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.

Book Review : "Statutory will Applications in Australia : A Practical Guide by Richard Williams & Sam McCullough"

Although UK courts have, for many years, had power to make wills for those lacking testamentary capacity, this jurisdiction jurisdiction is relatively new in Australia, having been granted by legislation enacted between 1996 and 2010.

Assessment of damages in wrongful birth cases

More than ten years has passed since the High Court of Australia confirmed the recoverability of damages for the cost of raising a child in the well know decision of Cattanach v Melchior . A recent decision of the Supreme Court of New South Wales was widely anticipated as potentially providing a comprehensive discussion of the principles relevant to the assessment of damages in wrongful birth cases.

Retrospective observational study of patients who present to Australian rural emergency departments with undifferentiated chest pain

Aim To identify the demographic and clinical characteristics of patients who present to Australian rural emergency departments with chest pain. Design Retrospective, observational study Setting Rural emergency departments (ED) in Queensland, Australia Participants 337 consecutive adult patients with undifferentiated chest pain that presented between 1st September 2013 and 30th November 2013. Main outcome measures Service indicators, discharge diagnoses and disposition Results Presentations for undifferentiated chest pain represented 3.5% of all patient presentations during the sampling period. The mean age of patients was 48 years and 54% were male. Overall, 92% of patients left the ED within the 4-hour NEAT target. The majority of presentations were related to cardiac concerns (39%), followed by non-cardiac chest pain (17%), musculoskeletal (15%) and respiratory (10%) conditions. More than half of these patients were discharged at the completion of the ED service (52.8%), 40.6% were admitted, 3.3% left at own risk, 2.4% did not wait and less than 1% of patients required transfer to another hospital directly from the ED. Conclusions This study has provided information on the characteristics and processes of care for patients presenting to Australian rural EDs with undifferentiated chest pain that will inform service planning and further research to evaluate the effectiveness of care for these patients.

Diagnostic potential of saliva : current state and future applications

BACKGROUND: Over the past 10 years, the use of saliva as a diagnostic fluid has gained attention and has become a translational research success story. Some of the current nanotechnologies have been demonstrated to have the analytical sensitivity required for the use of saliva as a diagnostic medium to detect and predict disease progression. However, these technologies have not yet been integrated into current clinical practice and work flow. CONTENT: As a diagnostic fluid, saliva offers advantages over serum because it can be collected noninvasively by individuals with modest training, and it offers a cost-effective approach for the screening of large populations. Gland-specific saliva can also be used for diagnosis of pathology specific to one of the major salivary glands. There is minimal risk of contracting infections during saliva collection, and saliva can be used in clinically challenging situations, such as obtaining samples from children or handicapped or anxious patients, in whom blood sampling could be a difficult act to perform. In this review we highlight the production of and secretion of saliva, the salivary proteome, transportation of biomolecules from blood capillaries to salivary glands, and the diagnostic potential of saliva for use in detection of cardiovascular disease and oral and breast cancers. We also highlight the barriers to application of saliva testing and its advancement in clinical settings. SUMMARY: Saliva has the potential to become a first-line diagnostic sample of choice owing to the advancements in detection technologies coupled with combinations of biomolecules with clinical relevance. (C) 2011 American Association for Clinical Chemistry

The special branch : governing mentalities through alternative-site placement

"…one should try to locate power at the extreme points of its exercise, where it is always less legal in character." (Foucault, 1980, p.97) Studies of schooling practices as techniques deriving from a particular art of governing that Foucault (2003b) called ‘governmentality’ have shown how psychopathologising discourses work to construct particular student-subjects and legitimise various practices of exclusion (Gram, 2007b). Here I extend this work to consider the use of alternative-site placement as an intensification in response to governmentality being put ‘at risk’. Governing ‘at a distance’ conjures an illusion of individual freedom which relies on the production of subjects who ‘choose’ to make choices that are consistent with the aspirations of government. In this chapter, it is argued that the designation of a child as ‘disorderly’ legitimises the intrusion of state into the private domain of the family via the Trojan horse of early intervention. This is enabled by the psy-sciences, whose technologies and aims amount to the moral retraining of ‘improper’ future-citizens who, in choosing to choose otherwise, threaten to make visible invisible relations of power. Alternative-site placement in special schools running intensive behaviour modification programs allows for a ‘redoubled insistence’ (Ewald, 1992) of these norms and limits that a ‘disorderly’ child threatens to transgress.

The effect of knee flexion contracture following total knee arthroplasty on the energy cost of walking.

This study evaluated the energy cost of walking (Cw) with knee flexion contractures (FC) simulated with a knee brace, in total knee arthroplasty (TKA) recipients (n=16) and normal controls (n=15), and compared it to baseline (no brace). There was no significant difference in Cw between the groups at baseline but TKA recipients walked slower (P=0.048) and with greater knee flexion in this condition (P=0.003). Simulated FC significantly increased Cw in both groups (TKA P=0.020, control P=0.002) and this occurred when FC exceeded 20° in the TKA group and 15° in the controls. Reported perceived exertion was only significantly increased by FC in the control group (control P<0.001, TKA P=0.058). Simulated knee FCs less than 20° do not increase Cw or perceived exertion in TKA recipients.

