A matter of time

The Queensland Court of Appeal recently handed down its decision in Caprice Property Holdings Pty Ltd v McLeay [2013] QCA 120. The decision considers the operation of the standard REIQ contract for the sale of land as it impacts on the time for settlement and the respective obligations of the buyer and the seller. The decision highlights both practical and legal issues arising from a failure to render performance at the stipulated time...

Assessment of damages for wrongful birth and consolidation in advance care directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Air Gondwana and Mosswood Manor : blended learning environments utilising second life machinima to teach negotiation skills

Seminal reports into higher education in Australia and overseas have recognised negotiation as an essential skill of a practising lawyer and have recommended that all law schools include instruction in negotiation theory and practice in their curricula. Effective negotiation training includes the elements of instruction, modelling, practice and feedback. Ideally such training takes place in the context of small groups. However, this does not necessarily mean that negotiation cannot be taught effectively in the context of large groups. This paper discusses two related blended learning environments that provide instruction in negotiation theory and practice as part of the graduate capabilities program of the undergraduate law degree in the School of Law at the Queensland University of Technology in Brisbane, Australia. Air Gondwana, which forms part of the curriculum of the two first year Contract Law subjects, and Mosswood Manor, which forms part of the curriculum of the second year Trusts subject, utilise a common narrative concerning the family of a wealthy industrialist to facilitate learning of negotiation skills. The programs both combine online and in-class components, the online components utilising machinima (computer graphics created without the need for professional software) to depict the narrative. This strategy has enabled the creation of effective, engaging and challenging learning experiences for large cohorts of students studying by different modes (full-time, part-time and distance external). The use of a common narrative, including the same characters and settings, in the two programs also provides a familiar environment in which students advance their learning from one level of attainment to the next.

Contracts

Contracting essentially involves an agreement between two parties in relation to a particular matter. When defined in this way, contracting has been occurring as a social practice since humans first bartered and conducted trade, and should be understood as both an economic as well as a social transaction. This entry explains key aspects of the sociology While contracting is commonly understood to be a market based transaction, Polyani famously argued that for most of recorded history commercial transactions were in fact secondary to social relationships. In other words, whenever economic transactions occurred, they were always in the context of reciprocal social relationships. Historically the primary mode of exchange may well have been based on social exchange and reciprocity, however with the rise of extensive industrialization in the 18th Century, the primary mode of exchange has led to more of a market based mode of exchange in developed countries, with the focus more about the economic transaction. As an agreement between two entities, contracting is an essential element to economic systems as it is the basis of most transactions, whether the agreement is verbal or written, explicit or implied. Contracting is thus a pervasive activity in our society, particularly between organizations, although individuals also engage in contracting. Typically, when discussing contracting, authors have either focused on the nature of the agreement itself, or on the governance arrangements in place to carry out the agreement.

The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Project governance : ethical decision making in project procurement in the Malaysian public sectors

Managing public sector projects in Malaysia is a unique challenge. This is because of the ethical issues involved during the project procurement process. These ethical issues need attention because they will have an impact on the quality, cost and time of the project itself. The ethical issues here include conflict of interest, bid shopping, collusive tendering, bid cutting, corruption and the payment game. In 2006, 17.3% of 417 Malaysian government contract projects were considered sick due to contractors' performances that failed to conduct the project according to the project plan. Some of the sick projects from these statistics are due to the ethical issues involved. These construction projects have low quality due to the selection of the contractors, done unethically due to personal relationships instead of professional qualifications. That is why it is important to govern the project procurement processes to ensure the accountability and transparency of the decision making process to ensure that these ethical issues can be avoided. Extensive research has been conducted on the ethical issues in the tendering process or the award phase of project management. There is a lack of studies looking at the role of clients, including the government client, in relation to unethical practice in project procurement in the public sector. It is important to understand that ethical issues not only involve the contractors and suppliers but also the clients. Even though there are codes of ethics in the public sectors, ethical issues still arise. Therefore, this research develops a project governance framework (PGEDM) for ethical decision making in the Malaysian public sectors. This framework combines the ethical decision making process together with the project governance principals in guiding the public sectors with ethical decision making in project procurement. A triangulation of questionnaire survey and Delphi study was employed in this research to collect required qualitative and quantitative data. A questionnaire survey was conducted among the public officials (the practitioners) who are currently working in the procurement area in the Malaysian public sectors, in identifying the ethical behaviours and factors influencing further ethical behaviour to occur. A Delphi study was also conducted with the assistance of a panel of experts consisting of practitioners that have expertise in the area of project governance and project procurement as well as academician, which further considered the relationship and the influence of the criteria and indicators of ethical decision making (EDM) and project governance (project criteria, organisational culture, contract award criteria, individual criteria, client's requirements, government procedures and professional ethics). Through the identification and integration of the factors and EDM criteria as well as the project governance criteria and EDM steps for ethical issues, a PGEDM framework was developed to promote, and drive consistent decision outcome in project procurement in the public sector. The framework contributes significantly to ethical decision making in the project procurement process. These findings not only give benefit to the people involved in project procurement but also to the public officials in guiding them to be more accountable in handling ethical issues in the future and to have a more transparent decision making process.

