Practice and Procedures - costs - offer to settle by plaintiff under UCPR r360 for amount of claim plus costs

In JLG Industries Inc v Teetree Pty Ltd [2002] QDC 031 the court considered the implications in terms of costs of an offer to settle by the plaintiff under the UCPR where the element of compromise involved only acceptance of the amount of claim without interest.

Staking a claim : the role of stakeholders in government

The stakeholder approach which emerged under the auspices of new public management has been in use in public agencies for the past 25 years. However it remains a difficult and demanding task for agencies to determine who their stakeholders are and how to optimise interactions with them. This paper will examine how government agencies identify, classify and engage with stakeholders who have competing demands, differing access to resources and the ability to exert political pressure. To do this, the stakeholder approaches of nine agencies at three levels of government in Queensland were studied. The contribution of this paper is the development of a Stakeholder Classification Model for Public Agencies which could be used to create more focused and relevant stakeholder interventions.

An examination of the relationship between emotional intelligence, leadership style and perceived leadership outcomes in Australian educational institutions

In the field of leadership studies transformational leadership theory (e.g., Bass, 1985; Avolio, Bass, & Jung, 1995) has received much attention from researchers in recent years (Hughes, Ginnet, & Curphy, 2009; Hunt, 1999). Many previous studies have found that transformational leadership is related to positive outcomes such as the satisfaction, motivation and performance of followers in organisations (Judge & Piccolo, 2004; Lowe, Kroeck, & Sivasubramaniam, 1996), including in educational institutions (Chin, 2007; Leithwoood & Jantzi, 2005). Hence, it is important to explore constructs that may predict leadership style in order to identify potential transformational leaders in leadership assessment and selection procedures. Several researchers have proposed that emotional intelligence (EI) is one construct that may account for hitherto unexplained variance in transformational leadership (Mayer, 2001; Watkin, 2000). Different models of EI exist (e.g., Goleman, 1995, 2001; Bar-On, 1997; Mayer & Salovey, 1997) but momentum is growing for the Mayer and Salovey (1997) model to be considered the most useful (Ashkanasy & Daus, 2005; Daus & Ashkanasy, 2005). Studies in non-educational settings claim to have found that EI is a useful predictor of leadership style and leader effectiveness (Harms & Crede, 2010; Mills, 2009) but there is a paucity of studies which have examined the Mayer and Salovey (1997) model of EI in educational settings. Furthermore, other predictor variables have rarely been controlled in previous studies and only self-ratings of leadership behaviours, rather than multiple ratings, have usually been obtained. Therefore, more research is required in educational settings to answer the question: to what extent is the Mayer and Salovey (1997) model of EI a useful predictor of leadership style and leadership outcomes? This project, set in Australian educational institutions, was designed to move research in the field forward by: using valid and reliable instruments, controlling for other predictors, obtaining an adequately sized sample of real leaders as participants and obtaining multiple ratings of leadership behaviours. Other variables commonly used to predict leadership behaviours (personality factors and general mental ability) were assessed and controlled in the project. Additionally, integrity was included as another potential predictor of leadership behaviours as it has previously been found to be related to transformational leadership (Parry & Proctor-Thomson, 2002). Multiple ratings of leadership behaviours were obtained from each leader and their supervisors, peers and followers. The following valid and reliable psychological tests were used to operationalise the variables of interest: leadership styles and perceived leadership outcomes (Multifactor Leadership Questionnaire, Avolio et al., 1995), EI (Mayer–Salovey–Caruso Emotional Intelligence Test, Mayer, Salovey, & Caruso, 2002), personality factors (The Big Five Inventory, John, Donahue, & Kentle, 1991), general mental ability (Wonderlic Personnel Test-Quicktest, Wonderlic, 2003) and integrity (Integrity Express, Vangent, 2002). A Pilot Study (N = 25 leaders and 75 raters) made a preliminary examination of the relationship between the variables included in the project. Total EI, the experiential area, and the managing emotions and perceiving emotions branches of EI, were found to be related to transformational leadership which indicated that further research was warranted. In the Main Study, 144 leaders and 432 raters were recruited as participants to assess the discriminant validity of the instruments and examine the usefulness of EI as a predictor of leadership style and perceived leadership outcomes. Scores for each leadership scale across the four rating levels (leaders, supervisors, peers and followers) were aggregated with the exception of the management-by-exception active scale of transactional leadership which had an inadequate level of interrater agreement. In the descriptive and measurement component of the Main Study, the instruments were found to demonstrate adequate discriminant validity. The impact of role and gender on leadership style and EI were also examined, and females were found to be more transformational as leaders than males. Females also engaged in more contingent reward (transactional leadership) behaviours than males, whilst males engaged in more passive/avoidant leadership behaviours than females. In the inferential component of the Main Study, multiple regression procedures were used to examine the usefulness of EI as a predictor of leadership style and perceived leadership outcomes. None of the EI branches were found to be related to transformational leadership or the perceived leadership outcomes variables included in the study. Openness, emotional stability (the inverse of neuroticism) and general mental ability (inversely) each predicted a small amount of variance in transformational leadership. Passive/avoidant leadership was inversely predicted by the understanding emotions branch of EI. Overall, EI was not found to be a useful predictor of leadership style and leadership outcomes in the Main Study of this project. Implications for researchers and human resource practitioners are discussed.

