Caveats - Limited extensions effectively unlimited

The decision of Young J in McCosker v Lovitt (1995) 12 BCL 146 paces an interpretation upon s 74J of the Real Property Act 1900 (NSW) likely to surprise the unwary respondent to proceedings in New South Wales involving an application for an order to extend a caveat. Further, the similarity in critical respects between s74J and the legislation relating to lapse and extension of caveats in some jurisdictions when contrasted with other lapse provisions suggests that a court order extending a caveat for a specified period only may have very different consequences in different jurisdictions.

Limitation of Actions - effect of admission of liability

The decision in Simpson v Lenton [2002] QDC 214 applied the decisions of the Court of Appeal in Lindsay v Smith [2002] 1 Qd R 610 and Morris v FAI General Insurance Co Ltd [1996] 1 QDR 495 in finding the second defendant, having admitted liability, was estopped from relying on the expiration of the limitation period.

Gratuitous services - Civil Liability Act 2003 s59

The article considers the decision of the Queensland Court of Appeal in Kritz v King [2006] QCA 351, which examined for the first time s59 of the Civil Liability Act 2003 (Qld) in relation to claims for damages for gratuitous services.

Re-framing planning decision-making : increasing flood resilience in Jakarta

Purpose – Rapid urbanisation, fragmented governance and recurrent flooding complicates resolution of DKI Jakarta’s chronic housing shortage. Failure to effectively implement planning decisionmaking processes poses potential human rights violations. Contemporary planning policy requires the relocation of households living in floodplains within fifteen metres of DKI Jakarta’s main watercourses; further constraining land availability and potentially requiring increased densification. The purpose of this paper is to re-frame planning decision-making to address risks of flooding and to increase community resilience. Design/methodology/approach – This paper presents a preliminary scoping study for a technologically enhanced participatory planning method, incorporating synthesis of existing information on urbanisation, governance, and flood risk management in Jakarta. Findings – Responsibility for flood risk management in DKI Jakarta is fragmented both within and across administrative boundaries. Decision-making is further complicated by: limited availability of land use data; uncertainty as to the delineated extent of watercourses, floodplains, and flood modelling; unclear risk and liability for infrastructure investments; and technical literacy of both public and government participants. Practical implications – This research provides information to facilitate consultation with government entities tasked with re-framing planning processes to increase public participation. Social implications – Reduction in risk exposure amongst DKI Jakarta’s most vulnerable populations addresses issues of social justice.

The economics of credence goods : an experiment on the role of liability, verifiability, reputation and competition

Credence goods markets are characterized by asymmetric information between sellers and consumers that may give rise to inefficiencies, such as under- and overtreatment or market breakdown. We study in a large experiment with 936 participants the determinants for efficiency in credence goods markets. While theory predicts that liability or verifiability yield efficiency, we find that liability has a crucial, but verifiability at best a minor, effect. Allowing sellers to build up reputation has little influence, as predicted. Seller competition drives down prices and yields maximal trade, but does not lead to higher efficiency as long as liability is violated. (JEL D12, D82)

OHS liability, corporate officers and corporate groups

This article examines the new model for corporate officer liability under section 144 of the Occupational Health and Safety Act 2004 (Vic), and explores the extent to which this might effectively extend responsibility for OHS offences to members of corporate groups, such as holding companies. In doing so, the authors canvass the failure of corporate law to impose such obligations on corporate officers in general, and on holding companies as shadow officers. It is argued that provisions such as section 144 of the Victorian Act should be included in all OHS legislation.

Medical negligence, causation and liability for non-disclosure of risk : a post-wallace framework and critique

Through an examination of Wallace v Kam, this article considers and evaluates the law of causation in the specific context of a medical practitioner’s duty to provide information to patients concerning material risks of treatment. To supply a contextual background for the analysis which follows, Part II summarises the basic principles of causation law, while Part III provides an overview of the case and the reasoning adopted in the decisions at first instance and on appeal. With particular emphasis upon the reasoning in the courts of appeal, Part IV then examines the implications of the case in the context of other jurisprudence in this field and, in so doing, provides a framework for a structured consideration of causation issues in future non-disclosure cases under the Australian civil liability legislation. As will become clear, Wallace was fundamentally decided on the basis of policy reasoning centred upon the purpose behind the legal duty violated. Although the plurality in Rogers v Whitaker rejected the utility of expressions such as ‘the patient’s right of self-determination’ in this context, some Australian jurisprudence may be thought to frame the practitioner’s duty to warn in terms of promoting a patient’s autonomy, or right to decide whether to submit to treatment proposed. Accordingly, the impact of Wallace upon the protection of this right, and the interrelation between it and the duty to warn’s purpose, is investigated. The analysis in Part IV also evaluates the courts’ reasoning in Wallace by questioning the extent to which Wallace’s approach to liability and causal connection in non-disclosure of risk cases: depends upon the nature and classification of the risk(s) in question; and can be reconciled with the way in which patients make decisions. Finally, Part V adopts a comparative approach by considering whether the same decision might be reached if Wallace was determined according to English law.

Resolving the conflicts of sustainable world heritage landscapes in cities : fully open or limited access for visitors?

