Gardner; re BWW: Victorian Supreme Court makes landmark Australian ruling on tube feeding

• The Victorian Supreme Court has decided that artificial nutrition and hydration provided through a percutaneous gastrostomy tube to a woman in a persistent vegetative state may be withdrawn.
• The judge ruled, in line with a substantial body of international medical, ethical and legal opinion, that any form of artificial nutrition and hydration is a medical procedure, not part of palliative care, and that it is a procedure to sustain life, not to manage the dying process.
• Thus, the law does not impose a rigid obligation to administer artificial nutrition or hydration to people who are dying, without due regard to their clinical condition. The definition of key terms such as “medical treatment”, “palliative care”, and “reasonable provision of food and water” in this case will serve as guidance for end-of-life decisions in other states and territories.
• The case also reiterates the right of patients, and, when incompetent, their validly appointed agents or guardians, to refuse medical treatment.
• Where an incompetent patient has not executed a binding advance directive and no agent or guardian has been appointed, physicians, in consultation with the family, may decide to withdraw medical treatment, including artificial nutrition or hydration, on the basis that continuation of treatment is inappropriate and not in the patient’s best interests. However, Victoria and other jurisdictions would benefit from clarification of this area of the law

Multiple regime shifts in concurring and dissenting opinions on the U.S. Supreme Court

In a previous issue of this journal, Smyth and Narayan (2004) examine structural change in the level of consensus on the High Court of Australia. In this article we adopt a similar strategy to that employed in Smyth and Narayan (2004) to estimate both the number and location of structural breaks in concurring and dissenting opinions on the U.S. Supreme Court. Although it has commonly been believed that there has been one regime shift on the U.S. Supreme Court, corresponding to the breakdown in the consensual norm in the 1930s or 1940s, we find that there have been three breaks in consensus. We find that two of the three breaks in dissenting opinions correspond closely to the beginning of the terms of Taney and Stone as Chief Justice, with the third occurring in the middle of Chase's term. We find that two of the three breaks in concurring opinions correspond closely to the beginning of the terms of Taney and Hughes and that the third break in concurring opinions occurs in the middle of the Warren Court.

Supersession of the senior-most judges in Bangladesh in appointing the chief justice and the other judges of the appellate division of the supreme court : a convenient means to a politicized bench

The Constitution of Bangladesh has provided the President with the unfettered power to appoint the Chief Justice of Bangladesh. However, the President is required by the Constitution to act on the advice of the Prime Minister, after consulting the Chief Justice, in appointing the puisne judges of the Supreme Court - the apex court of the nation. This Article finds that in the absence of any specific constitutional provisions specifying that the senior-most judge of the Appellate Division - the higher Division of the Supreme Court - should be appointed as the Chief Justice, a convention to this effect was developed for ensuring that extraneous considerations did not play a part in the pivotal appointment of the Chief Justice. In the same vein, a convention of appointing the senior-most judges of the High Court Division, which is the lower Division of the Supreme Court, as the judges of the Appellate Division was developed. But both these conventions have been transgressed at regular intervals by succeeding generations of executives, particularly by the current one, for politicizing the superior judiciary of the nation, thereby undermining its credibility in the eyes of the litigants as an impartial arbitrator of disputes. Accordingly, this article concludes that in order to exclude the possibility of appointments on extraneous considerations, the principles of appointing the Chief Justice and the other judges of the Appellate Division on the basis of seniority should be inserted in the Constitution by means of an amendment.

Corporate liability for workplace deaths and injuries-reflecting on Victoria's laws in the light of the Esso Longford explosion

The purpose of this article is to consider some different legal models for the liability of corporations for the deaths and serious injuries of their employees, with particular emphasis on the law in Victoria.

Two recent developments in Victoria prompt this consideration. First, on 30 July 2001, the Victorian Supreme Court handed down its sentencing decision in the case arising from the explosion on 25 September 1998 at the Longford gas plant operated by Esso Australia Pty Ltd. The decision marked the end of the formal public consideration of a devastating event in Victorian industrial history, which began with the Royal Commission set up on 20 October 1998 to investigate the causes of an explosion in which two workers died and eight others were injured. Second, in early 2002, the Victorian Government failed in its attempt to introduce new criminal offences for corporate employers whose employees are killed or seriously injured at work. In spite of their failure to be passed by the Legislative Council in Victoria, these proposals warrant consideration. They represent a growing trend by policy makers in attempting to address more effectively the question of the liability for deaths and serious injuries of workers to employers who operate through the corporate form.

Removal of company directors in a climate of corporate collapses

The string of high-profile corporate collapses recently has provided a fresh insight into many important topics and issues in Australian corporations law. Notwithstanding this, one topic that continues to receive inadequate attention both in Australia and in foreign jurisdictions is the statutory removal of  directors. In an earlier article published in this journal, one of the present authors contributed towards addressing this lack of commentary on the topic by highlighting a number of peculiarities with the provisions under the then Corporations Law regulating the removal of directors in public and proprietary companies. Since that time, the CLERP amendments to the Corporations Law (now Corporations Act 2001) in 2000 introduced some interesting changes to the provisions dealing with the removal of directors in public and proprietary companies. In this article, the authors provide an explanation and critical analysis of these changes, and consider the recent Western Australian Supreme Court decision of Allied & Mining Process Ltd v Boldbow Pty Ltd [2002] WASC 195, which deals with some of the issues raised by the authors in relation to the CLERP amendments. According to the authors, whilst some of the peculiarities raised in the earlier article no longer exist post-CLERP, the current removal provisions still raise some important questions of interpretation.