Beyond the Producer/Consumer Divide : Key Principles of Produsage and Opportunities for Innovation

Though popular, concepts such as Toffler's 'prosumer' (1970; 1980; 1990) are inherently limited in their ability to accurately describe the makeup and dynamics of current co-creative environments, from fundamentally non-profit initiatives like the Wikipedia to user-industry partnerships that engage in crowdsourcing and the development of collective intelligence. Instead, the success or failure of such projects can be understood best if the traditional producer/consumer divide is dissolved, allowing for the emergence of the produser (Bruns, 2008). A close investigation of leading spaces for produsage makes it possible to extract the key principles which underpin and guide such content co-creation, and to identify how innovative pro-am partnerships between commercial entities and user communities might be structured in order to maximise the benefits that both sides will be able to draw from such collaboration. This chapter will outline these principles, and point to successes and failures in applying them to pro- am initiatives.

Metabolic and hormonal responses to isoenergetic high-intensity interval exercise and continuous moderate-intensity exercise

This study investigated the effects of high-intensity interval training (HIIT) vs. work-matched moderate-intensity continuous exercise (MOD) on metabolism and counterregulatory stress hormones. In a randomized and counterbalanced order, 10 well-trained male cyclists and triathletes completed a HIIT session [81.6 ± 3.7% maximum oxygen consumption (V̇o2 max); 72.0 ± 3.2% peak power output; 792 ± 95 kJ] and a MOD session (66.7 ± 3.5% V̇o2 max; 48.5 ± 3.1% peak power output; 797 ± 95 kJ). Blood samples were collected before, immediately after, and 1 and 2 h postexercise. Carbohydrate oxidation was higher (P = 0.037; 20%), whereas fat oxidation was lower (P = 0.037; −47%) during HIIT vs. MOD. Immediately after exercise, plasma glucose (P = 0.024; 20%) and lactate (P < 0.01; 5.4×) were higher in HIIT vs. MOD, whereas total serum free fatty acid concentration was not significantly different (P = 0.33). Targeted gas chromatography-mass spectromtery metabolomics analysis identified and quantified 49 metabolites in plasma, among which 11 changed after both HIIT and MOD, 13 changed only after HIIT, and 5 changed only after MOD. Notable changes included substantial increases in tricarboxylic acid intermediates and monounsaturated fatty acids after HIIT and marked decreases in amino acids during recovery from both trials. Plasma adrenocorticotrophic hormone (P = 0.019), cortisol (P < 0.01), and growth hormone (P < 0.01) were all higher immediately after HIIT. Plasma norepinephrine (P = 0.11) and interleukin-6 (P = 0.20) immediately after exercise were not significantly different between trials. Plasma insulin decreased during recovery from both HIIT and MOD (P < 0.01). These data indicate distinct differences in specific metabolites and counterregulatory hormones following HIIT vs. MOD and highlight the value of targeted metabolomic analysis to provide more detailed insights into the metabolic demands of exercise.

Altering the redox state of skeletal muscle by glutathione depletion increases the exercise-activation of PGC-1α

We investigated the relationship between mitochondrial biogenesis, cell signalling and antioxidant enzymes by depleting skeletal muscle glutathione with diethyl maleate (DEM) which resulted in a demonstrable increase in oxidative stress during exercise. Animals were divided into six groups: (1) sedentary control rats; (2) sedentary rats treated with DEM; (3) exercise control rats euthanized immediately after exercise; (4) exercise rats + DEM; (5) exercise control rats euthanized 4 h after exercise, and; (6) exercise rats + DEM euthanized 4 h after exercise. Exercising animals ran on the treadmill at a 10% gradient at 20 m/min for the first 30 min. The speed was then increased every 10 min by 1.6 m/min until exhaustion. There was a reduction in total glutathione in the skeletal muscle of DEM treated animals compared to the control animals (P<0.05). Within the control group, total glutathione was higher in the sedentary group compared to after exercise (P<0.05). DEM treatment also significantly increased oxidative stress, as measured by increased plasma F2-isoprostanes (P<0.05). Exercising animals given DEM showed a significantly greater increase in peroxisome proliferator activated receptor γ coactivator-1α(PGC-1α) mRNA compared to the control animals that were exercised (P<0.05). This study provides novel evidence that by reducing the endogenous antioxidant glutathione in skeletal muscle and inducing oxidative stress through exercise, PGC-1α gene expression was augmented. These findings further highlight the important role of exercise induced oxidative stress in the regulation of mitochondrial biogenesis.

