Personal Injuries Proceedings Act 2002, s 32 - Duty to Disclose - consequences of non-disclosure - discretion to excuse non-compliance

In Newson v Aust Scan Pty Ltd t/a Ikea Springwood [2010] QSC 223 the Supreme Court examined the discretion under s 32(2) of the Personal Injuries Proceedings Act 2002 (Qld), to permit a document which has not been disclosed as required by the pre-court procedures under the PIPA to be used in a subsequent court proceeding. This appears to be the first time that the nature and parameters of the discretion have been judicially considered.

UCPR rule 687 - exercise of discretion to fix costs - applicable principles

Although the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) have always included a power for the court to order a party to pay an amount for costs to be fixed by the court, until recently the power was rarely used in the higher courts. In light of recent practice directions, and the changes to the procedures for assessment of costs contained in the new Chapter 17A of the UCPR, this is no longer the case. The judgment of Mullins J in ASIC v Atlantic 3 Financial (Aust) Pty Ltd [2008] QSC 9 provides some helpful guidance for practitioners about the principles which might be applied.

Prosecutorial discretion in assisted dying in Canada : a proposal for charging guidelines

An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia Guidelines, and the England and Wales Guidelines). In light of certain concerns we have with these guidelines, we outline an approach to constructing guidelines for Canadian jurisdictions that begins with identifying three guiding principles we argue are appropriate for this purpose (respect for autonomy, the need for high-quality prosecutorial decision making, and the importance of public confidence in that decision making), and ends with a concrete and detailed set of proposed guidelines. The paper is consistent with, but also extends, the work of the Royal Society of Canada Expert Panel on End of Life Decision Making. Un panel d’expert de la Société Royale du Canada et une Commission spéciale de l’Assemblée nationale du Québec ont tous les deux récemment recommandé que soit émises des directives permettant exercice d’un pouvoir de poursuite discrétionnaire concernant l’euthanasie et le suicide assisté et « l’assistance médicale pour mourir », respectivement. Il semble donc à propos de proposer une série de directives spécifiques aux offenses sur la façon dont le pouvoir de poursuite discrétionnaire dans les territoires et provinces canadiennes serait appliqué dans les cas d’euthanasie et de suicide assisté. Nous avons pris comme point de départ les seules directives de la sorte existant déjà (c’est-à-dire celle de la Colombie-Britannique et de l’Angleterre et du Pays de Galles). Par contre, compte tenu de certaines de nos réserves concernant ces directives, nous avons ensuite établi les grandes lignes d’une approche permettant de mettre sur pied des directives pour les juridictions canadiennes, qui débute par l’identification de trois principes de base qui sont selon nous appropriées à cette fin (respect de l’autonomie, besoin pour une grande qualité de prise de prise de décision du poursuivant et la confiance du public envers cette prise de décision) pour se terminer par une série de directives concrètes et détaillées. Le présent document est compatible avec le travail de la Société royale du Canada tout en en augmentant la portée.

Supreme Court Act 1995 (Qld) s 253 - leave to appeal costs orders - appeal against substantive judgment insufficient - must be arguable case that discretion will be overturned on appeal

The recent decision of the Court of Appeal in AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262 provides clear direction on the Court’s expectations of a party seeking leave to appeal a costs order.This decision is likely to impact upon common practice in relation to appeals against costs orders. It sends a clear message to trial judges that they should not give leave as of course when giving a judgment in relation to costs, and that parties seeking leave under s 253 of the Supreme Court Act 1995 (Qld) should make a separate application. The application should be supported by material presenting an arguable case that the trial judge made an error in the exercise of the discretion of the kind described in House v King (1936) 55 CLR 499. A different, and interesting, aspect of this appeal is that it was the first wholly electronic civil appeal. The court-provided technology had been adopted at trial, and the Court of Appeal dispensed with any requirement for hard copy appeal record books.

Default judgment - whether irregular - whether court has residual discretion not to set aside default judgment irregularly entered

In CB Richard Ellis (C) Pty Ltd v Wingate Properties Pty Ltd [2005] QDC 399 McGill DCJ examined whether the court now has a discretion to set aside an irregularly entered default judgment.