The state of the art defence : defining the Australian experience in the context of pharmaceuticals

One of the defences within Part 3-5 of the Australian Consumer Law is the state of the art, or development risk defence. This defence, although significant, has often been neglected in Australian jurisprudential analysis and has triggered at most generic academic analysis. However, with the rise of pharmaceutical and medical device litigation in Australia, it could become a vital weapon for Australian manufacturers against product liability claims. This paper will firstly review the two ways this defence could operate. It will also discuss the three types of defects which the defence could apply to. This paper aims to determine exactly when and how this defence should apply in Australia, in the context of pharmaceutical product liability claims.

An analysis of Australia's legal regime for imposing liability on manufacturers of pharmaceutical drugs

Following a trial in June 2009 where the Federal Court heard submissions regarding whether Merck Sharpe and Dohme Australia should be held liable for an increased risk of cardiovascular conditions noted in patients who had taken the anti-inflammatory drug Vioxx, a judgment was handed down against MSDA in March 2010. MSDA appealed to the Full Federal Court, where they were successful. Special leave to appeal to the High Court of Australia was rejected in May 2012. This article will examine the themes raised in the trial judgment and the appropriateness of Australia’s statutory consumer protection regime through the lens of pharmaceutical drug injuries and side effects.

Building Healthy Communities : GP Network, Medicare Local and Primary Health Care in the Wheatbelt Region of Western Australia

• Government reports consistently recognise the importance of Primary Health Care to an efficient health system. Barriers identified in Australia’s Primary Health Care include workforce pressures, increase rate of chronic disease, and equitable access to Primary Health Care services. • General Practitioners (GPs) are the key to the successful delivery of Primary Health Care especially in rural and remote regions such as the Wheatbelt region in Western Australia (WA). • The Wheatbelt region of WA is vast: some 72,500 residents spread across 150,000km2 in 43 Local Government Authorities catchments. Majority of the Wheatbelt residents live in small towns. There is a higher reported rates of chronic disease, more at risk of chronic diseases and less utilisation of Primary Health Care services in this region. • General practice patients in the Wheatbelt are among those most in need of Primary Health Care services. • Wheatbelt GP Network (the “Network”) was established in 1998. It is a key health service delivery stakeholder in the Wheatbelt. • The Network has responded to the health needs of the community by creating a mobile Allied Health Team that works closely with GPs and is adaptive to ensure priority needs are met. • The Medicare Local model introduced by the Australian Government in 2011 aimed to improve the delivery of Primary Health Care services by improved health planning and coordinating service delivery. • Little if any recognition has been given to the outstanding work that many Divisions of General Practice have done in improving the delivery of Primary Health Care services such as the Network. • The Network has continued to support GPs and general practices and created a complementary system that integrated general practice with the work of an Allied Health Team. Its program mix is extensive. • The Network has consistently delivered on-required contract outputs and has a fifteen (15) years history of operating successfully in a large geographical area comprising in the main smaller communities that cannot support the traditional health services model. • The complexity of supporting International Medical Graduates in the region requires special attention. • The introduction of the Medicare Local in the South West of WA and their intention to take over the delivery of health services, thus effectively shutting the Network will have catastrophic consequences and cannot be supported economically. • The Network proposes to create a new model, built on its past work that increases the delivery of Primary Health Care services through its current Allied Health Team. • The proposal uses the Wheatbelt GP Super Clinic currently under construction in Northam, part of the Network and funded by the Australian Government is a key to the proposed new model. • Wheatbelt GP Super Clinic is different from existing models of GP Super Clinics around Australia which focus predominately on co-location of services. Wheatbelt GP Super Clinic utilises a hub and spoke model of service outreach to small rural towns to ensure equitable Primary Health Care coverage and continuum of care in a financially responsible and viable manner. In particular, the Wheatbelt GP Super Clinic recognises the importance of Allied Health Professionals and will involve them in a collaborative model with rural general practice. • The proposed model advocated by the Network aims to substitute the South West WA Medicare Local direct service delivery proposed for the Wheatbelt. The Network’s proposed model is to expand on the current hub and spoke model of Primary Health Care delivery to otherwise small unviable Wheatbelt towns. A flexible and adaptive skill mix of Allied Health Professionals, Nurse Practitioners and GPs ensure equitable access to service. Expanded scope of practices are utilised to reduce duplication of service and concentration of services in major towns. This involves a partnership approach. • If the proposed model not funded, the Network and the Wheatbelt region will stand to lose 16 Allied Health Professionals and defeats the purpose of Australian Government current funding for the construction of the Wheatbelt GP Super Clinic. • The Network has considered how its model can best be funded. It proposes a re-allocation of funds made available to the South West WA Medicare Local. • This submission argues that the proposal for the South West WA Medicare Local to take over the service delivery of Primary Health Care services in the Wheatbelt makes no economic sense when an existing agency (the Network) has the infrastructure in place, is experienced in working in this geographical area that has special needs and is capable to expand its programs to meet demand.

