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

Aborigines and Torres Strait Islanders: Subtitle 1.5 “Criminal Justice Issues”

Updated by Dr Thalia Anthony, Senior Lecturer, University of Technology, Sydney

This Subtitle is concerned with the issues of the criminal law that are of particular relevance to Indigenous Australians. Particular discussion is made of: criminal responsibility and defences; bail and other considerations prior to trial; arrest and interrogation procedures used for Indigenous Australians; acceptance of admissions as evidence; and issues of evidence, understanding of criminal law processes, language, jury selection, pre-trial publicity, sentencing and the application of Indigenous laws in cultures at various stages in the system. Reference is made to the relevant case law, including recent cases such as Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37; Karpany v Dietman (2013) 88 ALJR 90; [2013] HCA 47; and Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103. Reference is also made to the relevant legislation and treaties, such as the various Crimes Acts and Criminal Codes, the Evidence Acts, the Native Title Act 1993 (Cth); and the International Covenant on Civil and Political Rights (1966) 999 UNTS 171; 6 ILM 368; [1980] ATS 23.

Administrative Law: Subtitle 2.4 “Judicial Review of Administrative Action: Reviewable Decisions, Conduct and Powers and General Grounds”

Updated by Joanna Davidson, Barrister, Sixth Floor Selborne Wentworth Chambers (Chs 3, 7, 8, 10); Dr Juliet R Lucy,  Barrister, Supreme Court of New South Wales (Chs 9, 11); Sarah-jane Morris, Special Counsel, New South Wales Crown Solicitor’s Office (Chs 1, 4, 6); and Corrina Novak, Barrister, 7 Selborne Chambers (Chs 2, 5)

This Subtitle explores the basis of judicial review of administrative actions in Australia, and focuses on the circumstances under which an administrative decision may be subject to review by a court, such as irrelevant considerations, failure to consider a relevent matter, bad faith and fraud, unreasonableness, and error of law, among others. It extensively references more recent case law in these areas and across all relevant jurisdictions, including more recent treatments of “Wednesbury unreasonableness” such as in Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18.

Administrative Law: Subtitle 2.5 “Judicial Review of Administrative Action: Procedural Fairness”

Updated by Dr Juliet R Lucy, Barrister, Supreme Court of New South Wales

This Subtitle on the rules of procedural fairness in judicial review has been updated to include more recent case law treatments of this area, including Kirk v Industrial Court (NSW) (2010) 239 CLR 531; 84 ALJR 154; 190 IR 437; [2010] HCA 1, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 and Saraceni v Australian Securities and Investments Commission (2013) 211 FCR 298; [2013] FCAFC 42.

Administrative Law: Subtitle 2.6 “Remedies in Judicial Review”

Updated by Brenda Jo Tronson, Barrister, Level 22 Chambers, Sydney

This Subtitle has been revised to take into account some more recent decisions including Wang v Farkas [2014] NSWCA 29, SZQBN v Minister for Immigration & Citizenship (2013) 213 FCR 297; 305 ALR 351; [2013] FCAFC 94 and Director of Public Prosecutions (Vic) v Batich [2013] VSCA 53.

Bankruptcy: Subtitle 3.4 “Compulsory Bankruptcy”

Updated by Ben McEniery, Barrister-at-Law, Supreme Court of Queensland, Barrister-at-Law, Roma Mitchell Chambers, Brisbane, Senior Lecturer, Queensland University of Technology 

This Subtitle updates references to provisions under the Federal Court Rules 2011 (Cth) and the Federal Circuit Court of Australia Act 1999 (Cth). New case law adds weight to previous decisions, and the processes surrounding appeals and the presenting of a creditor’s petition have been simplified in description. Finally the “genuine steps” required under the Civil Dispute Resolution Act 2011 (Cth) have been given special consideration.

