The Law of Real Property Mortgages [2nd. Ed.]

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage, including vitiating factors in formation, mortgagees’ powers and duties and mortgagors’ rights – both statutory and other – as well as assignment, insurance and discharge. It focuses exclusively on real estate mortgages and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. In its detailed consideration of the rights and obligations of mortgagors and mortgagees, it covers topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage, together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor, and the rights and liabilities associated with a receivership regime initiated by

Statutory right of user - its impact in practice?

Scenario 1 A buys a two storey commercial building built along the only street frontage to the property. Vehicles cannot reach the rear of the property as the building extends across the entire width of the land. A bought the building with full knowledge that vehicular access to the rest of the property had been compromised by a desire to obtain maximum street frontage for the building which was occupied by a commercial tenant. On street parking is scarce in the surrounding area. A (to the knowledge of the adjoining owner B) constructs a carpark at the rear of the building. The employees of A’s tenant have been using the carpark obtaining access via a driveway on B’s land. To formalise this arrangement, A seeks a right of way for vehicles to travel down B’s driveway to access the carpark...

The human embryo as property? Cryopreservation and the challenges for law

The development of the new reproductive technologies has presented significant challenges for policy makers and law reformers. This article focuses on the particular challenges posed by cryopreservation of embryos. These issues are analysed through discussion of relevant Australian statutory provisions and United States case law. The article concludes with a consideration of whether the property model provides an appropriate framework for reproductive material.

Analysing the Prospects of a Successful Application Under s 180 of the Property Law Act 1974 (Qld)

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. In recent years, the Queensland courts have been confronted with a number of such applications. Litigation has also been common in New South Wales which has a statutory provision in largely similar terms. This article seeks to identify those factors that have underpinned successful applications, the obstacles that an applicant may encounter and the considerations that have guided the courts when considering the associated issues of compensation and costs.

Application to set aside statutory demand

In C & E Pty Ltd v Corrigan [2006] QCA 47, the Queensland Court of Appeal considered whether r103 of the Uniform Civil Procedure Rules applied to the service of an application to set aside a statutory demand under s459G of the Corporations Act 2001 (Cth). The decision provides analysis and clarification of an issue that has clearly been one of some uncertainty.

The rule of law, the public interest and the management of natural resources in Australia

The statutory arrangements for the management of natural resources in Australia confer powers of decision-making upon government agencies and, at the same time, restrict how these powers are to be exercised by reference either to stated criteria or in some instances to the public interest. These restrictions perform different functions according to their structure, form and language: for example they may be in the form of jurisdictional, deliberative or purposive rules. This article reviews how the offshore resources legislation of the Commonwealth and some examples of the onshore resources legislation of Queensland address the functions performed by the public interest in determining whether there is compliance with the principle of the rule of law.

A Statutory interpretation EXperience : putting the SEX into statutory interpretation

With the growing proliferation of statute laws, the skill of statutory interpretation is an increasingly important aspect of legal practice. Despite the importance, statutory interpretation can be a challenging area of law to teach to undergraduate law students, who may find the topic dry and disengaging when taught through traditional methods. Such disengagement may adversely affect knowledge retention, particularly if the material is taught in the first or second year of study and not explicitly reinforced in subsequent years. Concern over the present standard of statutory interpretation skills being exhibited by practitioners, has prompted the Chief Justice of the Supreme Court of Queensland to contact law schools, enquiring how and to what extent statutory interpretation is being taught...

Book Review : "Statutory Will Applications : A practical Guide by Richard Williams and Sam McCullough"

The jurisdiction of Australian courts to make wills for those lacking testamentary capacity is relatively new, having been granted by legislation progressively enacted across the various states and territories between 1996 and 2010. Given increasing numbers of statutory will applications since the legislative reform, and a growing body of law, the publication of the specialist work, Statutory Will Applications: A Practical Guide, by Richard Williams and Sam McCullough, is timely and valuable. This work will be of great interest to those who act for individual clients, especially wills and estates practitioners, but also personal injury practitioners acting for incapacitated persons who have been awarded substantial damages.

Book Review : "Statutory will Applications in Australia : A Practical Guide by Richard Williams & Sam McCullough"

Although UK courts have, for many years, had power to make wills for those lacking testamentary capacity, this jurisdiction jurisdiction is relatively new in Australia, having been granted by legislation enacted between 1996 and 2010.

