Estate contestation in Australia: An empirical study of a year of case law

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

Comparison of the effects of litigation and ADR in South-East Queensland

Alternative dispute resolution (ADR) methods, such as arbitration, are often used instead of litigation to resolve construction disputes, as industry folklore considers litigation overly expensive and time-consuming. But is this actually the case? Do the people most involved in construction dispute resolution agree? What are the real advantages and disadvantages of using litigation or ADR? When, if ever, is litigation the most appropriate way of resolving construction disputes? To answer these questions, this paper first provides a review of the literature on the use of litigation and ADR for construction dispute resolution. This is followed by the results of a survey of construction and legal personnel with moderate to extensive experience of dispute resolution in the Australian South-East Queensland construction industry. The main results of this are that, in addition to litigation being more expensive in money and time than ADR methods, the nature of the existing relationship between the parties has an important effect on the resolution process, what happens after an unsuccessful ADR and, if adversarial, is more likely to lead to litigation. The results are then validated and verified by one of the most experienced practitioners in claims and disputes in the whole of Australia.

An exploratory ergonomic study of musculoskeletal disorder prevention in the Queensland Ambulance Service

From 2008-09 to 2012-13, the most prevalent worker compensation claim in the Queensland Ambulance Service (QAS) was musculoskeletal injuries at >80%. This is consistent with literature that shows Musculoskeletal Disorders (MSD) was one of the front runners for workplace injuries among many professions. In an attempt to reduce the injury rate and related claims, the QAS created a selection criterion for their workers based on the Health Related Fitness Test. This method intended to select workers based upon their fitness level, instead of selecting for their ability to perform the tasks or modify the tasks to better suit the workers. With injury rates remaining high, further research produced the Patient Handling Equipment Project Report, which provided the background for the Manual Handling Program Book. The Manual Handling Program Book however lacks in accurately addressing musculoskeletal hazards; actions which cause or avoid injury, correct posture and motion for patient movement, muscular biomechanics, static and dynamic workload including activities causing strain, and equipment use in relation to musculoskeletal hazards. The exploratory research aims to better understand the ambulance service’s perception of Manual Materials Handling (MMH), how it relates to musculoskeletal injuries and how the service has attempted to reduce its prevalence. Based on a literature review and a critical analysis of the QAS Health Related Fitness Test, QAS Patient Handling Equipment Project Report and the QAS Manual Handling Program Book, an understanding of their shortfalls in the prevention of musculoskeletal injuries was gained. This entails understanding the work tasks, workloads, strains and workflow of paramedics. This research creates a starting point for further research into musculoskeletal injuries in paramedics. This study specifically looks at hazards related to musculoskeletal disorders. It identifies work system deficiencies that contribute to the prevalence of musculoskeletal injuries, and possible interventions to avoid them in paramedics.

Screen production enquiry: A study of five Australian doctorates

Within Australian universities, doctoral research in screen production is growing significantly. Two recent studies have documented both the scale of this research and inconsistencies in the requirements of the degree. These institutional variations, combined with a lack of clarity around appropriate methodologies for academic research through film and television practice, create challenges for students, supervisors, examiners and the overall development of the discipline. This paper will examine five recent doctorates in screen production practice at five different Australian universities. It will look at the nature of the films made, the research questions the candidates were investigating, the new knowledge claims that were produced and the subsequent impact of the research. The various methodologies used will be given particular attention because they help define the nature of the research where film production is a primary research method.

The Australian litigation landscape - Oral and Maxillofacial Surgery and general dentistry (oral surgery procedures): An analysis of litigation cases

Background: There are persistent concerns about litigation in the dental and medical professions. These concerns arise in a setting where general dentists are more frequently undertaking a wider range of oral surgery procedures, potentially increasing legal risk. Methods: Judicial cases dealing with medical negligence in the fields of general dentistry (oral surgery procedure) and Oral and Maxillofacial Surgery were located using the three main legal databases. Relevant cases were analysed to determine the procedures involved, the patients’ claims of injury, findings of negligence, and damages awarded. A thematic analysis of the cases was undertaken to determine trends. Results: Fifteen cases over a twenty-year period were located across almost all Australian jurisdictions (eight cases involved general dentists; seven cases involved Oral and Maxillofacial Surgeons). Eleven of the fifteen cases involved determinations of whether or not the practitioner had failed in their duty of care; negligence was found in six cases. Eleven of the fifteen cases related to molar extractions (eight specifically to third molar). Conclusions: Dental and medical practitioners wanting to manage legal risk should have regard to circumstances arising in judicial cases. Adequate warning of risks is critical, as is offering referral in appropriate cases. Pre-operative radiographs, good medical records, and processes to ensure appropriate follow-up are also important.

