The following subtitles were updated in July, and are now available on Westlaw AU.

Subtitle 3.10 Bankruptcy “Investigations”

Updated by Steven M Foale, Barrister and Solicitor, Supreme Courts of New South Wales, the Northern Territory, South Australia, Victoria and High Court of Australia, Special Counsel, Maurice Blackburn Lawyers

This Subtitle discusses the nature and scope of investigations carried out by a trustee in bankruptcy into a bankrupt’s property and affairs. The commentary has been updated to include recent cases in the area, such as Vitek v Taheri [2012] FMCA 536, Re Price; Ex parte Scott [2011] FCA 1478 and Re ACN 108 153 251 Pty Ltd [2013] NSWSC 1995, and also to reflect the renaming of the Federal Magistrates Court to the Federal Circuit Court, with all references to the former having being changed to the latter. The following sections have also been expanded: the content of an examination summons; the consequences of non-compliance with an examination summons; the costs of an examination; and the duties of a trustee in bankruptcy, with the inclusion of references to the Bankruptcy Regulations 1996 (Cth) setting out the performance standards for trustees in bankruptcy.

Subtitle 5.3 Civil Procedure “Discovery and Interrogatories”

Updated by Justin Carter, Barrister, Queensland Bar

Updated Chapters 9–11 of this Subtitle focus on objections to interrogatories, discovery by oral examination (as available in the Northern Territory and Victoria), and the available sanctions and measures for the enforcement of discovery. Examination is made of the law and issues surrounding: common objections to the production of documents and answering interrogatories; particular objections to producing documents; particular objections to answering interrogatories; the procedural rules surrounding discovery by oral examination in the Northern Territory and Victoria; the enforcement of discovery and production; further and better answers; and sanctions for failure to comply. Reference is made to the relevant case law as well as legislation; particularly relevant court and civil procedure rules of each jurisdiction.

Subtitle 12.9 Criminal Sentencing “Restitution and Compensation Orders”

Updated by Professor Mirko Bagaric, Professor, Law School, Deakin University

This Subtitle is concerned with restitution and compensation orders which are made by courts of criminal jurisdiction for economic loss rather than for personal injury. This update includes commentary regarding the Victims Rights and Support Act 2013 (NSW), in relation to the statute’s detailed set of provisions which empowers courts to order offenders to pay compensation for any loss sustained. Cases such as R v Alt [2013] QCA 343, Berichon v The Queen [2013] VSCA 319 and Guerrero v Dickson [2013] WASC 246 are also featured.

Subtitle 15.5 Equity “Declarations”

Updated by Dr Normann Witzleb, Senior Lecturer, Monash University

This Subtitle explores declaratory judgments, where a court pronounces the existence or otherwise of legal rights or obligations concerning the parties to proceedings. It has been updated to account for the current provisions of the Competition and Consumer Act 2010 (Cth) and references more recent cases including Momcilovic v The Queen (2011) 245 CLR 1; 85 ALJR 957; 209 A Crim R 1; [2011] HCA 34, Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 and Allseas Construction SA v Minister for Immigration & Citizenship (2012) 203 FCR 200; [2012] FCA 529.

Subtitle 15.9 Equity “Compensation and Damages”

Updated by David Wright, Solicitor, Supreme Court of New South Wales, Barrister and Solicitor, Supreme Court of South Australia and High Court of Australia, Senior Lecturer, School of Law, University of Adelaide

This Subtitle deals with the remedies of compensation and damages in equity. Issues covered include the objects of the remedies, the heads under which damages may be recovered, factors limiting compensation, and the assessment of damages. Important case law is considered, including: Harris v Digital Pulse Pty (2003) 56 NSWLR 298; [2003 NSWCA 10 – exemplary damages not available with equitable compensation; Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 – aggravated damages allowed with equitable compensation; and, Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484; 77 ALJR 895; [2003] HCA 15.

Subtitle 17.8 Family Law “International Child Abduction”

Updated by Frank Chila, Solicitor, Westminster Lawyers

The wrongful removal and retention of a child across country borders is governed primarily by the International Child Abduction Convention (1980) 1343 UNTS 89; [1987] ATS 2. Recent movement has been in the case of Department of Communities (Child Safety Services) v Garning [2011] FamCA 485, which extended the “but for” to favour both a mother and father’s rights of custody, as well as establishing that the onus of proof regarding the issue of acquiescence is laid upon the party that raises it. Further, Forrest J noted that a child’s objection to being returned must show a strength of feeling “beyond the mere expression of a preference”.