Capping the SRO's sweet tooth

The consequences of the State Revenue Office's (SRO) liking for fixtures and its liberal interpretation of the definition of chattels have been coming before the Supreme Court regularly.

Ambiguities and inconsistencies in relation to the obligations of proxies under corporations law: a model for reform

This article reconsiders the important question which came to light as a result of the controversial 2002 Coles Myer annual general meeting: do directors that are appointed as proxy have an obligation to vote as directed (and indeed should they)? A recent decision of the New South Wales Supreme Court, which was subsequently approved on appeal, stands for the proposition that proxy holders are agents of the shareholders that appointed them. However, currently the Corporations Act only requires a Chairman appointed as proxy to vote as directed — not an ordinary director. This article briefly explains the present state of the law in Australia on this issue, and then explores some interesting recent judicial remarks which may suggest that ordinary directors appointed as proxy must vote as directed in order to satisfy their director’s duties (both common law and statutory) to the company. We finally outline a proposed statutory reform initiative which seeks to remove the present uncertainty in the law by introducing a blanket requirement that all proxy holders must vote as directed.

Euthanasia and assisted suicide : a liberal approach versus the traditional moral view

Within the context of the debate over the recent suspended sentence given to John Stuart Godfrey by Underwood J in the Supreme Court of Tasmania for assisting his elderly mother with her suicide, this article examines some of the more popular arguments for and against the moral acceptability of euthanasia and assisted suicide. This article considers the arguments put forward on the “difference principle” by Rachels and Nesbitt before critically examining the liberal approach to the euthanasia issue as proposed by Kuhse. It is argued that whilst Kuhse is correct to reject the difference principle, she does so for the wrong reasons. The penultimate section of the article provides an overview of the traditional moral view against killing. The final part assesses whether the arguments put forward by proponents of the liberal approach are capable of overcoming this view.

Directors' personal liability-is the proposed amendment to Section 197 acceptable when compared with Hanel v O'Neill?

On 2 June 2005, the Australian Government announced a proposal to amend s. 197 of the Corporations Act. This is to overturn the decision in Hanel v. O'Neill ("Hanel") where the South Australian Supreme Court has expanded the circumstances in which directors of trustee companies can be held personally liable for the debts under the current section 197(1) of the Corporations Act 2001 (Cth). The multiple interpretations presented in Hanel highlighted the uncertainty of s. 197 and this uncertainty is heightened in at least two subsequent cases. The article provides a detailed analysis of how the decision in Hanel is affecting the directors' freedom of management and suggests some precautionary measures that the directors could take as protection against creditor's actions under s. 197. The author welcomes the proposed amendment because the new section will create certainty for directors as to. the scope of their potential personal liability, but contends that the substance of the proposed s. 197 is not acceptable as there is potential for abuse by directors of certain trustee companies.

A tale of action, suspense and drama : Village Roadshow’s buy-back scheme

The experience of Village Roadshow, in its two failed attempts to have a share buy-back scheme approved by the Supreme Court, sounds a warning to companies and their legal advisers about the pitfalls in presentation of such schemes to shareholders.

Enforcement of arbitral awards where the seat of the arbitration is Australia, how the Eisenwerk decision might still be a sleeping assassin

This article examines the enforcement of foreign awards in Australia. It identifies and explains the difference between a “foreign award” and “international arbitration award,” observing it is a somewhat surprising but potentially significant distinction. The article then moves to consider the consequences of the distinction with particular reference to the Australian arbitral landscape. Australia has dual arbitration regimes operating at the state and federal level. Particular attention is given to the still controversial Queensland Supreme Court of Appeal decision in Australian Granites Ltd. v. Eisenwerk Hensel Bayreyth Dipl-Ing Burkhardt GmbH. The article concludes by promoting a line of interpretation that will effectively allow subsequent courts to avoid the potentially disastrous effects the Eisenwerk decision may yet still wreak.

Enough energy to get half way to the moon

A proposal to abandon Melbourne's Supreme Court for a new high-tech facility prompted quite an outcry of dismay when it was reported in the Melbourne press earlier this year, and has highlighted sustainability issues in relation to heritage buildings in Victoria.

Mineral rights are dead! Long live mineral rights!

Whilst being mindful of the eventual extinction of the legal notion of mineral rights in South Africa upon expiry of the transitional measures in terms of schedule II of the Mineral and Petroleum Resources Development Act 28 of 2002 on 30 April 2009, the classification of mineral rights by the supreme court of appeal in the Anglo decision is to be welcomed, even though it is somewhat ironic at this stage. (As to the extinction of the notion of mineral rights, see Badenhorst "Mineral rights : 'year zero cometh?'" 2001 Obiter 119; "Exodus of 'mineral rights' from South African mineral law" 2004 Journal of Energy and Natural Resources Law 218.) It will, however, be shown in this discussion that the decision of the supreme court of appeal will extend beyond the statutory transitional period and will also have an impact on rights to minerals or rights to petroleum as created in terms of the Mineral and Petroleum Resources Development Act (hereafter referred to as the act). For purposes of this discussion, one can simply continue to refer to mineral rights that developed from the common law as "mineral rights", whilst referring to the new rights created in terms of the act as "rights to minerals and petroleum". The present decision only deals with coal as "minerals".