Common law obligations of good faith in non-fiduciary joint ventures

This chapter is devoted to the issue of non-fiduciary common law obligations of good faith, as they may arise in the performance and enforcement of joint ventures. In recent times a rush of commercial contractual claims involving good faith has signified the need for a separate chapter examining this issue. Although most of these decisions have arisen in commercial contexts other than joint ventures, the decisions, nevertheless, warrant careful consideration to the extent that they cast light on the likely contours of the common law good faith obligation as it may apply in the joint venture context.

Adventures in pedagogy : the trials and tribulations of teaching common law in China

China is now seen as arguably, the next economic giant of the 21st century. From a country closed in the past to the external world, the Chinese market now presents as one of the most lucrative in the world economy. One area that has drawn increasing international interest is education - it has been estimated that by 2020 there will be 25 million excess demands for higher education places that the Chinese tertiary educational system cannot meet. Many overseas institutions have developed programs to cater for this immense potential market. In 2000 the Law Faculty of the University of Technology, Sydney (UTS)introduced a new postgraduate program specifically targeting the Chinese market. This paper is a brief assessment of the program - it examines general issues in the pedagogical delivery of programs in LOTE (Language Other Than English) and the use of 'proxies' in the delivery of LOTE programs. The paper concludes that while the UTS program demonstrates that it is feasible to use proxy lecturers or interpreters in the delivery of programs in LOTE, the exercise entails significant problems that can undermine the integrity of such programs.

Modernising charity : steps to an alternative architecture for common law charity jurisprudence

This chapter addresses the question, how can the common law concept of charity law be modernised? There are difficulties with the present jurisprudential conception. The focus of the chapter is not on those difficulties, however, but rather on the development of an alternative architecture for common law jurisprudence. The conclusion to which the chapter comes is that charity law can be modernised by a series of steps to include all civil society organisations. It is possible if the ‘technical’ definition of charitable purpose is abandoned in favour of a contemporary, not technical concept of charitiable purpose. This conclusion is reached by proposing a framework, developed from the common law concept of charities, that reconciles into a cohesive jurisprudential architecture all of the laws applying to civil society organisations, not just charities. In this section, first the argument is contextualised in an idea of society and located in a gap in legal theory. An analogy is then offered to introduce the problems in the legal theory applying, not just to charities, but more broadly to civil society organisations. The substantive challenge of mapping an alternative jurisprudence is then taken in steps. The final substantive section conceptualises the changes inherent in a move beyond charities to a jurisprudence centred on civil society organisations and how this would bring legal theory into line with sectoral analysis in other disciplines.

Is there a physicality requirement at Common Law? : a survey of the Pre-NRDC cases discussing ‘Manufacture’

One of the fundamental issues that remains unresolved in patent law today, both in Australia and in other jurisdictions, is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether Australian patent law contains a physicality requirement. Despite being recently considered by the Federal Court, this is arguably an issue that has yet to be satisfactorily resolved in Australia. In its 2006 decision in Grant v Commissioner of Patents, the Full Court of the Federal Court of Australia found that the patentable subject matter standard is rooted in the physical, when it held that an invention must involve a physical effect or transformation to be patent eligible. That decision, however, has been the subject of scrutiny in the academic literature. This article seeks to add to the existing literature written in response to the Grant decision by examining in detail the key common law cases decided prior to the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, which is the undisputed authoritative statement of principle in regards to the patentable subject matter standard in Australia. This article, in conjunction with others written by the author, questions the Federal Court’s assertion in Grant that the physicality requirement it established is consistent with existing law.

Case studies of statutory interventions into the common law concept of charity

This paper considers four examples of statutory interventions into the common law concept of charity, namely, those of Pennsylvania, Barbados, the definition recommended by the Report of the Inquiry into the Definition of Charities in Australia, and the Recreational Charities legislation of the United Kingdom. It comments on some issues affecting each style of intervention. The paper does not argue against statutory intervention but submits that legislative changes are best made by deeming a particular purpose to be charitable, or not charitable, so that, except to that extent, the common law concept remains intact – this is the approach adopted by the Recreational Charities legislation.

