty Limited (No 2) [2018] FCA 1 - considered misleading or deceptive conduct in relation to claims that Nurofen provided faster/more effective relief from pain caused by common headaches than Panadol

Annotated Civil Liability Act 2002 (NSW) (3rd ed) / Dominic Villa

Annotated conveyancing and real property legislation, 2017 - 2018 / Peter Young, Anthony Cahill and Gary Newton

Annotated criminal legislation New South Wales 2017-2018 / Roderick N. Howie and Peter A. Johnson

Australian Fair Work Act 2009 with regulations and rules (9th ed)

Bennion on statutory interpretation (7th ed) / Diggory Bailey and Luke Norbury

Bowstead and Reynolds on agency (21st ed) / Peter Watts and F. M. B. Reynolds

Clerk and Lindsell on torts (22nd ed) / Michael A. Jones and Anthony M. Dugdale (eds)

Commercial tenancy law (4th ed) / Clyde Croft, Robert Hay and Luke Virgona

Cooperation at work : how tribunals can help transform workplaces / Mark Bray, Johanna Macneil and Andrew Stewart

Drafting trusts and will trusts in Australia (2nd ed) / James Kessler and Michael Flynn

The evolving role of trust in superannuation / M. Scott Donald and Lisa Butler Beatty (eds)

Guide to judicial conduct / Council of Chief Justices of Australia

Key issues in public law / Neil Williams (ed)

Law of associations / G. E. Dal Pont

McGregor on damages (20th ed) / Harvey McGregor. 20th edition by James Edelman

Phipson on evidence (19th ed) / Hodge M. Malek (ed)

The place of practice : lawyering in rural and regional Australia / Trish Mundy, Amanda Kennedy and Jennifer Nielsen (eds)

Procedure and evidence in international arbitration / Jeffrey Waincymer

Resolving civil disputes / Michael Legg (ed)

Sports law (3rd ed) / David Thorpe, Antonio Buti, Chris Davies and Paul Jonson

Tensions and traumas in health law / Ian Freckelton and Kerry Petersen

Unconscionable conduct - the laws of Australia (3rd ed) / Paul Vout (ed)

Adelaide law review Vol 38(1) 2017 – In this issue : A colonial history of the River Murray dispute Adam Webster / The constitutional conventions and constitutional change : making sense of multiple intentions Harry Hobbs and Andrew Trotter / Exemplary damages : retribution and condemnation – the purpose controlling the scope of the exemplary damages award Alison Doecke / An Australia-Indonesian arrangement on refugees : exploring the structural, legal and diplomatic dimensions Samuel Tyrer / Sexual orientation and ‘gay wedding cake’ cases under Australian anti-discrimination legislation : a fuller approach to religious exemptions Liam Elphick / The socio-political and legal history of the tax deduction for donations to charities in Australia and how the ‘public benevolent institution’ developed Fiona Martin / An effective priority for the Commissioner of Taxation in liquidation : Bell Group NV (in liq) v Western Australia (2016) 331 ALR 408 Daniel Marateo / Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835 Rozelle Macalincag / 2016 Senate electoral reforms in the High Court and beyond Shauna Roeger

Australian bar review Vol 44(3), December 2017 – In this issue : An insight into appellate justice in New South Wales Hon Justice MJ Beazley AO / ‘Widgets’ or ‘Wodgets’? A heterodox reappraisal of the fiduciary who ‘steals a business’ : ‘account’, ‘allowances’, ‘consent’ and other perplexing issues Lee Aitken / Anticipatory breach and estoppel — does estoppel provide a unified doctrine for relief in all cases of anticipatory breach? Cameron Meiring and Kenneth Yin / Assessing testamentary capacity from the medical perspective Jane Lonie and Kelly Purser / Inconsistencies in sentencing of theft offenders in Victoria : implications for the ‘instinctive synthesis’ Clare Farmer, Ian Parsons and Mirko Bagaric / A consideration of current issues in private international law Michael Douglas

Australian law journal Vol 91(12), December 2017 - In this issue : Admiralty Act 1988 (Cth) s 6(b) Dr Damien J. Cremean / Paciocco in the High Court : penalties and late payment fees J. G. H. Stumbles / A survey of the High Court of Australia on construction law 1965-2016 Professor John Sharkey

Conveyancer and property lawyer Vol 81(6), 2017 – In this issue : The leasehold estate: useful tool or shackle? Martin Dixon / Taxing grounds Paul Clark / Inheritance and the posthumously conceived child Neil Maddox / More than just a walk in the park : a new view on recreational easements Judith Bray / Burdens, presumptions and confusion in the law on want of knowledge and approval Brian Sloan / Estoppel, registration, and the perils of obiter Juanita Roche / Title to a highway : obligations, function and constitutionalism in the construction of property rights Robin Hickey / Article 1 of the First Protocol and a tenants right to compensation Douglas Maxwell

