Allison Silink is the Director of Academic Programs in the Faculty of Law. She also coordinates and teaches Equity & Trusts and Commercial Law. She co-convenes the UTS Private Law Research and Teaching Cluster and the Private Law Seminar Series.
Her research interests and practice focus on the intersection of equity, common law and statute in the resolution of private law disputes. She has particular interests in banking and finance law, equity and trusts, superannuation and insolvency and she has recent publications and ongoing research projects on issues relating to rights of trusteees, equitable estoppel, vicarious liability, liabiliyt of corporations for misprepresentations and insolvency of corporate trustees. Her PhD thesis explored the history and scope of the doctrine of equitable contribution.
She is also a barrister admitted in New South Wales having been called to the bar in 1997. She has a general commercial law practice, with experience in advice and litigation in the areas of equity and trusts, torts and contracts, corporations law, insolvency and superannuation. Between 1994-1997 she was the associate to Justice Sheppard AO in the Federal Court of Australia.
Commercial Law Association
New South Wales Bar Association
Society of Legal Scholars
Banking and Financial Services Law Association
Can supervise: YES
Allison's current private law research projects are in relation to:
- commercial trusts;
- the scope of equitable estoppel;
- vicarious liability for intentional wrongdoing;
- equitable contribution.
Allison also has research interests in the area of children and the law. Her particular areas of research currently include vicarious liability for institutional child sexual abuse, the nature and scope of mandatory reporting laws, and the operation and review of Working WIth Children Checks.
- Equity and Trusts
- Commercial Equity
- Advanced Trusts
Silink, AJ 2018, 'Trustee exoneration from trust assets - Out on a limb? The tension between creditor expectations and the 'clear accounts' rule', Journal of Equity, vol. 12, pp. 58-58.View/Download from: UTS OPUS
This article examines the proper characterisation of the trustee's right of indemnity with particular focus upon the exoneration limb, pursuant to which a trustee can discharge outstanding trust liabilities directly from trust assets. Its existence is uncontroversial. However, questions have been raised as to whether the exoneration limb should be subject to the so-called 'clear accounts rule' which limits a trustee from availing itself of the right to indemnity to the extent that the trustee has an outstanding obligation to restore the trust fund. This limitation upon the availability of the indemnity to the trustee necessarily affects the ability of creditors to access trust assets to discharge trust debts. This is because the creditor's right to be subrogated to the trustee's indemnity gives it no higher right than the trustee has — if the indemnity has been lost to the trustee, it is lost to the creditor. This article considers the justification for the clear accounts rule with respect to its application to the exoneration limb of the indemnity.
The long-standing dichotomy between employees and independent contractors in vicarious liability - never entirely without its difficulties in application, but nonetheless, a central tenet of vicarious liability for more than a century - has been eroded in the last five years. Confirmed in the mid-nineteenth century in Quarman v Burnett, 1 the delineation has endured despite regular criticism: an employer may be vicariously liable for acts of an employee, but not generally for the negligence or intentional wrongdoing of an independent contractor, aside from directly authorised acts.2
The first steps in dismantling the requirement for an employment relationship were in recognising that working relationships that did not fit the traditional analysis of employment could nonetheless give rise to vicarious liability. In Cox v Ministry of Justice (Cox),3 Lord Reed noted that "in recent years the courts have sought to explain more generally the basis on which vicarious liability can arise out of a relationship other than that of employer and employee'.4 Since 2012, a series of cases has recognised vicarious liability in particular working relationships that do not meet a traditional definition of employment, but which bear certain incidents (defined in Various Claimants v Catholic Child Welfare Society (CCWS) by Lord Phillips5) that could be regarded as "akin to employment' as found in that case between a priest and church, or as between a prisoner performing work duties in a prison and the Ministry of Justice responsible for the prison service (Cox).
Various Claimants v Barclays Bank Plc (Barclays Bank) marks a significant step directly into the once out-of-bounds territory of vicarious liability for acts of independent contractors.6 In this case, the incidents or criteria for the requisite relationship developed in CCWS and Cox were applied to a situation that would otherwise have been traditionally viewed as one of an independent contractor and the court accepted th...
*C.L.J. 458 THE common law has long recognised that people who engage independent contractors will not ordinarily be liable for the wrongdoing of those contractors, outside a closely guarded class of exceptional relationships in which the principal bears a personal liability for their negligent conduct. Selection of a properly qualified and competent contractor will ordinarily suffice to discharge any primary duty of care to victims of the contractor's torts imposed on the principal. Vicarious liability traditionally required finding an employment relationship between the principal and the wrongdoer. However the scope of vicarious liability has recently been expanded. In a quartet of cases (Catholic Child Welfare Society v Various Claimants  UKSC 56,  2 A.C. 1 (noted J. Bell  C.L.J. 17)); Cox v Ministry of Justice  UKSC 10,  A.C. 660; Mohamud v WM Morrison Supermarkets plc  UKSC 11,  A.C. 677; Armes v Nottinghamshire County Council  UKSC 60,  A.C. 355 (noted S. Deakin  C.L.J. 15)), the Supreme Court recognised that vicarious liability may also be imposed in respect of the acts of persons who are in a position "akin to employment".
