Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Engagement party : the heart wants what it does

A 3hr large scale participatory installation/event that included live performance, video works,objects, fabric sculptures and was the result of a three month artist residency undertaken by Cam Lab (Jemima Wyman and Anna Mayer)at the Museum of Contemporary Art Los Angeles California. The exhibition transformed two adjoining spaces in the museum, taking design cues from permanent collection artworks currently on view and encouraged gallery visitors to oscillate between immersion and agency as they occupy the various perspectives proposed by the installation.

Party On! A call for entrepreneurship research that is more interactive, activity based, cognitively hot, compassionate, and prosocial

It is the Journal of Business Venturing's (JBV) 30th birthday. Although the community of entrepreneurship scholars deserves to celebrate JBV's achievements over the last 30 years (and congratulate the journal's parents—Ian Macmillan and S. Venkataraman), my focus is more on the future of entrepreneurship (and by extension JBV). A focus on entrepreneurship is both timeless and timely. On the one hand, entrepreneurship is timeless given the long-recognized importance of entrepreneurs to economies and societies (e.g., Jean Baptiste who supposedly coined the term in about 1800). On the other hand, a discussion of entrepreneurship is timely because now that the field of entrepreneurship has achieved legitimacy, it faces both opportunities and threats. It is thus timely to acknowledge the threats and think about opportunities to advance the field. A discussion of entrepreneurship is also timely because society faces a number of grand challenges (including the durability of poverty, environmental degradation [ Dorado and Ventresca, 2013]), challenges well suited to entrepreneurial responses...

from "The Roving Party"

They walked down through a dry creek bed lined with swamp gums grown so close together they appeared as one living whole. The men passed around these trees in single file, among sun shafts which pierced the canopy but threw no light upon their faces nor warmed their bones. In the gloom the air was thick with flies and the mushrooms grew like the sightless larvae of some queer and unnamed vermin. Before long they found themselves among a stand of trees which had been stripped of their bark for windbreaks. The naked trunks were carved over with bisected circles, detailings of the moon and sun, images of snakes and roo. The Parramatta men gazed at the finely wrought icons but John Batman found more to hold his attention. Pressed onto the flesh of the tree was a bloody handprint. Batman removed his hat and crouched to examine the ground and Black Bill joined him. One injured man had passed this way...

Statutory licences and third party dealings: Property analysis v statutory interpretation

Statutory licensing schemes are proliferating as a means of regulating commercial activity, resource exploitation and activities harmful to the environment. Statutes often declare that entitlements are non-transferable or are transferable only with approval or subject to conditions. Some entitlements, such as resource consents issued under the Resource Management Act 1991 (NZ), are declared not to be property. Despite these statutory declarations, entitlements are often held to be transferable in equity or to be property for the purposes of resolving private disputes. Recently, in Greenshell New Zealand Ltd v Tikapa Moana Enterprises Ltd, the High Court of New Zealand indicated that a resource consent was property that could support a claim for relief against forfeiture, continuing the trend in earlier cases that appear to depart from the statute. In this article we examine the juridical treatment of entitlements in private law. We identify factors influencing the courts’ enforcement of private arrangements which may circumvent the statutory intent. Our analysis will guide legislators in the design of provisions to implement new schemes.

A Novel Range Test

In a range test, one party holds a ciphertext and needs to test whether the message encrypted in the ciphertext is within a certain interval range. In this paper, a range test protocol is proposed, where the party holding the ciphertext asks another party holding the private key of the encryption algorithm to help him. These two parties run the protocol to implement the test. The test returns TRUE if and only if the encrypted message is within the certain interval range. If the two parties do not conspire, no information about the encrypted message is revealed from the test except what can be deduced from the test result. Advantages of the new protocol over the existing related techniques are that it achieves correctness, soundness, °exibility, high e±ciency and privacy simultaneously.

Password Based Server Aided Key Exchange

We propose a new password-based 3-party protocol with a formal security proof in the standard model. Under reasonable assumptions we show that our new protocol is more efficient than the recent protocol of Abdalla and Pointcheval (FC 2005), proven in the random oracle model. We also observe some limitations in the model due to Abdalla, Fouque and Pointcheval (PKC 2005) for proving security of such protocols.

Exchange relationships in building services maintenance activity : a test of transaction cost economics and the resource dependency view

The firm is faced with a decision concerning the nature of intra-organizational exchange relationships with internal human resources and the nature or inter-organizational exchange relationships with market firms. In both situations, the firm can develop an exchange that ranges from a discrete exchange to a relational exchange. Transaction Cost Economics (TCE) and the Resource Dependency View (RDV) represent alternative efficiency-based explanations fo the nature of the exchange relationship. The aim of the paper is to test these two theories in respect of air conditioning maintenance in retail centres. Multiple sources of information are genereated from case studies of Australian retail centres to test these theories in respoect of internalized operations management (concerning strategic aspects of air conditioning maintenance) and externalized planned routine air conditioning maintenance. The analysis of the data centres on pattern matching. It is concluded that the data supports TCE - on the basis of a development in TCE's contractual schema. Further research is suggested towards taking a pluralistic stance and developing a combined efficiency and power hypothesis - upon which Williamson has speculated. For practice, the conclusions also offer a timely cautionary note concerning the adoption of one approach in all exchange relationships.