To have your caveat and claim it, too : steps to take to protect an interest in land or water allocation

Caveats as protection for unregistered interests - lapsing and non-lapsing caveats - caveator - use only in appropriate circumstances

Assessment of damages for property damage

In Gagner Pty t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 691, the assessment of damages awarded for the rectification work to the premises of the respondent was in issue. The appellant operated a restaurant above the respondent’s jewellery store in Sydney. When the kitchen of the restaurant flooded, water escaped causing damage to the jewellery store’s fit-out. The escape of the water was held to be due to the negligence of persons for whom the appellant was vicariously liable. The trial judge awarded damages, measured by the amount required to return the premises as close as was possible to the condition prior to the flood damage as well as an allowance for interruption to the business for 10 days. The 10 day allowance reflected the number of days the store would have been closed for if it was to be returned to its previous condition. The evidence was that the flooding has only affected approximately 10% of the floor area of the store. However, instead of having work carried out to bring the premises back to its condition as before the water damage, the respondent closed the business for 29 working days for a complete internal refurbishment – at a cost substantially more than simple rectification. On appeal it was argued that the trial judge had assessed the damages incorrectly as by undertaking a complete refurbishment had the effect that the respondent did not suffer any loss as a consequence of the negligence in relation to the fit-out. It was asserted that the claim for damages was in the circumstances a claim for betterment. It was also argued that the damages should not include a component for GST. Campbell JA gave reasons, with Macfarlan JA and Sackville AJA agreeing.

“We are not here to claim better services than any other” : Social exclusion among men from refugee backgrounds in urban and regional Australia

This paper reports on a mixed-methods study of social exclusion experiences among 233 resettled refugees living in urban and regional Queensland, Australia. The findings reported here are drawn from the SettleMEN project, a longitudinal investigation of health and settlement experiences among recently arrived adult men from refugee backgrounds conducted between 2008 and 2010. Using questionnaire surveys and semi-structured interviews, we examine four key dimensions of social exclusion: production, consumption, social relations, and services. We show that, overall, participants experienced high levels of social exclusion across all four dimensions. Participants living in regional areas were significantly more likely to be excluded from production, social relations, and services. We argue that there is a pressing need to tackle barriers to economic participation and discrimination in order to promote the social inclusion of men from refugee backgrounds.

Federal Court Rules O23 r 11 - offers of compromise - offer for dismissal of claim and to forego recovery of costs.

In Uniline Australia Ltd ACN 010752057 v S Briggs Pty Ltd ACN 007415518 (No 2) [2009] FCA 920 Greenwood J considered a number of principles guiding the exercise of discretion in relation to costs, particularly when offers of compromise have been made under the formal process provided by the Federal Court Rules.

Dimensions of the venture creation process : amount, dynamics, and sequences of action in nascent entrepreneurship