A narrative analysis of judicial attitudes towards sexual harassment in Japan

This study applies a narrative analysis of the first two judicial decisions on sexual harassment in Japan to test claims of a culture of gender bias in Japanese judicial attitudes towards victims of sexual violence. Although the results do not provide an unambiguous support or rebuttal of gendered justice in Japan, they do reveal some of the dangers of narrative analysis as a basis for making generalizable claims about how law functions in Japanese society.

Economic value of recreational fishing in Moreton Bay and the potential impact of the marine park rezoning

In 2009, the area of the Moreton Bay Marine Park was increased from 0.5 per cent of the Bay area to 16 per cent. During the planning process, opposition by commercial and recreational fishers alike was raised, arguing that loss of fishing grounds would lead to substantial loss in economic benefits. The commercial sector was compensated through a buyback of fishing effort, but the recreational sector received no compensation. In this paper, we develop a travel cost model to estimate the potential economic impact on the recreational sector from the marine park rezoning. The results suggest that, counter to initial claims, non-market recreational fishing benefits may have increased by between $1.3m and $2.5m a year, with a current total annual value of around $20m. Keywords: Travel cost model; Economic valuation; Moreton Bay Marine Park; Recreational fishing

Saviour Siblings and the Regulation of Assisted Reproductive Technology: Harm, Ethics and Law

Advances in the field of Assisted Reproductive Technology (ART) have been revolutionary. This book focuses on the use of ARTs in the context of families who seek to conceive a matching sibling donor as a source of tissue to treat an existing sick child. Such children have been referred to as ‘saviour siblings’. Considering the legal and regulatory frameworks that impact on the accessibility of this technology in Australia and the UK, the work analyses the ethical and moral issues that arise from the use of the technology for this specific purpose. The author claims the only justification for limiting a family’s reproductive liberty in this context is where the exercise of reproductive decision-making results in harm to others. It is argued that the harm principle is the underlying feature of legislative action in Western democratic society, and as such, this principle provides the grounds upon which a strong and persuasive argument is made for a less-restrictive regulatory approach in the context of ‘saviour siblings’.

Crowdfunding and independent screen content production in Australia: A direct economic relationship between producer and audience

This thesis examines the significance of crowdfunding for Australian filmmakers and provides an empirical basis to current claims about the role of crowdfunding in the film production and policy sectors. It has found that crowdfunding is a small but growing source of supplementary finance which is opening up new possibilities for Australian independent screen content producers. This project also highlights the discussion within Australian film policy circles that is opening the way for crowdfunding to potentially become a larger and more formalised component of current and emerging policy initiatives.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Gene patent practice across plant and human genomes

The uses of genetic sequences to inform, enable or create products or services for human biomedicine are substantially different from their uses in crop-based agriculture. Here, we explore what similarities and differences may emerge in patent use and strategies, and map patent-disclosed sequences onto three important plant genomes: maize (corn), rice and soybean. We focus on those referenced in the granted patent claims to compare their uses to the approach used in human gene patenting.

What’s law got to do with it?: Medical negligence, causation and the use of policy

In a medical negligence context, and under the causation provisions enacted pursuant to Civil Liability Legislation in most Australian jurisdictions, the normative concept of “scope of liability” requires a consideration of whether or not and why a medical practitioner should be responsible for a patient’s harm. As such, it places a limit on the extent to which practitioners are deemed liable for a breach of the duty of care owed by them, in circumstances where a legal factual connection between that breach and the causation of a patient’s harm has already been shown. It has been said that a determination of causation requires ‘the identification and articulation of an evaluative judgement by reference to “the purposes and policy of the relevant part of the law”’: Wallace v Kam (2013) 297 ALR 383, 388. Accordingly, one of the normative factors falling within scope of liability is an examination of the content and purpose of the rule or duty of care violated – that is, its underlying policy and whether this supports an attribution of legal responsibility upon a practitioner. In this context, and with reference to recent jurisprudence, this paper considers: the policy relevant to a practitioner’s duty of care in each of the areas of diagnosis, treatment and advice; how this has been used to determine an appropriate scope of liability for the purpose of the causation inquiry in medical negligence claims; and whether such an approach is problematic for medical standards or decision-making.

