Problems with restraint of trade
By T F Bathurst AC KC
… Although in one sense the doctrine was settled at the time of the seminal decisions of the House of Lords in Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co Ltd (1894) AC 535 and Herbert Morris Ltd v Saxelby (1916) 1 AC 688 those cases were decided in the context where at least commonly the application of the doctrine was limited to contracts of employment and contracts for the sale of business. However, since at least late 1960s there has been an increasing acceptance of the fact that the doctrine is capable of a wider operation and extends, in particular, to the contracts which impose vertical and horizontal restraints on trade. However, the law as to the manner the doctrine should apply in those circumstances is still developing. In particular, the United Kingdom Supreme Court in three recent decisions has sought to clarify some of the issues surrounding the doctrine. Whether their approach will be accepted in other common law jurisdictions remains uncertain.
Equity’s path to justice: the judicial method in equity and the common law
By Justice Julie Ward
I propose to adumbrate the historical origins of equity and the common law and to trace the effect of these origins on the judicial method in contemporary equity and common law jurisprudence. Like Theseus’ ship (or what Gageler J recently referred to as the ‘four dimensional worms’ in a speech given to the Australian Institute of Administrative Law) I propose to trace the past of equity and the common law as a continuous path to the present day; not to look back on an ‘assumed golden age’ prior to the Judicature Act, but, rather, as a means ‘to help us see more clearly the shape of the law of to-day by seeing how it took shape’. Equity’s path to justice is both temporal (that is, historically contingent — the product of the accretion of experience, and evolution of principle) as well as methodological. After examining the evolution of the judicial method in equity and the common law, I will turn to some of the potential pitfalls of the appropriation of the common law judicial method in the equity jurisdiction, given that fairness and unconscionability have always been the thematic force of that jurisdiction.
Practice in the Corporations List and recent case law
By Justice Ashley Black
I will first make several general comments about practice in the Corporations List of the Supreme Court of New South Wales. I will then turn to several developments in corporations and insolvency law, largely between January 2021 and June 2022. I first consider a case in respect of share capital, then developments in respect of electronic execution of documents and notices of meetings, and cases relating to the business judgment rule and oppression. I then turn to several cases in insolvency law, including case law in respect of voidable transactions, insolvent trading, liquidators’ examinations and claims for compensation in respect of liquidators’ conduct. I then note amendments to the continuous disclosure regime and address further amendments and case law in respect of financial services, the introduction of a new form of corporate collective investment vehicle and recent case law as to statutory unconscionability.
Problems with restraint of trade
By T F Bathurst AC KC
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4
Equity's path to justice: the judicial method in equity and the common law
By Justice Julie Ward
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Practice in the Corporations List and recent case law
By Justice Ashley Black
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16