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Daily wrap
Judgment summaries for yesterday’s High Court decisions:
Julie Inman Grant says Australia’s Online Safety Act ‘does not impinge upon Americans’ freedom of speech’
Judge ‘not happy’ with ANZ’s $35m fine for scandal [The Australian paywall]
ANZ has two weeks to show how it has improved deceased estate compliance, after a judge declared he was ‘not happy’ with the $35m fine ASIC imposed for charging dead customers.
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Editor’s picks
The question of whether consent is a defence to battery or whether the absence of consent is an element of the claim is unresolved in Australian law and has received little attention. Different conclusions have been reached on the issue in other jurisdictions and the same question is equally raised by other trespass claims. Yet, how consent is classified (ie as a defence or a denial of an element of a claim) and which party (ie plaintiff or defendant) bears the onus of proving consent (or its absence) may be of practical importance and of theoretical interest, thereby raising fundamental taxonomic questions. The primary aim of this article is to tease out the underlying conceptual, theoretical and practical issues that contribute to the ongoing uncertainties as to who bears the burden of proving, and the correct classification of, consent (or the absence of consent).
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