The 'rise' of Aboriginal women, from domesticated cow to cash cow

The recent claims from former Queensland Labor MP Gary Johns that “a lot of poor women in this country, a large proportion of whom are Aboriginal, are used as cash cows” who are “kept pregnant and producing children for the cash” are somewhat alarming, but not surprising...

Strategically Pleading Intentional Torts in medical cases

The opportunities and challenges faced by litigants who strategically plead intentional torts are borne out by two recent medical cases. Both arose out of dental treatment. Dean v Phung established some key principles which were clarified in White v Johnston. Before considering those two cases it is worth examining the environment in which such intentional torts claims now exist. Following the Ipp Review of the Law of Negligence, non-uniform legislative changes to the law of negligence were introduced across Australia which have imposed limitations on liability and quantum of damages in cases where a person has been injured through the fault of another. While it seems that, given the limitation of the scope of the review and recommendations to negligently caused damage, the Ipp Review reforms were meant to be limited to injury resulting from negligent acts rather than intentional torts, the extent to which the civil liability legislation applies to intentional torts differs across Australia.

Systematic literature review: Research on Supported Playgroups

Overview This review of research conducted with supported playgroups was prepared for the Queensland Department of Education, Training and Employment (DETE). The report provides a synthesis of the research on the effectiveness of supported playgroups to improve child, parent, and community outcomes and to identify key features of supported playgroups that support effective outcomes. Supported playgroups are community-based services that provide a low intensity parenting intervention, through regular group sessions for parent-child dyads. Supported playgroups target vulnerable families who may benefit from parenting support. Supported playgroups have common goals to enhance children’s early learning and parental wellbeing. Method A search strategy was devised to identify research studies, nationally and internationally, that involved parent-child group programs for families with young children, delivered under the leadership of an employed facilitator. Academic databases and other data sources were explored for studies conducted in the period from 2004 to 2014. Summary descriptions of the research studies were developed; assessment of research methodologies was made; research evidence on the effectiveness of supported playgroups to improve child, parent, and community outcomes was identified; and comparative analyses of the implementation features of supported playgroups were completed. Findings The search strategy identified 34 research publications, reporting on 29 different programs. Twenty-six of the studies report on research conducted in Australia and eight reported on research conducted in other countries, including the United Kingdom, Canada, and the United States. Three clusters of playgroups were identified: Category 1 - Standard supported playgroups; Category 2 - Mobile playgroups; Category 3 – Supported playgroups with specific interventions. The research studies identified encompassed experimental and non-experimental research designs. The studies of standard supported playgroups and mobile playgroups were most often qualitative studies and modest in scale, in terms of the number of research participants. Experimental and quasi-experimental research designs characterised the studies identified in the category of supported playgroups with specific interventions. Overall, the research studies that were categorised as supported playgroups with specific interventions provided stronger evidence for effectiveness to improve parental behaviour in ways that are known to support children’s early developmental competence. Qualitative studies, including case studies and ethnographic research, documented important features of program delivery, such as the importance of facilitators’ interpersonal skills to positive experiences for families in the playgroups; as well as the important opportunities that the playgroups afforded to vulnerable families to reduce social isolation. Conclusions The potential for supported playgroups to improve a broad range of learning and psychosocial outcomes for children and parents was suggested by many of the research studies. However, the nature of the research designs employed means that it is not possible to conclude that there is strong evidence of the impact of supported playgroups on child, parent, and community outcomes. The qualitative studies did provide rich descriptions about the implementation processes of playgroups and also captured the variability in the delivery of the playgroups in terms of who participated, local contextual factors that impacted on the playgroup experiences, and the nature of the experiences of parents within the playgroups. Research methodologies need to be employed that address the limitations of the studies to date. This would provide more defensible evidence that supported playgroups have an impact over time on outcomes for children, families, and communities. Overall, this area of research remains relatively under-evaluated in terms of rigorous research designs. The identified research studies point to some promising research directions but do not yet enable strong claims to be made about the effectiveness of the standard playgroup or mobile playgroup models to impact on parenting outcomes. Data collected from interview and survey methodologies clearly identifies that supported playgroups are highly acceptable to families. Given the popularity of supported playgroups to engage families across diverse communities, and the reported high levels of satisfaction and benefits identified within many of the research studies, it is clear that the provision of supported playgroups is fulfilling an important community need by providing support to parents with young children. However, there is a need to strengthen the evidence base that supported playgroups are an effective early parenting intervention that improves outcomes for children, parents, and communities.