Publications

‘The “fiduciary” member of the charitable company’ (2018) 24(9) Trusts & Trustees 1

Abstract: The decision of the Court of Appeal in Lehtimäki v The Children’s Investment Fund Foundation (UK) that the members of a charitable company are fiduciaries is likely to be greeted by a flurry of activity by philanthropists who wish to retain control over registered charities that they fund. But the judgment will, perhaps, have an even greater effect beyond charity law, as the test of fiduciarity adopted by the court to determine whether the members of a charitable company were fiduciaries is applied as a general test. However, the court’s application of that test and its reasoning generally are open to challenge. In this article, it is respectfully submitted that the court erred in characterizing the members of a registered charity structured as a company limited by guarantee as fiduciaries.

‘Re-writing the laws of company law and equity‘ (2017) 38(7) Company Lawyer 219

Abstract: In this short article, four difficult questions addressed in the judgment of Judge Purle in Re BW Estates Ltd (No 2) [2016] BCC 814 are reviewed and critiqued. Those questions concerned the operation of certain rules of company law in the context of shares held on trust by a corporate trustee that was dissolved.

‘Transnational Supply Chain Regulation: Extraterritorial Regulation as Corporate Law’s New Frontier‘ (2016) 17(1) Melbourne Journal of International Law 188

Abstract: Extraterritorial or quasi-extraterritorial regulation of business activities is becoming increasingly common in developed states. Most recently, the United Kingdom enacted legislation requiring certain commercial organisations that are incorporated, or carry on business, in the UK to disclose steps they have taken in relation to slavery and human trafficking in their supply chains and business. The Australian government (‘the Commonwealth’) has indicated that similar legislation could be enacted as part of its strategy to combat forced labour and human trafficking. This commentary reviews the Modern Slavery Act 2015 (UK) (‘the Act’) and other forms of extraterritorial and quasi-extraterritorial regulation of business in order to encourage and inform action by the Commonwealth to curb slavery and forced labour in the supply chains of businesses that carry on activities in Australia. This commentary demonstrates that the disclosure model of regulation in the Act is weak and should provide only the starting point for the regulation of business activities overseas. Instead or in supplementation of a disclosure model, the Commonwealth ought to adopt a strong regulatory model akin to the Illegal Logging Prohibition Act 2012 (Cth).

‘Debt for Equity Swaps and Corporate Restructuring under s 444GA of the Corporations Act‘ (2015) 26 Journal of Banking and Finance Law and Practice 269 (awarded the Banking and Financial Services Law Association’s Research Prize)

Abstract: Section 444GA(1)(b) of the Corporations Act 2001 (Cth) has risen in prominence as a mechanism to effect a restructure or change of control transaction following its use in the high profile cases concerning the listed companies Mirabela Nickel Ltd and Nexus Energy Ltd. The power of deed administrators to effect a non-consensual share transfer with leave of the court has, however, remained under-studied and courts have, with few exceptions, omitted to contextualise s 444GA within the broader scheme of corporations law. This article offers a comprehensive analysis of the jurisprudence and history of s 444GA and suggests a revised interpretation of the orthodox two-stage analysis that better accounts for the nature and treatment of shareholder rights under both the Corporations Act 2001 (Cth) and the general law.

‘Revisiting the Direct Liability of Parent Entities Following Chandler v Cape Plc‘ (2015) 33(1) Company & Securities Law Journal 45 (awarded the Santow Scholarship by the Law Council of Australia)

Abstract: The Court of Appeal of England and Wales in Chandler v Cape plc [2012] 1 WLR 3111; [2012] EWCA 525 held that a parent company owed a duty of care to an employee of its wholly-owned subsidiary. The leading judgment of Arden LJ, however, overlooked similar jurisprudence in Australia, particularly the judgment of the New South Wales Court of Appeal in CSR Ltd v Wren (1997) 44 NSWLR 463. This article analyses and compares the judgments in these two cases in order to illustrate how Arden LJ’s approach to the knowledge and control of the parent company in Chandler increases the risk that parent entities will be liable in tort for the harmful activities of their subsidiaries. Although Chandler is not binding on Australian courts, the risk of cross-jurisdictional pollination in the development of the common law encourages caution in the exercise of control by a parent entity over its subsidiaries. This article concludes by considering the private international law rules that impede parent liability claims against multinational corporate groups for wrongs occurring in foreign jurisdictions.

‪’The High Court of Australia and political science: A revised historiography and new research agenda‘ (2015) 50(2) Australian Journal of Political Science 347

Abstract: The judiciary has not been the subject of sustained scrutiny within the political science discipline, particularly in comparison with the legislature and the executive. Yet, the High Court plays a central role in the Australian political system and the exercise of judicial power has far reaching consequences for the legislative and executive branches of government. This article presents a historiography of the study of the High Court by political scientists, using Helen Irving’s ‘The Constitution and the judiciary’ as a foil. In order to foster cross-disciplinary study and research within the political science discipline, this article concludes by setting out a new research agenda for the future study of the High Court and the law by political scientists. This research agenda will provide new insights into (among other topics) how judges exercise power and the changing relationship between the judiciary and the legislative and executive branches.

‘Internet Defamation Law and Publication by Omission: A Multi-Jurisdictional Analysis‘ (2014) 37(1) University of New South Wales Law Journal 34

Abstract: The liability of internet search engines, social media platforms and online discussion forums for the publication, by omission, of the defamatory publications of others is ‘not settled’.’ This uncertainty has been engendered by the different, and at times contradictory, approaches to internet defamation adopted by courts in Australia, Hong Kong, New Zealand and the United Kingdom. Through a survey of recent case law, this article demonstrates that the meaning of ‘publication’ on the internet by omission is an area in need of legislative direction due to the difficulty in weighing competing policy arguments. Without clear guidance, entities that use or create internet platforms are unable to implement practices and policies for online publication with certainty as to their protection from defamation claims. This article therefore argues that the creators and operators of online platforms ought to be afforded a statutory defence akin to section 5 of the Defamation Act 2013 (UK) where they are not the direct or primary publisher of defamatory material.

‘Directors’ Fiduciary Duties and Oppression in Closely-Held Corporations‘ (2013) 31(5) Company & Securities Law Journal 278

Abstract: The jurisprudential landscape for the regulation of wrongful conduct by directors of closely-held corporations has shifted in recent years. Yet, it is a shift that has passed quietly without academic scrutiny. Through an analysis of recent case law on the statutory oppression remedy and directors’ fiduciary duties, this article demonstrates how the two actions have become intertwined in practice so as to afford shareholders comprehensive relief from the wrongful conduct of directors. As a result, proof of breach of fiduciary duty may give rise to an equitable remedy and a remedy for oppression under s 233 of the Corporations Act 2001 (Cth). The upshot of this shift in corporate law is an increase in the private regulatory power of the shareholders of closely-held corporations and the augmentation of the prophylactic function of fiduciary rules.

I have also acted as a peer reviewer or been a member of the editorial board of the following publications: the UK Supreme Court Yearbook(Editorial Board Member, 2015-16), which is the leading commentary on the jurisprudence of the Supreme Court of the United Kingdom; the Australian Journal of Political Science(Peer Reviewer, 2014), which is the leading political science journal in Australia; and the Federal Law Review(Editorial Board Member, 2011-13), which is the leading constitutional law journal in Australia.