Abstract
In this issue, we begin with an article from Stephen Hedley titled ‘Justice and Discretion in the Law of Unjust Enrichment’. In this article, he reviews the tension between, on the one hand, the theory of unjust enrichment with its aspirations of neutrality and, on the other, the demands on judges to achieve fairness in an individual case. Considering case law from England and Wales, he argues that the last decade has witnessed decisions where individual justice has dominated over theoretical purity, concluding that liability in unjust enrichment is subject to judicial discretion.
Our second paper by Kelvin Kwok explores anticompetitive agreements under Article 101(1) of the Treaty on the Functioning of the European Union. These are prohibited by reason of the agreement’s object or effect to restrict competition. Focusing on the question of the agreement’s object and utilizing insights from New Zealand and Australian jurisprudence, Kwok considers the interaction between an agreement’s object and the parties’ subjective intention.
The third article is from Anthony Gray who examines the extent to which the Australian High Court has used the US First Amendment jurisprudence to clarify the implied freedom of political communication in the Australian constitution. He argues that the Australian courts should be less ambivalent about looking to the United States in these circumstances, suggesting that Australian jurisprudence in this area could be improved by more careful consideration of US case law.
This issue concludes with a review by Paula Giliker of Anthony Gray’s recently published book Vicarious Liability: Critique and Reform.