UCPR r389(2) - leave to proceed required if no step taken for two years

In Smiley v Watson [2001] QCA 269 the Queensland Court of Appeal considered whether a notice of non-party disclosure, or the transfer of proceedings from one court to another was a 'step' in the proceeding for the purpose of r389 of the UCPR.

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.

Paid maternity leave

Access to paid maternity leave is a major issue on our current social, political and policy agenda. Better paid maternity leave provisions are seen as one of the ways to address the inequality experienced by women as a result of the gendered nature of family responsibilities. One Brisbane kindergarten is leading the way in providing maternity leave to its employees. The Director of Campus Kindergarten, Megan GIBSON, explains how, through staff input, the centre has developed a comprehensive parental leave policy that sits hand in hand with their professional development policy.

The development and evaluation of an innovative nursing practice model to improve undergraduate nursing students' competence in paediatric physical assessment

Introduction The purpose of this study was to develop, implement and evaluate the impact of an educational intervention, comprising an innovative model of clinical decisionmaking and educational delivery strategy for facilitating nursing students‘ learning and development of competence in paediatric physical assessment practices. Background of the study Nursing students have an undergraduate education that aims to produce graduates of a generalist nature who demonstrate entry level competence for providing nursing care in a variety of health settings. Consistent with population morbidity and health care roles, paediatric nursing concepts typically form a comparatively small part of undergraduate curricula and students‘ exposure to paediatric physical assessment concepts and principles are brief. However, the nursing shortage has changed traditional nursing employment patterns and new graduates form the majority of the recruitment pool for paediatric nursing speciality staff. Paediatric nursing is a popular career choice for graduates and anecdotal evidence suggests that nursing students who select a clinical placement in their final year intend to seek employment in paediatrics upon graduation. Although concepts of paediatric nursing are included within undergraduate curriculum, students‘ ability to develop the required habits of mind to practice in what is still regarded as a speciality area of practice is somewhat limited. One of the areas of practice where this particularly impacts is in paediatric nursing physical assessment. Physical assessment is a fundamental component of nursing practice and competence in this area of practice is central to nursing students‘ development of clinical capability for practice as a registered nurse. Timely recognition of physiologic deterioration of patients is a key outcome of nurses‘ competent use of physical assessment strategies, regardless of the practice context. In paediatric nursing contexts children‘s physical assessment practices must specifically accommodate the child‘s different physiological composition, function and pattern of clinical deterioration (Hockenberry & Barrera, 2007). Thus, to effectively manage physical assessment of patients within the paediatric practice setting nursing students need to integrate paediatric nursing theory into their practice. This requires significant information processing and it is in this process where students are frequently challenged. The provision of rules or models can guide practice and assist novice-level nurses to develop their capabilities (Benner, 1984; Benner, Hooper-Kyriakidis & Stannard, 1999). Nursing practice models are cognitive tools that represent simplified patterns of expert analysis employing concepts that suit the limited reasoning of the inexperienced, and can represent the =rules‘ referred to by Benner (1984). Without a practice model of physical assessment students are likely to be uncertain about how to proceed with data collection, the interpretation of paediatric clinical findings and the appraisal of findings. These circumstances can result in ad hoc and unreliable nursing physical assessment that forms a poor basis for nursing decisions. The educational intervention developed as part of this study sought to resolve this problem and support nursing students‘ development of competence in paediatric physical assessment. Methods This study utilised the Context Input Process Product (CIPP) Model by Stufflebeam (2004) as the theoretical framework that underpinned the research design and evaluation methodology. Each of the four elements in the CIPP model were utilised to guide discrete stages of this study. The Context element informed design of the clinical decision-making process, the Paediatric Nursing Physical Assessment model. The Input element was utilised in appraising relevant literature, identifying an appropriate instructional methodology to facilitate learning and educational intervention delivery to undergraduate nursing students, and development of program content (the CD-ROM kit). Study One employed the Process element and used expert panel approaches to review and refine instructional methods, identifying potential barriers to obtaining an effective evaluation outcome. The Product element guided design and implementation of Study Two, which was conducted in two phases. Phase One employed a quasiexperimental between-subjects methodology to evaluate the impact of the educational intervention on nursing students‘ clinical performance and selfappraisal of practices in paediatric physical assessment. Phase Two employed a thematic analysis and explored the experiences and perspectives of a sample subgroup of nursing students who used the PNPA CD-ROM kit as preparation for paediatric clinical placement. Results Results from the Process review in Study One indicated that the prototype CDROM kit containing the PNPA model met the predetermined benchmarks for face validity and the impact evaluation instrumentation had adequate content validity in comparison with predetermined benchmarks. In the first phase of Study Two the educational intervention did not result in statistically significant differences in measures of student performance or self-appraisal of practice. However, in Phase Two qualitative commentary from students, and from the expert panel who reviewed the prototype CD-ROM kit (Study One, Phase One), strongly endorsed the quality of the intervention and its potential for supporting learning. This raises questions regarding transfer of learning and it is likely that, within this study, several factors have influenced students‘ transfer of learning from the educational intervention to the clinical practice environment, where outcomes were measured. Conclusion In summary, the educational intervention employed in this study provides insights into the potential e-learning approaches offer for delivering authentic learning experiences to undergraduate nursing students. Findings in this study raise important questions regarding possible pedagogical influences on learning outcomes, issues within the transfer of theory to practice and factors that may have influenced findings within the context of this study. This study makes a unique contribution to nursing education, specifically with respect to progressing an understanding of the challenges faced in employing instructive methods to impact upon nursing students‘ development of competence. The important contribution transfer of learning processes make to students‘ transition into the professional practice context and to their development of competence within the context of speciality practice is also highlighted. This study contributes to a greater awareness of the complexity of translating theoretical learning at undergraduate level into clinical practice, particularly within speciality contexts.