Subtitle 24.2 International Trade “Foreign Investment”

Updated by Belinda Robilliard Legal Practitioner, Supreme Court of the Australian Capital Territory

Principal, Pegasus Economics, Tutor in Law, ANU College of Law and Philippa Stone Solicitor, Supreme Court of New South Wales, Partner, Herbert Smith Freehills

This re-written Subtitle brings coverage of Australia’s foreign investment law right up to 2014. Via consideration of the Foreign Acquisitions and Takeovers Act 1975 (Cth) and Australia’s Foreign Investment Policy, the Subtitle explores issues such as: foreign investment proposals that are examinable by the government; foreign investment proposals that are subject to compulsory or voluntary notification; the role of the Foreign Investment Review Board (FIRB) in the assessment of foreign investment applications; national interest considerations typically applied by the Treasurer when assessing a proposal; and the options available to the Treasurer. Foreign investment law and policy is ever topical, accordingly the Subtitle also addresses: the 2013 changes to Australia’s Foreign Investment Policy (eg the definition of foreign government investor); the Senate’s inquiry into FIRB’s national interest test for the assessment of foreign investment proposals, and its recommendation for a national foreign ownership register for agricultural land; the present federal government’s foreign investment decisions (eg GrainCorp) and the intersection of its approach to foreign investment with its de-regulatory policies (eg in relation to Qantas); specific restrictions on foreign investment; and the impact of Australia’s free trade agreements and negotiations with other countries on Australia’s liberalisation of its foreign investment screening thresholds.

Subtitle 29.1 “Restitution” Chs 6-10

Updated by Dr Jason Taliadoros, Barrister and Solicitor, Supreme Court of Victoria

This is the second and final instalment update to this Subtitle and includes revised and updated commentary on ineffective contracts, with reference to Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; 42 ATR 442; [2001] HCA 68 and Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; 82 ALJR 1037; [2008] HCA 27. The Subtitle also discusses illegal contracts in the context of the High Court’s decision in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; 86 ALJR 296; [2012] HCA 7, and discusses the issue of damages in respect of tortuous interference with goods in the context of Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342.

Subtitle 35.2 Unfair Dealing “Misrepresentation”

Updated by Dr Paul Vout, Member of the Victorian Bar; Solicitor, Supreme Courts of New South Wales and Northern Ireland; Solicitor, Senior Courts of England and Wales

This Subtitle discusses innocent misrepresentations and fraudulent misrepresentations (also known as “deceit”) at common law and in equity. This update makes reference to Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; 84 ALJR 644 and Sotiropoulos v Bico Designs Pty Ltd [2013] FCA 25, which discuss deceptive conduct claims made under s 18 of the Australian Consumer Law.

Subtitle 35.7 Unfair Dealing “Duress”

Updated by Dr Paul Vout, Member, Victorian Bar

Duress is the illegitimate use of pressure, conduct or threatened conduct, to procure some benefit to the user. Among other issues, recent movement in the area of economic duress stalled as the High Court in Electricity Generation Corp (t/as Verve Energy) v Woodside Energy Ltd (2014) 88 ALJR 447; [2014] HCA 7 stopped short of addressing the duress issue, instead making its finding on the issue of contractual construction. This left open whether the concept of economic duress is truly redundant, as opined by Almond J in Commercial Base Pty Ltd v Watson [2013] VSC 334.

Subtitle 35.9 Unfair Dealing “Unconscionable Dealing”

Updated by John Fogarty, Senior Associate, Corrs Chambers Westgarth

This Subtitle discusses unconscionable conduct, which is a ground for relief, from contracts and other transactions, both in equity and under statute. The main case discussed in this update is Kakavas v Crown Melbourne Ltd (2013) 87 ALJR 708; [2013] HCA 25 which involved a compulsive gambler who sued a casino under s 20 of the Australian Consumer Law. Also discussed is Mackintosh v Johnson [2013] VSCA 10. Judicial explanations of the meaning of “unconscionable” are also featured, which was raised in Australian Competition & Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90.

August 2014 currently scheduled updates (subject to change):

• Criminal Law Principles 9.2 “Ancillary Liability”
• Criminal Sentencing 12.3 “Interpretation of Penalty Provisions”
• Equity 15.4 “Equitable Defences”
• Government 19.6 “Constitutional Guarantees of Rights”
• Insurance and Income Security 22.1 “Insurance”
• Unfair Dealing 35.6 “Estoppel”