Do we have a legally binding contract?

Legal advisers are often called upon to advise whether informal correspondence between clients may give rise to a binding contract. The decision of Mullins J in Teviot Downs Estate Pty Ltd v MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park) Property Pty Ltd [2003] QSC 403 provides general guidance as to matters that may be relevant when faced with this thorny issue.

Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Compensation for compulsory acquisition of a licensed car parking space

The Acquisition of Land Act 1967 (Qld) (‘the Act’) deals with the acquisition of land by the State for public purposes and provides for compensation. The issue that arose for determination in Sorrento Medical Service Pty Ltd v Chief Executive, Dept of Main Roads [2007] QCA 73 was whether the appellant was entitled to claim compensation under the Act in respect of land resumed by the Main Roads Department over which the appellant had an exclusive contractual licence for car parking spaces for use in association with a medical centre leased by the appellant. At first instance, it was held by the Land Court that the appellant was not entitled to compensation for the resumption of the car parking spaces. The basis for this decision by the Land Court was that a right to compensation only exists where resumption has taken some proprietary interest of the claimant in the land. Following an appeal to the Land Appeal Court being dismissed, the appellant instituted the present appeal to the Queensland Court of Appeal (McMurdo P, Holmes JA and Chesterman J).

Amendments to the Land Title Act 1994 (Qld)

Wholesale amendments to the Land Title Act 1994 (Qld) were recently introduced with the passing of the Natural Resources and Other Legislation Amendment Act 2005 (Qld). The amendments were preceded by an extensive review of issues associated with the operation of the freehold land register and consultation with a number of stakeholders. The three articles that follow address different issues associated with these statutory amendments. The first article provides a brief overview of the amendments. The second article deals with particular amendments designed to combat mortgage fraud. In the third article, the question posed is whether further statutory amendment could better protect unregistered interests.

The requirement to 'Start a Proceeding' to prevent the lapse of a caveat

Section 126 of the Land Title Act 1994 (Qld) regulates whether, and if so, when a caveat will lapse. While certain caveats will not lapse due to the operation of s 126(1), if a caveator does not wish a caveat to which the section applies to lapse, the caveator must start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat within the time limits specified in, and otherwise comply with the obligations imposed by, s 126(4). The requirement, in s 126(4), to “start a proceeding” was the subject of judicial examination by the Court of Appeal (McMurdo P, Holmes JA and MacKenzie J) in Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192.

The role of legislative, executive and judicial mechanisms in ensuring a fair and effective asylum process

A good faith reading of core international protection obligations requires that states employ appropriate legislative, administrative and judicial mechanisms to ensure the enjoyment of a fair and effective asylum process. Restrictive asylum policies instead seek to ‘denationalize’ the asylum process by eroding access to national statutory, judicial and executive safeguards that ensure a full and fair hearing of an asylum claim. From a broader perspective, the argument in this thesis recognizes hat international human rights depend on domestic institutions for their effective implementation, and that a rights-based international legal order requires that power is limited, whether that power is expressed as an instance of the sovereign right of states in international law or as the authority of governments under domestic constitutions.

Assessing the awareness and importance of housing sustainability in Queensland

Sustainability has been a major factor and determinant of commercial property design, construction, retro-fitting and landlord and tenant requirements over the last decade, supported by the introduction of rating tools such as NABERS and GreenStar and the recently mandated Building Energy Efficiency Certificate (BEEC). However, the movement to sustainable and energy efficient housing has not been established for the same period, and although mandatory building regulations have been in place for new residential housing construction since 2004, the requirement to improve the sustainability and energy efficiency of housing constructed prior to 2004 has not been mandatory. Residential dwelling energy efficiency and rating schemes introduced in Australia over the past decade have included rating schemes such as BASIX, NatHERS, First rate, ACTHERS, and Building Code of Australia and these have applied to new dwelling construction. At both National and State level the use of energy efficiency schemes for existing residential dwellings has been voluntary and despite significant cash incentives have not always been successful or achieved widespread take-up. In 2010, the Queensland Government regulated that all homes offered for sale, whether a new or existing dwellings require the seller to provide a ―sustainability declaration‖ that provides details of the sustainability measures associated with the dwelling being sold. The purpose of this declaration being to inform buyers and increase community awareness of home sustainability features. This paper uses an extensive review of real estate marketing material, together with a comprehensive survey of real estate agents to analyse the current market compliance, awareness and acceptance of existing green housing regulations and the importance that residential property owners and purchasers place on energy efficient and sustainable housing. The findings indicate that there is still little community awareness or concern of sustainable housing features when making home purchase decisions.