Cooperation using a robotic ad hoc network made from Bluetooth, JXTA, OSGi and other commercial off the shelf (COTS) products

Abstract - Mobile devices in the near future will need to collaborate to fulfill their function. Collaboration will be done by communication. We use a real world example of robotic soccer to come up with the necessary structures required for robotic communication. A review of related work is done and it is found no examples come close to providing a RANET. The robotic ad hoc network (RANET) we suggest uses existing structures pulled from the areas of wireless networks, peer to peer and software life-cycle management. Gaps are found in the existing structures so we describe how to extend some structures to satisfy the design. The RANET design supports robot cooperation by exchanging messages, discovering needed skills that other robots on the network may possess and the transfer of these skills. The network is built on top of a Bluetooth wireless network and uses JXTA to communicate and transfer skills. OSGi bundles form the skills that can be transferred. To test the nal design a reference implementation is done. Deficiencies in some third party software is found, specifically JXTA and JamVM and GNU Classpath. Lastly we look at how to fix the deciencies by porting the JXTA C implementation to the target robotic platform and potentially eliminating the TCP/IP layer, using UDP instead of TCP or using an adaptive TCP/IP stack. We also propose a future areas of investigation; how to seed the configuration for the Personal area network (PAN) Bluetooth protocol extension so a Bluetooth TCP/IP link is more quickly formed and using the STP to allow multi-hop messaging and transfer of skills.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

Modeling key compromise impersonation attacks on group key exchange protocols

A key exchange protocol allows a set of parties to agree upon a secret session key over a public network. Two-party key exchange (2PKE) protocols have been rigorously analyzed under various models considering different adversarial actions. However, the analysis of group key exchange (GKE) protocols has not been as extensive as that of 2PKE protocols. Particularly, the security attribute of key compromise impersonation (KCI) resilience has so far been ignored for the case of GKE protocols. We first model the security of GKE protocols addressing KCI attacks by both outsider and insider adversaries. We then show that a few existing protocols are not secure even against outsider KCI attacks. The attacks on these protocols demonstrate the necessity of considering KCI resilience for GKE protocols. Finally, we give a new proof of security for an existing GKE protocol under the revised model assuming random oracles.

The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Open City, Rossellini and neorealism : sixty years on

For Bakhtin, it is always important to know from where one speaks. The place from which I speak is that of a person who grew up in Italy during the economic miracle (pre-1968) in a working class family, watching film matinees on television during school holidays. All sort of films and genres were shown: from film noir to westerns, to Jean Renoir's films, German expressionism, Italian neorealism and Italian comedy. Cinema has come to represent over time a sort of memory extension that supplements lived memory of events, and one which, especially, mediates the intersection of many cultural discourses. When later in life I moved to Australia and started teaching in film studies, my choice of a film that was emblematic of neorealism went naturally to Roma città aperta (Open city hereafter) by Roberto Rossellini (1945), and not to Paisan or Sciuscà or Bicycle Thieves. My choice was certainly grounded in my personal memory - especially those aspects transmitted to me by my parents, who lived through the war and maintained that Open City had truly made them cry. With a mother who voted for the Christian Democratic Party and a father who was a unionist, I thought that this was normal in Italian families and society. In the early 1960s, the Resistance still offered a narrative of suffering and redemption, shared by Catholics or Communists. This construction of psychological realism is what I believe Open City continues to offer in time.

Quality-based benefit design in health insurance : the impact of a product benefit design change on the utilisation of oral health services by members of a private health insurance fund in regional and rural New South Wales, Australia

Objective: To examine the impact on dental utilisation following the introduction of a participating provider scheme (Regional and Rural Oral Health Program {RROHP)). In this model dentists receive higher third party payments from a private health insurance fund for delivering an agreed range of preventive and diagnostic benefits at no out-ofpocket cost to insured patients. Data source/Study setting: Hospitals Contribution Fund of Australia (HCF) dental claims for all members resident in New South Wales over the six financial years from l99811999 to 200312004. Study design: This cohort study involves before and after analyses of dental claims experience over a six year period for approximately 81,000 individuals in the intervention group (HCF members resident in regional and rural New South Wales, Australia) and 267,000 in the control group (HCF members resident in the Sydney area). Only claims for individuals who were members of HCF at 31 December 1997 were included. The analysis groups claims into the three years prior to the establishment of the RROHP and the three years subsequent to implementation. Data collection/Extraction methods: The analysis is based on all claims submitted by users of services for visits between 1 July 1988 and 30 June 2004. In these data approximately 1,000,000 services were provided to the intervention group and approximately 4,900,000 in the control group. Principal findings: Using Statistical Process Control (SPC) charts, special cause variation was identified in total utilisation rate of private dental services in the intervention group post implementation. No such variation was present in the control group. On average in the three years after implementation of the program the utilisation rate of dental services by regional and rural residents of New South Wales who where members of HCF grew by 12.6%, over eight times the growth rate of 1.5% observed in the control group (HCF members who were Sydney residents). The differences were even more pronounced in the areas of service that were the focus of the program: diagnostic and preventive services. Conclusion: The implementation of a benefit design change, a participating provider scheme, that involved the removal of CO-payments on a defined range of preventive and diagnostic dental services combined with the establishment and promotion of a network of dentists, appears to have had a marked impact on HCF members' utilisation of dental services in regional and rural New South Wales, Australia.