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.

When can a tenancy be terminated under s 129 of the Property Law Act 1974 (Qld)?

This article reviews the nature and purpose of s 129 of the Property Law Act 1974 (Qld) whose application has given rise to some confusion in the past, particularly where the lessee against whom it is being used is also in breach of the lease at the time of receiving the notice. The article explores the historical origins of the section, firstly in New South Wales where it was enacted in 1930, and attempts to outline modern circumstances where it may be applied or particularly applied in Queensland.

A new approach to estimating trends in chlamydia incidence

Objectives Directly measuring disease incidence in a population is difficult and not feasible to do routinely. We describe the development and application of a new method of estimating at a population level the number of incident genital chlamydia infections, and the corresponding incidence rates, by age and sex using routine surveillance data. Methods A Bayesian statistical approach was developed to calibrate the parameters of a decision-pathway tree against national data on numbers of notifications and tests conducted (2001-2013). Independent beta probability density functions were adopted for priors on the time-independent parameters; the shape parameters of these beta distributions were chosen to match prior estimates sourced from peer-reviewed literature or expert opinion. To best facilitate the calibration, multivariate Gaussian priors on (the logistic transforms of) the time-dependent parameters were adopted, using the Matérn covariance function to favour changes over consecutive years and across adjacent age cohorts. The model outcomes were validated by comparing them with other independent empirical epidemiological measures i.e. prevalence and incidence as reported by other studies. Results Model-based estimates suggest that the total number of people acquiring chlamydia per year in Australia has increased by ~120% over 12 years. Nationally, an estimated 356,000 people acquired chlamydia in 2013, which is 4.3 times the number of reported diagnoses. This corresponded to a chlamydia annual incidence estimate of 1.54% in 2013, increased from 0.81% in 2001 (~90% increase). Conclusions We developed a statistical method which uses routine surveillance (notifications and testing) data to produce estimates of the extent and trends in chlamydia incidence.

Protecting encrypted cookies from compression side-channel attacks

Compression is desirable for network applications as it saves bandwidth; however, when data is compressed before being encrypted, the amount of compression leaks information about the amount of redundancy in the plaintext. This side channel has led to successful CRIME and BREACH attacks on web traffic protected by the Transport Layer Security (TLS) protocol. The general guidance in light of these attacks has been to disable compression, preserving confidentiality but sacrificing bandwidth. In this paper, we examine two techniques - heuristic separation of secrets and fixed-dictionary compression|for enabling compression while protecting high-value secrets, such as cookies, from attack. We model the security offered by these techniques and report on the amount of compressibility that they can achieve.

Incentivising tenants to stay the term – will clawbacks be enforceable?

Incentives are commonly offered by commercial landlords to tenants in the form of short term rent deductions or contributions to the tenant’s fitout. Usually these incentives are conditional upon the lessee remaining in the premises for the term of the lease with an obligation on the tenant to repay a proportion of the fitout contribution and rent deductions upon early termination or assignment. While the enforceability of clawback provisions has always been unclear, there was commercial benefit to landlords in maintaining high rentals on the face of the lease and attracting good quality tenants through fitout contributions. The use of clawback provisions as part of these incentives was recently analysed by the Queensland Supreme Court through the lens of the penalties doctrine in GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264, with a negative outcome for the landlord. Unless the decision is overturned on appeal, the salient message for landlords is that repayment of incentives for any reason, not just a breach of the lease, is unlikely to be enforceable.

Streamlined research funding using short proposals and accelerated peer review : an observational study