The "akin to employment" test was first recognised in what may be described as atypical working relationships, such as those of religious personnel, and prison workers, who were neither employees nor independent contractors as traditionally understood. But the test has come to be applied as a general test for the imposition of vicarious liability outside relationships of employment, and uncertainty has emerged as to the reach of the test to traditionally understood independent contractors. The issue of the test's reach has emerged starkly from the decision of the Court of Appeal in Barclays Bank plc v Various Claimants  EWCA Civ 1670, in which the bank was held vicariously liable for the wrongdoing of a doctor who, by any traditional test, was as independent a contracto...
Stewart, PE & Silink, A 2016, 'Tort Law Reform to Improve Access to Compensation for Survivors of Institutional Child Sexual Abuse', University of NSW Law Journal, vol. 39, no. 2, pp. 553-595.View/Download from: UTS OPUS
This article addresses persistent uncertainty in relation to the question,
'Can promissory estoppel be an independent source of rights under
Australian law?' A split has developed between intermediate courts of
appeals in some jurisdictions on this question. This article considers
the operation of stare decisis in relation to a decision of an
intermediate appellate court that departs from the ratio of the High
Court, and the approach which is likely to be taken by the High Court
to resolving the conflict between the states.
Waltons Stores (Interstate) Ltd v Maher was a watershed in the development of promissory estoppel in Australian law, recognising its reach to a representation of future intention from one party to another without the need for a pre-existing legal relationship between them. However, the scope for an equitable estoppel to arise from pre-contractual negotiations which do not result in a formal contract being executed, as in that case, remains unclear in certain respects. In particular, it is not clear whether or not a plaintiff seeking to establish an estoppel needs to have held a belief that the defendant was already bound by, or bound to enter into, the contract. On another view, it may be sufficient for the plaintiff to demonstrate that he or she was induced to assume that the contract would eventuate and then relied to his or her detriment upon that assumption, even if the plaintiff knew that the defendant had a right to withdraw from the negotiations. This article explores this uncertainty in Australian law about the nature of the assumption required to found an estoppel arising from pre-contractual negotiations which are said to be `subject to contract.
Silink, A 2019, 'The Nature of Personal Property' in Commercial Law: Commentary and Materials, Thomson Reuters, Australia.
Stewart, PE & Silink, A 2017, 'Compensation for survivors of Institutional Child Sexual Abuse in Australia: Tortious rights and challenges for reform' in Young, L, Kenny, MA & Monahan, G (eds), Children and the Law in Australia, LexisNexis Butterworths, Chatswood Australia, pp. 337-375.View/Download from: UTS OPUS
The risk and incidence of sexual abuse of children in an institutional context has been brought to increasingly greater public attention since the 1990's, both in Australia and around the world. In Australia, several state inquiries since the mid-1990's addressed sexual abuse of children in state care and religious institutions in Australia, and there have been numerous other state and federal inquiries in that time which have considered in some way the issue of child sexual abuse in the context of a broader or different remit. However, on 11 January 2013 a national Royal Commission into Institutional Responses to Child Sexual Abuse ('the Royal Commission') was established to focus specifically on how to better prevent, report and respond to child sexual abuse in an institutional context. It is expected to deliver its final report by the end of 2017.
The Royal Commission's work is revealing the nature and extent of child abuse in a wide range of different institutional contexts in Australia. As at 10 September 2015, the Royal Commission had received allegations relating to 3,566 different institutions. In its Consultation Paper on Redress and Civil Litigation ('Consultation Paper'), the Royal Commission analysed the data obtained from private sessions held between 7 May 2013 and 31 August 2014 in relation to reported incidents of child sexual abuse and categorised it by institution type, or activity. The incidence per category was as follows: 34.6% in out-of-home residential care; 28.1% in educational day and boarding schools; 16.6% in religious activities; 7.6% in out-of-home foster or kinship care; 4.2% in recreational, sporting and hobby groups or institutions; 2.1% in health and allied fields or by medical practitioners; 1.1% in juvenile justice; 0.9% in childcare centres, and smaller representation of incidents in other institutional categories. A significant proportion of this reported abuse related to faith-based institutions. For example, ...