High Court decision on duty owed by licensee to patron

In a previous column of Queensland Lawyer,1 the case of Scott v CAL No 14 Pty Ltd (No 2) (2009) 256 ALR 512 was discussed. Special leave to appeal against the decision of the Full Court of the Supreme Court of Tasmania was granted and on 10 November 2009 the High Court handed down its decision.

Actions for declaratory or injunctive relief by the Corporate Regulator under s 471B of the Corporations Act

This article by Ben McEniery discusses the matters a court will consider when leave to commence or proceed against a company in liquidation is sought not by a creditor seeking to prove a debt, but by the corporate regulator pursuing declaratory or injunctive relief.

An evaluation of the sustainability of agreements reached through mediations conducted by the dispute resolution centres of the Department of Justice and Attorney General, Queensland between 1999 to 2003

In 1990 the Dispute Resolution Centres Act, 1990 (Qld) (the Act) was passed by the Queensland Parliament. In the second reading speech for the Dispute Resolution Centres Bill on May 1990 the Hon Dean Wells stated that the proposed legislation would make mediation services available “in a non-coercive, voluntary forum where, with the help of trained mediators, the disputants will be assisted towards their own solutions to their disputes, thereby ensuring that the result is acceptable to the parties” (Hansard, 1990, 1718). It was recognised at that time that a method for resolving disputes was necessary for which “the conventional court system is not always equipped to provide lasting resolution” (Hansard, 1990, 1717). In particular, the lasting resolution of “disputes between people in continuing relationships” was seen as made possible through the new legislation; for example, “domestic disputes, disputes between employees, and neighbourhood disputes relating to such issues as overhanging tree branches, dividing fences, barking dogs, smoke, noise and other nuisances are occurring continually in the community” (Hansard, 1990, 1717). The key features of the proposed form of mediation in the Act were articulated as follows: “attendance of both parties at mediation sessions is voluntary; a party may withdraw at any time; mediation sessions will be conducted with as little formality and technicality as possible; the rules of evidence will not apply; any agreement reached is not enforceable in any court; although it could be made so if the parties chose to proceed that way; and the provisions of the Act do not affect any rights or remedies that a party to a dispute has apart from the Act” (Hansard, 1990, 1718). Since the introduction of the Act, the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney General has offered mediation services through, first the Community Justice Program (CJP), and then the Dispute Resolution Centres (DRCs) for a range of family, neighbourhood, workplace and community disputes. These services have mirrored those available through similar government agencies in other states such as the Community Justice Centres of NSW and the Victorian Dispute Resolution Centres. Since 1990, mediation has become one of the fastest growing forms of alternative dispute resolution (ADR). Sourdin has commented that "In addition to the growth in court-based and community-based dispute resolution schemes, ADR has been institutionalised and has grown within Australia and overseas” (2005, 14). In Australia, in particular, the development of ADR service provision “has been assisted by the creation and growth of professional organisations such as the Leading Edge Alternative Dispute Resolvers (LEADR), the Australian Commercial Dispute Centres (ACDC), Australian Disputes Resolution Association (ADRA), Conflict Resolution Network, and the Institute of Arbitrators and Mediators Australia (IAMA)” (Sourdin, 2005, 14). The increased emphasis on the use of ADR within education contexts (particularly secondary and tertiary contexts) has “also led to an increasing acceptance and understanding of (ADR) processes” (Sourdin, 2005, 14). Proponents of the mediation process, in particular, argue that much of its success derives from the inherent flexibility and creativity of the agreements reached through the mediation process and that it is a relatively low cost option in many cases (Menkel-Meadow, 1997, 417). It is also accepted that one of the main reasons for the success of mediation can be attributed to the high level of participation by the parties involved and thus creating a sense of ownership of, and commitment to, the terms of the agreement (Boulle, 2005, 65). These characteristics are associated with some of the core values of mediation, particularly as practised in community-based models as found at the DRCs. These core values include voluntary participation, party self-determination and party empowerment (Boulle, 2005, 65). For this reason mediation is argued as being an effective approach to resolving disputes, that creates a lasting resolution