In the current edition of the Sydney Law Review, Dr Suzanne Le Mire examines the duty of fairness imposed on the Australian Securities and Investments Commission (ASIC). The following is an abstract of the article:
The duty of fairness imposed on the Australian Securities and Investments Commission (ASIC) was scrutinised in the decisions of the New South Wales Court of Appeal and the High Court in the long-running litigation arising from the James Hardie corporate scandal. The different ways the duty was interpreted by these courts raises serious issues about its nature and extent. This article will explore the origins and purpose of the duty of fairness in order to better understand its impact on ASIC and other government litigants. It draws on both theoretical and judicial understandings of fairness in order to propose criteria that can be used to guide analysis of the demands of fairness in particular cases.
The full article is available here.