Summary judgment for plaintiff

The decision in Burke v Van Eeuwen (unreported, District Court of Queensland, No 1490/2002) reminds practitioners of the importance of an appearance for a party at any hearing of an application, even when a party's representatives may consider an opposing party is clearly not entitled to the order it seeks.

Buyer's hardship precludes specific performance

The case is noteworthy for its consideration of the relevance of circumstances arising after formation of the contract of sale in a summary judgment context...

The valley of the dolls: Brand protection and artistic parody

In the case of Mattel Inc v Walking Mountain Productions, the toy doll manufacturer Mattel sought to prohibit a Utah photographer called Thomas Forsythe from producing and selling a series of 78 photographs entitled "Food Chain Barbie". The work had strong social and political overtones. The artist said that he chose to parody Barbie in his photographs because he wanted to challenge the beauty myth and the objectification of women. He observed: "Barbie is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." The company Mattel argued that the photographs infringed its copyrights, trade marks, and trade dress. It was concerned that the artistic works would erode the brand of Barbie by wrongfully sexualising its blonde paragon of womanhood. However, Lew J of the Central District Court of California granted summary judgment for the photographer. The Court of Appeals upheld this verdict. Pregerson J held that the use of the manufacturer's copyrighted doll in parodic photographs constituted a fair use of copyright works. His Honour held that the use of manufacturer's "Barbie" mark and trade dress did not amount to trade mark infringement or dilution. This article provides a case commentary upon the Court of Appeals decision in Mattel Inc v Walking Mountain Productions, and its wider ramifications for the treatment of artistic parody under copyright law and trade mark law. It contends that the decision highlights the need for reform in Australian jurisprudence and legislation in respect of artistic parody.

Supreme Court Act 1995 s48 - Interest on judgment for damages for personal injuries

The case of Flynn v The Maryborough Sugar Factory Limited [2003] QDC 446 the plaintiff had been awarded damages for personal injuries and there was a charge on those damages under a Commonwealth statute, with a provision in the statute that damages could not be satisfied until the Commonwealth had been paid. The Court considered the point of considerable practical significance of whether interest accrued on the judgment under s48 of the Supreme Court Act 1995 (Qld) before the defendant had obtained clearances under the Commonwealth legislation.

The STRATIFY tool and clinical judgment were poor predictors of falling in an acute hospital setting

Objective: To compare the effectiveness of the STRATIFY falls tool with nurses’ clinical judgments in predicting patient falls. Study Design and Setting: A prospective cohort study was conducted among the inpatients of an acute tertiary hospital. Participants were patients over 65 years of age admitted to any hospital unit. Sensitivity, specificity, and positive predictive value (PPV) and negative predictive values (NPV) of the instrument and nurses’ clinical judgments in predicting falls were calculated. Results: Seven hundred and eighty-eight patients were screened and followed up during the study period. The fall prevalence was 9.2%. Of the 335 patients classified as being ‘‘at risk’’ for falling using the STRATIFY tool, 59 (17.6%) did sustain a fall (sensitivity50.82, specificity50.61, PPV50.18, NPV50.97). Nurses judged that 501 patients were at risk of falling and, of these, 60 (12.0%) fell (sensitivity50.84, specificity50.38, PPV50.12, NPV50.96). The STRATIFY tool correctly identified significantly more patients as either fallers or nonfallers than the nurses (P50.027). Conclusion: Considering the poor specificity and high rates of false-positive results for both the STRATIFY tool and nurses’ clinical judgments, we conclude that neither of these approaches are useful for screening of falls in acute hospital settings.

Brite innovation survey : executive summary

This report summarises the fi ndings of an innovation survey of the Australian construction industry undertaken by the BRITE Project of the CRC for Construction Innovation in 2004. The BRITE Innovation Survey can be viewed in full at www.brite.crcci.info.The objective of the BRITE project is to improve the incidence and quality of innovation in the Australian construction industry. Many stakeholders in the industry are sceptical about the potential for innovation and its likely benefi ts. Many also lack the linkages and capabilities required for successful innovation. The BRITE Project is redressing this situation through demonstration and benchmarking activities. The term ‘innovation’ is defi ned as a new or signifi cantly improved technology or advanced business practice. Innovation may be technological or organisational, and it may be new to the world, or just new to the industry or business concerned. The defi nition includes the adoption of existing advancements developed outside a particular business. The survey sample was drawn from 3,500 businesses in the road/bridge and commercial building sectors in New South Wales, Victoria and Queensland, covering main contractors, trade contractors, consultants, suppliers and clients. Onethird of this population was sampled and a response rate of almost 30% was achieved. The survey collected information about respondents’ perceptions of innovation determinants in the industry, comprising various aspects of business strategy and business environment.