Criminal law review Issue 1 2018 – In this issue : Speaking up for injustice : reconsidering the provision of special measures through the lens of equality Samantha Fairclough / Admissibility of forensic voice comparison testimony in England and Wales Geoffrey Stewart Morrison / Cross-examining young alleged complainers in Scottish criminal courts Samantha J. Andrews and Michael E. Lamb

Federal law review Vol 45(4) – In this issue : Between form and substance : minimising judicial scrutiny of executive action Mark Aronson / Interrogating ‘absolute discretion’ : are NZ’s parliament and courts compromising rule of law? Hanna Wilberg / The entrenched minimum provision of judicial review and the limits of ‘law’ Lisa Burton Crawford / Re-evaluating the doctrine of deference in administrative law Janina Boughey / Judicial review and merits review : are the boundaries being eroded? Robin Creyke / The unfolding purpose of fairness Matthew Groves / Judicial review of legislators’ motives Nathan Van Wees / Justiciability, access to justice and the development of constitutional law in Canada Gerard J. Kennedy and Lorne Sossin

Law quarterly review Vol 134, January 2018 – In this issue : Legal obligations, legal revolutions Hon. Michael Kirby AC CMG / Intentional harm, accessories and conspiracies Professor Paul S. Davies and Rt. Hon. Sir Philip Sales / Magna Carta, Scotland and Scots law Professor Hector L. MacQueen / Breach of contract : a plea for clarity and discipline Professor Neil Andrews / Misuse of rectification in the law of trusts Simon Douglas

Law society journal Issue 41, February 2018 - In this issue : Lessons on vicarious trauma and wellbeing from a Royal Commission Anna Verney / Crushing waves Lillian Leigh / Animal instincts Claire Chaffey and Lynn Elsey / The human cost of corporate life Dominic Rolfe / The wellbeing road test Kate Allman / A day in the life of Christine Morgan, CEO Butterfly Foundation Jane Southward / A performer with balance Tia Singh / Secrets to living a long and healthy life Joanna McMillan / Are you burning out? Thea O'Connor

Psychiatry, psychology and the law Vol 24(6), December 2017 - In this issue : Children's responsibility for criminal conduct : the principle of doli incapax under contemporary Australian law Ian Freckelton / Duty to avoid injury to oneself and thereby psychiatric injury to others Ian Freckelton / Psychology and legal aspects of dangerous sex offenders : a review of the literature M. T. Rowlands, G. Palk and R. McD. Young / Putting fetal alcohol spectrum disorder (FASD) on the map in New Zealand : a review of health, social, political, justice and cultural developments Anita Gibbs and Kesia Sherwood / The 'worst of the worst' : detectives' beliefs about dangerous violent offender and how to deal with them Mark Rhys Kebbell and Nina Westera / Attributions of blame in acquaintance rape scenarios : the role of blame scale presentation order Annaliese Murdoch and Karen Gonsalkorale / Antecedents, behaviours, and court case characteristics and their effects on case outcomes in litigation for persons with schizophrenia Melissa La Van, Helen La Van and William M. Martin / Mental health and criminal charges : variation in diversion pathways in Australia Fiona Davidson, Edward Heffernan, David Greenberg, Rhondda Waterworth and Philip Burgess / Prison industry and desistance from crime : an Australian perspective Andrew Day, Jo Wodak, Joe Graffam, Eileen Baldry and Linda Davey / Self-reported impulsivity and its relation to executive functions in interned youth Olov Nordvall, Anna Stigsdotter Neely and Bert Jonsson / Examining the effects of violence and personality on eyewitness memory Laura Pajon and Dave Walsh / Responsive versus treatment-resistant perpetrators in batterer intervention programs : personal characteristics and stages of change Pablo Carbajosa, Alba Catala-Minana, Marisol Lila, Enrique Gracia and Santiago Boira / Evaluation of a database for tracking cases of child sexual abuse Cate Bailey, Martine Powell and Gennady N. Baksheev

Public law Issue 1, January 2018 – In this issue : Ultra vires revisited Thomas Adams / 30 years of hurt : the evolution of civil preventive orders, hybrid law, and the emergence of the super-football banning order Mark James and Geoff Pearson / The strange reconstitution of Wales Richard Rawlings / Counter-terrorist law in British universities : a review of the “prevent” debate Steven Greer and Lindsey Bell / Judicial input into parliamentary legislation Robert Hazell and Juliet Wells

University of Tasmania law review Vol 36(2), 2017 – In this issue : Employer deductions from accounts payable under the Fair Work act 2009 (Cth) : restrictions on being both payer and payee Nadia Stojanova / The 2016 amendments to Singapore’s Consumer Protection (Fair Trading) Act – a missed opportunity Wee ling Loo and Ee Ing Ong / Judging a book by its cover: the challenges of prohibiting firearms by their appearance Samuel Diprose Adams / Maritime interception : a snapshot of Australian policy, law and practice, and the opportunity for change Susanna Dechent / Defamation defences and juries : Wilson v Bauer Media (No 6) [2017] VSC 356 Sophie Hey

Industrial Relations Commission

On the 1st of February the New South Wales Industrial Relations Commission's 5 judges and 10 staff lodged notice of an industrial dispute in the commission to stop the state government relocating the commission to Parramatta, see NSW Government plan to move IRC from Sydney's CBD hits legal hurdle. Whether the commission can rule on its own dispute is an issue that will be tested in court.