Bankruptcy: Subtitle 3.7 “Trustee in Bankruptcy”

Updated by Michael WR Adams, Chair’s Associate, Victorian Law Reform Commission

Changes to the processes surrounding remuneration and costs of a trustee in bankruptcy are covered by the complete rewrite of Chapter 8. Additional changes to Chapter 7 cover new case law surrounding the role of the Court in the supervision of a trustee in bankruptcy, including Ferella v Official Trustee in Bankruptcy (No 2) [2011] FCA 619; and Sopikiotis v Vince [2013] FCA 592. Small changes to the ability of a trustee in bankruptcy to assign causes of actions to the bankrupt are updated by coverage of Wakeling v Wade (2011) 9 ABC(NS) 450; and Tapp v LawCover Insurance Pty Ltd [2013] FCA 35.

Bankruptcy: Subtitle 3.19 “Cross-border Bankruptcy”

Updated by Ben McEniery, Barrister-at-Law, Supreme Court of Queensland, Barrister-at-Law, Roma Mitchell Chambers, Brisbane, Senior Lecturer, Queensland University of Technology

This brand new Subtitle goes into detail on the effect and mechanisms of the Model Law on Cross-border Insolvency and the associated Cross-Border Insolvency Act 2008 (Cth). This includes foreign court co-operation, exempt entities under the Model Law and the processes which must be gone through to bring an application for recognition of a foreign bankruptcy proceeding to a court in Australia.

Civil Procedure: Subtitle 5.3 “Discovery and Interrogatories”

Updated by Justin Carter, Barrister, Queensland Bar

Updated Chapters 7 and 8 of this Subtitle focus on the production and inspection of documents, as well as interrogatories. Examination is made of the law and issues surrounding: obligations to produce documents for inspection; resisting production of documents for inspection; the time and manner of inspection of documents; administering interrogatories; the subject matter of interrogatories; and answering interrogatories. Reference is made to the relevant case law as well as legislation; particularly relevant court and civil procedure rules of each jurisdiction.

Civil Procedure: Subtitle 5.11 “Private International Law”

Updated by Emeritus Professor JLR Davis, Barrister and Solicitor, High Court of New Zealand, Emeritus Professor of Law, Australian National University

This large update examines the changing role of private international law in the new century. New issues regarding choice of law are examined in detail and rules regarding international adoption arrangements are updated. New paragraphs have been added to Chapters 11 and 12 to cover the effect of the Cross-Border Insolvency Act 2008 (Cth) and the Trans-Tasman Proceedings Act 2010 (Cth).

Contracts: Specific: Subtitle 8.1 “Agency”

Updated by Brian McEniery, Barrister-at-Law, Supreme Court of Queensland, Barrister-at-Law, Roma Mitchell Chambers, Brisbane, Senior Lecturer, Queensland University of Technology

This first Subtitle of Title 8 Contracts: Specific discusses the general principles of the legal concept of agency, covering the formation of the agency relationship, an agent’s authority to act on behalf of their principal, the relationships between principal and agent, principal and third parties and agents and third parties, and finally, termination of the agency relationship. Legislative references have been updated throughout to reflect the current position under the legislation covering this area of law. In this update, particular attention has been given to the specific issues of the requirement of writing for the valid appointment of an agent, the liability of a principal for torts committed by their agent and whether an agent who executes a deed is personally liable.

Criminal Sentencing: Subtitle 12.4 “Sentencing for Specific Offences”

Updated by Danielle Andrewartha, Solicitor, Supreme Courts of South Australia and Victoria, PhD Candidate, Faculty of Law, Monash University, Senior Consultant, McPhee Andrewartha

A significant rewrite of this entire Subtitle. The latest sentencing data has been relied on to update statistics regarding sentencing of specific offences, focusing on violent, sexual, drug and property offences. Paragraphs have been reorganised to ease reading, while footnotes have been expanded to include multiple examples of various cases, their relevant offences and the sentences that they attracted. The Subtitle also provides a new section in Chapter 2 to cover various “one punch” laws being introduced throughout Australia.

