The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Conflicts over protection of marine living resources : the ‘Volga Case’ revisited

Non-traditional maritime security concerns have become more importantthan ever in the post-Cold War era. Naval forces of most developedcountries are more concerned about these threats than conventional war.One of the main maritime security issues for many countries in the world isillegal, unreported and unregulated (IUU) fishing in the marine area. Withthese burgeoning issues comes the potential for a large number of disputesinvolving international law. In early 2002, a long-line fishing vessel under aRussian flag –the Volga, was detained by Australian authorities a few hundred meters outside the Exclusive Economic Zone of Australia’s Heard and McDonald Islands in the Southern Ocean. The vessel was reportedly engaged in illegal fishing. This incident gave birth to litigation in international and Australian courts. Apart from these cases, Russia also announced separate litigation against Australia for violation of Articles 111and 87 of the United Nations Convention on the Law of the Sea (NCLOS).Considering the outcome of these cases, this article critically examines thecharacteristics of litigation as a strategy for pacific settlement of disputesover marine living resources. Using the Volga Case as an example, thisarticle explores some issues related to the judicial settlement of disputes over marine living resources. This article demonstrates that the legal certainty of winning a case may not be the only factor influencing the strategy for settlement of an international dispute.

An illustrated history of settlement

Poem

"Talking with lips" : settlement, transnationalism and identity of Karen people from Burma living in Brisbane, Australia

This thesis explores, from an anthropological perspective, the settlement of Karen people from Burma now living in Brisbane. It critiques settlement constructs reified by public policy and settlement model-building using narratives of the lived experience of settlement. It gives voice to a typically voiceless group of people and challenges traditional conceptions of people with refugee backgrounds as passive and vulnerable, by bringing their experiences from the periphery to the centre. It explores transnationalism, identity work and Karen organisations to demonstrate how settlement can be done both to people through policy and by people through agency and self-determination.

Assisting future lawyers to conceptualise their dispute resolution advocacy role

This article discusses the key concepts that underpin an elective subject, Dispute Resolution Practice, offered in the Queensland University of Technology undergraduate law curriculum. They were conceptualised during a Teaching Fellowship when research was conducted into how to assist future lawyers to conceptualise their dispute resolution advocacy role. The unit also contains the majority of content recommended in the recent National Alternative Dispute Resolution Advisory Council Report, “Teaching Alternative Dispute Resolution in Australian Law Schools”. The environments in which lawyers operate and the knowledge and skills they require to represent clients in negotiation, mediation and conciliation processes will be examined.

Dispute resolution across platforms : offshore gambling industry & EVE online

Contemporary online environments suffer from a regulatory gap; that is there are few options for participants between customer service departments and potentially expensive court cases in foreign jurisdictions. Whatever form of regulation ultimately fills that gap will be charged with determining whether specific behavior, within a specific environment, is fair or foul; whether it’s cheating or not. However, cheating is a term that, despite substantial academic study, remains problematic. Is anything the developer doesn’t want you to do cheating? Is it only if your actions breach the formal terms of service? What about the community norms, do they matter at all? All of these remain largely unresolved questions, due to the lack of public determination of cases in such environments, which have mostly been settled prior to legal action. In this paper, I propose a re-branding of participant activity in such environments into developer-sanctioned, advantage play, and cheating. Advantage play, ultimately, is activity within the environment in which the player is able to turn the mechanics of the environment to their advantage without breaching the rules of the environment. Such a definition, and the term itself, is based on the usage of the term within the gambling industry, in which advantage play is considered betting with the advantage in the players’ favor rather than that of the house. Through examples from both the gambling industry and the Massively Multiplayer Role-Playing Game Eve Online, I consider the problems in defining cheating, suggest how the term ‘advantage play’ may be useful in understanding participants behavior in contemporary environments, and ultimately consider the use of such terminology in dispute resolution models which may overcome this regulatory gap.

Containing Queensland prickly pear : buffer zones, closer settlement, whiteness

By 1925, the introduced prickly pear (Opuntia and Nopalea spp.) covered up to 60 million acres of Queensland and New South Wales in what was perceived as prime agricultural land. After 40 years of experimentation, all Queensland Government strategies had failed. Faced with this failure and a diminishing expectation that the land would ever be conquered, buffer zones were proposed by the newly formed Queensland Prickly Pear Land Commission. A close reading of government documents, newspaper reports and local histories about these buffer zones shows how settler anxieties over who could or should occupy the land shaped the kinds of strategies recommended and adopted in relation to this alien species. Physical and cultural techniques were used to manage the uneasy coexistence between prickly pear, on the one hand, and farmers and graziers on the other. Furthermore, this environmental history challenges the notion of racially homogenous closer settlement under the White Australia Policy, showing the many different kinds of livelihood and labour in prickly pear land in the 1920s.