Meta-regulation approach of law : a potential legal strategy to develop socially responsible business self-regulation in least developed common law countries

In the corporate regulation landscape, 'meta-regulation' is a comparatively new legal approach. The sketchy role of state promulgated authoritative laws in pluralized society and scepticism in corporate self-regulation's role have resulted in the development of this legal approach. It has opened up possibilities to synthesize corporate governance to add social values in corporate self-regulation. The core of this approach is the fusion of responsive and reflexive legal strategies to combine regulators and regulatees for reaching a particular goal. This paper argues that it is a potential strategy that can be successfully deployed to develop a socially responsible corporate culture for the business enterprises, so that they will be able to acquire social, environmental and ethical values in their self-regulation sustainably. Taking Bangladeshi corporate laws as an instance, this paper also evaluates the scope of incorporating this approach in laws of the least developed common law countries in general.

The Workcover Queensland Act 1996 : new procedures for common law claims [Part 2]

This article explains the new pre-court procedures and additional procedures designed to foster settlement of claims introduced by the Workcover Queensland Act 1996, and the implication of the new provisions for practitioners.

The extent of the insured’s duty of disclosure : a comparative analysis of the disclosure obligations of insured in Australia, Singapore and China

Pre-contractual material disclosure and representation from an insurance policy proposer is the most important element for insurers to make a decision on whether a proposer is insurable and what are the terms and conditions if the proposal by the proposer is able to be insured. The issue this thesis researches and investigates focus on the issues related to the pre-contractual non-disclosures and misrepresentations of an insured under the principle of utmost good faith, by operation of laws, can achieve with different results in different jurisdiction. A similar disputed claim involving material non-disclosed personal information or misrepresentation at the pre-contractual stage from an insured with respect to both general and life insurance policies settled by an insurer in Australia could be that the policy is set aside ab initio by the insurers in Singapore or China. The jurisdictions this thesis examines are • Australia; • Singapore; and • China including Hong Kong.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

Charity law reforms : overview of progress since 2001

In the UK, Singapore, Canada, New Zealand and Australia, as in many other jurisdictions, charity law is rooted in the common law and anchored on the Statute of Charitable Uses 1601. The Pemsel classification of charitable purposes was uniformly accepted, and together with a shared and growing pool of judicial precedents, aided by the ‘spirit and intendment’ rule, has subsequently allowed the law to develop along much the same lines. In recent years, all the above jurisdictions have embarked on law reform processes designed to strengthen regulatory processes and to statutorily define and encode common law concepts. The reform outcomes are now to be found in a batch of national charity statutes which reflect interesting differences in the extent to which their respective governments have been prepared to balance the modernising of charitable purposes and other common law concepts alongside the customary concern to tighten the regulatory framework.

Mortgages and insolvency

With an amalgam of statutory and common law duties, great care has always been required when considering the obligations of either mortgagees or receivers when exercising power of sale. Unfortunately, that position has only become more complicated with the enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld).

Modernising charity law : recent developments and future directions

In recent years the pressure for charity law reform has swept across the common law jurisdictions with differing results. Modernising Charity Law examines how the UK jurisdictions have enacted significant statutory reforms after many years of debate, whilst the federations of Canada and Australia seem merely to have intentions of reform. New Zealand and Singapore have begun their own reform journeys. This highly insightful book brings together perspectives from academics, regulators and practitioners from across the common law jurisdictions. The expert contributors consider the array of reforms to charity law and assess their relative successes. Particular attention is given to the controversial issues of expanded heads of charity, public benefit, religion, competition with business, government participation and regulation. The book concludes by challenging the very notion of charity as a foundation for societies which, faced by an array of global threats and the rising tide of human rights, must now also embrace the expanding notions of social capital, social entrepreneurism and civil society. This original and highly topical work will be a valuable resource for academics, regulators and legal practitioners as well as advanced and postgraduate students in law and public policy. Specialists in charity law, comparative law, and law and public policy should also not be without this important book.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.