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Many common law jurisdictions recognise that directors have an obligation to consider the interests of company creditors when the company is experiencing financial distress. Despite numerous cases attempting to crystalise legal principles related to this obligation and significant academic commentary on the topic, the parameters of the obligation remain uncertain. This paper provides an analytical comparison of the latest case law in Australia and the UK concerning the two most important issues that exist in relation to this obligation, namely when is the obligation triggered and what do directors have to do to ensure that they comply with the obligation. We found that the UK courts appear to be adopting a much more restrictive approach regarding the trigger for the obligation, whereas the obligation may arise much earlier in Australia, due to the liberal framing of the trigger. An analysis of case law also revealed that the weight attached to the interests of creditors once the obligation is triggered seems to be much more significant in the UK, compared to Australia. This analysis is important as there is no doubt that courts in other common law jurisdictions, and particularly in the Commonwealth, will examine the Australian and UK jurisprudence in making their decisions in relation to any claim that directors have failed to comply with the obligation to consider the interests of creditors. [ABSTRACT FROM AUTHOR]

Purpose - The paper aims to respond conceptually, rather then empirically, to policy ignorance. It seeks to examine certain aspects of whistleblower protection offered in the common law countries of Australia, New Zealand, South Africa, and the UK. Design/methodology/approach - The paper provides a four-country comparison of whistleblower protection laws against 13 characteristics gleaned from the international literature on whistleblower legislation. This analysis is informed by considerations of the common law and corruption and critical state theory. Findings - The conclusion reached is that the whistleblower laws established in the common law countries of Australia, New Zealand, South Africa, and the UK variously contain serious structural deficiencies, particularly with respect to the scope of protection and the construction of corruption. The concern is that whistleblowers seeking protection under these inadequate programs will be hurt and there will be negligible impact on the profile of corruption. Research limitations/implications - The major weakness in the analysis was the subjective and arbitrary way the disclosure management characteristics were selected to assess the disclosure laws of Australia, New Zealand, South Africa, and the UK. Future research should seek more objective indictors of performance as well as a consideration of exterior indicators such as the impact of disclosure policies on corruption. Practical implications - If the findings here are validated in subsequent research, then governments should urgently review their current whistleblower policies in order to improve disclosure protection. Originality/value - A conceptual framework informed by considerations of corruption, the common law and critical state theory was used to put whistleblower protection in a wider context where state interest competed with the needs of whistleblowers. [ABSTRACT FROM AUTHOR]

Conditions and warranties, which are generally referred to as policy terms in insurance contracts, are crucial in the determination of the rights and obligations of the contracting parties. The article examines the enforcement of policy terms in insurance contracts at common law and the legislative measures that have been deployed in some common law countries, including Nigeria, the United Kingdom and Australia, to ensure fairness as well as to balance the inequality in the bargaining power of the contracting parties. In as much as the principle of freedom of contract will generally be honoured by the court, the paper argues that through legislative intervention in policy terms in these countries, the principle is being discountenanced with, in appropriate cases, in order to effectuate the just and reasonable expectation of the insured. It concludes by proffering suggestions to identified lacunae in the Nigerian Insurance law. [ABSTRACT FROM AUTHOR]

This paper presents a comparative analysis of the extent to which party law influences the internal organisation of parties in four Commonwealth common law states: Australia, Canada, New Zealand and the United Kingdom. The research engages with recent comparative party literature that emphasises the increasingly close relationship between political parties and the state, in particular the cartel party thesis. My findings indicate that over the last few decades parties have become subject to greater legal regulation, which supports the claim that parties are now managed more closely by the state. However, it is important to distinguish between legislative and common law (judicial) regulation, as each has a different impact on the organisational autonomy of the cartel party. I argue that parties (as autonomous actors and the authors of parliamentary decrees) have been able to shape legislative regulation to their advantage by eliciting significant financial support from the state, yet minimising the corresponding degree of legislative intrusion into their internal activities. However, cartel parties have not been able to prevent judicial scrutiny of their internal workings, and have lost a significant degree of organisational independence as principles of administrative law (usually reserved for state bodies) are being increasingly applied to their structure and behaviour. [ABSTRACT FROM AUTHOR]

This paper discusses the extent to which the common law recognized public interest considerations when confronted with utility insolvencies in the UK, Australia, and the US in the period 1825 to 1970. Jurisprudence in all three jurisdictions concerning insolvent utilities arose in the nineteenth century out of the difficulties arising from the financial distress of railway companies. It is argued that public interest considerations were mobilized to justify various degrees of restriction on the usual rights of creditors in all jurisdictions. While evidence was found of the use of public interest theory in all jurisdictions, there was little development of it in the UK and Australia compared with the US. This may have been because of the early introduction of statutory schemes of arrangement in both countries and because of the nationalization of the industries for the better part of the twentieth century. In the US, on the other hand, public interest theory in the context of insolvent railways and other utilities was much more developed. In particular, it provided part of the rationale for the judicial development of the equity receivership into a comprehensive corporate reorganization mechanism. [ABSTRACT FROM AUTHOR]

