The defence of hardship to specific performance actions

The decision of Evans v Robcorp Pty Ltd[2014] QSC 26 is of interest as being an instance where the defence of hardship, in this case, financial hardship, was successfully pleaded in defence to a summary application for specific performance of a contract for the sale of land. Equity has always recognised the defence of hardship in response to an action for specific performance which, as an equitable remedy, might be refused in the discretion of the Court (Hewett v Court (1983) 149 CLR 639 at 664). However, whilst the remedy is discretionary, there are certain accepted principles which have guided the courts in their application of this defence to particular facts. It is not a blanket defence to a claim for specific performance where the buyer simply does not have the funds to complete the contract at the time when settlement is called for. Occasionally, a radical change in, say for instance, the health of the defendant between contract and completion, perhaps coupled with a long delay by a seller in calling for completion not being the fault of the buyer might enliven the defence (Patel v Ali [1984]1 Ch 283)

The defence of joint illegal activity must be looked at in context

In Miller v Miller (2011) 85 ALJR 480; [2011] HCA 9 the High Court examined the complex issue of joint illegal activity. The issue before the court was whether a plaintiff who had engaged in an illegal activity with the defendant may claim damages in negligence. In its decision the court analysed the cases of Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438, Smith v Jenkins (1970) 119 CLR 397, Jackson v Harrison (1978) 138 CLR 438 and Gala v Preston (1991) 172 CLR 243.

In defence of Victoria's Children's Court : its value and role in the child protection system

Australian child protection systems have been subject to sustained and significant criticism for many decades. As a central part of that system Children’s Courts have been implicated: three recent inquiries into the child protection system in Victoria all criticised the Family Division of the Children’s Court.1 In the resulting debate two diametrically opposed points of view surfaced about the Children’s Court and the role that legal procedures and professionals should play in child protection matters. On one side bodies like the Children’s Court of Victoria, Victoria Legal Aid (‘VLA’), the Law Institute of Victoria (‘LIV’), and the Federation of Community Legal Centres (‘FCLC’) argued that the Children’s Court plays a vital role in child protection and should continue to play that role.2 On the other side a coalition of human service and child protection agencies called for major change including the removal of the Children’s Court from the child protection system. Victoria’s Department of Human Services (‘DHS’) has been critical of the Court3 as have community sector organisations like Anglicare, Berry Street, MacKillop Family Services and the Salvation Army — all agencies the DHS funds to deliver child protection services.4 Victoria’s Child Safety Commissioner has also called for major reform, publicly labelling the Court a ‘lawyers’ playground’ and recommending abolishing the Court’s involvement in child protection completely.

In Defence of "the Lesser Cousin of History": An Interview with Rohan Wilson

Few branches of postcolonial literature are as contested as the historical fiction of settler societies. This interview with the Australian historical novelist Rohan Wilson, author of The Roving Party (2011) and To Name Those Lost (2014), explores the intersections between truth, accuracy, and existential authenticity in his fictional accounts of nineteenth-century Tasmania. Wilson offers a nuanced yet robust defence of fiction’s role in narrating colonial history. He explains his intentions in writing two linked yet distinctive novels of the frontier—one that focuses on the “Black War” of the 1820s and 1830s, and another that explores how racial violence is refracted by capitalism in subsequent decades.

The ACEN Student Scholarship: a profile of financial hardship and Work Integrated Learning

An increasing emphasis on embedding Work-Integrated Learning (WIL) in the curriculum has impacted on teaching and learning approaches in Australian higher education institutions (Higher Education Base Funding Review: Final Report, 2011). Yet whilst the benefits and costs of these approaches have been identified (Bradley, Noonan, Nugent, & Scales, 2008; Patrick et al., 2009) insufficient attention has been paid to financial costs experienced by students studying subjects with a Work Integrated Learning component. In 2010 the Australian Collaborative Education Network (ACEN) responded to this issue by offering three modest student scholarships based on evidence of hardship. Data collected from over 1000 applicants between 2010 and 2012 indicate travel, accommodation, food, clothing, equipment and loss of income are of major concern especially for students on lengthy placements involving relocation. At the same time the Australian Federal Government’s review of base funding has recommended a detailed assessment of the costs of providing student placements across all disciplines - in particular health and education (DEEWR, 2011, p.94). This paper considers costs from the student perspective and highlights major concerns identified through ACEN scholarship applications over a three year period. The implications for ACEN are described and recommendations documented which outline ACEN’s role in ensuring that these issues are given greater consideration across the sector.

A tale of six fish: achieving social presence through discussion forums in an offline learning environment

It is widely held, through the Socratic tradition, that discussion is at the heart of learning. Moderated discussion forums have been shown to replicate the debate, argument and verbal defence of viewpoints that we have come to expect in face-to-face learning environments and that we generally accept to underpin learning. While much has been written about discussion forums in educational settings, particularly in how to moderate and promote effective interaction with students at a distance, this paper takes a different approach. It looks at how forums may be used to support face-to-face learning in the contemporary context of the massification of on-campus classes. Further to this, it will argue for discussion forums as an indicator of social presence in the learning environment. It will cautiously conclude that, through purposeful design, this form of asynchronous communication has a valuable role to play in creating a positive and supportive environment for students entering university. Discussion forums are tools with a versatility yet to be fully exploited.

