Recognition and enforcement of foreign judgments : are the rules appropriate?

The recognition and enforcement of foreign judgments is an aspect of private international law, and concerns situations where a successful party to litigation seeks to rely on a judgment obtained in one court, in a court in another jurisdiction. The most common example where the recognition and enforcement of foreign judgments may arise is where a party who has obtained a favourable judgment in one state or country may seek to recognise and enforce the judgment in another state or country. This occurs because there is no sufficient asset in the state or country where the judgment was rendered to satisfy that judgment. As technological advancements in communications over vast geographical distances have improved exponentially in recent years, there has been an increase in cross-border transactions, as well as litigation arising from these transactions. As a result, the recognition and enforcement of foreign judgments is of increasing importance, since a party who has obtained a judgment in cross-border litigation may wish to recognise and enforce the judgment in another state or country, where the defendant’s assets may be located without having to re-litigate substantive issues that have already been resolved in another court. The purpose of the study is to examine whether the current state of laws for the recognition and enforcement of foreign judgments in Australia, the United States and the European Community are in line with modern-commercial needs. The study is conducted by weighing two competing objectives between the notion of finality of litigation, which encourages courts to recognise and enforce judgments foreign to them, on the one hand, and the adequacy of protection to safeguard the recognition and enforcement proceedings, so that there would be no injustice or unfairness if a foreign judgment is recognised and enforced, on the other. The findings of the study are as follows. In both Australia and the United States, there is a different approach concerning the recognition and enforcement of judgments rendered by courts interstate or in a foreign country. In order to maintain a single and integrated nation, there are constitutional and legislative requirements authorising courts to give conclusive effects to interstate judgments. In contrast, if the recognition and enforcement actions involve judgments rendered by a foreign country’s court, an Australian or a United States court will not recognise and enforce the foreign judgment unless the judgment has satisfied a number of requirements and does not fall under any of the exceptions to justify its non-recognition and non-enforcement. In the European Community, the Brussels I Regulation which governs the recognition and enforcement of judgments among European Union Member States has created a scheme, whereby there is only a minimal requirement that needs to be satisfied for the purposes of recognition and enforcement. Moreover, a judgment that is rendered by a Member State and based on any of the jurisdictional bases set forth in the Brussels I Regulation is entitled to be recognised and enforced in another Member State without further review of its underlying jurisdictional basis. However, there are concerns as to the adequacy of protection available under the Brussels I Regulation to safeguard the judgment-enforcing Member States, as well as those against whom recognition or enforcement is sought. This dissertation concludes by making two recommendations aimed at improving the means by which foreign judgments are recognised and enforced in the selected jurisdictions. The first is for the law in both Australia and the United States to undergo reform, including: adopting the real and substantial connection test as the new jurisdictional basis for the purposes of recognition and enforcement; liberalising the existing defences to safeguard the application of the real and substantial connection test; extending the application of the Foreign Judgments Act 1991 (Cth) in Australia to include at least its important trading partners; and implementing a federal statutory scheme in the United States to govern the recognition and enforcement of foreign judgments. The second recommendation is to introduce a convention on jurisdiction and the recognition and enforcement of foreign judgments. The convention will be a convention double, which provides uniform standards for the rules of jurisdiction a court in a contracting state must exercise when rendering a judgment and a set of provisions for the recognition and enforcement of resulting judgments.

Order supported by law : the enforcement of norms in virtual communities

As online social spaces continue to grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This article examines two issues that go to the core of egitimate governance in online communities: how are rules enforced and punishments imposed, and how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally ultimately backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules of virtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for 'real' crimes, and the private, internal resolution of 'virtual' or 'fantasy' crimes. In this structure, the punitive effect of internal measures is downplayed and the harm that can be caused to participants by internal sanctions is systemically undervalued.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Disproportionate over-representation of Indigenous students in New South Wales government special schools

A significant gap exists in the Australian research literature on the disproportionate over-representation of minority groups in special education. The aim of this paper is to make a contribution to the research evidence-base by sketching an outline of the issue as it presents in Australia’s largest education system in the state of New South Wales. Findings from this research show that Indigenous students are equally represented in special schools enrolling students with autism, physical, sensory, and intellectual disabilities, but significantly over-represented in special schools enrolling students under the categories of emotional disturbance, behaviour disorder and juvenile detention. Factors that might influence the disproportionate over-representation of Indigenous children and young people are discussed, and based on these observations, some practical implications for policy and practice are provided.

