As much as the issues raised in the decisions in both Amerind (Victorian Court of Appeal) and Killarnee (Federal Court) are important, and have created much legal commentary, and on-going, they leave me legally cold. I’ll leave the debates to others but my point is that law reform is needed.
The law of trusts itself and its principles, supported by labyrinthine cases law and analyses, are too important to be the subject of my derisory or (relatively) uninformed comments, given the place they play in our legal system. At the same time, they are replete with arcane issues that only seem to serve the purposes of those who relish the finest of fine legal points, often only determined in retrospect, after the conduct or issue in question has long ago occurred.
Trust and corporate law
The legal issues concerning the intersection of companies acting as trustees in carrying on a business have been the subject of numerous articles, conferences and court judgments, with the ultimate outcome being the Amerind, and Killarnee, decisions, each agreeing or disagreeing or perhaps not engaging at all. The no doubt excellent analysis of Carrie Rome-Sievers will assist, but it will only serve to provide feed into finer points in further commentary, lawyers’ advices and counsels’ submissions in future cases.
The High Court?
Putting trust law aside, this issue needs legislative reform. The latest news that “Amerind is off to the High Court”, presumably means a special leave application which may well be granted.
‘Convening a five-member state court bench on an important issue is a red rag to a High Court bull’,
it is said; likewise the Federal Court Chief Justice convening a three judge bench in the trial matter of Killarnee.
But the High Court is unlikely to resolve matters, if prior test cases – see for example Australian Building Systems v DCT – are any indication.
Recent comments have been made that the perception of the quality of Australian law is on a slide internationally. In my area, New Zealand Courts have been critical of our Courts’ supine acceptance of an old High Court principle that seems to have developed out of nowhere. The trust issue we confront here is not shared with comparable jurisdictions. The Productivity Commission has, as I have explained, said that uncertainties in our trust law are an impediment to the export of trustee and related services, with a wider impact being the uncertainty of Australian law. That is compounded by the perception of corporate law outcomes being determined by whichever Australian court is chosen in which to litigate; comparable to the lower regard give to US bankruptcy court decisions from around the different US circuits. Internecine differences between ‘superior’ Australian courts are not a good look, internationally. The Family Court also raises problem issues. The slow decision making – well beyond the ‘within 3 months’ norm – is the subject of other recent comment. Then there is refugee and migration law.
Then, when one reads a recent decision relying upon case law from the 19th century English chancery court and from Hogan’s Irish Rolls Court Reports (1824) – that case law never having been cited before in an Australian court – law reform is really needed, to dispose of our reliance on these embarrassing conflicting and arcane equity debates and decisions.