Purpose -- The purpose of this paper is to provide a critical examination of the current law and the proposed changes made by the Law Commission, after consultation, in relation to non-fraudulent pre-contractual duties in insurance law. Design/methodology/approach -- The research is addressed using case law, statutes, current academic and law commission publications in the UK and Australia. Findings -- First, the paper finds that the current state of the law is unfair in relation to consumers and small businesses and much reform is needed to rebalance the nature of insurance contracts to reflect modern day practice. Research limitations/implications -- This work does not address detailed issues in relation to fraudulent misrepresentations. Practical implications -- The law will be brought into line with current practice by the Financial Ombudsman Service. Originality/value -- This paper will be of interest to legal practitioners and academics and those in the insurance industry. [ABSTRACT FROM AUTHOR]

This paper critically examines the law of forum non conveniens, in particular the use of the ‘clearly inappropriate forum’ test in Australia, compared with the ‘more appropriate forum’ test applied in jurisdictions such as the UK and the US. It traces the development of the law in the UK in relation to forum non conveniens, including the English acceptance of the doctrine, and how it has been applied in various cases. Some criticism of the ‘more appropriate forum’ test is noted, and it is not recommended that the courts adopt the ‘laundry list’ approach evident in some US decisions, where up to 25 different factors are considered in assessing a forum non conveniens application. It considers the Australian ‘clearly inappropriate forum’ test, and concludes that the ‘clearly inappropriate forum’ test should no longer be followed in that it is unnecessarily parochial and is not consistent with other goals of the rules of private international law including comity. Links between Australia and the subject matter may well be tenuous. Confusion attends the application of the test in Australia at present, the court has rejected the English approach but claims to apply some of the factors mentioned in the English approach in the Australian test, and there is an undesirable schism between statutory rules applicable in domestic cases and the approach when the common law doctrine of forum non conveniens is used. The law regarding forum non conveniens should be harmonious with choice of law rules, and interest analysis can assist in formulating the desired approach to forum non conveniens applications. [ABSTRACT FROM AUTHOR]

In a world where the vast majority of criminal cases are resolved through some means other than the popularly depicted criminal trial, it is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different mechanisms for criminal case resolution in different nations. This Article developed through a series of conversations (and ultimately a panel discussion) between six international criminal justice professionals--practicing attorneys, scholars, and judges--regarding the nature and effects of plea bargaining (and its comparative substitutes) in their respective countries. Providing a comparative look at different mechanisms for criminal case resolution, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England, New Zealand, and the United States. [ABSTRACT FROM AUTHOR]

In this article, the author comments on an article "Statutes, Intentions and the Courts" by Kenneth Hayne, the Justice of the High Court of Australia, regarding the statutory interpretation of legislature's lawmaking intentions by the Australian Courts. Topics discussed include the understanding of the traditional Australian common law, legislative histories of Australia and Great Britain, and the role of the judges in the High Court of Australia in statutory interpretation.

Beginning with 1990, this article identifies and comments on fifteen years of legal case law across the five national common law jurisdictions of Australia, Canada, New Zealand, the United Kingdom and the United States, addressing legal responses to Munchausen Syndrome by Proxy (MSBP). MSBP is a syndrome in which perpetrators either harm a child in their care or achieve harm through their insistence on medical tests and treatments for non-existent, fabricated or exaggerated conditions. Abuse may go on for some time, and sometimes this abuse results in the child's death. The discussion situates this body of reported cases, identified through keyword searches in the LexisNexis databases, within current academic and professional literatures. Primarily, this review finds that the open-textured attributes of syndrome evidence, coupled with the idealisation of mothering and the concomitant social revulsion and retributive impulse towards “bad mothers”, invites professionals to infuse alleged cases of MSBP with morality, gender attributions, and social judgements. While identifying and preventing child abuse is an important goal, the questions of conscious knowledge and volition in a psychiatrically disordered perpetrator and the nexus of professional expertise in attributing liability and assigning punishment and treatment options deserve a more nuanced consideration. [ABSTRACT FROM AUTHOR]

This article examines the current state of the law on child relocation across the major common law-based jurisdictions, with particular emphasis on the contrasting approaches to the problem in Australia and the United Kingdom. It then goes on to suggest changes aimed at achieving more principled and predictable outcomes. [ABSTRACT FROM AUTHOR]