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Abstract:
A trust is a relationship, not a legal person, popular misconceptions (reinforced by statutory fictions) notwithstanding. The trust relationship is between trustee, beneficiaries, property and third parties. It interacts with other aspects of the legal system, notably, common law and statute. This article examines some aspects of how that interaction occurs. The first half addresses how common law has long recognised trusts, and focusses in particular on assignments of choses in action prior to the judicature legislation, with a view to assessing what the real impact of that legislation was. Conversely, the second half analyses how the equitable rules in the law of trusts accommodate prohibitions and restrictions at common law and in statute upon the trust property.

trust, equity, judicature act, chose in action, Atlay, Field Code, assignment, chancery reforms

Abstract:
The three oldest common law federations: Australia, Canada and the United States of America, have quite different conceptions of common law, and have applied quite different structural approaches to its development. In particular, each federation resolves the following two basal questions differently:
(a) Are there distinct bodies of subnational common law?
(b) Is there a distinct body of federal common law?

While the common law of California is unquestionably a distinct body of law, there is no distinct body of law known as the common law of British Columbia or the common law of Queensland. However, Canada mirrors the United States and differs from Australia in having a distinct body of federal common law, and while the North American bodies of federal common law are interstitial rather than general, they have the unexpected property of overriding subnational statutes.

This paper describes those divergences, how they came about, and why these issues continue to matter. The key to the first question is the structure of appellate jurisdiction, but the paper seeks to demonstrate that there are subtler considerations informing the result. There is no short answer to the why and how federal common law evolved or failed to evolve, but similar considerations continue to influence litigation to this day, not merely in questions of construction and the role of precedent, but also in the articulation of new rights, defences and immunities arising from federal law.

federal common law, federal jurisdiction, comparative constitutional law, federalism, common law, Sosa, Lange, Bivens, precedent, appellate jurisdiction, state common law, provincial common law, subnational common law

Abstract:
Litigation against a government presupposes that it is amenable to suit and there is a court of competent jurisdiction. This paper deals with the amenability to suit of, and the jurisdiction of courts over, the executive governments of the Australian Commonwealth and States. Its purpose is to contrast the considerable differences between those governments' liabilities as determined by the courts, and to explain why those differences are a necessary consequence of the working out of the Constitution.

Australian constitutional law, sovereign immunity, amenability to suit, Crown proceedings, federal jurisdiction, Australian States, Mewett

Abstract:
The equitable remedy of injunction is found in the inalienable original jurisdiction of the High Court, placed next to the prerogative writs of mandamus and prohibition. The first half of this article addresses the question why mention is made of that remedy, to the end of identifying the context and purpose. The second half of this article suggests how that context and purpose should be reflected in the principles governing the exercise of the jurisdiction conferred by s75(v). In particular, it is proposed that the existing unsatisfactory law of standing be reformulated, so as to accord with the proper scope of s75(v), namely, as providing a broadly available remedy ensuring that judicial power can restrain all excesses of Commonwealth legislative and executive power.

injunction, standing, federal jurisdiction, equity, officer of the Commonwealth, Marbury

Abstract:
In 1773, ex parte injunctions were granted by the Lord Chancellor, later to be dissolved, in two suits directed to protecting the valuable property in Hawkesworth's Voyages, the first authorised account of Cook's circumnavigation of the globe. In one sense, those proceedings were the first Australian copyright litigation. Both suits were commenced at a critical moment in the development of the law of copyright, in the period between Millar v. Taylor in 1769 and its overruling in Donaldson v. Becket in 1774, when the celebrated Question of Literary Property was debated at large and when the law in England was that common law copyright was not extinguished by statute and was of unlimited duration. Fortuitously, those circumstances had enabled Dr. John Hawkesworth, commissioned by the Admiralty to write up Cook's journal, to command an enormous advance from his publisher Strahan, but ironically his Voyages became invoked as a leading example of the restrictive practices of the London publishers in support of the overruling of Millar v. Taylor judicially and legislatively.

Despite the foregoing, neither suit is well known. The first, Hawkesworth v. Parkinson, although well-publicised at the time, is unreported and seemingly unmentioned by all texts. The second, Strahan v Newbery, is reported only as an anonymous and undated decision from the Chancellor's Court. However, because the publications which were the subject of the litigation have survived and because the Chancery records have been fairly well preserved, it is possible to revisit the proceedings in some detail.

copyright, literary property, chancery practice, chancery records, injunction, national archives

Abstract:
This paper considers how federal considerations in Australia and the United States have affected the availability of negative declarations. The remedy was imported in the nineteenth century into English law from the Scottish action of declarator, but (predictably) in its application in common law federations, novel issues associated with federalism have been influential, particularly when invoked in federal jurisdiction. First, questions of invalidity and inconsistency will inevitably arise in a federation, for which the remedy is well-suited. Secondly, in addition to the familiar discretionary considerations there is introduced constitutional requirements that there be a "matter" or a "case of controversy". Thirdly and most interestingly, it is suggested that the question is not so much whether the moving party is the "natural" plaintiff, but instead whether there is a justiciable controversy which may be quelled by the issue of a negative declaration.

This paper compares the United States and Australian decisions, and suggests a reconsideration of s39B(1A)(a) of the Judiciary Act 1903 (Cth), which is at odds with what is suggested as the natural scope of the remedy.

declaration, negative declaration, federal jurisdiction, case or controversy, matter, chancery, federalism, borchard

Abstract:
The United States Supreme Court in Sprint Communications Co LP v APCC Services Inc divided on the question whether an assignee for collection of federal debts satisfied Article III standing. Both majority and minority approached the constitutional question by reference to the English historical background, in light of the 19th century statutory reforms, which took a very different form in the United States than in England (and elsewhere in the Commonwealth). The decision is an excellent example of the ongoing process of working out the legal consequences of statutory choices made more than a century ago.

Sprint Communications, assignment, chose in action, assignee for collection, standing, Field Code, Judicature legislation, injury in fact, redressability, rhetoric