of the issues. Evaluation of the mediation process, particularly in the context of the growth of ADR, has been an important aspect of the development of the process (Sourdin, 2008). Writing in 2005 for example, Boulle, states that “although there is a constant refrain for more research into mediation practice, there has been a not insignificant amount of mediation measurement, both in Australia and overseas” (Boulle, 2005, 575). The positive claims of mediation have been supported to a significant degree by evaluations of the efficiency and effectiveness of the process. A common indicator of the effectiveness of mediation is the settlement rate achieved. High settlement rates for mediated disputes have been found for Australia (Altobelli, 2003) and internationally (Alexander, 2003). Boulle notes that mediation agreement rates claimed by service providers range from 55% to 92% (Boulle, 2005, 590). The annual reports for the Alternative Dispute Resolution Branch of the Queensland Department of Justice and Attorney-General considered prior to the commencement of this study indicated generally achievement of an approximate settlement figure of 86% by the Queensland Dispute Resolution Centres. More recently, the 2008-2009 annual report states that of the 2291 civil dispute mediated in 2007-2008, 86% reached an agreement. Further, of the 2693 civil disputes mediated in 2008-2009, 73% reached an agreement. These results are noted in the report as indicating “the effectiveness of mediation in resolving disputes” and as reflecting “the high level of agreement achieved for voluntary mediations” (Annual Report, 2008-2009, online). Whilst the settlement rates for the DRCs are strong, parties are rarely contacted for long term follow-up to assess whether agreements reached during mediation lasted to the satisfaction of each party. It has certainly been the case that the Dispute Resolution Centres of Queensland have not been resourced to conduct long-term follow-up assessments of mediation agreements. As Wade notes, "it is very difficult to compare "success" rates” and whilst “politicians want the comparison studies (they) usually do not want the delay and expense of accurate studies" (1998, 114). To date, therefore, it is fair to say that the efficiency of the mediation process has been evaluated but not necessarily its effectiveness. Rather, the practice at the Queensland DRCs has been to evaluate the quality of mediation service provision and of the practice of the mediation process. This has occurred, for example, through follow-up surveys of parties' satisfaction rates with the mediation service. In most other respects it is fair to say that the Centres have relied on the high settlement rates of the mediation process as a sign of the effectiveness of mediation (Annual Reports 1991 - 2010). Research of the mediation literature conducted for the purpose of this thesis has also indicated that there is little evaluative literature that provides an in-depth analysis and assessment of the longevity of mediated agreements. Instead evaluative studies of mediation tend to assess how mediation is conducted, or compare mediation with other conflict resolution options, or assess the agreement rate of mediations, including parties' levels of satisfaction with the service provision of the dispute resolution service provider (Boulle, 2005, Chapter 16).

Supreme Court Act 1995 (Qld) s 253 – whether refusal to stay execution of costs is an order “as to costs only”

In Virgtel Ltd v Zabusky [2009] QCA 92 the Queensland Court of Appeal considered the scope of an order “as to costs only” within the meaning of s 253 of the Supreme Court Act 1995 (Qld) (‘the Act”). The Court also declined to accept submissions from one of the parties after oral hearing, and made some useful comments which serve as a reminder to practitioners of their obligations in that regard.

UCPR 229 - defamation proceedings – damages to be assessed – application to interrogate as to defendant’s motive - implications of Defamation ACT 2005 - application to interrogate before action - when in the interests of justice

In Hogan v Ellery [2009] QDC 154 McGill DCJ considered two applications for leave to deliver interrogatories under r 229 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The judgment provides useful analysis of the circumstances in which a plaintiff may obtain leave to deliver interrogatories to a defendant in defamation proceedings, and also to a non-party before action.

Practice and Procedure - Personal Injuries Proceedings Act 2002 - whether "urgent need" under s43 to start proceeding notwithstanding non-compliance with chapter 2 part 1

In Lamb v State of Queensland [2003] QDC 003 McGill DCJ considered an application under s43 of the Personal Injuries Proceedings Act 2002. That provision permits the court to give a claimant leave to start a proceeding notwithstanding non-compliance with part 1 of chapter two of the Act, "if the court is satisfied there is an urgent need to start the proceeding."

