Litigation funding is used to increase access to justice for those otherwise unable to prosecute a claim to uncover and remedy incompetence, reckless or egregious behaviour. Litigation can also be misused, perhaps as a strategic tool, and in the formulation of legal tactics in class action litigation. The financing of shareholder and other class actions has created substantial media interest. Media reporting can have a negative feedback loop acquiring influential global momentum of its own (for instance in director’s insurance) whereas legal scholarship, even when reported, does not. Legal scholarship is not replete with empirical analysis so in the present debate, published empirical analysis by this and other authors should be heeded. Reforms to date illustrate how the confluence of class action law, other litigation funding law, and managed investment scheme (MIS) law is problematic and unresolved ― a Gordian Knot which in the absence of exemptions can only be untied by significant reform of the legal architecture. There are three constituent elements of litigation financing ― (a) promotion of the MIS (or alternative litigation financing which may constitute a MIS) to general members, being mostly ‘retail’ financial consumers; (b) The class action, being a registered MIS with a ‘wholesale’ representative plaintiff; and (c) the litigation financing and associated stakeholders. Some proposed reforms are politically contested. Australian present and proposed practice deviates from preferred practices in other jurisdictions emulating divergences seen in comparative fiduciary and best interest law which generate additional director risk where there are cross-border investments. Law reform options to better provide for the interests of general member plaintiffs are proffered for debate.
{"title":"Litigation Financing - Untangling the Gordian Knot - The Future of Law Reform","authors":"David G Millhouse","doi":"10.53300/001c.38725","DOIUrl":"https://doi.org/10.53300/001c.38725","url":null,"abstract":"Litigation funding is used to increase access to justice for those otherwise unable to prosecute a claim to uncover and remedy incompetence, reckless or egregious behaviour. Litigation can also be misused, perhaps as a strategic tool, and in the formulation of legal tactics in class action litigation. The financing of shareholder and other class actions has created substantial media interest. Media reporting can have a negative feedback loop acquiring influential global momentum of its own (for instance in director’s insurance) whereas legal scholarship, even when reported, does not. Legal scholarship is not replete with empirical analysis so in the present debate, published empirical analysis by this and other authors should be heeded. Reforms to date illustrate how the confluence of class action law, other litigation funding law, and managed investment scheme (MIS) law is problematic and unresolved ― a Gordian Knot which in the absence of exemptions can only be untied by significant reform of the legal architecture. There are three constituent elements of litigation financing ― (a) promotion of the MIS (or alternative litigation financing which may constitute a MIS) to general members, being mostly ‘retail’ financial consumers; (b) The class action, being a registered MIS with a ‘wholesale’ representative plaintiff; and (c) the litigation financing and associated stakeholders. Some proposed reforms are politically contested. Australian present and proposed practice deviates from preferred practices in other jurisdictions emulating divergences seen in comparative fiduciary and best interest law which generate additional director risk where there are cross-border investments. Law reform options to better provide for the interests of general member plaintiffs are proffered for debate.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44526079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The training of future academics and researchers is part of higher education. Doctoral studies consist of both teaching and research. Numerous studies have been conducted on the theory and practice of doctoral studies in and across various disciplines. Basically, the central questions of doctoral supervision are why, what, and how. It is imperative for a prospective supervisor to understand why he or she would like to undertake doctoral supervision. This is because the underlying aims will affect the quality of the intellectual and research training experience for both the supervisor and the supervisee. Once the underlying reasons are identified, the next question is what the supervisor wants to achieve. In essence, what a supervisor would like to accomplish in doctoral supervision is a value judgement because to what he or she attaches importance determines the intended outcomes. Towards the specific goals, the supervisor must determine how to materialize them. In fact, what approach or style as well as what policies and strategies should be adopted to cultivate research and scholarship skills in doctoral students constitute a significant portion of existing literature. Given that the ‘how’ is the most challenging element, this study attempts to draw inspirations from the Confucian pedagogy..