Investing and reinvesting in social capital : the spill-over effects of social capital in self help groups

Part studies on the impact of microfinance through self help groups (HGs) and other collective poverty alleviation initiatives have predominantly focused on the financial benefits to the individual or the group (Hermes and Lensink 2011; Hulme and Mosley 1996). Such benefits are typically attributed to the financial capital made available to SHGs (Swain and Varghese 2009) and the social capital which accrues through networking mechanisms within SHG processes (Tesoriero 2005). Few studies however, have examined the benefits of SHGs beyond group members. Accordingly, research was conducted to look beyond the immediate group processes and outcomes, and examine the impact of SHGs in the wider (local) community.

Conflicts over protection of marine living resources : the ‘Volga Case’ revisited

Non-traditional maritime security concerns have become more importantthan ever in the post-Cold War era. Naval forces of most developedcountries are more concerned about these threats than conventional war.One of the main maritime security issues for many countries in the world isillegal, unreported and unregulated (IUU) fishing in the marine area. Withthese burgeoning issues comes the potential for a large number of disputesinvolving international law. In early 2002, a long-line fishing vessel under aRussian flag –the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia’s Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111and 87 of the United Nations Convention on the Law of the Sea (NCLOS).Considering the outcome of these cases, this article critically examines thecharacteristics of litigation as a strategy for pacific settlement of disputesover marine living resources. Using the Volga Case as an example, thisarticle explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.

A Submission to the Advisory Council on Intellectual Property in Relation to the Issues Paper Relating to the Enforcement of Trade Marks - February 2002

With respect to “shape” marks, there would appear to be a “break”, imposed by the Australian Courts, in the logical conclusion that registration of a shape, which performs a functional purpose, or even further, is indistinguishable from the shape of the item or product, creates a perpetual monopoly in the manufacture of that product.

Founder p.Arg 446* mutation in the PDHX gene explains over half of cases with congenital lactic acidosis in Roma children

Investigation of 31 of Roma patients with congenital lactic acidosis (CLA) from Bulgaria identified homozygosity for the R446* mutation in the PDHX gene as the most common cause of the disorder in this ethnic group. It accounted for around 60% of patients in the study and over 25% of all CLA cases referred to the National Genetic Laboratory in Bulgaria. The detection of a homozygous patient from Hungary and carriers among population controls from Romania and Slovakia suggests a wide spread of the mutation in the European Roma population. The clinical phenotype of the twenty R446* homozygotes was relatively homogeneous, with lactic acidosis crisis in the first days or months of life as the most common initial presentation (15/20 patients) and delayed psychomotor development and/or seizures in infancy as the leading manifestations in a smaller group (5/20 patients). The subsequent clinical picture was dominated by impaired physical growth and a very consistent pattern of static cerebral palsy-like encephalopathy with spasticity and severe to profound mental retardation seen in over 80% of cases. Most patients had a positive family history. We propose testing for the R446* mutation in PDHX as a rapid first screening in Roma infants with metabolic acidosis. It will facilitate and accelerate diagnosis in a large proportion of cases, allow early rehabilitation to alleviate the chronic clinical course, and prevent further affected births in high-risk families.

