Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website

Second Caveats and the Land Title Act 1994

This article analyses the key features of s129 of the Land Title Act 1994 with reference to pre-existing Queensland law, and relevant case law on comparable provisions in Australia and New Zealand. Its aim is to provide a practical guide on the circumstances in which the provision will apply, and the considerations likely to be weighted by the Court in determining whether to grant leave to lodge a second caveat.

Civil litigation limitation periods : submission to the Royal Commission into institutional responses to child sexual abuse

This submission makes one simple yet powerful recommendation for law reform to promote justice for survivors of child sexual abuse. It is informed by extensive analyses of the phenomenon of child sexual abuse and its psychological sequelae, legislative time limits and case law across Australia and internationally, the policy reasons underpinning statutory time limits generally, and the need for fairness, certainty and practicability in the legal system. The recommendation is that legislative reform is required in all Australian States and Territories to remove time limitations for civil claims for injuries caused by child sexual abuse.

Religion, Charity and Human Rights

For the first time in 400 years a number of leading common law nations have, fairly simultaneously, embarked on charity law reform leading to an encoding of key definitional matters in charity legislation. This book provides an analysis of international case law developments on the ever growing range of issues now being generated by clashes between human rights, religion and charity law. Kerry O'Halloran identifies and assesses the agenda of 'moral imperatives', such as abortion and gay marriage that delineate the legal interface and considers their significance for those with and those without religious belief. By assessing jurisdictional differences in the law relating to religion/human rights/charity the author provides a picture of the evolving 'culture wars' that now typify and differentiates societies in western nations including the USA, England and Wales, Ireland, Australia, Canada and New Zealand.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Australian boarding school supervisors : a voluntary position?

This paper aims to examine how Australian boarding supervisors (particularly non-teachers) are defined in regards to employment. The practices of Queensland’s School X (real name withheld) are used as an example of the difficult issues involved – although whether this case study is repeated elsewhere in the industry would take further research. The paper illustrates that the employment of boarding supervisors is dealt with at a basic level by a modern award, however its provisions do not represent what occurs in practice. If there is no enterprise bargain which improves upon the award, two possible explanations are put forward to explain the difference between award conditions and practice. The first is that the contract between boarding supervisors may not be one of employment. Relevant case law regarding whether a person is an employee or independent contractor is examined, and when applied to a typical boarding situation, it is concluded that any contract should be one of employment. The second explanation is that there is no legal contract at all between boarding supervisors and a school. Drawing on School X’s example where supervisors were classed as ‘volunteers’, the paper examines what the legal effect of that term might be. It could be seen to be a denial of an intention to create legal relations, a critical element in contract formation. Again, important cases are analysed on the topic of intention, and applied to a boarding context. It is argued that given the objective circumstances of a typical agreement, there is an intention to create legal relations. In particular, a little known Queensland case involving the non-employment status of boarding supervisors, which may be the cause of the confusion, is critically examined to determine its usefulness in answering the issue. Finally, the implications of not classifying boarding supervisors as employees are briefly discussed.

Enforcing upstream: Australian health and safety inspectors and upstream duty holders

The ‘new style’ occupational health and safety legislation implemented in Australia from the late 1970s changed the character of OHS legal obligations, establishing general duties supported by process, performance and, more rarely, specification standards,1 and extending obligations to those who propagate risks as designers, manufacturers, importers or suppliers — the ‘upstream duty holders’. This article examines how OHS agencies inspect and enforce OHS legislation upstream, drawing on empirical research in four Australian states and relevant case law. We argue that upstream duty holders are an increasing area of attention for OHS inspectorates but these inspectorates have not yet risen to the challenge of harnessing these parties to help stem, at the source, the flow of risks into workplaces.

