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Vol30 No3 September-November 2016

Revisiting the penalties doctrine: Paciocco v ANZ
By the Hon Justice Robert McDougall
 
The recent decision by the High Court in Paciocco v Australia and New Zealand Banking Group Limited should bring to an end uncertainty surrounding the doctrine of penalties. A majority of the High Court found that late payment fees charged by the respondent (ANZ) to customers, upon a failure of the customer to meet the minimum monthly payment due, did not constitute a penalty.
The majority of the High Court (French CJ, Kiefel, Gageler and Keane JJ) held in separate reasons that the late payment fees were not penalties at law or in equity. The majority judgments were given by Kiefel J (with whom, on the ‘penalty’ question, French CJ agreed), Gageler J, and Keane J, each of whom applied slightly different tests in reaching the conclusion that the fee was not a penalty.
This paper seeks to discuss the reasoning of the High Court in Paciocco, and the significance of the decision for practitioners. The decision provides clarity as to the state of the doctrine of penalties in Australia, and appears to have significantly narrowed the practical operation of the doctrine.
 
 
The restitutionary remedy in Australian law
By Jeffrey Goldberger
 
Although the boundaries of the restitutionary remedy in Australia have not been definitively settled there are a number of fundamental points to note in considering contemporary law. These points form the relevant framework for analysis.
 
 
Colin Blackburn: an address for the Selden Society, Queensland
By Dominic O’Sullivan QC
 
By selecting leading English Judges from the Elizabethan era down to today, this series of lectures seeks to tell us something about the lives of important judicial figures, and at the same time, something about the times in which they lived and worked.1
So far we have heard lectures on the great Edward Coke, a Judge and politician of the 16th and early 17th centuries, and about Lord Mansfield and Lord Eldon, who lived and worked at either end of the 18th century. Tonight we move forward to the 19th century, and will discuss the most important judge of the Victorian era: the remarkable Colin Blackburn. 
  • Revisiting the penalties doctrine: Paciocco v ANZ
    By Justice Robert McDougall
    page 3
  • The restitutionary remedy in Australian law
    By Jeffrey Goldberger
    page 14
  • Colin Blackburn: an address for the Selden Society, Queensland
    By Dominic O'Sullivan QC
    page 24
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