{"title":"The Currency and Relevancy of Confucian Pedagogy in Doctoral Supervision","authors":"V. I. Lo","doi":"10.53300/001c.38545","DOIUrl":"https://doi.org/10.53300/001c.38545","url":null,"abstract":"The training of future academics and researchers is part of higher education. Doctoral studies consist of both teaching and research. Numerous studies have been conducted on the theory and practice of doctoral studies in and across various disciplines. Basically, the central questions of doctoral supervision are why, what, and how. It is imperative for a prospective supervisor to understand why he or she would like to undertake doctoral supervision. This is because the underlying aims will affect the quality of the intellectual and research training experience for both the supervisor and the supervisee. Once the underlying reasons are identified, the next question is what the supervisor wants to achieve. In essence, what a supervisor would like to accomplish in doctoral supervision is a value judgement because to what he or she attaches importance determines the intended outcomes. Towards the specific goals, the supervisor must determine how to materialize them. In fact, what approach or style as well as what policies and strategies should be adopted to cultivate research and scholarship skills in doctoral students constitute a significant portion of existing literature. Given that the ‘how’ is the most challenging element, this study attempts to draw inspirations from the Confucian pedagogy..","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44289649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Bond Law Review has a proud tradition of publishing high quality corporate law articles. This Special Issue on Corporate Purpose continues that tradition. This Special Issue offers selected papers from among those presented at the first Conference on Corporate Purpose in Theory, Law and Practice convened by the Daughters of Themis: International Network of Female Business Scholars on 16 April 2021. These papers were chosen after a double-blind peer-reviewed call for papers issued after the conference.
{"title":"Foreword, Volume 34, Issue 2 (2022)","authors":"Victoria Baumfield","doi":"10.53300/001c.38052","DOIUrl":"https://doi.org/10.53300/001c.38052","url":null,"abstract":"The Bond Law Review has a proud tradition of publishing high quality corporate law articles. This Special Issue on Corporate Purpose continues that tradition. This Special Issue offers selected papers from among those presented at the first Conference on Corporate Purpose in Theory, Law and Practice convened by the Daughters of Themis: International Network of Female Business Scholars on 16 April 2021. These papers were chosen after a double-blind peer-reviewed call for papers issued after the conference.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47893724","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the economic concept of the ‘firm’ and the legal concept of the ‘company’. Having identified that the two do not entirely overlap, it detects an ambiguity in existing legal literature, and argues that the former is a better fit for corporate law’s ‘nexus for contracts’. It introduces the ‘business’ to describe all constituencies in the nexus of contracts not represented by the company. Reconceptualising base concepts in such a manner helps us reimagine existing argumentation structures – rather than arguing that non-shareholders should have rights in respect of the operation of the company, instead we can argue for limitations in respect of what the company can do in respect of the business. Three implications arise from this analysis. First, company law collectivises the power of certain constituencies only, and there is conceptual space to collectivise the power of the others. Second, this demonstrates differences in proximity – shareholders and directors should only interact through the company, and other constituencies have less of a claim to a say in the company’s running. Third, we can use this conceptualisation to argue that the company is holding assets as trustee for the wider firm rather than in its own right.
{"title":"The Nexus of Contracts Revisited: Delineating the Business, the Firm, and the Legal Entity","authors":"Jonathan Hardman","doi":"10.53300/001c.37995","DOIUrl":"https://doi.org/10.53300/001c.37995","url":null,"abstract":"This article explores the economic concept of the ‘firm’ and the legal concept of the ‘company’. Having identified that the two do not entirely overlap, it detects an ambiguity in existing legal literature, and argues that the former is a better fit for corporate law’s ‘nexus for contracts’. It introduces the ‘business’ to describe all constituencies in the nexus of contracts not represented by the company. Reconceptualising base concepts in such a manner helps us reimagine existing argumentation structures – rather than arguing that non-shareholders should have rights in respect of the operation of the company, instead we can argue for limitations in respect of what the company can do in respect of the business. Three implications arise from this analysis. First, company law collectivises the power of certain constituencies only, and there is conceptual space to collectivise the power of the others. Second, this demonstrates differences in proximity – shareholders and directors should only interact through the company, and other constituencies have less of a claim to a say in the company’s running. Third, we can use this conceptualisation to argue that the company is holding assets as trustee for the wider firm rather than in its own right.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41449148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Educating for Well-Being in Law: Positive Professional Identities and Practice provides both an inspiring and pragmatically grounded set of accounts of what has been done, and could be done to generate positive professional identities and practices in the legal profession.
