June 2013 Highlights

Subtitle 2.7 Other Forms of Review and Appeal

Updated by John Fitzgerald, Solicitor, Supreme Court of New South Wales

This Subtitle addresses the review and appeal processes for administrative action outside the court system. The offices of the Ombudsman in each jurisdiction are explored, with a focus on the agencies and actions thereof that Ombudsmen may investigate. The subtitle then looks at the impact of various Freedom of Information statutes on the investigative powers of the Ombudsmen. The Subtitle goes on to explore the six specific Administrative Review Tribunals in Australia – the Commonwealth Administrative Appeals Tribunal, ACT Civil and Administrative Tribunal, New South Wales Administrative Decisions Tribunal (to be replaced by the NSW Civil and Administrative Tribunal in 2014), Queensland Civil and Administrative Tribunal, Victorian Civil and Administrative Tribunal and Western Australia’s State Administrative Tribunal. It looks to the statutory creation of these bodies, as well as the powers and restrictions granted by legislation.

Subtitle 18.6 Documentary Credits and Demand Guarantees

Updated by Alan L Tyree, Consultant

This Subtitle covers documentary letters of credit, standby letters and demand guarantees. Featured in this update is commentary on the "negative pledge" exception which is discussed in Clough Engineering Ltd v Oil & Natural Gas Corp Ltd [2007] FCA 881 and Simon Carves Ltd v Ensus UK Ltd [2011] EWHC 657. Also "silent confirmation" is addressed in such cases as Greenhill International Pty Ltd v Commonwealth Bank of Australia [2013] SADC and Fortis Bank SA/NV v Indian Overseas Bank [2011] EWHC Comm 2303.

Subtitle 31.4 Deductions

Updated by Adam Ahmed, Legal Practitioner Director, Hemsley Lawyers

This Subtitle explores the various deductions provided for under the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth). It covers Income Tax Assessment Act 1997, s 8-1 replacing former Income Tax Assessment Act 1936, s 51 as the current general deduction provision. Specific deductions considered in the Subtitle include: interest, rent, insurance premiums, bad debts and employee obligations, among other things. There is also a discussion of statutory deductions, including depreciation, borrowing expenses and gifts. The Subtitle includes an examination of the specific statutory provisions which disallow or restrict the availability of deductions otherwise allowable under s 8-1.

Subtitle 35.3 Unfair Practices

Updated by Peter Neustupný, Senior Legal Adviser, SRC Legal, Comcare

This Subtitle, formerly entitled "Improper Business Practices", has been updated and restructured to reflect the provisions of the Australian Consumer Law. Unfair practices, which are the subject of Pt 3-1 of the Australian Consumer Law, are grouped into several categories including false and misleading representations about goods or services, the sale of land, bait advertising and misleading representations about certain business activities, among others. These and other prohibitions are discussed throughout this update.

July 2013 currently planned updates (subject to change):

• 2 Administrative Law 2.6 “Remedies in Judicial Review”
• 3 Bankruptcy 3.8 “Effects of Bankruptcy”
• 5 Civil Procedure 5.7 “Trial and Execution of Judgments”
• 14 Environment and Natural Resources 14.1 “General Principles: Basic Concepts”
• 16 Evidence 16.6 “Computer-produced Evidence”
• 17 Family Law 17.3 “Marriage and Nullity”
• 17 Family Law 17.4 “Divorce”
• 20 Health and Guardianship 20.8 “Mental Health and the Intellectually Disabled”
• 21 Human Rights 21.9 “Discrimination”
• 22 Insurance and Income Security 22.3 “Social Security”
• 24 International Trade 24.3 “International Business Transactions”
• 28 Real Property 28.3 “Torrens System – Indefeasibility and Priorities” updated by Elise Bennett Histed, Senior Lecturer, University of Tasmania and current to 1 July 2013
• 28 Real Property 28.10 “Licences” updated by Dr Ben McEniery, Barrister-at-Law and current to 1 July 2013