Work Health and Safety Law and Policy

The third edition of Work Health and Safety Law and Policy continues to provide a plain English approach to explaining and analysing the law which regulates work health and safety in Australia. Providing broad coverage, this book focuses on the role that legal regulation plays in preventing work-related injury and disease, as well as the way in which the law contributes to rehabilitating and compensating injured and ill workers. This third edition focuses on the national model Work Health and Safety Bill 2009. The provisions of the model Bill are outlined, along with court decisions and other documentation that help interpret the provisions in new legislation enacting the model Bill. There is also a chapter in the book examining the national model Work Health and Safety Regulations 2011, and model codes of practice. The book includes three chapters on common law, statutory workers’ compensation provisions and rehabilitation. Tables summarising the key legal provisions of the major Australian Commonwealth, State and Territory workers’ compensation statutes have been updated and give quick and easy reference to points of legislation.

Statutory occupational health and safety workplace arrangements for the modern labour market

Over the past 20 years there has been a significant refashioning of the labour market within Australia and other industrialised countries. This paper examines the implications of the growth of more flexible work arrangements for mechanisms designed to facilitate worker involvement in occupational health and safety at the workplace—a pivotal feature of post-Robens OHS legislation in Australia. It is argued that the growth of subcontracting, casual and home-based work has undermined both coverage and the effectiveness of these provisions, especially in a context where union membership and influence has also been declining. Looking at international experience, the paper examines a number of ways of remedying these deficiencies.

Engaging sex: Promoting the statutory interpretation experience in legal education

Given the ever increasing importance of legislation to the resolution of legal disputes, there is a concomitant need for law students to be well trained in the anatomy, identification, interpretation and application of laws made by or under parliament. This article discusses a blended learning project called Indigo’s Folly, implemented at the Queensland University of Technology Law School in 2014. Indigo’s Folly was created to increase law student competency with respect to statutory interpretation. Just as importantly, it was designed to make the teaching of statutory interpretation more interesting – to “bring the sexy” to the student statutory interpretation experience. Quantitative and qualitative empirical data will be presented as evidence to show that statutory interpretation can be taught in a way that law students find engaging.

An elegy for Greg Ham: Copyright law, the Kookaburra case, and remix culture

The ‘Kookaburra’ case was a tragic and controversial copyright dispute, highlighting the need for copyright law reform by the Australian Parliament. In the Kookaburra case, a copyright action was brought by Larrikin Records against Men at Work’s song ‘Down Under’, alleging copyright infringement of the ‘Kookaburra’ song composed by Marion Sinclair. The dispute raised a host of doctrinal matters. There was disquiet over the length of the copyright term. There were fierce contests as to the copyright ownership of the ‘Kookaburra’ song. The litigation raised questions about copyright infringement and substantiality – particularly in relation to musical works. The ‘Kookaburra’ case highlighted frailties in Australia’s regime of copyright exceptions. The litigation should spur the Australian Law Reform Commission to make recommendations for law reform in its inquiry Copyright and the Digital Economy. This article provides a critical evaluation of the options of a defence for transformative use; a defence for fair use; and statutory licensing. The ‘Kookaburra’ case also examines the question of appropriate remedies in respect of copyright infringement. The conclusion considers the implications of the Kookaburra case for other forms of musical works – including digital sampling, mash-ups, and creative remixes. It finishes with an elegy for Greg Ham – paying tribute to the multi-instrumentalist for Men at Work.

Compensation or consideration for a statutory right of user?

Section 180 of the Property Law Act 1974 (Qld) makes provision for an applicant to seek a statutory right of user over a neighbour’s property where such right of use is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. A key issue in an application under s 180 is compensation. Unfortunately, while s 180 expressly contemplates that an order for compensation will include provision for payment of compensation to the owner of servient land there are certain issues that are less clear. One of these is the basis for determination of the amount of compensation. In this regard, s 180(4)(a) provides that, in making an order for a statutory right of user, the court: (a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just The operation of this statutory provision was considered by de Jersey CJ (as he then was) in Peulen v Agius [2015] QSC 137.