World Heritage Landscapes (WHLs) are receiving increased attention from researchers, urban planners, managers, and policy makers and many heritage values and resources are becoming irreversibly lost. This phenomenon is especially prominent for WHLs located in cities, where greater development opportunities are involved. Decision making for sustainable urban landscape planning, conservation and management of WHLs often takes place from an economic perspective, especially in developing countries. This, together with the uncertain source of funding to cover WHL operating and maintenance costs, has resulted in many urban managers seeking private sector funding either in the form of visitor access fees or leasing part of the site for high-rental facilities such as five star hotels, clubs and expensive restaurants. For the former, this can result in low-income urban citizens being unable to afford the access fees and hence contradicting the principle of equal access for all; while, for the latter, the principle of open access for all is equally violated. To resolve this conflict, a game model is developed to determine how urban managers should allocate WHL spaces to maximize the combination of economic, social and ecological benefits and cultural values. A case study is provided of the Hangzhou's West Lake Scenic Area, a WHL located at the centre of Hangzhou city, in which several high-rental facilities have recently been closed down by the local authorities due to charges of elitism and misuse of public funds by government officials. The result shows that the best solution is to lease a small space with high rents and leave the remainder of the site to the public. This solution is likely to be applicable only in cities with a strong economy.

Book review - Richard Goldberg, Medicinal Product Liability and Regulation (Hart Publishing, Oxford, 2013) 214pp

In December 2013, settlement was reached between approximately 100 Australian and New Zealand Thalidomide victims and the company which had acted as the Australian distributor of the infamous drug, thus putting to rest the possibility of litigation. Around the same time, Thalidomide victims in the United Kingdom (UK) launched a similar bid for compensation against the manufacturer and distributor. It is clear that despite a lengthy amount of time having passed ever since the thalidomide disaster commenced in 1962, the controversy over compensation continues. Indeed, the author of Medicinal Product Liability and Regulation (published before the announcement of the British legal claim), Professor Goldberg, notes that claims for resulting birth defects continue to emerge right into the present day. His prescient insight into the contemporary relevance of compensation for pharmaceutical injuries thus makes Medicinal Product Liability and Regulation a very relevant addition to the small body of scholarship that is available on this rather specific and complex issue.

Duty and control in intermediary copyright liability: An Australian perspective

In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; sometimes – as in the case of ISPs – they are not. In 2012, the Australian High Court decided the Roadshow Films v iiNet case, in which it held that an Australian ISP was not liable under copyright’s authorization doctrine, which asks whether the intermediary has sanctioned, approved or countenanced the infringement. The Australian Copyright Act 1968 directs a court to consider, in these situations, whether the intermediary had the power to prevent the infringement and whether it took any reasonable steps to prevent or avoid the infringement. It is generally not difficult for a court to find the power to prevent infringement – power to prevent can include an unrefined technical ability to disconnect users from the copyright source, such as an ISP terminating users’ internet accounts. In the iiNet case, the High Court eschewed this broad approach in favor of focusing on a notion of control that was influenced by principles of tort law. In tort, when a plaintiff asserts that a defendant should be liable for failing to act to prevent harm caused to the plaintiff by a third party, there is a heavy burden on the plaintiff to show that the defendant had a duty to act. The duty must be clear and specific, and will often hinge on the degree of control that the defendant was able to exercise over the third party. Control in these circumstances relates directly to control over the third party’s actions in inflicting the harm. Thus, in iiNet’s case, the control would need to be directed to the third party’s infringing use of BitTorrent; control over a person’s ability to access the internet is too imprecise. Further, when considering omissions to act, tort law differentiates between the ability to control and the ability to hinder. The ability to control may establish a duty to act, and the court will then look to small measures taken to prevent the harm to determine whether these satisfy the duty. But the ability to hinder will not suffice to establish liability in the absence of control. This article argues that an inquiry grounded in control as defined in tort law would provide a more principled framework for assessing the liability of passive intermediaries in copyright. In particular, it would set a higher, more stable benchmark for determining the copyright liability of passive intermediaries, based on the degree of actual, direct control that the intermediary can exercise over the infringing actions of its users. This approach would provide greater clarity and consistency than has existed to date in this area of copyright law in Australia.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

MATLAB/Simulink simulation and C2000 code generation model for a grid-interactive 3-phase 4-wire inverter

This work is a MATLAB/Simulink model of a controller for a three-phase, four-wire, grid-interactive inverter. The model provides capacity for simulating the performance of power electroinic hardware, as well as code generation for an embedded controller. The implemented hardware topology is a three-leg bridge with a neutral connection to the centre-tap of the DC bus. An LQR-based current controller and MAF-based phase detector are implemented. The model is configured for code generation for a Texas Instruments TMS320F28335 Digital Signal Processor (DSP).

Integrated reporting and directors’ concerns about personal liability exposure: Law reform options

Integrated reporting () holds significant promise as a new reporting paradigm that is holistic, strategic, responsive, material, and relevant across multiple time frames. However, its uptake in Australia is being hampered by directors’ concerns about personal liability exposure, particularly for forward-looking statements that subsequently prove to be unfounded. This article seeks to illuminate the bases for these liability concerns by outlining the similarities between and the operating and financial review requirements under the Corporations Act 2001 (Cth), and the relevant grounds for liability for misleading and deceptive disclosures, and breach of directors’ duties. In light of this discussion, this article proposes four possible reform options, ranging from minor adaptations to the Framework to far-reaching reforms of the Corporations Act. As assurance is desirable to ensure that reliance can be placed on integrated reports, the development of a legal safe harbour for auditors of forward-looking information is also canvassed.