Migrants' use of the Internet in re-settlement

The project is a qualitative and ethnographic study investigating how the internet is used by migrants from cultural and linguistically diverse (CALD) groups. It examines how internet use assists the re- settlement process in Brisbane, Australia. The project aims to support strategies and initiatives in the successful re-settlement of migrants from CALD groups into urban localities. It has 2 main foci: • To find out how and what type of online information and services are used by migrants and what are the barriers to accessing the information. Information and resources about transport, housing, health, social services, education and other information is essential for successful re-settlement. • In what ways is the internet is used as a social medium, to communicate with friends and family in homeland countries and connect with people in local regions, in ways that might help to combat social isolation.

SettleMEN : health and settlement among men from refugee backgrounds living in South East Queensland

Between 2008 and 2010, the SettleMEN study followed a cohort of 233 recently arrived men from refugee backgrounds living in urban and regional areas of South East Queensland with the aim of documenting their health and settlement experiences. This report presents the key findings of the study.

Good Starts for recently arrived youth with refugee backgrounds : promoting wellbeing in the first three years of settlement in Melbourne, Australia

This report describes the key findings of a longitudinal study (2004—2008) investigating the experiences of settlement among a group of 120 recently arrived young people with refugee backgrounds settling in Melbourne, Australia. Each year, less than one per cent of the world’s refugees are offered resettlement in one of 18 countries participating in The Office of the United Nations High Commissioner for Refugees (UNHCR) resettlement programme. Australia offers places to around 13,500 people per year, of whom about 26 per cent are between the ages of 10 and 19. What are the experiences of these young people in their early settlement years? How do they negotiate the transition from childhood to adulthood given the traumas of their past and the challenges of their present and future in Australia? What are the key social determinants of wellbeing and good settlement and what can we learn from these young people about what social policies and services will most effectively support them to make successful lives in their new home? This study explores these questions, the overall aim being to identify the key social determinants of wellbeing and settlement and to describe the lived experiences of these young people as they shape their lives in Australia.

Analysis of construction dispute review boards

The construction industry has long been burdened with inherent adversarial relationships among the parties and the resulting disputes. Dispute review boards (DRBs) have emerged as alternatives to settle construction-related disputes outside courts. Although DRBs have found support in some quarters of the construction industry, the quantitative assessment of the impact of DRBs has not been adequately addressed. This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large-scale highway agency. Three dimensions of DRB impact were assessed: (1) influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10-year period (2000–2009). Quantitative measures of performance were developed and analyzed for each category. Projects that used DRBs faced reduced costs and schedule growth (6.88 and 12.92%, respectively) when compared to non-DRB projects (11.53 and 28.96%). DRBs were also found to be effective in avoiding and settling disputes; the number of arbitration cases reduced consistently after DRB implementation, and DRBs have a success rate of 97% in settling disputes for which DRBs were used. Moreover, costs of DRBs were found to comprise a relatively small fraction (i.e., approximately 0.3%) of total project budgets. It was concluded that DRBs were effective dispute prevention and resolution alternatives with no significant adverse effects on project performance.

The Workcover Queensland Act 1996 : new procedures for common law claims [Part 2]

This article explains the new pre-court procedures and additional procedures designed to foster settlement of claims introduced by the Workcover Queensland Act 1996, and the implication of the new provisions for practitioners.

Studying refugee settlement through longitudinal research : methodological and ethical insights from the Good Starts study

Research involving resettled refugees raises methodological and ethical complexities. These complexities typically emerge within cross-sectional research that focuses on refugee experiences at a specific point in time. Given the long term and dynamic nature of refugee settlement, longitudinal research is valuable, yet it raises distinct complexities within the research process. This article focuses on the methodological and ethical insights that emerged in a longitudinal study of settlement and wellbeing with a cohort of young people from refugee backgrounds in Australia. It considers: engagement and retention of a cohort over time; the need to adapt research tools to changing settlement contexts and life stages; participants’ experiences of long-term involvement in the study; and the challenge of timely translation of findings into evidence for policy and practice. The article contributes to a growing understanding of the practical, ethical and epistemological challenges and opportunities presented by longitudinal research, in this case, with resettled refugee background youth.

Representing clients from courtroom to mediation settings : switching hats between adversarial advocacy and dispute resolution advocacy

In the vast majority of cases legal representation in mediation can provide many advantages for clients. However, in some, progress can be thwarted when lawyers do not understand the goals of the mediation process and their dispute resolution advocacy role. This article will explore some of the similarities and differences between the knowledge and skills that lawyers can draw upon when representing clients in adversarial court hearings as compared with non-adversarial settings, such as in mediations. One key distinction is the different approaches that legal representatives can use to effectively act in the best interests of clients. This article will highlight how an appreciation of such distinctions can assist lawyers to “switch” hats between their adversarial and non-adversarial roles. In particular, an understanding that the duty to promote the best interests of clients in mediation is consistent with a collaborative and problem-solving approach can greatly assist in the resolution process.