Unreasonable withholding of consent?

In Cathmark Pty Ltd v NetherCott Constructions Pty Ltd [2011] QSC 86, Cullinane J was asked to consider whether a landlord had unreasonably withheld consent to a tenant’s proposed assignment of lease. In reaching a conclusion that the landlord had acted unreasonably, the decision provides useful guidance on an issue that is common in a proposed sale of business context.

Joinder to a later unsigned document?

It is well known that a statutory requirement of formality is associated with contracts concerning land. In this regard, s 59 of the Property Law Act 1974 (Qld) provides: No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised. In addition to the possibility of a formal contract, the statutory wording clearly contemplates reliance on an informal note or memorandum. To constitute a sufficient note or memorandum for the purposes of the statute, the signed note or memorandum must contain details of the parties to the contract, an adequate description of the property, the price and any other essential terms. It is also accepted that the doctrine of joinder may be invoked in circumstances where the document signed by the party to be charged contains an express or implied reference to any other document. In this way, a sufficient note or memorandum may be constituted by the joinder of a number of documents.

Development and evaluation of an integrated clinical learning model to inform continuing education for acute care nurses

Background Significant ongoing learning needs for nurses have occurred as a direct result of the continuous introduction of technological innovations and research developments in the healthcare environment. Despite an increased worldwide emphasis on the importance of continuing education, there continues to be an absence of empirical evidence of program and session effectiveness. Few studies determine whether continuing education enhances or develops practice and the relative cost benefits of health professionals’ participation in professional development. The implications for future clinical practice and associated educational approaches to meet the needs of an increasingly diverse multigenerational and multicultural workforce are also not well documented. There is minimal research confirming that continuing education programs contribute to improved patient outcomes, nurses’ earlier detection of patient deterioration or that standards of continuing competence are maintained. Crucially, evidence-based practice is demonstrated and international quality and safety benchmarks are adhered to. An integrated clinical learning model was developed to inform ongoing education for acute care nurses. Educational strategies included the use of integrated learning approaches, interactive teaching concepts and learner-centred pedagogies. A Respiratory Skills Update education (ReSKU) program was used as the content for the educational intervention to inform surgical nurses’ clinical practice in the area of respiratory assessment. The aim of the research was to evaluate the effectiveness of implementing the ReSKU program using teaching and learning strategies, in the context of organisational utility, on improving surgical nurses’ practice in the area of respiratory assessment. The education program aimed to facilitate better awareness, knowledge and understanding of respiratory dysfunction in the postoperative clinical environment. This research was guided by the work of Forneris (2004), who developed a theoretical framework to operationalise a critical thinking process incorporating the complexities of the clinical context. The framework used educational strategies that are learner-centred and participatory. These strategies aimed to engage the clinician in dynamic thinking processes in clinical practice situations guided by coaches and educators. Methods A quasi experimental pre test, post test non–equivalent control group design was used to evaluate the impact of the ReSKU program on the clinical practice of surgical nurses. The research tested the hypothesis that participation in the ReSKU program improves the reported beliefs and attitudes of surgical nurses, increases their knowledge and reported use of respiratory assessment skills. The study was conducted in a 400 bed regional referral public hospital, the central hub of three smaller hospitals, in a health district servicing the coastal and hinterland areas north of Brisbane. The sample included 90 nurses working in the three surgical wards eligible for inclusion in the study. The experimental group consisted of 36 surgical nurses who had chosen to attend the ReSKU program and consented to be part of the study intervention group. The comparison group included the 39 surgical nurses who elected not to attend the ReSKU program, but agreed to participate in the study. Findings One of the most notable findings was that nurses choosing not to participate were older, more experienced and less well educated. The data demonstrated that there was a barrier for training which impacted on educational strategies as this mature aged cohort was less likely to take up educational opportunities. The study demonstrated statistically significant differences between groups regarding reported use of respiratory skills, three months after ReSKU program attendance. Between group data analysis indicated that the intervention group’s reported beliefs and attitudes pertaining to subscale descriptors showed statistically significant differences in three of the six subscales following attendance at the ReSKU program. These subscales included influence on nursing care, educational preparation and clinical development. Findings suggest that the use of an integrated educational model underpinned by a robust theoretical framework is a strong factor in some perceptions of the ReSKU program relating to attitudes and behaviour. There were minimal differences in knowledge between groups across time. Conclusions This study was consistent with contemporary educational approaches using multi-modal, interactive teaching strategies and a robust overarching theoretical framework to support study concepts. The construct of critical thinking in the clinical context, combined with clinical reasoning and purposeful and collective reflection, was a powerful educational strategy to enhance competency and capability in clinicians.