‘Structuring’ judicial sentencing discretion : consistency, guidance or pandering to the punitive?

Until quite recently, most Australian jurisdictions gave statutory force to the principle of imprisonment as a sanction of last resort, reflecting its status as the most punitive sentencing option open to the court.1 That principle gave primary discretion as to whether incarceration was the most appropriate means of achieving the purpose of a sentence to the sentencing court, which received all of the information relevant to the offence, the offender and any victim(s). The disestablishment of this principle is symptomatic of an increasing erosion of judicial discretion with respect to sentencing, which appears to be resulting in some extremely punitive consequences.

Rethinking the notion of culture in the national history curriculum

Major global changes are placing new demands on the Australian education system. Recent statements by the Prime Minister, together with current education policy and national curriculum documents available in the public domain, look to education’s role in promoting economic prosperity and social cohesion. Collectively, they emphasise the need to equip young Australians with the knowledge, understandings and skills required to compete in the global economy and participate as engaged citizens in a culturally diverse world. However, the decision to prioritise discipline-based learning in the forthcoming Australian history curriculum without specifically encompassing culture as a referent, raises the following question. How will students acquire the cultural knowledge, understandings and skills necessary for this process? This paper addresses this question by situating the current push for a national history curriculum, with specific reference to the study of Indigenous history and the study of Asia in Australia.

Supporting the mature aged workforce

This article presents findings from an Australian research project regarding management of the mature aged workforce and ageing demographic issues. Semi structured interviews were used to discuss perceptions of older workers, ageing demography, informal work practices, formal work practices and business development. The sample included 25 employees from three local governments from the Queensland State in Australia. Four main themes emerged from the analysis regarding the current setting. These were: (1) Despite negative stereotyping, respondents had a positive view of older workers, (2) Age management was more of an issue for the outdoor workforce due to declines in physiological capacities associated with aging, (3) The overarching policy framework within the local councils was age neutral; and (4) Informal age management strategies existed at the discretion of the respective managers and section heads. An age conscious and forethought workforce plan was viewed as the next step towards a formal age management strategy. The findings indicate that mentoring, training and flexible work options to retain staff and to retain corporate knowledge may be some of the options for the future

The influence of fatalistic beliefs on risky road use behavior in developing countries

There is little discussion of fatalism in the road safety literature, and limited research. However, fatalism is a potential barrier to participation in health-promoting behaviours, particularly among the populations of developing countries and to some extent in developed countries. Many people still believe in divine discretion and magical powers as causes of road crashes in different parts of the world. Fatalistic beliefs and beliefs in mystical powers and superstition appear to influence perceptions of crash risk and consequently lead people to take risks and neglect safety measures. Fatalistic beliefs may cause individuals to be resigned to risks because they cannot do anything to reduce these risks.

Adapting to the work-life interface : the influence of individual differences, work and family on well-being, mental health and work engagement