Multi-Outcome Construction Policies : Industry-Focused Research Summary

The Multi-outcomes Construction Policies research project, funded by the Cooperative Research Centre for Construction Innovation (Project 2006-036-A), sought to explore the costs and benefits of leveraging social outcomes on public construction contracts. The context of the research project was the trend towards the contracting out of public construction works and the attempts that have been made to use new contractual arrangements with construction companies to construction achieve a wide range of social outcomes. In federal and state jurisdictions it is now common for governments to impose a range of additional requirements on public works contractors that relate to broad social/community objectives. These requirements include commitments to train apprentices and trainees; to provide local and/or indigenous employment opportunities; to buy local materials; and to include art works. The cost and benefits of using public construction contracts to achieve social/community goals have, to our knowledge, not been thoroughly researched in an Australian context. This is likely to reflect in large part the relatively short history of contracting out public works. As Jensen and Stonecash (2004) explain, most previous empirical studies of contracting out have attempted to measure the cost savings achieved through privatization, as this was the focus of policy debate in the 1980s and 1990s. Relatively few studies have addressed the ability of contracting arrangements to ensure the delivery of desired ‘quality’ outcomes1, or the costs of achieving these outcomes via contracting arrangements. One of the potential costs of attempting to leverage social/community outcomes on public construction projects is a reduction in the amount of competition for these projects, with obvious consequences for average bid prices and choice. In jurisdictions, such as Western Australia and Queensland, where currently construction market conditions are already

How to extract and expand randomness : a summary and explanation of existing results

We examine the use of randomness extraction and expansion in key agreement (KA) pro- tocols to generate uniformly random keys in the standard model. Although existing works provide the basic theorems necessary, they lack details or examples of appropriate cryptographic primitives and/or parameter sizes. This has lead to the large amount of min-entropy needed in the (non-uniform) shared secret being overlooked in proposals and efficiency comparisons of KA protocols. We therefore summa- rize existing work in the area and examine the security levels achieved with the use of various extractors and expanders for particular parameter sizes. The tables presented herein show that the shared secret needs a min-entropy of at least 292 bits (and even more with more realistic assumptions) to achieve an overall security level of 80 bits using the extractors and expanders we consider. The tables may be used to �nd the min-entropy required for various security levels and assumptions. We also �nd that when using the short exponent theorems of Gennaro et al., the short exponents may need to be much longer than they suggested.

Duty of police and ambulance services : what happens when the plaintiff refuses treatment?

In a recent case the New South Wales Court of Appeal considered the duty of care owed by ambulance and police officers, issues concerning breach and causation and the practical effect of the exclusion of the plaintiff's evidence.

Developing consistency in teacher judgment formation through online meeting centres

This paper investigates the complex interactions that occur as teachers meet online to justify and negotiate their assessment judgments of student work across relatively large and geographically dispersed populations. Drawing from sociocultural theories of learning and technology, the technology is positioned as playing a role in either supporting or hindering teachers reaching a common understanding of assessment standards. Meeting transcripts and interviews with the teachers have been qualitatively analysed in terms of the interactions that occurred and teachers’ perceptions of these interactions. While online meetings offer a partial solution to address the current demands of assessment in education, they also present new challenges as teachers meet, in an unfamiliar environment, to discuss student work.

A summary view of government cost recovery policies in Australia and New Zealand relating to the supply of public sector information

Researching administrative history is problematical. A trail of authoritative documents is often hard to find; and useful summaries can be difficult to organise, especially if source material is in paper formats in geographically dispersed locations. In the absence of documents, the reasons for particular decisions and the rationale underpinning particular policies can be confounded as key personnel advance in their professions and retire. The rationale for past decisions may be lost for practical purposes; and if an organisation’s memory of events is diminished, its learning through experience is also diminished. Publishing this document tries to avoid unnecessary duplication of effort by other researchers that need to venture into how policies of charging for public sector information have been justified. The author compiled this work within a somewhat limited time period and the work does not pretend to be a complete or comprehensive analysis of the issues.----- A significant part of the role of government is to provide a framework of legally-enforceable rights and obligations that can support individuals and non-government organisations in their lawful activities. Accordingly, claims that governments should be more ‘business-like’ need careful scrutiny. A significant supply of goods and services occurs as non-market activity where neither benefits nor costs are quantified within conventional accounting systems or in terms of money. Where a government decides to provide information as a service; and information from land registries is archetypical, the transactions occur as a political decision made under a direct or a clearly delegated authority of a parliament with the requisite constitutional powers. This is not a market transaction and the language of the market confuses attempts to describe a number of aspects of how governments allocate resources.----- Cost recovery can be construed as an aspect of taxation that is a sole prerogative of a parliament. The issues are fundamental to political constitutions; but they become more complicated where states cede some taxing powers to a central government as part of a federal system. Nor should the absence of markets be construed necessarily as ‘market failure’ or even ‘government failure’. The absence is often attributable to particular technical, economic and political constraints that preclude the operation of markets. Arguably, greater care is needed in distinguishing between the polity and markets in raising revenues and allocating resources; and that needs to start by removing unhelpful references to ‘business’ in the context of government decision-making.

Cochrane review summary for cancer nursing : influenza vaccination in children having chemotherapy for cancer

Background: Children having chemotherapy for cancer are prone to developing influenza infections. Influenza virus infection may lead to hospitalization/prolonged hospitalization, interruption of treatment, and other severe adverse outcomes such as death. Although clinical guidelines recommend children who are being treated for cancer be vaccinated against influenza, evidence supporting this recommendation is unclear.--------- Objectives: The objectives of this review were to (1) assess the efficacy of influenza vaccination in stimulating immunologic response in children with cancer receiving chemotherapy, compared with other control groups; (2) assess the efficacy of influenza vaccination in preventing influenza infection; and (3) establish any adverse effects associated with influenza vaccines in children with cancer.