Equity in Australian estate litigation

Equitable claims are increasingly arising in Australian estate litigation, particularly in conjunction with family provision applications. Since the leading decision in Bridgewater v Leahy, in addition to undue influence and unconscionable bargain claims, actions based on equitable estoppel, constructive and resulting trusts, breach of fiduciary duty, and breach of legislative duties that mirror equitable obligations are increasingly being brought in contemporary estate litigation. Such litigation often raises challenging issues for claimants, including evidentiary hurdles and allegations of undue delay, especially when claims are made post-mortem in relation to inter vivos dealings with property. Accordingly, solicitors need to ensure that they fully understand the nature and potential application of equitable claims in estate litigation, or face the prospect of incurring liability to clients for professional negligence. This article explores recent trends in Australian estate litigation involving equitable claims.

Postpartum sleepiness and sleepy driving in Australian mothers

This paper reports on a prospective study investigating the prevalence of maternal postpartum fatigue and sleepiness and highlights the potential increased crash risk faced by mothers when driving in the postpartum period. Twenty-four mothers from across Australia completed a sleep and driving diary for seven consecutive days at three time points; when their baby was 6, 12 and 18 weeks old. The results showed that the mothers’ sleep varied within the sample, however on average sleep disruption and lack of sleep consolidation was experienced. A high proportion of the mothers reported fatigue and sleepiness impacting their functioning early in the postpartum period, with sleepiness being more enduring throughout the period. Of concern, a high proportion of driving journeys undertaken by the mothers were during high levels of sleepiness, particularly early in the postpartum period and during late night and early hours of the day. These findings have highlighted the need to educate mothers about the potential increased safety risk of driving during the postpartum period and identified key information that should be conveyed.

Withholding and withdrawing life-sustaining treatment in a patient's best interests : Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.

Enforcing upstream: Australian health and safety inspectors and upstream duty holders

The ‘new style’ occupational health and safety legislation implemented in Australia from the late 1970s changed the character of OHS legal obligations, establishing general duties supported by process, performance and, more rarely, specification standards,1 and extending obligations to those who propagate risks as designers, manufacturers, importers or suppliers — the ‘upstream duty holders’. This article examines how OHS agencies inspect and enforce OHS legislation upstream, drawing on empirical research in four Australian states and relevant case law. We argue that upstream duty holders are an increasing area of attention for OHS inspectorates but these inspectorates have not yet risen to the challenge of harnessing these parties to help stem, at the source, the flow of risks into workplaces.

The legal concept of work-related injury and disease in Australian OHS and workers' compensation systems

This paper analyses the concept of ‘work-relatedness’ in Australian workers’ compensation and occupational health and safety (OHS) systems. The concept of work-relatedness is important because it is a crucial element circumscribing the limits of the protection afforded to workers under the preventative OHS statutes, and is a threshold element which has to be satisfied before an injured or ill worker can recover statutory compensation. While the preventive and compensatory regimes do draw on some similar concepts of work-relatedness, as this paper will illustrate, there are significant differences both between, and within, these regimes.

Australian health and safety inspectors’ perceptions and actions in relation to changed work arrangements

Extensive international research points to an association between changed work arrangements, especially those commonly labelled as contingent work, with adverse occupational health and safety (OHS) outcomes. Research also indicates these work arrangements have weakened or bypassed existing OHS and workers’ compensation regulatory regimes. However, there has been little if any research into how OHS inspectors perceive these issues and how they address them during workplace visits or investigations. Between 2003 and 2007 research was undertaken that entailed detailed documentary and statistical analysis, extended interviews with 170 regulatory managers and inspectors, and observational data collected while accompanying inspectors on 118 ‘typical’ workplace visits. Key findings are that inspectors responsible for a range of industries see altered work arrangements as a serious challenge, especially labour hire (agency work) and subcontracting. Though the law imposes clear obligations, inspectors identified misunderstanding/blameshifting and poor compliance amongst parties to these arrangements. The complexity of these work arrangements also posed logistical challenges to inspectorates.

Young Australian adults' beliefs about alcohol's role in sexual aggression and victimisation

Beliefs and misconceptions about sex, gender, and rape have been explored extensively to explain people’s attributions concerning alcohol-involved sexual violence. However, less is known about the specific beliefs that people hold about how alcohol facilitates sexual aggression and victimisation. The present study aimed to identify these alcohol-related beliefs among young Australian adults. Six men and nine women (N = 15; 18-24 years) in focus groups (n = 13) and interviews (n = 2) were asked to discuss the role of alcohol in a hypothetical alcohol-involved rape. Using a consensual qualitative research methodology, the effects of alcohol that were seen to introduce, progress, and intensify risks for rape were: increased confidence; character transformation: impaired cognition; behavioural disinhibition; altered sexual negotiation; enhanced self-centredness; impaired awareness of wrongdoing; increased/decreased sexual assertiveness; and compromised self-protection. Some of the beliefs identified in this study are not currently captured in alcohol expectancy measures which assess people’s beliefs about alcohol’s effects on cognition, emotion, and behaviour. This study’s findings offer a conceptual basis for the development of a new alcohol expectancy measure that can be used in future rape-perception research.

Disability Standards For Education 2005 (Cth): sword or shield for Australian students with disability?

This article explains the scope and effect of the Disability Standards for Education 2005 (Cth) (the ‘Standards’) and considers whether they operate as a legislative sword or shield in respect of the battle to protect the education rights of people with disabilities in Australia. Evidence suggests that the Standards would be a more effective weapon if there were greater understanding of how they oblige education providers to make reasonable adjustments to their policies and practices to support access for and participation by students with disabilities.

Driver licensing experience of Korean Australian novice drivers

Graduated driver licensing has been shown to improve the safety of young drivers but relatively little is known about how well it works for drivers born in countries where the licensing system is less sophisticated. This research used Bronfenbrenner's ecological model to examine the driver licensing experience of Korean Australian young drivers using driver and parent focus groups and an online survey of drivers. Accumulating the required supervised driving was more difficult for international students than those living with parents and differences in road rules (particularly relating to seat belt use) between the countries exerted an important influence on behaviour.

Keeping international visitors safe on Australian beaches : informing the content of surf safety messages

In Australia, international tourists/visitors are one of the highest risk groups for drowning at beaches. Swimming in patrolled areas, between the flags, reduces the risk of drowning with most drownings occuring outside these areas. There is a need to understand beliefs which influence the extent to which international tourists/visitors intend to swim between the flags. The theory of planned behaviour (TPB) and, in particular, the indirect beliefs which underpin constructs in the model, represent a means of determining what factors influence this intention. The current study compared international visitors/tourists as having either low or high intentions to swim between the flags on a range of behavioural, normative, and control beliefs. A series of MANOVAs revealed significant differences between the groups in all three of the beliefs. The findings provide insight into potential foci for message content for use in educational campaigns aimed at keeping international visitors safe on Australian beaches.