Ten basic factors to identify suitable subcontractors for construction projects

With unpredictable workloads and a need for a multitude of specialized skills, many main contractors rely heavily on subcontracting to reduce their risks (Bresnen et al., 1985; Beardsworth et al., 1988). This is especially the case In Hong Kong, where the average direct labour content accounts for only around 1% of the total contract sum (Lai, 1987). Extensive usage of subcontracting is also reported in many other countries, including the UK (Gray and Flanagan, 1989) and Japan (Bennett et al., 1987). In addition, and depending upon the scale and complexity of works, it is not uncommon for subcontractors to further sublet their works to lower tier(s) subcontractors. Richter and Mitchell (1982) argued that main contractors can obtain a higher profit margin by reducing their performance costs by subcontracting work to those who have the necessary resources to perform the work more efficiently and economically. Subcontracting is also used strategically to allow firms to employ a minimum work force under fluctuating demand (Usdiken and Sözen, 1985). Through subcontracting, the risks of main contractors are also reduced, as errors in estimating or additional costs caused by delays or extra labour requirements can be absorbed by the subcontractors involved (Woon and Ofori, 2000). Despite these benefits, the quality of work can suffer when incapable or inexperienced subcontractors are employed. Additional problems also exist in the form of bid shopping, unclear accountability, and high fragmentation (Palaneeswaran et al., 2002). A recent CIB TG 23 International Conference, October 2003, Hong Kong report produced by the Hong Kong Construction Industry Review Committee (CIRC) points to development of a framework to help distinguish between capable and incapable subcontractors (Tang, 2001). This paper describes research aims at identifying and prioritising criteria for use in such a framework.

Misleading and deceptive conduct at an auction

An unusual factual situation recently arose for consideration by Lindsay J of the Federal Circuit Court. In Carter v Delgrove Holdings Pty Ltd [2013] FCCA 783, an application was brought by the owners of a residential property in Western Australia, the Carters, for damages for misleading or deceptive conduct under s 18 of the Australian Consumer Law (“ACL”) and for damages for breach of contract arising from an auction of their house. Delgrove Holdings Pty Ltd was a trustee of a family trust with Mr Ilahi being a director and shareholder of the company as well as a beneficiary under the family trust. It was established that Delgrove Holdings Pty Ltd engaged in the business of property acquisition for the purposes of generating rental income...

Intra-organizational information asymmetry in offshore ISD outsourcing

Purpose - Contemporary offshore Information System Development (ISD) outsourcing is becoming even more complex. Outsourcing partner has begun ‘re-outsourcing’ components of their projects to other outsourcing companies to minimize cost and gain efficiencies. This paper aims to explore intra-organizational Information Asymmetry of re-outsourced offshore ISD outsourcing projects. Design/methodology/approach - An online survey was conducted to get an overall view of Information Asymmetry between Principal and Agents (as per the Agency theory). Findings - Statistical analysis showed that there are significant differences between the Principal and Agent on clarity of requirements, common domain knowledge and communication effectiveness constructs, implying an unbalanced relationship between the parties. Moreover, our results showed that these three are significant measurement constructs of Information Asymmetry. Research limitations/implications - In our study we have only considered three main factors as common domain knowledge, clarity of requirements and communication effectiveness as three measurement constructs of Information Asymmetry. Therefore, researches are encouraged to test the proposed constructs further to increase its precision. Practical implications - Our analysis indicates significant differences in all three measurement constructs, implying the difficulties to ensure that the Agent is performing according to the requirements of the Principal. Using the Agency theory as theoretical view, this study sheds light on the best contract governing methods which minimize Information Asymmetry between the multiple partners within ISD outsourcing organizations. Originality/value - Currently, to the best of our knowledge, no study has undertaken research on Intra-organizational Information Asymmetry in re-outsourced offshore ISD outsourcing projects.

Generalised gamma bidding model

A generalised gamma bidding model is presented, which incorporates many previous models. The log likelihood equations are provided. Using a new method of testing, variants of the model are fitted to some real data for construction contract auctions to find the best fitting models for groupings of bidders. The results are examined for simplifying assumptions, including all those in the main literature. These indicate no one model to be best for all datasets. However, some models do appear to perform significantly better than others and it is suggested that future research would benefit from a closer examination of these.

The discursive nature of citizenship : Indigenous sovereign rights, racism and welfare reform

Citizenship is more than a status associated with a bundle of rights; it is also the formal contract by which the sovereignty of a nation is extended to the individual in exchange for being governed. Who can and who cannot contract into this status and what rights are able to be exercised is also shaped by who possesses the nation. In this article it is argued that citizenship operates discursively to contain Indigenous people’s engagement with the economy through social rights. This containment precludes consideration of Indigenous sovereign rights to our lands and resources, to enable Indigenous economic development within a capitalist market economy.

Reconsidering the agency of a privately appointed receiver and manager in three specific circumstances

Where a secured lender elects to appoint a receiver and manager, the appointment document standardly provides for the receiver and manager to act as the agent of the debtor. This article considers the significance of this agency in the context of three specific issues that have the potential to arise in the receivership of a corporate borrower across all Australian jurisdictions.