UCPR r548 - requirement for report or proof of evidence intended to be relied on at trial

In Oates v Cootes Tanker Service Pty Ltd [2005] QSC 213, Fryberg J considered some interesting questions of construction in relation to the rule requiring the plaintiff to provide a statement of loss and damage in personal injuries proceedings (UCPR r 548) and the rule in relation to the giving of expert evidence (UCPR r427)

HealthMap: A cluster randomised trial of interactive health plans and self-management support to prevent coronary heart disease in people with HIV

Background The leading causes of morbidity and mortality for people in high-income countries living with HIV are now non-AIDS malignancies, cardiovascular disease and other non-communicable diseases associated with ageing. This protocol describes the trial of HealthMap, a model of care for people with HIV (PWHIV) that includes use of an interactive shared health record and self-management support. The aims of the HealthMap trial are to evaluate engagement of PWHIV and healthcare providers with the model, and its effectiveness for reducing coronary heart disease risk, enhancing self-management, and improving mental health and quality of life of PWHIV. Methods/Design The study is a two-arm cluster randomised trial involving HIV clinical sites in several states in Australia. Doctors will be randomised to the HealthMap model (immediate arm) or to proceed with usual care (deferred arm). People with HIV whose doctors are randomised to the immediate arm receive 1) new opportunities to discuss their health status and goals with their HIV doctor using a HealthMap shared health record; 2) access to their own health record from home; 3) access to health coaching delivered by telephone and online; and 4) access to a peer moderated online group chat programme. Data will be collected from participating PWHIV (n = 710) at baseline, 6 months, and 12 months and from participating doctors (n = 60) at baseline and 12 months. The control arm will be offered the HealthMap intervention at the end of the trial. The primary study outcomes, measured at 12 months, are 1) 10-year risk of non-fatal acute myocardial infarction or coronary heart disease death as estimated by a Framingham Heart Study risk equation; and 2) Positive and Active Engagement in Life Scale from the Health Education Impact Questionnaire (heiQ). Discussion The study will determine the viability and utility of a novel technology-supported model of care for maintaining the health and wellbeing of people with HIV. If shown to be effective, the HealthMap model may provide a generalisable, scalable and sustainable system for supporting the care needs of people with HIV, addressing issues of equity of access. Trial registration Universal Trial Number (UTN) U111111506489; ClinicalTrial.gov Id NCT02178930 submitted 29 June 2014

A shameful spectacle

The linguistics of violence in film and on television is a hotly debated topic, especially whenever outrageously violent crimes are committed in the community. The debate tends to proceed thus: was the perpetrator addicted to watching violent films and videos, and if so, did the language of mediated violence translate into the language of everyday action, blurring the boundaries between fantasy and reality? The cause—effect relationship between fantasies enacted on screen and horrific real-life crimes has never been proven scientifically, despite endless governmental inquiries and many attempts by academics to discover a causation formula. I will not be looking so much at the vexed question of the relationship between stylized violence on celluloid and real violence in a community. Rather, I wish to explore the nature of a particular form of mediated, gendered violence through an analysis of the language of several key films made in the past decade focusing on the violent crime of rape: Hollywood films The Accused (1988), Casualties of War (1989), Thelma and Louise (1991), Strange Days (1996), and the Australian films Shame (1988) and The Boys (1998). In this way, I wish to show how rape is depicted linguistically in film, and how such films may actually give solutions to this abhorrent kind of violence rather than thrill the viewer vicariously, or, in a worst case scenario, stimulate people to further violence.

Housing supply in Australia : the impact of the availability of development finance

Before the Global Financial Crisis many providers of finance had growth mandates and actively pursued development finance deals as a way of gaining higher returns on funds with regular capital turnover and re-investment possible. This was able to be achieved through high gearing and low presales in a strong market. As asset prices fell, loan covenants breached and memories of the 1990’s returned, banks rapidly adjusted their risk appetite via retraction of gearing and expansion of presale requirements. Early signs of loosening in bank credit policy are emerging, however parties seeking development finance are faced with a severely reduced number of institutions from which to source funding. The few institutions that are lending are filtering out only the best credit risks by way of constrictive credit conditions including: low loan to value ratios, the corresponding requirement to contribute high levels of equity, lack of support in non-prime locations and the requirement for only borrowers with well established track records. In this risk averse and capital constrained environment, the ability of developers to proceed with real estate developments is still being constrained by their inability to obtain project finance. This paper will examine the pre and post GFC development finance environment. It will identify the key lending criteria relevant to real estate development finance and will detail the related changes to credit policies over this period. The associated impact to real estate development projects will be presented, highlighting the significant constraint to supply that the inability to obtain finance poses.