Bronfenbrenner.s Bioecological Model, expressed as the developmental equation, D f PPCT, is the theoretical framework for two studies that bring together diverse strands of psychology to study the work-life interface of working adults. Occupational and organizational psychology is focused on the demands and resources of work and family, without emphasising the individual in detail. Health and personality psychology examine the individual but without emphasis on the individual.s work and family roles. The current research used Bronfenbrenner.s theoretical framework to combine individual differences, work and family to understand how these factors influence the working adult.s psychological functioning. Competent development has been defined as high well-being (measured as life satisfaction and psychological well-being) and high work engagement (as work vigour, work dedication and absorption in work) and as the absence of mental illness (as depression, anxiety and stress) and the absence of burnout (as emotional exhaustion, cynicism and professional efficacy). Study 1 and 2 were linked, with Study 1 as a cross-sectional survey and Study 2, a prospective panel study that followed on from the data used in Study1. Participants were recruited from a university and from a large public hospital to take part in a 3-wave, online study where they completed identical surveys at 3-4 month intervals (N = 470 at Time 1 and N = 198 at Time 3). In Study 1, hierarchical multiple regressions were used to assess the effects of individual differences (Block 1, e.g. dispositional optimism, coping self-efficacy, perceived control of time, humour), work and family variables (Block 2, e.g. affective commitment, skill discretion, work hours, children, marital status, family demands) and the work-life interface (Block 3, e.g. direction and quality of spillover between roles, work-life balance) on the outcomes. There were a mosaic of predictors of the outcomes with a group of seven that were the most frequent significant predictors and which represented the individual (dispositional optimism and coping self-efficacy), the workplace (skill discretion, affective commitment and job autonomy) and the work-life interface (negative work-to-family spillover and negative family-to-work spillover). Interestingly, gender and working hours were not important predictors. The effects of job social support, generally and for work-life issues, perceived control of time and egalitarian gender roles on the outcomes were mediated by negative work-to-family spillover, particularly for emotional exhaustion. Further, the effect of negative spillover on depression, anxiety and work engagement was moderated by the individual.s personal and workplace resources. Study 2 modelled the longitudinal relationships between the group of the seven most frequent predictors and the outcomes. Using a set of non-nested models, the relative influences of concurrent functioning, stability and change over time were assessed. The modelling began with models at Time 1, which formed the basis for confirmatory factor analysis (CFA) to establish the underlying relationships between the variables and calculate the composite variables for the longitudinal models. The CFAs were well fitting with few modifications to ensure good fit. However, using burnout and work engagement together required additional analyses to resolve poor fit, with one factor (representing a continuum from burnout to work engagement) being the only acceptable solution. Five different longitudinal models were investigated as the Well-Being, Mental Distress, Well-Being-Mental Health, Work Engagement and Integrated models using differing combinations of the outcomes. The best fitting model for each was a reciprocal model that was trimmed of trivial paths. The strongest paths were the synchronous correlations and the paths within variables over time. The reciprocal paths were more variable with weak to mild effects. There was evidence of gain and loss spirals between the variables over time, with a slight net gain in resources that may provide the mechanism for the accumulation of psychological advantage over a lifetime. The longitudinal models also showed that there are leverage points at which personal, psychological and managerial interventions can be targeted to bolster the individual and provide supportive workplace conditions that also minimise negative spillover. Bronfenbrenner.s developmental equation has been a useful framework for the current research, showing the importance of the person as central to the individual.s experience of the work-life interface. By taking control of their own life, the individual can craft a life path that is most suited to their own needs. Competent developmental outcomes were most likely where the person was optimistic and had high self-efficacy, worked in a job that they were attached to and which allowed them to use their talents and without too much negative spillover between their work and family domains. In this way, individuals had greater well-being, better mental health and greater work engagement at any one time and across time.

‘It’s not like we’re going to jump them’: how transgressing heteronormativity shapes police interactions with LGBT young people

This paper explores how visibly transgressing heteronormativity shapes police interactions with LGBT young people. While research evidences how sexually and gender diverse bodies can be abused in schools, policing is overlooked. Interviews with 35 LGBT young people demonstrate how bodies transgressing heteronormativity (that is, non-heteronormative bodies) mediate their policing experiences in Queensland, Australia. Drawing on Foucault, Butler, and others, the paper suggests police interactions and use of discretion with LGBT young people was informed by non-heteronormative bodies discursively performing queerness in ways read by police. The paper concludes noting tensions produced for youthful LGBT bodies in public spaces.

Chinese driver perceptions about speeding and traffic law enforcement

The World Health Organisation has highlighted the urgent need to address the escalating global public health crisis associated with road trauma. Low-income and middle-income countries bear the brunt of this, and rapid increases in private vehicle ownership in these nations present new challenges to authorities, citizens, and researchers alike. The role of human factors in the road safety equation is high. In China, human factors have been implicated in more than 90% of road crashes, with speeding identified as the primary cause (Wang, 2003). However, research investigating the factors that influence driving speeds in China is lacking (WHO, 2004). To help address this gap, we present qualitative findings from group interviews conducted with 35 Beijing car drivers in 2008. Some themes arising from data analysis showed strong similarities with findings from highly-motorised nations (e.g., UK, USA, and Australia) and include issues such as driver definitions of ‘speeding’ that appear to be aligned with legislative enforcement tolerances, factors relating to ease/difficulty of speed limit compliance, and the modifying influence of speed cameras. However, unique differences were evident, some of which, to our knowledge, are previously unreported in research literature. Themes included issues relating to an expressed lack of understanding about why speed limits are necessary and a perceived lack of transparency in traffic law enforcement and use of associated revenue. The perception of an unfair system seemed related to issues such as differential treatment of certain drivers and the large amount of individual discretion available to traffic police when administering sanctions. Additionally, a wide range of strategies to overtly avoid detection for speeding and/or the associated sanctions were reported. These strategies included the use of in-vehicle speed camera detectors, covering or removing vehicle licence number plates, and using personal networks of influential people to reduce or cancel a sanction. These findings have implications for traffic law, law enforcement, driver training, and public education in China. While not representative of all Beijing drivers, we believe that these research findings offer unique insights into driver behaviour in China.