Sleepy driving and drink driving: attitudes, behaviours, and perceived legitimacy of enforcement of younger and older drivers

Sleepy driving and drink driving are two risky driving behaviours that substantially contribute to road crashes. Several studies demonstrate equivalent levels of impairment from both sleepy and drink driving. Yet, drivers perceive sleepy and drink driving distinctly different, with younger and older drivers engaging in these two risky driving behaviours at different rates. The current study sought to examine the sleepy and drink driving behaviours and perceptions in a sample of 114 younger (17-29 years) and 177 older (30+ years) drivers. Compared to older drivers, younger drivers reported more positive attitudes toward sleepy and drink driving behaviours, as well as more negative views regarding perceived legitimacy of sleepy driving enforcement. Younger drivers were also more likely to report performing sleepy driving behaviours than older drivers. Younger drivers reported greater likelihood to drive while sleepy, lower perceptions of legitimacy for sleepy driving, and more positive attitudes towards sleepy driving when compared to drink driving and the same pattern was found for older drivers as well. Subsequently, the self-reported likelihood of driving while sleepy was greater than drink driving in both age groups. Overall, the results suggest that sleepy driving is not viewed as equally dangerous as drink driving with younger drivers’ perceptions being more lenient than older drivers’ perceptions. It is likely that change is needed regarding the perceptions of dangerousness of sleepy driving with a particular focus on younger drivers seemingly needed.

Minimum labour standards enforcement in Australia : caught in the crossfire?

The complex transition from convict to free labour influenced state intervention in the employment relationship, and initiated the first minimum labour standards in Australia in 1828. Since then, two principal sets of tensions have affected the enforcement of such standards: tensions between government and employers, and tensions between the major political parties over industrial and economic issues. This article argues that these tensions have resulted in a sustained legacy affecting minimum labour standards’ enforcement in Australia. The article outlines broad historical developments and contexts of minimum labour standards’ enforcement in Australia since 1828, with more contemporary exploration focusing specifically on enforcement practices and policies in the Australian federal industrial relations jurisdiction. Current enforcement practices are an outcome of this volatile history, and past influences remain strong.

Prevalence of breast cancer treatment sequelae over 6 years of follow-up

Background: There is a need to better describe and understand the prevalence of breast cancer treatment-related adverse effects amenable to physical therapy and rehabilitative exercise. Prior studies have been limited to single issues and lacked long term follow-up. The Pulling Through Study provides data on prevalence of adverse effects in breast cancer survivors followed over six years. Methods: A population-based sample of Australian women (n=287) diagnosed with invasive, unilateral breast cancer was followed for a median of 6.6 years and prospectively assessed for treatment-related complications at 6, 12, 18 months, and 6 years post-diagnosis. Assessments included post-surgical complications, skin or tissue reaction to radiation therapy, upper-body symptoms, lymphedema, 10% weight gain, fatigue, and upper-quadrant function. The proportion of women with positive indication for each complication and one or more complication was estimated using all available data at each time point. Women were only considered to have a specific complication if they reported the highest two levels of the Likert scale for self-reported issues. Results: At six years post-diagnosis over 60% of women experienced one or more side effects amenable to rehabilitative intervention. The proportion of women experiencing 3 or more side effects decreased throughout follow-up, while the proportion experiencing no side effects remained stable around 40% from 12 months to six years. Weight gain was the only complication to increase in prevalence over time. Conclusion: These data support the development of a multi-disciplinary prospective surveillance approach for the purposes of managing and treating adverse effects in breast cancer survivors.

Violation of labour rights in the ship-breaking yards of Bangladesh

Ship-breaking started as an industry in Bangladesh in the early 1970s. This industry is not technically organized, and the management is also primitive and unsound. Although specific information is not available, it is estimated that about 700 workers have been killed and, at the same time, a total of 10,000 workers have been injured in explosions at the ship-breaking yards over the last three decades. This process continues unabated in the absence of specific legislation for regulating ship-breaking industries in Bangladesh. Against this backdrop, this paper identifies the major issues relating to enforcement of labour rights in the ship-breaking yards of Bangladesh.

Understanding the impact of legislative changes on child car seating and restraint practices in regional Queensland

