Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Infrared spectroscopic investigation of the effects of titania photocatalyst on the degradation of linear low density polyethylene film for commercial applications

There is a need in industry for a commodity polyethylene film with controllable degradation properties that will degrade in an environmentally neutral way, for applications such as shopping bags and packaging film. Additives such as starch have been shown to accelerate the degradation of plastic films, however control of degradation is required so that the film will retain its mechanical properties during storage and use, and then degrade when no longer required. By the addition of a photocatalyst it is hoped that polymer film will breakdown with exposure to sunlight. Furthermore, it is desired that the polymer film will degrade in the dark, after a short initial exposure to sunlight. Research has been undertaken into the photo- and thermo-oxidative degradation processes of 25 ìm thick LLDPE (linear low density polyethylene) film containing titania from different manufacturers. Films were aged in a suntest or in an oven at 50 °C, and the oxidation product formation was followed using IR spectroscopy. Degussa P25, Kronos 1002, and various organic-modified and doped titanias of the types Satchleben Hombitan and Hunstsman Tioxide incorporated into LLDPE films were assessed for photoactivity. Degussa P25 was found to be the most photoactive with UVA and UVC exposure. Surface modification of titania was found to reduce photoactivity. Crystal phase is thought to be among the most important factors when assessing the photoactivity of titania as a photocatalyst for degradation. Pre-irradiation with UVA or UVC for 24 hours of the film containing 3% Degussa P25 titania prior to aging in an oven resulted in embrittlement in ca. 200 days. The multivariate data analysis technique PCA (principal component analysis) was used as an exploratory tool to investigate the IR spectral data. Oxidation products formed in similar relative concentrations across all samples, confirming that titania was catalysing the oxidation of the LLDPE film without changing the oxidation pathway. PCA was also employed to compare rates of degradation in different films. PCA enabled the discovery of water vapour trapped inside cavities formed by oxidation by titania particles. Imaging ATR/FTIR spectroscopy with high lateral resolution was used in a novel experiment to examine the heterogeneous nature of oxidation of a model polymer compound caused by the presence of titania particles. A model polymer containing Degussa P25 titania was solvent cast onto the internal reflection element of the imaging ATR/FTIR and the oxidation under UVC was examined over time. Sensitisation of 5 ìm domains by titania resulted in areas of relatively high oxidation product concentration. The suitability of transmission IR with a synchrotron light source to the study of polymer film oxidation was assessed as the Australian Synchrotron in Melbourne, Australia. Challenges such as interference fringes and poor signal-to-noise ratio need to be addressed before this can become a routine technique.

Murri Courts : Indigenous Magistrate Courts : communicating for better outcomes

In setting the scene for this paper, it is useful to briefly outline the history of the Queensland legal system. Our legal system was largely inherited from Britain, so it is, therefore, based in European-Western cultural and legal traditions. Alongside this, and over many thousands of years, Australian Indigenous communities devised their own socio-cultural-legal structures. As a result, when Indigenous people are drawn into interactions with our English-based law and court system, which is very different from Aboriginal law, they face particular disadvantages. Problems may include structural and linguistic differences, the complex language of the law and court processes, cultural differences, gender issues, problems of age, communication differences, the formalities of the courtroom, communication protocols used by judges, barristers, and court administrators, and particularly, the questioning techniques used by police and lawyers.

Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach?

The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.

A Knight without a Sword? The Effects of Audit Courts on Tax Morale

The intention of this paper is to analyse how audit courts affect tax morale, controlling in a multivariate analysis for a broad variety of potential factors. Switzerland, with its variety of audit-court competence among the cantons, has been analysed. With data from the ISSP [1998] (Swiss data 1999), evidence has been found that higher audit-court competence has a significantly positive effect on tax morale. Thus, the results in Switzerland suggest that in the cantons where audit courts are not just knights without swords; they help improve taxpayers' tax morale and thus citizens' intrinsic motivation to pay taxes.

An examination of the sentencing remarks of Indigenous and non-Indigenous criminal defendants in South Australia’s Higher Courts

Recent Australian research on Indigenous sentencing primarily explores whether disparities in sentencing outcomes exist. Little is known about how judges perceive or refer to Indigenous defendants and their histories, and how they interpret the circumstances of Indigenous defendants in justifying their sentencing decisions. Drawing on the ‘focal concerns’ approach, this study presents a narrative analysis of a sample of judges’ sentencing remarks for Indigenous and non-Indigenous criminal defendants convicted in South Australia’s Higher Courts. The analysis found that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that possibly reduced assessments of blameworthiness and risk for Indigenous defendants.

Sex and sentencing disparity in South Australia’s higher courts

In Australia, studies examining sex differences in sentencing are limited. Using data from South Australia’s higher courts, this article explores a study on the impact of sex on the decision to imprison and the length of imprisonment. After adjusting for past and current criminality, results showed that men were significantly more likely than women to be sentenced to a term of imprisonment and that when sentence length was decided, men received longer periods of incarceration. Furthermore, the study’s results suggest that different factors may be important in determining sentencing outcomes for women and men.