Development and validation of an expedited 10g protein counter (EP-10) for dietary protein intake quantification

Precise protein quantification is essential in clinical dietetics, particularly in the management of renal, burn and malnourished patients. The EP-10 was developed to expedite the estimation of dietary protein for nutritional assessment and recommendation. The main objective of this study was to compare the validity and efficacy of the EP-10 with the American Dietetic Association’s “Exchange List for Meal Planning” (ADA-7g) in quantifying dietary protein intake, against computerised nutrient analysis (CNA). Protein intake of 197 food records kept by healthy adult subjects in Singapore was determined thrice using three different methods – (1) EP-10, (2) ADA-7g and (3) CNA using SERVE program (Version 4.0). Assessments using the EP-10 and ADA-7g were performed by two assessors in a blind crossover manner while a third assessor performed the CNA. All assessors were blind to each other’s results. Time taken to assess a subsample (n=165) using the EP-10 and ADA-7g was also recorded. Mean difference in protein intake quantification when compared to the CNA was statistically non-significant for the EP-10 (1.4 ± 16.3 g, P = .239) and statistically significant for the ADA-7g (-2.2 ± 15.6 g, P = .046). Both the EP-10 and ADA-7g had clinically acceptable agreement with the CNA as determined via Bland-Altman plots, although it was found that EP-10 had a tendency to overestimate with protein intakes above 150 g. The EP-10 required significantly less time for protein intake quantification than the ADA-7g (mean time of 65 ± 36 seconds vs. 111 ± 40 seconds, P < .001). The EP-10 and ADA-7g are valid clinical tools for protein intake quantification in an Asian context, with EP-10 being more time efficient. However, a dietician’s discretion is needed when the EP-10 is used on protein intakes above 150g.

Were regulatory changes in reporting "abnormal items" justified? : evidence of intra-period classificatory earnings management practices in Australia

Purpose Managers generally have discretion in determining how components of earnings are presented in financial statements in distinguishing between ‘normal’ earnings and items classified as unusual, special, significant, exceptional or abnormal. Prior research has found that such intra-period classificatory choice is used as a form of earnings management. Prior to 2001, Australian accounting standards mandated that unusually large items of revenue and expense be classified as ‘abnormal items’ for financial reporting, but this classification was removed from accounting standards from 2001. This move by the regulators was partly in response to concerns that the abnormal classification was being used opportunistically to manage reported pre-abnormal earnings. This study extends the earnings management literature by examining the reporting of abnormal items for evidence of intra-period classificatory earnings management in the unique Australian setting. Design/methodology/approach This study investigates associations between reporting of abnormal items and incentives in the form of analyst following and the earnings benchmarks of analysts’ forecasts, earnings levels, and earnings changes, for a sample of Australian top-500 firms for the seven-year period from 1994 to 2000. Findings The findings suggest there are systematic differences between firms reporting abnormal items and those with no abnormal items. Results show evidence that, on average, firms shifted expense items from pre-abnormal earnings to bottom line net income through reclassification as abnormal losses. Originality/value These findings suggest that the standard setters were justified in removing the ‘abnormal’ classification from the accounting standard. However, it cannot be assumed that all firms acted opportunistically in the classification of items as abnormal. With the removal of the standardised classification of items outside normal operations as ‘abnormal’, firms lost the opportunity to use such disclosures as a signalling device, with the consequential effect of limiting the scope of effectively communicating information about the nature of items presented in financial reports.