Multiple evolutionary rate classes in animal genome evolution

The proportion of functional sequence in the human genome is currently a subject of debate. The most widely accepted figure is that approximately 5% is under purifying selection. In Drosophila, estimates are an order of magnitude higher, though this corresponds to a similar quantity of sequence. These estimates depend on the difference between the distribution of genomewide evolutionary rates and that observed in a subset of sequences presumed to be neutrally evolving. Motivated by the widening gap between these estimates and experimental evidence of genome function, especially in mammals, we developed a sensitive technique for evaluating such distributions and found that they are much more complex than previously apparent. We found strong evidence for at least nine well-resolved evolutionary rate classes in an alignment of four Drosophila species and at least seven classes in an alignment of four mammals, including human. We also identified at least three rate classes in human ancestral repeats. By positing that the largest of these ancestral repeat classes is neutrally evolving, we estimate that the proportion of nonneutrally evolving sequence is 30% of human ancestral repeats and 45% of the aligned portion of the genome. However, we also question whether any of the classes represent neutrally evolving sequences and argue that a plausible alternative is that they reflect variable structure-function constraints operating throughout the genomes of complex organisms.

Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Networks as a novel tool for studying team ball sports as complex social systems

This paper describes and evaluates the novel utility of network methods for understanding human interpersonal interactions within social neurobiological systems such as sports teams. We show how collective system networks are supported by the sum of interpersonal interactions that emerge from the activity of system agents (such as players in a sports team). To test this idea we trialled the methodology in analyses of intra-team collective behaviours in the team sport of water polo. We observed that the number of interactions between team members resulted in varied intra-team coordination patterns of play, differentiating between successful and unsuccessful performance outcomes. Future research on small-world networks methodologies needs to formalize measures of node connections in analyses of collective behaviours in sports teams, to verify whether a high frequency of interactions is needed between players in order to achieve competitive performance outcomes.

Review of refugee mental health assessment: Best practices and recommendations

This article focuses on mental health assessment of refugees in clinical, educational and administrative-legal settings in order to synthesise research and practice designed to enhance and promote further development of culturally appropriate clinical assessment services during the refugee resettlement process. It specifically surveys research published over the last 25 years into the development, reliability measurement and validity testing of assessment instruments, which have been used with children, adolescents and adults from refugee backgrounds, prior to or following their arrival in a resettlement country, to determine whether the instruments meet established crosscultural standards of conceptual, functional, linguistic, technical and normative equivalence. The findings suggest that, although attempts have been made to develop internally reliable, appropriately normed tests for use with refugees from diverse cultural and linguistic backgrounds, matters of conceptual and linguistic equivalence and test–retest reliability are often overlooked. Implications of these oversights for underreporting refugees' mental health needs are considered. Efforts should also be directed towards development of culturally comparable, valid and reliable measures of refugee children's mental health and of refugee children's and adults' psychoeducational, neuropsychological and applied memory capabilities.

The level and quality of Value-at-Risk disclosure by commercial banks

In this paper we study both the level of Value-at-Risk (VaR) disclosure and the accuracy of the disclosed VaR figures for a sample of US and international commercial banks. To measure the level of VaR disclosures, we develop a VaR Disclosure Index that captures many different facets of market risk disclosure. Using panel data over the period 1996–2005, we find an overall upward trend in the quantity of information released to the public. We also find that Historical Simulation is by far the most popular VaR method. We assess the accuracy of VaR figures by studying the number of VaR exceedances and whether actual daily VaRs contain information about the volatility of subsequent trading revenues. Unlike the level of VaR disclosure, the quality of VaR disclosure shows no sign of improvement over time. We find that VaR computed using Historical Simulation contains very little information about future volatility.