Background Despite the widely recognised importance of sustainable health care systems, health services research remains generally underfunded in Australia. The Australian Centre for Health Services Innovation (AusHSI) is funding health services research in the state of Queensland. AusHSI has developed a streamlined protocol for applying and awarding funding using a short proposal and accelerated peer review. Method An observational study of proposals for four health services research funding rounds from May 2012 to November 2013. A short proposal of less than 1,200 words was submitted using a secure web-based portal. The primary outcome measures are: time spent preparing proposals; a simplified scoring of grant proposals (reject, revise or accept for interview) by a scientific review committee; and progressing from submission to funding outcomes within eight weeks. Proposals outside of health services research were deemed ineligible. Results There were 228 eligible proposals across 4 funding rounds: from 29% to 79% were shortlisted and 9% to 32% were accepted for interview. Success rates increased from 6% (in 2012) to 16% (in 2013) of eligible proposals. Applicants were notified of the outcomes within two weeks from the interview; which was a maximum of eight weeks after the submission deadline. Applicants spent 7 days on average preparing their proposal. Applicants with a ranking of reject or revise received written feedback and suggested improvements for their proposals, and resubmissions composed one third of the 2013 rounds. Conclusions The AusHSI funding scheme is a streamlined application process that has simplified the process of allocating health services research funding for both applicants and peer reviewers. The AusHSI process has minimised the time from submission to notification of funding outcomes.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Emissions Trading and WTO Law: A Global Analysis

Emissions trading schemes have been introduced throughout the world in order to achieve an environmental end. In the pursuit of reducing greenhouse gas emissions, these schemes will have a direct impact on the global economy. This book examines the details of emissions trading schemes through the lens of the World Trade Organization (WTO) law. Emissions trading schemes both implemented and proposed will be deconstructed to understand whether they will have a single uniform legal status within the WTO law, or indeed whether the legal status of the units of trade will differ on a case-by-case basis. This book examines non-discrimination provisions and exceptions within four significant WTO ‘covered agreements’. This analysis will be undertaken with a goal to understand how emissions trading scheme measures may be labelled and treated by WTO dispute settlement bodies. Moreover, the narrative of this publication demonstrates where decisions must be made by WTO Members in relation to the legal treatment of emissions trading units and liabilities. The aim of the book is to consider the issues associated with emissions trading that arise within the existing WTO law. This monograph will consider emissions trading schemes through the lens of WTO law to establish how these schemes will be defined, where they may potentially breach the non-discrimination provisions of the law and, whether the WTO law should be amended through Member agreement in order to accommodate these schemes. The book is an adaptation of a PhD thesis, which is an analysis of one emissions trading framework – the Australian Clean Energy Package – using WTO law as the theoretical framework. The aim of the proposed monograph is to increase the scope of analysis from the Clean Energy Package to emissions trading schemes more generally. It is envisaged that to do this effectively, examples of frameworks that have been proposed and implemented by various WTO members must be used as case studies for both WTO compliance and non-compliance.

Process quality indicators targeting cognitive impairment to support quality of care for older people with cognitive impairment in emergency departments

Objectives The objective of this study was to develop process quality indicators (PQIs) to support the improvement of care services for older people with cognitive impairment in emergency departments (ED). Methods A structured research approach was taken for the development of PQIs for the care of older people with cognitive impairment in EDs, including combining available evidence with expert opinion (phase 1), a field study (phase 2), and formal voting (phase 3). A systematic review of the literature identified ED processes targeting the specific care needs of older people with cognitive impairment. Existing relevant PQIs were also included. By integrating the scientific evidence and clinical expertise, new PQIs were drafted and, along with the existing PQIs, extensively discussed by an advisory panel. These indicators were field tested in eight hospitals using a cohort of older persons aged 70 years and older. After analysis of the field study data (indicator prevalence, variability across sites), in a second meeting, the advisory panel further defined the PQIs. The advisory panel formally voted for selection of those PQIs that were most appropriate for care evaluation. Results In addition to seven previously published PQIs relevant to the care of older persons, 15 new indicators were created. These 22 PQIs were then field tested. PQIs designed specifically for the older ED population with cognitive impairment were only scored for patients with identified cognitive impairment. Following formal voting, a total of 11 PQIs were included in the set. These PQIs targeted cognitive screening, delirium screening, delirium risk assessment, evaluation of acute change in mental status, delirium etiology, proxy notification, collateral history, involvement of a nominated support person, pain assessment, postdischarge follow-up, and ED length of stay. Conclusions This article presents a set of PQIs for the evaluation of the care for older people with cognitive impairment in EDs. The variation in indicator triggering across different ED sites suggests that there are opportunities for quality improvement in care for this vulnerable group. Applied PQIs will identify an emergency services' implementation of care strategies for cognitively impaired older ED patients. Awareness of the PQI triggers at an ED level enables implementation of targeted interventions to improve any suboptimal processes of care. Further validation and utility of the indicators in a wider population is now indicated.