{"title":"Educating for Well-being in Law: Positive Professional Identities and Practice edited by Caroline Strevens and Rachael Field","authors":"Mark Seton","doi":"10.53300/001c.37096","DOIUrl":"https://doi.org/10.53300/001c.37096","url":null,"abstract":"Educating for Well-Being in Law: Positive Professional Identities and Practice provides both an inspiring and pragmatically grounded set of accounts of what has been done, and could be done to generate positive professional identities and practices in the legal profession.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44177481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article draws together commentary and recent examples in relation to state secrecy provisions in a range of different areas, and considers the use of secrecy by the government in Australia, with some relevant comparisons to other common law countries. This extends beyond the secrecy offences that would ordinarily be referred to under the umbrella of “state secrecy” to other laws that may be utilised to keep government information secret, for example closed court orders and freedom of information exemptions. Broadly, the article outlines a series of laws and patterns of decision-making that together combine to effect an approach to the free flow of information of “Hear no evil, speak no evil, see no evil”.
{"title":"Hear no Evil, See no Evil, Speak no Evil: The Secretisation of Information by Government in Australia","authors":"Kylie Weston-Scheuber","doi":"10.53300/001c.34568","DOIUrl":"https://doi.org/10.53300/001c.34568","url":null,"abstract":"This article draws together commentary and recent examples in relation to state secrecy provisions in a range of different areas, and considers the use of secrecy by the government in Australia, with some relevant comparisons to other common law countries. This extends beyond the secrecy offences that would ordinarily be referred to under the umbrella of “state secrecy” to other laws that may be utilised to keep government information secret, for example closed court orders and freedom of information exemptions. Broadly, the article outlines a series of laws and patterns of decision-making that together combine to effect an approach to the free flow of information of “Hear no evil, speak no evil, see no evil”.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44905988","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The High Court in Yerkey v Jones considered the enforceability of a guarantee provided by a married woman to secure her husband’s debts. Dixon J said that although the relationship of husband and wife did not give rise to a presumption of undue influence, the law had never been divested completely of ‘the equitable presumption of an invalidating tendency’. Dixon J’s formulation was essentially adopted by the majority justices in Garcia v National Australia Bank and their judgment thus represents the definitive endorsement of Dixon J’s view. Kirby J on the other hand rejected ‘the stereotype underlying Yerkey’, which he described as evidence of an ‘unprincipled discriminatory category’. This article advances the argument that the majority’s view of wives was stereotypical and accordingly would be inconsistent with the principles of contemporary sex discrimination laws which prohibit discrimination based on the assumption of stereotypical views. This inconsistency will be explored by first discussing the propositions that underpinned the Yerkey and Garcia, and by comparing them with the treatment of those propositions in contemporary discrimination law.