Eyewitness memory

James Cook University psychology lecturer Dr Craig Thorley has released a paper called Enhancing individual and collaborative eyewitness memory with category clustering recall which shows that there may be an easy way to help eyewitnesses of crimes remember more about what they have seen.

Federal Court reports Vol 250(3) - reported in this part : Comcare v Farrell (2016) 250 FCR 342 / Lim v Comcare (2017) 250 FCR 298 / Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 / MNWA Pty Ltd v Deputy Commissioner of Taxation (2016) 250 FCR 381 / Tyne v UBS AG (No 2) (2017) 250 FCR 341

• de Groot’s Wills, probate and administration practice (NSW) / John de Groot, Phillip McGowan (ed)
• Whiteley on trial / Gabriella Coslovich
• The burden of lies / Richard Beasley

• The library is closing for 4 weeks over the holiday period (see post below) and you might need to access Ritchie's Uniform Civil Procedure or Cross on Evidence. You know you can through Lexis Red, don't you? Lexis Red is an online looseleaf service that you can access from anywhere. To sign up before the break, email lexisred@nwsbar.asn.au with your full name, email address you would like to sign up with, & phone number and we will get you sorted.

• Australia has marriage equality, and our country is a better place for it The House of Representatives truly earned its name this week, when more than 100 members of parliament joined with 42 senators and nearly 8 million Australians to finally say yes to marriage equality.
• Sexual abuse survivors demand access to royal commission report The report is the culmination of five years of work by the commission examining historical child sexual abuse in Australian institutions, including religious institutions, sporting clubs, orphanages and schools.

• The Turnbull Government has this week introduced the Copyright Amendment (Service Providers) Bill 2017 to extend the safe harbour provisions in the Copyright Act to the disability, education, library, archive and cultural sectors. This represents the first step taken to significantly reform safe harbour legislation after more than 10 years of debate and multiple reviews. The measures in the Bill will ensure these sectors are protected from legal liability where they can demonstrate that they have taken reasonable steps to deal with copyright infringement by users of their online platforms. Extending the safe harbour scheme in this way will provide greater certainty to institutions in these sectors and enhance their ability to provide more innovative and creative services for all Australians. The changes will also give copyright owners tools to work with these sectors to prevent copyright infringement by their users.

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• Motor Vehicle Reports Vol 82(2) Cases reported in this part:
• Brewerton v Western Australia (WASCA — Full Court) (2017) 82.176
• Guss v Traffic Camera Office (VSC — Keogh J) (2017) 82.246
• Logar v Ambulance Service of New South Wales Sydney Region (NSWCA — Full Court) (2017) 82.216
• McGuinness v Heffernan (WASCA — Full Court) (2017) 82.204
• Police v Deng (SASC — Kelly J) (2017) 82.194
• R v Graham (ACTSC — Mossop J) (2017) 82.132
• Andalong v O’Neill (NTSC — Full Court) (2017) 82.161

• Google updates feature to its search engine To provide people with a larger and more varied spectrum of results in their searches, Google launched a series of new features that attempt to not only answer your questions, but also give you information you didn’t even think to ask about. “In the last few weeks, we’ve made three new additions to help you explore further, including expanded Featured Snippets, improved functionality of Knowledge Panels, and suggested content as you search for a particular topic,” writes Product Manager Michael Galvez on Google’s official blog.

• The Australian Law Journal 91/10 In this issue: Conscience, fair-dealing and commerce: Parliaments and the courts Chief Justice James Allsop AO / The decline and fall of Australia's law reform institutions - and the prospects of revival Hon Michael Kirby AC CMGy

• Law Society Journal Dec 2017 In this issue: The high cost of a failing system: why Australian family law is in tatters and what must be done to fix it / More than statistics: online legal services commitment to maintaining humanity in refugee cases / Driving innovation in law: meet Uber's Asia Pacific head / Is your client legally insane? A guide to testing the experts A constitutional catastrophe: The section 44 debacle explained / A new era in competition law: Outcomes of the Harper Review

• Thorne v Kennedy [2017] HCA 49 (08 November 2017) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) In Thorne v Kennedy, the High Court unanimously struck down both a prenuptial and a postnuptial agreement (the plurality on the basis of undue influence and unconscionable conduct, and Nettle J and Gordon J on the basis of unconscionable conduct alone). Read more.