Phenomenology and Extreme Sports in Natural Landscapes

Husserl reminded us of the imperative to return to the Lebensweldt, or life-world. He was preoccupied with the crisis of Western science which alienated the experiencing self from the world of immediate experience. Immediate experience provides a foundation for what it means to be human. Heidegger, building upon these ideas, foresaw a threat to human nature in the face of ‘technicity’. He argued for a return to a relationship between ‘authentic self’ and nature predicated upon the notion of ‘letting be’ in which humans are open to the mystery of being. Self and nature are not conceived as alienated entities but as aspects of a single entity. In modern times, separation between self and the world is further evidenced by scientific rational modes of being exemplified through consumerism and the incessant use of screen-based technology which dominate human experience. In contrast, extreme sports provide an opportunity for people to return to the life-world by living in relation to the natural world. Engagement in extreme sports enables a return to authenticity as we rediscover self as part of nature.

Claiming the moral high ground in the copyright wars

Copyright was once one of the more obscure areas of law. It applied primarily to resolve disputes between rival publishers, and there was a time, not too long ago, when ordinary people gave it no thought. Copyright disputes were like subatomic particles: everyone knew that they existed, but nobody had ever seen one. In the digital age, however, copyright has become a heated, passionate, bloody battleground. The 'copyright wars' now pitch readers against authors, pirates against publishers, and content owners against communications providers. Everyone has heard a movie producer decry the rampant infringement of streaming sites, or a music executive suggest that BitTorrent is the end of civilisation as we know it. But everyone infringes copyright on an almost constant basis - streaming amateur videos with a soundtrack that isn't quite licensed, filesharing mp3s, copying LOLcat pictures from Facebook, posting pictures on Pinterest without permission, and so on - and most know full well they're in breach of the law.

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.

‘Not a criminal in the classic sense': @DrRimmer on the sentencing of Jono Moylan #leardblockade #standwithjono

On July 25, 2014, Justice David Davies sentenced Jonathan Moylan at the Supreme Court of New South Wales for a breach of section 1041E (1) of the Corporations Act 2001 (Cth). The ruling is a careful and deliberate decision, showing equipoise. Justice Davies has a reputation for being a thoughtful and philosophical adjudicator. The judge convicted and sentenced Moylan to imprisonment for 1 year and 8 months. The judge ordered that Moylan be “immediately released upon giving security by way of recognisance in the sum of $1000 to be of good behaviour for a period of 2 years commencing today”.

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.

Race against time: The export of essential medicines to Rwanda

This article considers the significance of the first export of essential medicines under the WTO General Council Decision 2003. In July 2007, Rwanda became the first country to provide a notification under the WTO General Council Decision 2003 of its intent to import a fixed-dose, triple combination HIV/AIDS drug manufactured by the Canadian generic pharmaceuticalmanufacturer Apotex, Inc. In September 2007, Apotex was granted the first compulsory licence application under Canada's Access to Medicines Regime. This article considers the convoluted and protracted negotiations between the Government of Rwanda, Apotex and three patent holders, GlaxoSmithKline, Boehringer Ingleheim Canada and Shire BioChemical, Inc. It questions the efficiency of this process. This article considers the review of the Jean Chretien Pledge to Africa Act 2004 (Canada). It is critical of the refusal of the Conservative Government of Canada to make any amendments to the legislation to improve the cost-effective delivery of essential medicines. This article queries the proposed Hong Kong Amendment to the TRIPS Agreement 1994, given the concerns of the Africa Group. It is submitted that it is undesirable to codify the WTO General Council Decision 2003, given its failure to provide a speedy, efficient and cost-effective delivery of essential medicines.