Faculty of Law

Published at (2014) 22 Torts Law Journal 160

In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter
unreasonably interfered with the use of their property. In terms of principle, the case is notable for a narrow view of recoverability of pure economic loss and for application of principles of nuisance to the battleground of GM farmers and their anti-GM neighbours. The judgment could be seen as a
step towards resolving the tension between those who adopt GM technology and those who eschew it, but not an entirely satisfying one.

[First published in Alternative Law Journal 40(2) 2015]

The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.

In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, Treasurer Joe Hockey was awarded $200,000 in damages in respect of a number of defamatory Fairfax publications. The case raises important questions about the defence of qualified privilege and the impact of defamation law on freedom of political communication in Australia. This article focuses on the implications for the developing jurisprudence of defamation by social media, and Twitter in particular.

Published in: (2015) 18(6) Internet Law Bulletin 118

The number of cases of defamation by social media is growing. This article examines the principles of assessment of damages as they apply to those cases. In particular, the article examines the concept of the 'grapevine effect': a metaphor used to explain the basis for recovery of general damages for defamation. The grapevine effect has been deployed to notable effect in recent cases of publication by social media. The article argues that the role of the 'grapevine effect' reflects the purposes of awards of damages for defamation in light of the unique characteristics of social media.

For published version, see:  Michael Douglas, '"Their evil lies in the grapevine effect": Assessment of damages in defamation by social media' (2015) 20(4) Media and Arts Law Review 367.

Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

See (2016) 37(1) Adelaide Law Review 69

Forthcoming: (2017) 18 Macquarie Law Journal.

Choice of court agreements are a standard and important component of modern contracts. Recent events suggest that Australian principles of private international law in respect of choice of court agreements are about to change. In November 2016, Parliament’s Joint Standing Committee on Treaties recommended accession to the Convention on Choice of Court Agreements through an ‘International Civil Law Act’. The Convention applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters. It contains three basic rules, each subject to exclusions and exceptions. First, where a court is designated in an exclusive choice of court agreement, that court is essentially obliged to exercise jurisdiction. Second, if a court is faced with an exclusive choice of court agreement in favour of another court, the court is obliged to decline to exercise its jurisdiction. Third, judgments made in proceedings giving effect to exclusive choice of court agreements must be recognised and enforced. This note briefly considers whether Australia will accede to the Convention and how accession could impact how Australian courts address exclusive choice of court agreements.

The Supreme Court of New South Wales has issued a global injunction enjoining overseas defendants to remove tweets of a corporate leaker. This comment (provided in draft format) first appeared in the Gazette of Law & Journalism on 29 September 2017. See http://glj.com.au/2927-article

If money or goods were stolen the traditional common law remedy was damages for the value of the stolen property. Traditionally no equitable remedy was available in cases of stolen money or goods. This position changed in Australia when the High Court held in Black v S Freedman & Co Ltd (1910) 12 CLR 105 that stolen money is trust money in the hands of the thief. This significant development introduced an equitable response to the tort of conversion which Einstein J described as the "theft principle" in Cashflow Finance Pty Ltd (In liq) v Westpac Banking Corporation [1999] NSWSC 671. The author explores the development of the theft principle in Australian private law and explains the complexities that can arise from the application of the theft principle.

Failure ofconsideration can be either total or partial. In this paper the author examines the doctrine ofaccrued rights and the role it plays in relation to total failure ofconsideration in the contractual context. The doctrine of accrued rights is well established in Australian contract law. Rights that accrue prior to termination of a contract survive termination and can therefore be enforced after termination. The author argues that when there is a totalfailure ofconsideration the doctrine of accrued rights operates to create a debtfm' the amount that is the subject of the total failure of consideration. The obligation to pay the debt arises within the law of contract. This conclusion will be contrasted with those who argue that an action for recovery, and the corresponding
obligation to make payment, are independent of contract.

This case interprets the meaning of the phrase ‘operated by’ in s 10of the Navigation Act 1912(Cth) (the Navigation Act).The Full Court of the Federal Court held that there is a tripartite division of the operations of a ship between commercial operations, technical operations and crewing operations. In interpreting the meaning of ‘operated by’ in s 10 of the Navigation Act it is necessary to determine whether the relevant person was responsible for one or more of these areas of operations.

If money is stolen the common law provides the thief with a property right to the stolen money. In addition a trust is created so that the thief holds this property right on trustfor the true ownel: This paper explores the property right the thief acquires to stolen money and how that property right co-exists with the property rights ofthe true owner. The author argues that the position taken by the courts can only be understood ij'it is appreciated that it is not the stolen money that is held on trust but the thief's property right to the stolen money.

As law students find themselves time poor, increasingly they are reacting by becoming time savvy. They make rational decisions about how they will spend their time and are spending more time in paid employment. As law teachers, it is critical that we be aware of changing patterns of student engagement and that our teaching approach influences student engagement in their studies. There are two areas where we can make the most impact in changing student engagement: changes to face to face teaching and the use of appropriate assessment.