Contents

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CLWR 40 (2011) 311

The Secret Is Out There: Searching for the Legal Justification for the Doctrine of Secret Trusts through Analysis of the Case Law
G.W. Allan

The doctrine of secret trusts, which appears to operate in defiance of the statutory formality requirements for testamentary dispositions, has proven notoriously difficult to justify, and an explanation reconciling the main authorities has consistently eluded commentators. Many of the academic opinions rely on widely accepted interpretations of a small number of authorities that have been designated as leading cases. The doctrine has, however, generated a substantial amount of case law, much of which is rarely or never cited in the literature. This paper seeks to provide a justification for the doctrine that is based on a thorough analysis of all of the available case law. It is argued that, once understood in their proper context, virtually all of the authorities can be reconciled with one another, and that a coherent justification for the enforcement of secret trusts can be gleaned.

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CLWR 40 (2011) 345

Developments in United States Securities Class Actions: The Status of 'Fraud on the Market' Causation and Implications for Australia
Michael J. Duffy

In 1988 the United States Supreme Court handed down the judgment of Basic Inc v Levinson which recognized the 'fraud on the market' theory of causation of investor loss in a securities class action. More recently, legislative reform and the US Supreme Court¿s decision in Dura Pharmaceuticals v Broudo have circumscribed somewhat the permissive approach to such claims by creating more stringent requirements at the pleading and certification stage. The development of behavioural finance also questions somewhat the theory of efficient capital markets on which the ¿fraud on the market¿ causation theory partly rests. In Australia meanwhile, market based causation has not been tested yet in their courts. To the extent that causation of loss through the effects of non-disclosures on the market is accepted by Australian courts it is not clear that the gloss developed in Dura would necessarily have application here.

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CLWR 40 (2011) 378

The Form of Liability in the Torts of Trespass
Allan Beever

This paper examines the form of liability found in the law of trespass. Though it is frequently held that liability in these torts is based on the intentional fault of the defendant, it is argued that the torts are in fact strict. The paper approaches this issue by examining the nature of intention in the law of trespass and the judgments in Letang v Cooper and Re F. The paper also explores the nature of the negligent trespass actions available in Australia.

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Links to other issues

Volume 30 (2001) :   1   2   3   4

Volume 31 (2002) :   1   2   3   4

Volume 32 (2003) :   1   2   3   4

Volume 33 (2004) :   1   2   3   4

Volume 34 (2005) :   1   2   3   4

Volume 35 (2006) :   1   2   3   4

Volume 36 (2007) :   1   2   3   4

Volume 37 (2008) :   1   2   3   4

Volume 38 (2009) :   1   2   3   4

Volume 39 (2010) :   1   2   3   4

Volume 40 (2011) :   1   2   3   4

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