Labour Law: Subtitle 26.3 “Australian Industrial Relations System”

Updated by Jeremy Cousins, Solicitor, Supreme Court of Victoria, Principal, Norton Gledhill

Updated Chapter 6 looks at how the industrial relations systems of the Commonwealth and States operate in conjunction since the enactment of the Fair Work Act 2009 (Cth). Most States referred large parts of their industrial relations powers to the Commonwealth, but a considerable body of State legislation regulating industrial relations remains, eg the Surveillance Devices (Workplace Privacy) Act 2006 (Vic). Coverage by the Federal Act is determined by its categories of ‘national system employer’ or ‘national system employee’. States regulate long service leave as the Fair Work Act 2009 (Cth) does not apply to it. There is a particular focus on the industrial relations system in Western Australia – the only State not to refer its industrial relations powers to the Commonwealth. The main legislation is the Industrial Relations Act 1979 (WA) and the Minimum Conditions of Employment Act 1993 (WA). Topics covered include the Western Australian Industrial Relations Commission, employer-employee agreements, and industrial inspectors.

Professional Liability: Subtitle 27.9 “Government Authorities”

Updated by Andrew GA George, Barrister, William Forster Chambers, Darwin

This updated Subtitle addresses the legal changes affecting the liability of government authorities in negligence. Discussion is made of the abolition of general reliance as the test for establishing a duty of care, and the factors that are now taken into account in determining whether a duty of care exists, following the decisions of Pyrenees Shire Council v Day (1998) 192 CLR 330; 72 ALJR 152; 96 LGERA 330; [1998] HCA 3, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 74 ALJR 1; [1999] HCA 59 and Graham Barclay Oysters v Ryan (2002) 211 CLR 540; 77 ALJR 183; 125 LGERA 1; [2002] HCA 54. Also considered are the effect on the liability of government authorities of civil liability legislation enacted since 2002 across most Australian jurisdictions, particularly the legislative reinstatement of the highway immunity rule, and the more flexible approach which has been taken to the scope of derivative Crown immunity based on statutory construction.         

Real Property: Subtitle 28.8 “Retail Tenancies”

Updated by Ben McEniery, Barrister-at-Law, Supreme Court of Queensland, Barrister-at-Law, Roma Mitchell Chambers, Brisbane, Senior Lecturer, Queensland University of Technology

This Subtitle update discusses changes to the law of retail leases and is primarily concerned with updates to the Queensland law under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and its corresponding establishment of QCAT to replace the previous Retail Shop Lease Tribunal. The majority of these changes are to be found in Chapter 8 “Determination of Disputes – Queensland”.

Torts: Subtitle 33.1 “Tort and Contract”

Updated by Clare McKay, Solicitor, Supreme Court of Victoria, Associate to the Hon Justice Susan Crennan AC, High Court of Australia

A significant rewrite of the entire Subtitle, including recent High Court judgments such as Barclay v Penberthy (2012) 246 CLR 258 recognising a connection between contract and tort; Wallace v Kam (2013) 87 ALJR 648 and Hunt & Hunt Lawyers (a firm) v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 regarding causation in tort and the ‘but for’ test; and the upcoming appeal of Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCATrans 052 concerning duty of care of a commercial builder to avoid causing pure economic loss.

June 2014 projected updates (subject to change):

• Aborigines and Torres Strait Islanders 1.4 “Cultural Heritage”
• Business Organisations 4.6 “Company Takeovers” Chs 6-13
• Criminal Offences 10.4 “Offences of Dishonesty”
• Criminal Offences 10.10 “Public Order”
• Criminal Offences 10.12 “Terrorism Offences” (NEW SUBTITLE)
• Equity 15.13 “Trusts” Chs 4-6
• Family Law 17.5 “Domestic Violence” Chs 4-6
• Family Law 17.16 “Financial Agreements and Consent Agreements”
• Restrictive Trade Practices 30.2 “Restrictive Trade Practices”
• Unfair Dealing 35.8 “Undue Influence”