Federal Court Rules O23 r 11 - offers of compromise - offer for dismissal of claim and to forego recovery of costs.

In Uniline Australia Ltd ACN 010752057 v S Briggs Pty Ltd ACN 007415518 (No 2) [2009] FCA 920 Greenwood J considered a number of principles guiding the exercise of discretion in relation to costs, particularly when offers of compromise have been made under the formal process provided by the Federal Court Rules.

Principles on assessment of costs on standard basis – necessary or proper

The judgement in Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 57 McGill DCJ provides valuable guidance for practitioners as to whether a range of particular costs items should be permitted on an assessment on the standard basis, and the amounts which should be allowed for such items. The items in issue included counsel’s fees and fees paid to expert witnesses. The decision also examined GST implications for the recovery of legal costs.

MOE and MOR assessment technologies for improving graded recovery of exotic pines in Australia.

This project was designed to provide the structural softwood processing industry with the basis for improved green and dry grading to allow maximise MGP grade yields, consistent product performance and reduced processing costs. To achieve this, advanced statistical techniques were used in conjunction with state-of-the-art property measurement systems. Specifically, the project aimed to make two significant steps forward for the Australian structural softwood industry: • assessment of technologies, both existing and novel, that may lead to selection of a consistent, reliable and accurate device for the log yard and green mill. The purpose is to more accurately identify and reject material that will not make a minimum grade of MGP10 downstream; • improved correlation of grading MOE and MOR parameters in the dry mill using new analytical methods and a combination of devices. The three populations tested were stiffness-limited radiata pine, strength-limited radiata pine and Caribbean pine. Resonance tests were conducted on logs prior to sawmilling, and on boards. Raw data from existing in-line systems were captured for the green and dry boards. The dataset was analysed using classical and advanced statistical tools to provide correlations between data sets and to develop efficient strength and stiffness prediction equations. Stiffness and strength prediction algorithms were developed from raw and combined parameters. Parameters were analysed for comparison of prediction capabilities using in-line parameters, off-line parameters and a combination of in-line and off-line parameters. The results show that acoustic resonance techniques have potential for log assessment, to sort for low stiffness and/or low strength, depending on the resource. From the log measurements, a strong correlation was found between the average static MOE of the dried boards within a log and the predicted value. These results have application in segregating logs into structural and non-structural uses. Some commercial technologies are already available for this application such as Hitman LG640. For green boards it was found that in-line and laboratory acoustic devices can provide a good prediction of dry static MOE and moderate prediction for MOR.There is high potential for segregating boards at this stage of processing. Grading after the log breakdown can improve significantly the effectiveness of the mill. Subsequently, reductions in non-structural volumes can be achieved. Depending on the resource it can be expected that a 5 to 8 % reduction in non structural boards won’t be dried with an associated saving of $70 to 85/m3. For dry boards, vibration and a standard Metriguard CLT/HCLT provided a similar level of prediction on stiffness limited resource. However, Metriguard provides a better strength prediction in strength limited resources (due to this equipment’s ability to measure local characteristics). The combination of grading equipment specifically for stiffness related predictors (Metriguard or vibration) with defect detection systems (optical or X-ray scanner) provides a higher level of prediction, especially for MOR. Several commercial technologies are already available for acoustic grading on board such those from Microtec, Luxscan, Falcon engineering or Dynalyse AB for example. Differing combinations of equipment, and their strategic location within the processing chain, can dramatically improve the efficiency of the mill, the level of which will vary depending of the resource. For example, an initial acoustic sorting on green boards combined with an optical scanner associated with an acoustic system for grading dry board can result in a large reduction of the proportion of low value low non-structural produced. The application of classical MLR on several predictors proved to be effective, in particular for MOR predictions. However, the usage of a modern statistics approach(chemometrics tools) such as PLS proved to be more efficient for improving the level of prediction. Compared to existing technologies, the results of the project indicate a good improvement potential for grading in the green mill, ahead of kiln drying and subsequent cost-adding processes. The next stage is the development and refinement of systems for this purpose.

Preliminary comparison of natural versus model-predicted recovery of vessel-generated seagrass injuries in Florida Keys National Marine Sanctuary

Each year, more than 500 motorized vessel groundings cause widespread damage to seagrasses in Florida Keys National Marine Sanctuary (FKNMS). Under Section 312 of the National Marine Sanctuaries Act (NMSA), any party responsible for the loss, injury, or destruction of any Sanctuary resource, including seagrass, is liable to the United States for response costs and resulting damages. As part of the damage assessment process, a cellular automata model is utilized to forecast seagrass recovery rates. Field validation of these forecasts was accomplished by comparing model-predicted percent recovery to that which was observed to be occurring naturally for 30 documented vessel grounding sites. Model recovery forecasts for both Thalassia testudinum and Syringodium filiforme exceeded natural recovery estimates for 93.1% and 89.5% of the sites, respectively. For Halodule wrightii, the number of over- and under-predictions by the model was similar. However, where under-estimation occurred, it was often severe, reflecting the well-known extraordinary growth potential of this opportunistic species. These preliminary findings indicate that the recovery model is consistently generous to Responsible Parties in that the model forecasts a much faster recovery than was observed to occur naturally, particularly for T. testudinum, the dominant seagrass species in the region and the species most often affected. Environmental setting (i.e., location, wave exposure) influences local seagrass landscape pattern and may also play a role in the recovery dynamics for a particular injury site. An examination of the relationship between selected environmental factors and injury recovery dynamics is currently underway. (PDF file contains 20 pages.)