This research examines the entrepreneurship phenomenon, and the question: Why are some venture attempts more successful than others? This question is not a new one. Prior research has answered this by describing those that engage in nascent entrepreneurship. Yet, this approach yielded little consensus and offers little comfort for those newly considering venture creation (Gartner, 1988). Rather, this research considers the process of venture creation, by focusing on the actions of nascent entrepreneurs. However, the venture creation process is complex (Liao, Welsch, & Tan, 2005), and multi-dimensional (Davidsson, 2004). The process can vary in the amount of action engaged by the entrepreneur; the temporal dynamics of how action is enacted (Lichtenstein, Carter, Dooley, and Gartner 2007); or the sequence in which actions are undertaken. And little is known about whether any, or all three, of these dimensions matter. Further, there exists scant general knowledge about how the venture creation process influences venture creation outcomes (Gartner & Shaver, 2011). Therefore, this research conducts a systematic study of what entrepreneurs do as they create a new venture. The primary goal is to develop general principles so that advice may be offered on how to ‘proceed’, rather than how to ‘be’. Three integrated empirical studies were conducted that separately focus on each of the interrelated dimensions. The basis for this was a randomly sampled, longitudinal panel, of nascent ventures. Upon recruitment these ventures were in the process of being created, but yet to be established as new businesses. The ventures were tracked one year latter to follow up on outcomes. Accordingly, this research makes the following original contributions to knowledge. First, the findings suggest that all three of the dimensions play an important role: action, dynamics, and sequence. This implies that future research should take a multi-dimensional view of the venture creation process. Failing to do so can only result in a limited understanding of a complex phenomenon. Second, action is the fundamental means through which venture creation is achieved. Simply put, more active venture creation efforts are more likely more successful. Further, action is the medium which allows resource endowments their effect upon venture outcomes. Third, the dynamics of how venture creation plays out over time is also influential. Here, a process with a high rate of action which increases in intensity will more likely achieve positive outcomes. Forth, sequence analysis, suggests that the order in which actions are taken will also drive outcomes. Although venture creation generally flows in sequence from discovery toward exploitation (Shane & Venkataraman, 2000; Eckhardt & Shane, 2003; Shane, 2003), processes that actually proceed in this way are less likely to be realized. Instead, processes which specifically intertwine discovery and exploitation action together in symbiosis more likely achieve better outcomes (Sarasvathy, 2001; Baker, Miner, & Eesley, 2003). Further, an optimal venture creation order exists somewhere between these sequential and symbiotic process archetypes. A process which starts out as symbiotic discovery and exploitation, but switches to focus exclusively on exploitation later on is most likely to achieve venture creation. These sequence findings are unique, and suggest future integration between opposing theories for order in venture creation.

Legal practitioners’ negligence liability for claim investigation and advice

Nigam v Harm (No 2) [2011] WASCA 221, Western Australia Court of Appeal, 18 October 2011

PI claim clears the statute bar

In Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland [2013] QDC 21 the plaintiff commenced a proceeding more than 60 days after the compulsory conference under the Workers Compensation and Rehabilitation Act 2003 (Qld). The question to be determined was whether this meant the claim was statute-barred under that Act, even though the relevant limitation period under the Limitation of Actions Act 1974 (Qld) had not expired

A human rights analysis of a claim for educational negligence in Australian schools

This thesis argues that an action in educational negligence should be available in Australia to provide a remedy for failure by schools and teachers to provide an adequate education as required by Australia’s human rights obligations. The thesis substantiates a duty of care to provide an adequate education under general principles of the law of negligence in appropriate cases. Although some protection exists for disabled students in Australia’s anti-discrimination and other legislation, non-disabled students are not afforded redress under existing causes of action. The educational negligence action provides a suitable remedy in an era of professional educational accountability.

Costs - solicitor's retainer on 'no win, no fee' basis - meaning of 'win' - solicitor not entitled to recover excess of costs over amount paid on settlement - no consideration for variation of oral retainer.

In Baker Johnson Lawyers v Jorgensen [2002] QDC 205 McGill DCJ considered the meaning of a 'no win, no fee' retainer and concluded that, in the absence of qualification by agreement, solicitors retained on that basis were not entitled to recover costs exceeding the amount of any judgment or settlement.

Personal injuries sustained in the course of employment - claim against employer under Workcover Queensland Act 1996

In Devlin v South Mole Island Resort [2003] QSC 020 the Court concluded the applicant was entitled to pursue a concurrent claim he alleged he had against the respondent under the Personal Injuries Proceedings Act 2002 in respect of injuries sustained in the course of employment, and also that the Workcover Queensland Act 1996 did not abolish the applicant's right to proceed against the respondent.

Book review - Richard Goldberg, Medicinal Product Liability and Regulation (Hart Publishing, Oxford, 2013) 214pp

In December 2013, settlement was reached between approximately 100 Australian and New Zealand Thalidomide victims and the company which had acted as the Australian distributor of the infamous drug, thus putting to rest the possibility of litigation. Around the same time, Thalidomide victims in the United Kingdom (UK) launched a similar bid for compensation against the manufacturer and distributor. It is clear that despite a lengthy amount of time having passed ever since the thalidomide disaster commenced in 1962, the controversy over compensation continues. Indeed, the author of Medicinal Product Liability and Regulation (published before the announcement of the British legal claim), Professor Goldberg, notes that claims for resulting birth defects continue to emerge right into the present day. His prescient insight into the contemporary relevance of compensation for pharmaceutical injuries thus makes Medicinal Product Liability and Regulation a very relevant addition to the small body of scholarship that is available on this rather specific and complex issue.