The design and testing of a daylighting device : optimising the energy and optical performance of Australian commercial buildings

The effective daylighting of multistorey commercial building interiors poses an interesting problem for designers in Australia’s tropical and subtropical context. Given that a building exterior receives adequate sun and skylight as dictated by location-specific factors such as weather, siting and external obstructions; then the availability of daylight throughout its interior is dependant on certain building characteristics: the distance from a window façade (room depth), ceiling or window head height, window size and the visible transmittance of daylighting apertures. The daylighting of general stock, multistorey commercial buildings is made difficult by their design limitations with respect to some of these characteristics. The admission of daylight to these interiors is usually exclusively by vertical windows. Using conventional glazing, such windows can only admit sun and skylight to a depth of approximately 2 times the window height. This penetration depth is typically much less than the depth of the office interiors, so that core areas of these buildings receive little or no daylight. This issue is particularly relevant where deep, open plan office layouts prevail. The resulting interior daylight pattern is a relatively narrow perimeter zone bathed in (sometimes too intense) light, contrasted with a poorly daylit core zone. The broad luminance range this may present to a building occupant’s visual field can be a source of discomfort glare. Furthermore, the need in most tropical and subtropical regions to restrict solar heat gains to building interiors for much of the year has resulted in the widespread use of heavily tinted or reflective glazing on commercial building façades. This strategy reduces the amount of solar radiation admitted to the interior, thereby decreasing daylight levels proportionately throughout. However this technique does little to improve the way light is distributed throughout the office space. Where clear skies dominate weather conditions, at different times of day or year direct sunlight may pass unobstructed through vertical windows causing disability or discomfort glare for building occupants and as such, its admission to an interior must be appropriately controlled. Any daylighting system to be applied to multistorey commercial buildings must consider these design obstacles, and attempt to improve the distribution of daylight throughout these deep, sidelit office spaces without causing glare conditions. The research described in this thesis delineates first the design optimisation and then the actual prototyping and manufacture process of a daylighting device to be applied to such multistorey buildings in tropical and subtropical environments.

Rights versus reality : the difficulty of providing 'access to English' in Queensland Courts

This report was developed out of a Legal Practitioner on Trust Account Fund grant from the Department of Justice and Attorney-General in Queensland, to review the Aboriginal English in the Courts Handbook. Judges, Magistrates, barristers and court staff were interviewed about the Handbook. The findings extend beyond Aboriginal English into access to English in Queensland Courts. Recommendations are made about language difficulties faced by witnessed and the ability to the courts to respond to them.

Indigeneity and the judicial decision to imprison : a study of Western Australia’s higher courts

Internationally, sentencing research has largely neglected the impact of Indigeneity on sentencing outcomes. Using data from Western Australia’s higher courts for the years 2003–05, we investigate the direct and interactive effects of Indigenous status on the judicial decision to imprison. Unlike prior research on race/ethnicity in which minority offenders are often found to be more harshly treated by sentencing courts, we find that Indigenous status has no direct effect on the decision to imprison,after adjusting for other sentencing factors (especially past and current criminality).However, there are sub-group differences: Indigenous males are more likely to receive a prison sentence compared to non-Indigenous females. We draw on the focal concerns perspective of judicial decision making in interpreting our findings.

Assessment of commercial network RTK user positioning performance over long inter-station distances

The paper provides an assessment of the performance of commercial Real Time Kinematic (RTK) systems over longer than recommended inter-station distances. The experiments were set up to test and analyse solutions from the i-MAX, MAX and VRS systems being operated with three triangle shaped network cells, each having an average inter-station distance of 69km, 118km and 166km. The performance characteristics appraised included initialization success rate, initialization time, RTK position accuracy and availability, ambiguity resolution risk and RTK integrity risk in order to provide a wider perspective of the performance of the testing systems. ----- ----- The results showed that the performances of all network RTK solutions assessed were affected by the increase in the inter-station distances to similar degrees. The MAX solution achieved the highest initialization success rate of 96.6% on average, albeit with a longer initialisation time. Two VRS approaches achieved lower initialization success rate of 80% over the large triangle. In terms of RTK positioning accuracy after successful initialisation, the results indicated a good agreement between the actual error growth in both horizontal and vertical components and the accuracy specified in the RMS and part per million (ppm) values by the manufacturers. ----- ----- Additionally, the VRS approaches performed better than the MAX and i-MAX when being tested under the standard triangle network with a mean inter-station distance of 69km. However as the inter-station distance increases, the network RTK software may fail to generate VRS correction and then may turn to operate in the nearest single-base RTK (or RAW) mode. The position uncertainty reached beyond 2 meters occasionally, showing that the RTK rover software was using an incorrect ambiguity fixed solution to estimate the rover position rather than automatically dropping back to using an ambiguity float solution. Results identified that the risk of incorrectly resolving ambiguities reached 18%, 20%, 13% and 25% for i-MAX, MAX, Leica VRS and Trimble VRS respectively when operating over the large triangle network. Additionally, the Coordinate Quality indicator values given by the Leica GX1230 GG rover receiver tended to be over-optimistic and not functioning well with the identification of incorrectly fixed integer ambiguity solutions. In summary, this independent assessment has identified some problems and failures that can occur in all of the systems tested, especially when being pushed beyond the recommended limits. While such failures are expected, they can offer useful insights into where users should be wary and how manufacturers might improve their products. The results also demonstrate that integrity monitoring of RTK solutions is indeed necessary for precision applications, thus deserving serious attention from researchers and system providers.