Recovery of the stocks of the European eel (Anguilla anguilla) by spawner enhancement

The production of healthy high quality female European eel in recycle systems is proposed as a means to secure sufficient numbers of silver eel for spawning migration in order to meet the requirements of the European Commission’s proposal for a Regulation for the recovery of the stock of the European eel. Main advantages besides checks for parasites and viral diseases and avoidance of elevated levels of specific pollutants are the easily controllable numbers of spawners to be released and a reduction of labour and costs that will occur when acting along the lines of the Commission’s proposal.

Recovery of degraded areas using topsoil in the Amazon rainforest

This study is aimed at evaluating the effect of placing the top soil cover areas, such as tailings degraded by tin mining, in the Amazon rainforest in Brazil. The evaluations of the planting sites occurred in areas where tin mining was carried out, basically planting native trees over a period of seven years. This work did not come from a pre-decreed methodology of experimental design, and data was collected only seven years after planting. Thus, it was not possible to identify all variables that contributed to a better recovery of the areas. Sampling was done about seven years after placing the top soil and is determined: pH, organic matter content, P, K, Ca, Mg, Al, cation exchange capacity (T), base saturation (V%), B, Fe, Zn, Cu and Mn. The native forest species existing at the site were evaluated in relation to height (in meters) and diameter of the base. For all sites where the surface layer of soil was applied, there were significant differences in the growth of native species. A fundamental aspect in the rehabilitation of areas degraded by mining, in general, is the knowledge about the soil where that recovery must be conducted. The specific procedures in the rehabilitation of those areas depend essentially on the physical, chemical, biological and mineralogical properties of the soil, which must present conditions for the adequate development of the plants. The initial idea of implanting a project of recovery of soils degraded by mining in the Amazon Forest emerged from a first visit to the field, carried out in 1998. The conditions of the already mined areas, in comparison to the exuberant forest of the surroundings caught our attention. The mining company that acts in the area had already been trying for some time to implant a plan of recovery of these mining areas, however without reaching any significant positive results. The loss of organic matter is one of the main problems of degraded areas in Brazil. The storage and reuse of a blanket of soil (topsoil) produce excellent results, but most of the miners consider this technique expensive and difficult because of operational costs and the sharp topographical condition of the mine site. Therefore, a research project was elaborated prioritizing the recovery of the soil degraded by the tin mining as a prior step to the recovery activities with native forest species. The formation of a superficial pseudo-horizon that supported the vegetation and the time that it would take for its establishment became the main objective of this research. The objective of this work is to verify the levels of elements and their traces in areas where top soils were applied for the remediation of degraded areas with local re-vegetation. © 2011 WIT Press.

Pro Bono - But what about costs?

The decision of the Queensland Court of Appeal in King v King demonstrates that in proceedings in Queensland Courts legal practitioners acting pro bono should still consider at the outset whether it is desired to provide for recovery of costs which might be recovered from another party.

Effects of mixed-method cooling on recovery of medium-fast bowling performance in hot conditions on consecutive days

This investigation examined physiological and performance effects of cooling on recovery of medium-fast bowlers in the heat. Eight, medium-fast bowlers completed two randomised trials, involving two sessions completed on consecutive days (Session 1: 10-overs and Session 2: 4-overs) in 31 ± 3°C and 55 ± 17% relative humidity. Recovery interventions were administered for 20 min (mixed-method cooling vs. control) after Session 1. Measures included bowling performance (ball speed, accuracy, run-up speeds), physical demands (global positioning system, counter-movement jump), physiological (heart rate, core temperature, skin temperature, sweat loss), biochemical (creatine kinase, C-reactive protein) and perceptual variables (perceived exertion, thermal sensation, muscle soreness). Mean ball speed was higher after cooling in Session 2 (118.9 ± 8.1 vs. 115.5 ± 8.6 km · h−1; P = 0.001; d = 0.67), reducing declines in ball speed between sessions (0.24 vs. −3.18 km · h−1; P = 0.03; d = 1.80). Large effects indicated higher accuracy in Session 2 after cooling (46.0 ± 11.2 vs. 39.4 ± 8.6 arbitrary units [AU]; P = 0.13; d = 0.93) without affecting total run-up speed (19.0 ± 3.1 vs. 19.0 ± 2.5 km · h−1; P = 0.97; d = 0.01). Cooling reduced core temperature, skin temperature and thermal sensation throughout the intervention (P = 0.001–0.05; d = 1.31–5.78) and attenuated creatine kinase (P = 0.04; d = 0.56) and muscle soreness at 24-h (P = 0.03; d = 2.05). Accordingly, mixed-method cooling can reduce thermal strain after a 10-over spell and improve markers of muscular damage and discomfort alongside maintained medium-fast bowling performance on consecutive days in hot conditions.

Survival, sublethal injury and recovery of environmental Burkholderia pseudomallei in soil subjected to desiccation

Environmental Burkholderia pseudomallei isolated from sandy soil at Castle Hill, Townsville, in the dry tropic region of Queensland, Australia, was inoculated into sterile-soil laboratory microcosms subjected to variable soil moisture. Survival and sublethal injury of the B. pseudomallei strain were monitored by recovery using culture-based methods. Soil extraction buffer yielded higher recoveries as an extraction agent than sterile distilled water. B. pseudomallei was not recoverable when inoculated into desiccated soil but remained recoverable from moist soil subjected to 91 days desiccation and showed a growth response to increased soil moisture over at least 113 days. Results indicate that endemic dry tropic soil may act as a reservoir during the dry season, with an increase in cell number and potential for mobilization from soil into water in the wet season.

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.