{"title":"The Intersection of the Rule in Yerkey v Jones and Contemporary Anti-Discrimination Law in Australia – Can the ‘Special Wives’ Equity Survive?","authors":"K. Yin, M. Naser","doi":"10.53300/001c.35703","DOIUrl":"https://doi.org/10.53300/001c.35703","url":null,"abstract":"The High Court in Yerkey v Jones considered the enforceability of a guarantee provided by a married woman to secure her husband’s debts. Dixon J said that although the relationship of husband and wife did not give rise to a presumption of undue influence, the law had never been divested completely of ‘the equitable presumption of an invalidating tendency’. Dixon J’s formulation was essentially adopted by the majority justices in Garcia v National Australia Bank and their judgment thus represents the definitive endorsement of Dixon J’s view. Kirby J on the other hand rejected ‘the stereotype underlying Yerkey’, which he described as evidence of an ‘unprincipled discriminatory category’. This article advances the argument that the majority’s view of wives was stereotypical and accordingly would be inconsistent with the principles of contemporary sex discrimination laws which prohibit discrimination based on the assumption of stereotypical views. This inconsistency will be explored by first discussing the propositions that underpinned the Yerkey and Garcia, and by comparing them with the treatment of those propositions in contemporary discrimination law.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42790384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.
{"title":"Compensation for the Cost of a Surrogacy Arrangement in Personal Injury Cases","authors":"Sirko Harder","doi":"10.53300/001c.24902","DOIUrl":"https://doi.org/10.53300/001c.24902","url":null,"abstract":"A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":"68 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41275171","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"For What Purpose? The Australian Government and the Use of Creative Commons Licences","authors":"D. Thampapillai","doi":"10.53300/001c.23420","DOIUrl":"https://doi.org/10.53300/001c.23420","url":null,"abstract":"","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41690487","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
National uniform legislation has served as an instrument to attune federalism to new realities. The enactment of national uniform legislation is not a panacea. However, it is critical that when harmonisation is necessary, it is efficient and effective, results in long-lasting uniformity and does not encroach on the sovereignty of the State and Territory Parliaments. The problem is that national uniform legislation is often called to address complex legal issues, respond to a multifaceted debate and meet the demands of actors from divergent ideological backgrounds. This testing backdrop results in politically charged arguments that often is presented as a false dilemma between sovereignty and national uniform legislation, ‘catch 22’. To date, there has been lack of systematic objective analysis on what would be an example of this encroachment on sovereignty before the allegation of encroachment arise in the State or Territory Parliaments. This article seeks to address this gap through empirical methods. To ensure objectivity, a meta-analysis of 173 reports was undertaken. Contrary to political statements, the empirical findings suggest the cases of encroachment were rare and were isolated to specific practices. Legislative drafters, policymakers and law reformers must refrain from these practices if they wish to avoid the ‘catch 22’ of choosing between uniformity and sovereignty.
{"title":"Avoiding a ‘Catch 22’—Major Lessons From a Meta-Analysis of Reports of the Parliament of Western Australia on Threats to Sovereignty by National Uniform Legislation","authors":"Guzyal Hill","doi":"10.53300/001c.19356","DOIUrl":"https://doi.org/10.53300/001c.19356","url":null,"abstract":"National uniform legislation has served as an instrument to attune federalism to new realities. The enactment of national uniform legislation is not a panacea. However, it is critical that when harmonisation is necessary, it is efficient and effective, results in long-lasting uniformity and does not encroach on the sovereignty of the State and Territory Parliaments. The problem is that national uniform legislation is often called to address complex legal issues, respond to a multifaceted debate and meet the demands of actors from divergent ideological backgrounds. This testing backdrop results in politically charged arguments that often is presented as a false dilemma between sovereignty and national uniform legislation, ‘catch 22’. To date, there has been lack of systematic objective analysis on what would be an example of this encroachment on sovereignty before the allegation of encroachment arise in the State or Territory Parliaments. This article seeks to address this gap through empirical methods. To ensure objectivity, a meta-analysis of 173 reports was undertaken. Contrary to political statements, the empirical findings suggest the cases of encroachment were rare and were isolated to specific practices. Legislative drafters, policymakers and law reformers must refrain from these practices if they wish to avoid the ‘catch 22’ of choosing between uniformity and sovereignty.","PeriodicalId":33279,"journal":{"name":"Bond Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71024386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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