Road crashes contribute to a significant amount of child mortality and morbidity in Australia. In fact, passenger injuries contribute to the majority of child crash road trauma. A number of factors contribute to child injury and death in motor vehicles, including inappropriate seating position, inappropriate choice of restraint, and incorrect installation and use of child restraints. Prior to March 2010, child restraint legislation in Queensland only required children twelve months and younger to be seated in a properly adjusted and fastened child restraint. This legislation left older infants and young children potentially suboptimally protected. From March 2010, new legislation specified seating position and type of child restraint required, depending on the age of the child. This research was underpinned by the Health Belief Model (HBM), which explores health related behaviour, behaviour change, environmental factors influencing behaviour change (including legislative changes) and is flexible enough to be used in relation to parents' health practices for their children, rather than parent health directly. This thesis investigates the extent to which the changes to child restraint legislation have led parents in regional areas of Queensland to use appropriate restraint practices for their children and determines the extent to which the constructs of the HBM, parental perceptions, barriers and environmental factors contribute to the appropriateness of child seating and restraint use. Study One included three sets of observations taken in two regional cities of Queensland prior to the legislative amendment, during an educative period of six months, and after the enactment of the legislation. Each child's seating position and restraint type were recorded. Results showed that the proportion of children observed occupying the front seat decreased by 15.6 per cent with the announcement the legislation. There was no decrease in front seat use at the enactment of the legislation. The proportion of children observed using dedicated child restraints increased by 8.8 per cent with the announcement of the legislation when there was one child in the vehicle. Further, there was a 10.1 per cent increase in the proportion of children observed using a seat belt that fit with the announcement when there was one child in the vehicle and with the enactment of the legislation regardless of the number of children in the vehicle (21.8 per cent for one child, 39.7 per cent for two children and 40.2 per cent for three or more children). Study Two comprised initial intercept interviews, later followed up by telephone, with parents with children aged eight years and younger at the announcement and telephone interviews at the enactment of the legislation in one regional city in Queensland. Parents reported their child restraint practices, and opinions, knowledge and understanding of the requirements of the new legislation. Parent responses were analysed in terms of the constructs in the HBM. When asked which seating position their child 'usually' used, parents reported child front seat use was nil (0.0 per cent) and did not change with the enactment of the legislative amendment. However, when parents were asked whether they allowed children to use the front seat at some point within the six months prior to the interview, reported child front seat use was 7 (5.4 per cent) children at T2 and 10 (9.6 per cent) at T3. Reported use of age-appropriate child restraints did not increase with the enactment of the legislation (p = 0.77, ns). Parents reported restraint practices were classed as either appropriate or inappropriate. Parents who reported appropriate restraint practices were those whose children were sitting in optimal restraints and seating positions for their age according to the requirements of the legislation. Parents who reported inappropriate restraint practices were those who had one or more children who were suboptimally restrained or seated for their age according to the requirements of the legislation. Neither parents' perceptions about their susceptibility of being in a crash nor the likelihood of severity of child injury if involved in a crash yielded significant differences in the appropriateness of reported parent restraint practices over time with the enactment of the legislation. A trend in the data suggested parents perceived a benefit to using appropriate restraint practices was to avoid fines and demerit points. Over 75 per cent of parents who agreed that child restraints provide better protection for children than an adult seat belt reported appropriately seating and restraining their children (2 (1) = 8.093, p<.05). The self-efficacy measure regarding parents' confidence in installing a child restraint showed a significant association with appropriate parental restraint practices (2 (1) = 7.036, p<.05). Results suggested that some parents may have misinterpreted the announcement of the legislative amendment as the announcement of the enforcement of the legislation instead. Some parents who correctly reported details of the legislation did not report appropriate child restraint practices. This finding shows that parents' knowledge of the legislative amendment does not necessarily have an impact on their behaviour to appropriately seat and restrain children. The results of these studies have important implications for road safety and the prevention of road-related injury and death to children in Queensland. Firstly, parents reported feeling unsure of how to install restraints, which suggests that there may be children travelling in restraints that have not been installed correctly, putting them at risk. Interventions to alert and encourage parents to seek advice when unsure about the correct installation of child restraints could be considered. Secondly, some parents in this study although they were using the most appropriate restraint for their children, reported using a type that was not the most appropriate restraint for the child's age according to the legislation. This suggests that intervention may be effective in helping parents make a more accurate choice of the most appropriate type of restraint to use with children, especially as the child ages and child restraint requirements change. Further research could be conducted to ascertain the most effective methods of informing and motivating parents to use the most appropriate restraints and seating positions for their children, as these results show a concerning disparity between reported restraint practices and those that were observed.