Towards more complete satisfaction of customers in construction

In an environment where economic, political and technological change is the rule, a fundamental business strategy should be the defence of traditional markets and thoughtful entry into new markets, with an aim to increase market penetration and stimulate profit. The success of such a strategy will depend on the success of firms to do more and better for customers than their competitors. In other words, the firm’s primary competitive advantage will come from changes they implement to please their customers. In the construction industry, complexity of technical knowledge and construction processes have traditionally encouraged clients to play a largely passive role in the management of their project. However, today’s clients not only want to know about internal efficiency of their projects but also need to know how they and their contractors compare and compete against their competitors. Given the vulnerability of construction activities in the face of regional financial crisis, constructors need to be proactive in the search to improve their internal firm and project processes to ensure profitability and market responsiveness. In this context, reengineering is a radical design that emphasises customer satisfaction rather than cost reduction This paper discusses the crucial role of the client-project interface and how project networks could facilitate and improve information dissemination and sharing, collaborative efforts, decision-making and improved project climate. An intra-project network model is presented, and project managers’ roles and competencies in forming and coordinating project workgroups is discussed.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

WikiLeaks, journalism and the consequences of chaos

This article considers the impact of the WikiLeaks organisation in relation to debates around the defence of national security and free speech, global media citizenship and the emerging dynamics of the global public sphere. Building on the author’s previous work on political communication, journalism and ‘cultural chaos’, it explores the implications of WikiLeaks for emerging conceptions and definitions of journalism, and for the changing structure of media–politics power relations at the global level, against the background of three trends: democratisation, declining deference and digitalisation.

Well-being of refugees from Burma: a salutogenic perspective

A salutogenic approach explored themes of strength and well-being in life stories of Burmese refugees (N = 18) in Australia. Previous refugee studies have tended to focus on negative responses to traumatic events (e.g. posttraumatic stress disorder, depression). To widen the scope of refugee related research the focus of the current study was informed by a salutogenic perspective, exploring sources of strength that may facilitate well-being. Semi-structured narrative interviews explored: the participant's life before fleeing Burma, the journey of exile, and post-migration in Australia. Eight women and 10 men (Mage = 39 years) were interviewed and transcriptions analysis of narratives was conducted using Interpretative Phenomenological Analysis (IPA), with major themes being explicated. Super-ordinate themes pertaining to strength during times of hardship were identified and explicated as: support from interpersonal relationships, the pivotal role of values, a sense of future and agency, and reliance on spiritual or religious beliefs. Results indicate the existence of sources of strength that may contribute to human responses in times of hardship. Recognition and reflection of strengths may be incorporated into therapeutic and resettlement approaches for people from refugee backgrounds.

Preventing the selection of “deaf embryos” under the Human Fertilisation and Embryology Act 2008 : problematizing disability?

Section 14(4) of the Human Fertilisation and Embryology Act 2008 imposes – within the general licensing conditions listed in the Human Fertilisation and Embryology Act 1990 – a prohibition to prevent the selection and implantation of embryos for the purpose of creating a child who will be born with a “serious disability.” This article offers a perspective that demonstrates the problematic nature of the consultation, review, and legislative reform process surrounding s 14(4). The term “serious disability” is not defined within the legislation, but we highlight the fact that s 14(4) was passed with the case of selecting deaf children in mind. We consider some of the literature on the topic of disability and deafness, which, we think, casts some doubt on the view that deafness is a “serious disability.” The main position we advance is that the lack of serious engagement with alternative viewpoints during the legislative process was unsatisfactory. We argue that the contested nature of deafness necessitates a more robust consultation process and a clearer explanation and defence of the normative position that underpins s 14(4).

Social and cultural borders in Rio de Janeiro : the everyday life of community and mainstream photojournalists

This paper takes a multimethod approach which combines ethnographic techniques and discourse studies to investigate two contrasting professional groups: community photographers, who are favela dwellers who have developed photographic projects in Brazil‘s favelas, and photojournalists of the mainstream media. Its purpose is to determine how a cultural and social divide in the city of Rio de Janeiro shapes both community photographers and mainstream photojournalists’ practices, discourses, and identities. While community photographers strive to establish a humane and positive view about favelas and their residents by shifting the focus from poverty, shortages, violence, and criminality to images of the ordinary life, mainstream photojournalists express the view that their role is of primary importance for the defence of human rights in the favelas by helping to prevent, for instance, police abuses and violations. As the data analysis indicated the existence of socio-spatial borders all over Rio de Janeiro, this study adopted the idea of a divided city without denying interconnections between favelas and the city’s political life. Through the analysis of categories which emerged from the data, the complex world of documenting favela life is explored. The major themes touched upon are: the breakdown between the mainstream media and the favela communities; the different kinds of relationships which arise in Rio’s low income suburbs; and the gradual return of mainstream news workers to favelas.

The fight for fair use in Australia: Copyright law in an age of cloud computing

Fair Use Week has celebrated the evolution and development of the defence of fair use under copyright law in the United States. As Krista Cox noted, ‘As a flexible doctrine, fair use can adapt to evolving technologies and new situations that may arise, and its long history demonstrates its importance in promoting access to information, future innovation, and creativity.’ While the defence of fair use has flourished in the United States, the adoption of the defence of fair use in other jurisdictions has often been stymied. Professor Peter Jaszi has reflected: ‘We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the “secret sauce” of U.S. cultural competitiveness.’ Jurisdictions such as Australia have been at a dismal disadvantage, because they lack the freedoms and flexibilities of the defence of fair use.

The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.