Current Legal Issues Seminars 2013

The 2013 seminars discussed equitable assignment, remedial constructive trusts, Sir Samual Griffith, implied terms and Queensland criminal law.

Among many other distinguished guests, speakers and commentators included the Hon Justice James Edelman, the Hon Justice Fraser and the Hon Paul de Jersey AC.

Understanding equitable assignment

Date 6 June 2013
Speaker The Hon Justice Edelman, Supreme Court of Western Australia;
Dr Steven Elliott, Barrister, England and Wales.
Commentator Dr Ben Kremer, Barrister, New South Wales.
Chair The Hon Justice Fraser, Court of Appeal, Supreme Court of Queensland
Abstract The assignment of choses in action, particularly debts, has been at the core of commercial activity for centuries. Yet, bizarrely, the courts have never managed to articulate a stable principled understanding of assignments that take effect in equity. Conceptually, there is a strong argument for a particular coherent understanding of the way in which equitable assignment operates, but the courts have resisted this for reasons which are not clear.

The seminar will concentrate on a number of recent cases in which the highest courts in Australia and England have confronted the difficulties to which the lack of a stable principle gives rise – especially Barbados Trust Company Ltd v Bank of Zambia [2007] 1 Lloyd’s Rep 495 (CA), Roberts v Gill & Co [2011] 1 AC 240,Kapoor v National Westminster Bank plc[2012] 1 All ER 1201 (CA) and Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 286 ALR 12. One area in which the foundations of equitable assignment may be important is in relation to the effect of an anti-assignment clause.
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What exactly is a remedial constructive trust?

Date 25 July 2013
Speaker Prof Michael Bryan, University of Melbourne
Commentator The Hon Justice David Jackson, Supreme Court of Queensland.
Chair Brian O’Donnell QC, Barrister, Queensland.
Abstract There seems to be both a judicial and academic consensus that Australian equity recognises the existence of the remedial constructive trust. There is less agreement, however, on what it means to describe a constructive trust as a remedy. Are all constructive trusts remedial? How should courts exercise their discretion to impose a constructive trust? What account should be taken of the interests of the defendant’s creditors in awarding a constructive trust?

This lecture will suggest some answers to these pressing contemporary questions.
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Commentary Click here to download Commentary

The Griffith Opinion Books — Annual McPherson Lecture 2013

Date 22 August 2013
Speaker John McKenna S.C., Barrister, Queensland.
Commentator Dr Warren Swain, University of Queensland
Chair The Hon Paul de Jersey AC, Chief Justice of Queensland
Abstract Sir Samuel Griffith (1845-1920) is rightly viewed as the most influential figure in Queensland’s legal history. Whilst practising at the bar in Brisbane from age 22 (1867-1893), Griffith pursued a parallel career in parliament, including substantial terms as Premier (1883-1888, 1890-1893). Griffith then took judicial office, serving first as Chief Justice of the Supreme Court of Queensland (1893-1903) and then as the first Chief Justice of the High Court of Australia (1903-1916).

Whilst much of documentary record relating to Griffith’s life and work has been accessible in public collections, only recently a group of some 245 confidential opinions prepared during Griffith’s career at the bar became available for historical research. These opinions, which span almost the whole of Griffith’s career at the bar, were held in the Opinion Books kept by the Brisbane firm of Feez Ruthning (now Allens Arthur Robinson) and donated to the Supreme Court Library pursuant to a new legislative scheme for the preservation of historic legal documents.

This lecture will provide the first assessment of these documents and their significance in our understanding of Griffith and his era.
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Commentary Click here to download commentary

The challenge of principled gap-filling – A study of implied terms in a comparative context

Date 12 September 2013
Speaker The Hon Justice Andrew Phang Boon Leong, Judge of Appeal, Supreme Court of Singapore
Commentator Prof John Carter, Sydney University
Chair Walter Sofronoff QC SG, Barrister, Queensland
Abstract There has been a veritable wealth of literature on implied terms – ranging from doctoral theses to book chapters, articles and (more recently) a book. Perhaps the simplest explanation for such interest is that it is extremely important topic with at least two important functions – one substantive, the other theoretical.

This seminar examines the topic of implied terms from both perspectives. The focus, however, is on the former (viz, the substantive function), and centres on the function of gap-filling. In addition to exploring the relevant historical aspects (especially from a personal perspective), the seminar will also examine the substantive function of implied terms in a comparative common law context. Although English law necessarily constitutes the starting-point in many instances, this seminar will also point to the fact that not all English developments have always been embraced as a matter of course. In Singapore, for example, the leading Privy Council decision of Attorney-General of Belize v Belize Telecom Ltd (which, whilst not, strictly speaking, an English decision appears nevertheless to represent the current English position in relation to terms implied “in fact”) has not been followed.

The seminar also examines briefly a second (and inherently theoretical) function which is indirect in nature – whether (despite the present legal position) a quite different form of the implied term could nevertheless be utilised as a rationale to justify a distinct and separate legal doctrine, viz, the doctrine of frustration. This second function is in contrast to the first function of the implied term (as constituting a legal doctrine in and of itself).
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An update on legislative reforms in the last 18 months in Queensland criminal law

Date 31 October 2013
Speaker Anthony Moynihan S.C., Director of Public Prosecutions, Queensland.
Commentator Jeff Hunter S.C., Barrister, Queensland
Chair His Honour Judge Anthony Rafter S.C., District Court of Queensland
Abstract This seminar will summarise recent reforms including the Criminal Law (Two Strikes Child Sex Offenders) Amendment Act 2012, the Criminal Law Amendment Act 2012, the Weapons And Other Legislation Amendment Act 2012, the Criminal Law (False Evidence Before Parliament) Amendment Act 2012, the Penalties and Sentences and Other Legislation Amendment Act 2012, the Youth Justice (Bootcamp Orders) and Other Legislation Amendment Act 2012, the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offenders Confiscation Order) Amendment Bill 2012 and the Case Management in Complex Criminal Trials practice direction.

There will also be commentary on some of the practical implications of the reforms.
Paper &
Commentary
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Dr Steven Elliot, The Hon Justice James Edelman (High Court of Australia), Dr Ben Kremer and the Hon Justice Fraser (Supreme Court of Queensland). Participants in the first CLI seminar of the 2013 series.
Dr Steven Elliot, The Hon Justice James Edelman (High Court of Australia), Dr Ben Kremer and the Hon Justice Fraser (Supreme Court of Queensland). Participants in the first CLI seminar of the 2013 series.