Conservation genetics of the water mouse, Xeromys myoides Thomas, 1889

The water mouse, Xeromys myoides, is currently recognised as a vulnerable species in Australia, inhabiting a small number of distinct and isolated coastal regions of Queensland and the Northern Territory. An examination of the evolutionary history and contemporary influences shaping the genetic structure of this species is required to make informed conservation management decisions. Here, we report the first analysis undertaken on the phylogeography and population genetics of the water mouse across its mainland Australian distribution. Genetic diversity was assessed at two mitochondrial DNA (Cytochrome b, 1000 bp; D-loop, 400 bp) and eight microsatellite DNA loci. Very low genetic diversity was found, indicating that water mice underwent a recent expansion throughout their Australian range and constitute a single evolutionarily significant unit. Microsatellite analyses revealed that the highest genetic diversity was found in the Mackay region of central Queensland; population substructure was also identified, suggesting that local populations may be isolated in this region. Conversely, genetic diversity in the Coomera region of south-east Queensland was very low and the population in this region has experienced a significant genetic bottleneck. These results have significant implications for future management, particularly in terms of augmenting populations through translocations or reintroducing water mice in areas where they have gone extinct.

Teaching and Assessing Reflective Writing in a Large Undergraduate Core Substantive Law Unit

The focus of higher education has shifted towards building students’ skills and self-awareness for future employment, in addition to developing substantive discipline knowledge. This means that there is an increasing need for embedding approaches to teaching and learning which provide a context for skills development and opportunities for students to prepare for the transition from legal education to professional practice. This chapter reports on a large (500-600 students) core undergraduate Equity law unit in an Australian University. ePortfolio has been embedded in Equity as a means of enabling students to document their reflections on their skill development in that unit. Students are taught, practice and are assessed on their teamwork and letter writing skills in the context of writing a letter of advice to a fictional client in response to a real world problem. Following submission of the team letter, students are asked to reflect on their skill development and document their reflections in ePortfolio. A scaffolded approach to teaching reflective writing is adopted using a blended model of delivery which combines face to face lectures and online resources, including an online module, facts sheets designed to guide students through the process of reflection by following the TARL model of reflection, and exemplars of reflective writing. Although students have engaged in the process of reflective writing in Equity for some years, in semester one 2011 assessment criteria were developed and the ePortfolio reflections were summatively assessed for the first time. The model of teaching and assessing reflective practice was evaluated in a range of ways by seeking feedback from students and academic staff responsible for implementing the model and asking them to reflect on their experiences. This chapter describes why skill development and reflective writing were embedded in the undergraduate law unit Equity; identify the teaching and learning approaches which were implemented to teach reflective writing to online and internal Equity students; explain the assessment processes; analyse the empirical evidence from evaluations; document the lessons learnt and discuss planned future improvements to the teaching and assessment strategies.

Do we need a law to help people try experimental drugs?

People with life-threatening or incurable diseases may be willing to try experimental drugs and unproven treatments, but they face the risk of exploitation. Is the law the best avenue to ensure that they are protected while medical innovation is encouraged? Protection of vulnerable people is a thread running through many laws, in Australia and elsewhere. In medical law, for instance, children and people with impaired decision-making capacity warrant special attention. But what of the ordinary person diagnosed with a life-threatening disease? Such people are vulnerable to harm and potential exploitation when they seek access to innovative, experimental or unproven treatments that depart from the existing range of accepted medicine.

Effectiveness of an emergency nurse practitioner service for adults presenting to rural hospitals with chest pain : Protocol for a multicentre, longitudinal nested cohort study

Introduction Chest pain is common in emergency department (ED) patients and represents a considerable burden for rural health services. Health services reforms to improve access to care need appropriately skilled and supported clinicians in the delivery of safe and effective care, including the use of emergency nurse practitioners (ENPs). Despite increasing use of ENPs, little is known about the safety and quality of the service in the rural ED context. The aims of this study are (1) to examine the safety and quality of the ENP service model in the provision of care in the rural environment and (2) to evaluate the effectiveness of the service in the management of patients presenting with undifferentiated chest pain. Methods and analysis This is the protocol for a prospective longitudinal nested cohort study to compare the effectiveness of ENP service with that of standard care. Adults presenting to three rural EDs in Queensland, Australia with a primary presenting complaint of atraumatic chest pain will be eligible for enrolment. We will measure (1) clinician's use of evidence-based guidelines (2) diagnostic accuracy of ECG interpretation for the management of patients with suspected or confirmed ACS (3) service indicators of waiting times, length-of-stay and did-not-wait rates and (4) clinician's diagnostic accuracy as measured by rates of unplanned representation within 7 days (5) satisfaction with care, (6) quality-of-life and (7) functional status. To assess these outcomes we will use a combination of measures collected from routinely collected data, medical record review and questionnaires (with 30-day follow-up). Ethics and dissemination Queensland Health Human Research Ethics Committee (HREC) has approved this protocol. The results will be published in peer-reviewed scientific journals and presented at one or more scientific conferences.

Property rights in and entitlement to possession of sperm following death

In May 2011, the Supreme Court of New South Wales in Jocelyn Edwards; re the estate of the late Mark Edwards [2011] NSWSC 478 granted an application by a wife, in her capacity as administrator of her late husband's estate, to possession of sperm extracted from the body of her late husband.