• Esso Australia Pty Ltd v The Australian Workers' Union The Australian Workers' Union v Esso Australia Pty Ltd [2017] HCA 54 (06 December 2017) (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ) The High Court has allowed an appeal and dismissed a second appeal against a decision of the Full Federal Court on protected industrial action and enterprise agreements. During negotiations over a new enterprise bargaining agreement between Esso and the AWU for employees of offshore gas platforms, onshore processing plants, and a marine terminal, AWU organised various forms of industrial action in support of its claims. AWU claimed that each form of industrial action was protected under s 408(a) of the Fair Work Act (Cth), and Esso claimed some forms of purportedly protected action — relating to bans on equipment performance testing, air freeing and leak testing (which the AWU claimed was ‘de-isolation of equipment’) — were not protected. Read More.

• The library will be closed from 12pm on Friday the 22nd of December to Friday the 19th of January. The Library will also be closed on Friday the 26th of January 2018.
• If you wish to borrow titles over the closing period please make sure you do before midday on the 22nd of December.
• The library reopens from 9am to 5pm between Monday 22 January and Thursday 25th January 2018. Normal opening hours resume from Monday 29th January 2018.

• Bluett's local government handbook New South Wales / David Clark
• Unjust enrichment / Kit Barker and Ross Grantham
• International dispute settlement / J G Merrills

• Turnbull appoints former high court judge to lead banking royal commission PM says Kenneth Madison Hayne’s ‘wealth of experience’ makes him the ideal person for the royal commission
• The Family Court Delivered An Enormous Win For Transgender Teens Until now, Australia was the only country in the world which required transgender kids and teens to get the approval of the Family Court before starting hormones.

• Consider how many electronic Internet links you click each day on your mobile or laptop. You presumably clicked on a hyperlink to arrive at this very article. The Internet and linked content are reciprocally essential; the benefits of one cannot be realised without the other. Their invention and use has advanced how we communicate, share content, and find information. Prohibiting the use of linking content would be antithetical to the Internet. Unfortunately, Trkulja v Google [2017] HCATrans 129 could have this effect.

• Chinese hackers targeting Australian law firms, an industry specialist warns The Chinese espionage group known as the Codoso team or APT-19 has been causing havoc internationally and is turning its attention to Australia.
• Case dropped against $4.6m Westpac shopper A young woman who went on a multi-million-dollar shopping spree in Sydney after Westpac mistakenly dropped the money into her bank account has had the fraud case against her dropped.

• Intellectual Property Reports Vol 124 Part 3 - Cases reported in this part:
• Apple and Pear Australia Ltd (ACN 101 551 348) v Pink Lady America LLC (VSCA — Full Court) (2016) 124.497
• AstraZeneca Canada Inc v Apotex Inc (SCC — Full Court) (2017) 124.614
• Commonwealth v Sanofi (formerly Sanofi-Aventis) (FCA — Nicholas J) (2017) 124.427
• Google Inc v Equustek Solutions Inc (SCC — Full Court) (2017) 124.595
• Minas v Brooklite Pty Ltd (IP Aust — R Subbarayan) (2016) 124.566
• Mizzi Family Holdings Pty Ltd (ACN 132 033 615) v Morellini (No 3) (FCA — Dowsett J)
• Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 3) (FCA — Mortimer J)(2017)124.435

• Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393 (KATZMANN J - 29 NOVEMBER 2017) Intellectual Property - Costs - where applicant only successful in part of its claim - whether applicant should pay the respondents' costs - application for indemnity costs pursuant to r 25.14 of the Federal Court Rules 2011 (Cth)
• Commissioner of Taxation v Miley [2017] FCA 1396 (WIGNEY J - 28 NOVEMBER 2017) Taxation - appeal from a decision of the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) - where Commissioner assessed Respondent as not being entitled to small business cgt concessions under subdivision 152-C of the Income Tax Assessment Act 1977 (Cth)- Practice and Procedure - notice of objection to competency of appeal - whether appeal raises a question of law within the meaning of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)

• Bond Law Review Vol 29(1) Special Issue on Mediation: Mediation ethics and the challenge of professionalisation Jonathon Crowe / Including trans and gender diverse, intersex and or non-heterosexual people in mediation service delivery Olivia Rundle / An imperfect protection: attitudes of family dispute resolution practitioners to confidentiality Joe Harman / The potential of procedural justice in mediation: A study into mediators understandings Kathy Douglas and Jennifer Hurley / The structural causes of workplace conflict: understanding the implications for the mediation of workplace disputes Meriel O'Sullivan / To co-mediate or not to co-mediate: that is the question Keryn Foley