Engaging expert contractors: The work health and safety obligations of the business or undertaking

This article examines the legal principles governing the statutory work health and safety general duties of principals who engage expert contractors to carry out work beyond the expertise of the principal. The article examines recent case law in which superior courts accepted the principal’s argument that the engagement of the expert contractor was sufficient to discharge the principal’s statutory work health and safety general duty. It then reframes the debate within the principles of systematic work health and safety management, and key provisions in the harmonised Work Health and Safety Acts—the primary duty of care; the key underpinning principles; the positive and proactive officer’s duty; and the horizontal duty of consultation, cooperation and coordination. It argues that it is likely that courts examining the issue of the principal’s work health and safety obligations under the harmonised Work Health and Safety Acts will require principals to do more to actively manage the work of expert contractors to ensure the health and safety of all workers and others potentially affected by the work.

Intellectual property and emerging technologies: The new biology

This unique and comprehensive collection investigates the challenges posed to intellectual property by recent paradigm shifts in biology. It explores the legal ramifications of emerging technologies, such as genomics, synthetic biology, stem cell research, nanotechnology, and biodiscovery. Extensive contributions examine recent controversial court decisions in patent law – such as Bilski v. Kappos, and the litigation over Myriad’s patents in respect of BRCA1 and BRCA2 – while other papers explore sui generis fields, such as access to genetic resources, plant breeders' rights, and traditional knowledge. The collection considers the potential and the risks of the new biology for global challenges – such as access to health-care, the protection of the environment and biodiversity, climate change, and food security. It also considers Big Science projects – such as biobanks, the 1000 Genomes Project, and the Doomsday Vault. The inter-disciplinary research brings together the work of scholars from Australia, Canada, Europe, the UK and the US and involves not only legal analysis of case law and policy developments, but also historical, comparative, sociological, and ethical methodologies. Intellectual Property and Emerging Technologies will appeal to policy-makers, legal practitioners, business managers, inventors, scientists and researchers.

Assessing testamentary capacity – who does it better? Lawyers or doctors?

The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

Bank guarantees and the reasonable expectations of beneficiaries

A bank guarantee has traditionally been viewed as a cash equivalent. This view is supported by the operation of the autonomy principle. However, the autonomy principle is subject to certain recognised exceptions both at common law and under statute. One of these exceptions is commonly referred to as the negative stipulation or underlying contract exception. In recent times the operation of this particular exception has given rise to a wealth of case law. This article examines whether this recent case law appropriately recognises the reasonable expectations of the beneficiary of a bank guarantee that a bank guarantee should function not only as a security but as a risk allocation device.

Insurance contract disclosure – an uncertain balance

This article canvasses recent case law adjudicating the uneasy disclosure balance between the interests of the insurer and the insured in the process of transacting an insurance contract. It examines also the consequences of non-disclosure and misrepresentation and whether the avowed legislative intent — that the liability of the insurer in respect of a claim is to be reduced to the amount that would place the insurer in the position it would have been had the non-disclosure or misrepresentation not occurred — is being achieved in practice. As there is no doubt as to who bears the onus of proof as to non-disclosure or misrepresentation it is surprising that insurers continue to flounder in this regard in relation to underwriting guidelines and adherence to them. The article reviews recent case law in this context and stresses that an insurer wishing to preserve its capacity to avoid liability on the basis that it would not have entered into a contract at all had the true situation been known to it must maintain detailed underwriting guidelines supported by consistent adherence to those guidelines. Recent case law also emphasises that the insurer must provide clear and cogent admissible evidence from appropriate personnel and officers of the company to discharge its onus.

Disability Standards for Education

This chapter of Higher Education and the Law considers the scope of the obligation of Australian Universities to make reasonable adjustments to facilities, procedures and curriculum, for students with disability. It reflects upon relevant case law to inform analysis of problematic aspects of that scope including, for example, the accommodation of students with problem behaviour flowing from disability and adjustment to assessment for students with disability.

Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

Identifying statutory encumbrances for seller disclosure

The standard land contracts in Queensland require a seller of land to disclose to a buyer not only registered encumbrances, but also statutory encumbrances affecting the land. Whether a statute creates a statutory encumbrance over the title to the property is therefore a key question for a seller when completing a contract. This article examines relevant case law and provides some guidelines for when a statute creates a statutory encumbrance that should be disclosed to a buyer as a defect in title.